Opinion
No. 1551 Disciplinary Docket No. 3 No. 183 DB 2009
02-18-2016
In the Matter of WAYNE D. BOZEMAN PETITION FOR REINSTATEMENT
ORDER
PER CURIAM
AND NOW, this 13th day of April, 2016, the Petition for Reinstatement is denied.
Petitioner is directed to pay the expenses incurred by the Board in the investigation and processing of the Petition for Reinstatement. See Pa.R.D.E. 218(f). A True Copy Patricia Nicola
As Of 4/13/2016 Attest: /s/_________
Chief Clerk
Supreme Court of Pennsylvania Attorney Registration No. 200258 (Chester County)
REPORT AND RECOMMENDATIONS OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA:
Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, The Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your Honorable Court with respect to the above captioned Petition for Reinstatement.
I. HISTORY OF PROCEEDINGS
By Petition dated September 29, 2014, Wayne D. Bozeman seeks reinstatement to the bar of Pennsylvania following his suspension on consent for a period of five years imposed by Order of the Supreme Court dated October 3, 2011, retroactive to December 16, 2009. Office of Disciplinary Counsel filed a Response to Petition for Reinstatement on January 21, 2015, in opposition to reinstatement.
A reinstatement hearing was held on April 17, 2015, before a District II Hearing Committee comprised of Chair Denis A. Gray, Esquire and Members Eric J. Bronstein, Esquire and Sean A. Murphy, Esquire. Petitioner was represented by Barbara S. Rosenberg, Esquire. Petitioner testified on his own behalf and presented the testimony of six witnesses. He submitted Exhibits P-1 through P-6 and other attachments. Office of Disciplinary Counsel did not offer any witnesses or introduce exhibits.
Following the submission of Briefs by the parties, the Hearing Committee filed a Report on September 8, 2015 and recommended that the Petition for Reinstatement be denied.
No Briefs on Exception were filed by the parties.
This matter was adjudicated by the Disciplinary Board at the meeting on October 22, 2015.
II. FINDINGS OF FACT
The Board makes the following findings of fact:
1. Petitioner is Wayne D. Bozeman. He was born in 1947 and was admitted to the practice of law in Pennsylvania in 2005. His attorney registration address is 123 Cloud Place, West Chester, PA 19380. Petitioner is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
2. On October 3, 2011, the Supreme Court of Pennsylvania suspended Petitioner on consent for a period of five years, retroactive to his temporary suspension on December 16, 2009. RQ, attachment B.
3. On November 14, 2011, Petitioner filed a Statement of Compliance as required by Rule 217, Pa.R.D.E. RQ, attachments G & H.
4. Petitioner joined the United States Marine Corps in 1967 and received an honorable discharge under medical conditions in 1970. N.T. 17.
5. Petitioner worked in business for 28 years before attending law school. RQ, attachment A.
6. Following his admission to the bar in New Jersey in 2006, Petitioner worked as a law clerk in the New Jersey Superior Court for approximately one year, then obtained an associate's position with a Camden law firm, which lasted for approximately 15 months until he left to form his own firm. RQ, attachment A.
7. From January 2008 to September 2009, Petitioner was a partner with Ralph A. Powell, Esquire in the law firm of Powell Bozeman, P. A. RQ, attachment A; N.T. 21, 182.
8. Powell Bozeman's practice focused on Fair Labor Standards Act ("FLSA") cases in federal court. N.T. 21.
9. On June 17, 2008, a federal grand jury for the Eastern District of Pennsylvania returned an indictment charging Attorney Bernard J. Bagdis and eleven other defendants, including Petitioner, with tax crimes. RQ, attachment D.
10. Attorney Bagdis prepared and Petitioner knowingly signed and filed, false federal income tax returns for the years 2000 through 2007, by failing to report substantial additional income earned by Petitioner and paid to him by Advanced Game Concepts, Inc. RQ, attachment D.
11. On March 13, 2009, Petitioner entered a guilty plea in the United States District Court for the Eastern District of Pennsylvania before the Honorable J. Curtis Joyner to one count of conspiracy to defraud the United States of taxes, in violation of U.S.C. § 371. RQ, attachment D; N.T. 22.
12. On September 17, 2009, Judge Joyner sentenced Petitioner to a term of imprisonment of twenty-two months and to a term of supervised release of three years and ordered Petitioner to pay restitution of $137,635.00 to the IRS, to satisfy all penalties and interest owing to the IRS as a result of his misconduct and to pay the Pennsylvania Department of Revenue ("DOR") any state taxes and penalties due as a result of his misconduct. RQ, attachment D; N.T. 22.
13. Petitioner paid the restitution ordered by the Court on March 10, 2010, and, in 2014, he fully satisfied his remaining obligations to the IRS and to the Pennsylvania DOR resulting from his conviction. N.T. 26; RQ, attachment Q.
14. Petitioner received the maximum amount of credit for good conduct while incarcerated and was released from prison in March 2011, after serving nineteen of the twenty-two months of his sentence. N.T. 24; 52.
15. Petitioner was placed on home confinement until his prison term officially ended in May 2011, and while on home confinement, he was monitored by a half-way house, permitted to work as a W-2 employee and required to pay the half-way house twenty-five percent of his weekly gross earnings to offset the monitoring costs. N.T. 52; Ex. P-2.
16. A few months before he was released from prison, Petitioner was visited by Richard P. Myers, Esquire, Petitioner's former trial advocacy law professor. N.T. 48.
17. During the prison visit, Attorney Myers offered Petitioner a job as a paralegal to work for Attorney Myers on FLSA collective action cases for a salary of $1,600.00 bi-weekly, with responsibility for conducting legal research and preparing written drafts of pleadings, motions, responses to motions and discovery documents. N.T. 48, 50, 74, 100, 101, 108, 109; Ex. P-4.
18. Attorney Ralph Powell, with whom Petitioner was formerly associated, also worked with Attorney Myers on the same FLSA collective action cases, with responsibility for communication with class member-plaintiffs. N.T. 49, 105, 106, 189.
19. Petitioner was aware when he started his arrangement with Attorney Myers that the Pennsylvania Rules of Disciplinary Enforcement prohibited him from performing law-related activities for Attorney Powell, and Petitioner's attorney pointed out the specific rule to him either before, or shortly after, he started working for Attorney Myers. N.T. 80.
20. Petitioner was "thrilled" to have been offered a job in the legal profession and for him, "- - I don't want to say is wasn't important, but I knew that I wasn't going to be doing anything with or for Powell anyhow." Petitioner's understanding was there was no plan or proposal from Attorney Myers that suggested he would have anything to do with Attorney Powell. N.T. 80-82.
21. Although Petitioner listed May 2011 as the start date of his arrangement with Attorney Myers, he did not file a notice of engagement and certification with the Disciplinary Board until February 17, 2012. RQ, No. 11, attachment M-1; N.T. 89-90, 117-118.
22. On August 27, 2014, Petitioner and Attorney Myers filed an "Updated Notice of Engagement" with the Disciplinary Board. RQ, attachment M-2.
23. According to the testimony of Petitioner, Attorney Myers and Attorney Powell, Attorney Powell had no supervisory responsibility for the law-related activities Petitioner performed as a paralegal. N.T. 50, 56, 106, 179.
24. On the FLSA cases on which Petitioner worked, Attorney Myers and Attorney Powell were and continue to be co-counsel. N.T. 86, 101, 106, 127-128.
25. Attorney Myers testified at the reinstatement hearing. He indicated that Attorney Powell is copied on every filing and every motion that Petitioner prepares for Attorney Myers, so that Attorney Powell is apprised of the status of the case. N.T. 57, 106.
26. Attorney Myers depends on Attorney Powell "to do most of the client relations and it's a lot."..."[l]n terms of the knits [sic] and grits of lawyering, it's Wayne [Petitioner] and me, and Ralph [Powell] handles the clients"..."Talking to the clients is handled by Mr. Powell. We collaborate - and believe me all three of us collaborate on the massive administrative stuff that goes in this case, and Mr. Bozeman being one of them and trying to keep track of the spreadsheets and who has been sent what. Mr. Powell has most of the client contact." N.T. 105-106; 127-128.
27. In response to a question as to how he monitors or ensures that Petitioner is having no improper client contact, Attorney Myers responded: "Well, I don't have a tap on his telephone, but that's not one of the assignments he has. So, for example, if I or Mr. Powell am talking to a client - and let's assume that we're preparing interrogatory answers, for example. That's very well something Wayne [Petitioner] may be responsible for in filing those interrogatory answers, but we will have a questionnaire that Ralph and I or both of us have compiled for him to do the interrogatory answers with." N.T. 119-120.
28. Attorney Powell testified at the reinstatement hearing. Regarding the preparation and filings of the FLSA cases, Attorney Powell indicated that "Well, they come from Mr. Myers, I assume that Mr. Bozeman finishes them or does that work, and then Mr. Myers looks it over and makes the final. Sometimes he files them. Sometimes I sign them...I think both of us put that f/s". Attorney Powell's name and Attorney Myers' name are on the caption of the FLSA cases. N.T. 201-202.
29. In addition to the FLSA cases, Petitioner performed law-related services in the Gruenwald matter, an intellectual property breach of contract case filed in the Bucks County Court of Common Pleas. N.T. 177; RQ, attachment V.
30. Mr. Gruenwald is a friend of Attorney Powell and the case came through Attorney Powell. N.T. 126.
31. Petitioner had contact with Mr. Gruenwald at two depositions that he, Attorney Myers and Attorney Powell attended. N.T. 56-62.
32. Mr. Gruenwald submitted an affidavit on behalf of Petitioner stating that "Mr. Bozeman has performed a great deal of work on [his] case and [Mr. Gruenwald has] had the opportunity to talk with [Petitioner] on many occasions. " RQ, attachment V.
33. Petitioner explained that he "talked to [Mr. Gruenwald] at the depositions that he and I attended, and "that was it." N.T. 79. Petitioner's function was to keep track of the massive amount of documents. N.T. 80.
34. Petitioner's 2011 W-2 Statement listed $8,320.00 in wages and identified Attorney Powell as Petitioner's employer. Petitioner also received a 2011 1099-MISC form listing compensation of $25,600 and Attorney Powell as the Payer. In his Reinstatement Questionnaire, Petitioner listed $33,920.00 of income for the year 2011 and Attorney Myers as the source of that income. RQ No. 12; Ex. P-6.
35. Petitioner's 2012 and 2013 1099 forms listed compensation of $41,600 and Attorney Powell as the Payer. In the Reinstatement Questionnaire, Petitioner listed income of $41,600 for the years 2012 and 2013 and Attorney Myers as the source of that income. RQ No. 12; Ex. P-6.
36. Petitioner explained that although Attorney Myers pays his salary, it is Attorney Powell who issues his paycheck, and Petitioner did not know the reason why Attorney Myers asked Attorney Powell to pay him. N.T. 51, 75, 76, 180, 181, 185, 198; Ex. P-6.
37. Attorney Myers sent Attorney Powell money, from which Attorney Powell paid Petitioner, and Attorney Powell also provided Petitioner with all required pay documentation for tax purposes. N.T. 180-181.
38. At times, Attorney Powell supplied the funds himself to pay Petitioner because Attorney Myers did not always give him all of the money. N.T. 181, 182.
39. In May 2011, Petitioner filed a Chapter 7 bankruptcy petition, in which he listed his occupation as "paralegal" and Ralph A. Powell, Esquire P.C. as his "employer." Ex. P-1.
40. Petitioner's individual petition for Chapter 7 bankruptcy liquidation involved personal debt remaining from a business he had closed in 2008, debt that he could not satisfy from his earnings as paralegal. N.T. 37-39.
41. On Schedule I of the bankruptcy petition, entitled "Your Income," Petitioner listed Ralph A. Powell, Esquire P.C. as his "employer" because, according to Petitioner's testimony, Attorney Powell paid Petitioner from money sent to him by Attorney Myers for that purpose, and Petitioners only income documentation, which was required to be submitted with his bankruptcy petition, came from Attorney Powell. N.T. 55-56; Ex. P-1.
42. In August 2011, Petitioner was granted a Chapter 7 bankruptcy discharge by the Court. N.T. 38-39.
43. If Petitioner is reinstated, Attorney Myers has offered Petitioner a job as an attorney, which Petitioner indicated he would accept. N.T. 65 - 66; RQ, attachment U.
44. During his suspension, Petitioner has performed volunteer community service for a variety of organizations, including LaMancha Animal Rescue, Aid for Friends, and the Dorothy Day Ministry Center at St. Agnes Catholic Church in West Chester. N.T. 39-44.
45. Petitioner accepts full responsibility for his misconduct and deeply regrets the pain he caused his family and the disrepute his actions brought to the legal profession. N.T. 22-23, 24, 63-64, 132-133, 146-147, 155, 157, 169-170.
46. During the hearing, Petitioner expressed remorse that he failed to pay more attention to his taxes and take his tax returns to an independent accountant when he started having doubts, but stated that he did not so and it was his sole responsibility. N.T. 23-24.
47. Petitioner has learned from his experience and intends to never again engage in dishonest or improper conduct. N.T. 63-64.
48. Petitioner's witnesses credibly testified that they did not believe Petitioner would ever again engage in dishonest or improper conduct in the future. N.T. 135-36, 147.
49. Petitioner fulfilled his Continuing Legal Education credits required for reinstatement. Ex. P-3.
III. CONCLUSIONS OF LAW
1. Petitioner has not met his burden of establishing by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required to practice law in this Commonwealth. Rule 218(c)(3), Pa.R.D.E.
2. Petitioner has failed to demonstrate by clear and convincing evidence that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest. Rule 218(c)(3), Pa.R.D.E.
IV. DISCUSSION
Petitioner seeks reinstatement to the practice of law in Pennsylvania following suspension for a period of five years, retroactive to December 16, 2009. To gain reinstatement, Petitioner has the burden of proving by clear and convincing evidence that he is morally qualified, competent and learned in the law and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest. Rule 218(c)(3), Pa.R.D.E.; In the Matter of Lawrence D. Greenberg, 749 A.2d 434 (Pa. 2000); In the Matter of Jerome J. Verlin, 731 A.2d 600 (Pa. 1999). A reinstatement hearing is an inquiry into a lawyer's present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer's suspension, but rather the nature and extent of the rehabilitative efforts made since the time the sanction was imposed and the degree of success achieved in the rehabilitative process. Philadelphia Newspapers, Inc. v. Disciplinary Board of the Supreme Court, 363 A.2d 779 (Pa. 1976).
We conclude from the evidence of record that Petitioner has failed to meet his burden and we recommend that the Petition for Reinstatement be denied.
The underlying misconduct for which Petitioner consented to a five-year suspension was his criminal conviction of one count of conspiracy to defraud the United States of taxes, for which he was imprisoned for a period of nineteen months followed by home confinement.
Prior to his suspension, Petitioner was a law partner of Ralph A. Powell, Esquire from January 2008 to September 2009. This time period is after the date on which the acts which resulted in Petitioner's suspension occurred, as Petitioner's misconduct occurred during the time frame 2000-2007, with an indictment returned in June of 2008 and Petitioner's guilty plea in March of 2009. Petitioner performed law-related activities during his suspension for and with Attorney Powell, in violation of Rule 217(j)(4), Pa.R.D.E., which prohibits an attorney from performing any law-related activities for a lawyer with whom the attorney was associated on or after the date on which the acts resulting in suspension occurred.
The evidence of record demonstrates that although it was Attorney Myers who offered Petitioner a job as a paralegal to work on FLSA collective action cases, Attorney Powell handled and worked on those cases with both Attorney Myers and Petitioner in a full collaborative effort. Petitioner was responsible for conducting legal research and preparing written drafts of pleadings, motions, and responses to motions and discovery documents. Attorney Powell was responsible for communicating with class member-plaintiffs. Attorney Myers and Attorney Powell co-counseled these cases so that every filing and motion that Petitioner prepared for Attorney Myers was received by Attorney Powell via email because Attorney Myers was keeping Attorney Powell apprised of the status of each case and was soliciting Attorney Powell's input. Petitioner admitted that Attorney Myers had requested that Petitioner email copies of Petitioner's work product to Attorney Powell. The names of both Attorney Myers and Attorney Powell were on the caption of the FLSA cases.
In addition to the FLSA cases, the evidence demonstrates that Petitioner performed law-related services for Attorney Powell in the Gruenwald matter filed in the Bucks County Court of Common Pleas. Petitioner was present at two depositions attended by Attorney Powell as well as Attorney Myers. Petitioner had contact with Mr. Gruenwald at the depositions, although the nature of the contact is not entirely clear from the record.
Petitioner was aware at the time of the arrangement with Attorney Myers, that he was prohibited from performing law-related activities for Attorney Powell. However, he was "thrilled" to have been offered a job in the legal profession and felt that the rule was not critical for him, as he believed there was no plan or proposal for him to work with Attorney Powell. While this may have been Petitioner's initial impression, it became quite clear to Petitioner shortly after he started his paralegal duties that he was working for and with Attorney Powell. In addition to the above-noted law-related activities undertaken in connection with Attorney Powell, Petitioner's paycheck was issued by Attorney Powell, who also provided Petitioner with all required pay documentation for tax purposes. Attorney Powell was identified as Petitioner's employer on his 2011 W-2 Statement and on the 2011 1099-MISC form. Petitioner further identified Attorney Powell as the Payer on his 2012 and 2013 1099 forms where he listed his compensation. Petitioner identified Attorney Powell as his employer on his 2011 Chapter 7 bankruptcy petition.
The appropriate conclusion to be drawn from Petitioner's performance of law-related activities for and with Attorney Powell is that he circumvented the requirements of Rule 217(j), Pa.R.D.E. and lacks the qualifications to return to the practice of law at this time. His willingness to engage in prohibited activities for the sake of maintaining legal employment suggests that he may be predisposed to commit ethical wrongdoing in the future, as his ability to make important judgment calls is questionable. He allowed himself to become involved in activities that violated the rules and did nothing to extricate himself from the arrangement with Attorney Powell, or even to question it closely. Petitioner has not convinced this Board that he is fit to practice law.
V. RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the reinstatement of Petitioner, Wayne D. Bozeman, be denied.
The Board further recommends that, pursuant to Rule 218(f), Pa.R.D.E., Petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the Petition for Reinstatement.
Respectfully submitted,
THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
By:/s/_________
Andrew J. Trevelise, Board Member Date: February 18, 2016 Board Members Porges and Cordisco did not participate in the adjudication.