Opinion
No. 178 DB 2013 File No. C1-12-600
03-10-2014
OFFICE OF DISCIPLINARY COUNSEL Petitioner v. MAX JOSEF ERNST Respondent
Attorney Registration No. 209156
(Philadelphia)
PUBLIC REPRIMAND
Max Josef Ernst, you stand before the Disciplinary Board, your professional peers and members of the public for the imposition of a Public Reprimand. It is an unpleasant task to publicly reprimand one who has been granted the privilege of membership in the bar of this Commonwealth. Yet as repugnant as this task may be, it has been deemed necessary that you receive this public discipline.
Mr. Ernst, at all times relevant to this matter you were an associate at Obermyer Rebmann Maxwell & Hippel LLP. As such, you were assigned to handle an immigration matter for The Purolite Company, a client of the firm. From November 2011 to January 2012, you corresponded with Steven Brodie, an employee of Purolite, regarding the preparation and filing of a Form I-129 Petition for Non-Immigrant Worker for L-1B visa status with the United States Citizenship and Immigration Services ("USCIS") for Cristina Dorona Fey, a Purolite employee. By January 4, 2012, you had completed the Petition and other necessary forms and supporting documents for filing with the USCIS, but you failed to file the Petition.
From January 16, 2012 through May 17, 2012, you misrepresented to Mr. Brodie and to the Obermyer firm the filing and status of the Petition. These representations were in the form of emails, letters, and face-to-face conversations. You misrepresented the existence of a USCIS employee named Terence Godfrey," with whom you purportedly communicated regarding the Petition; you misrepresented the existence of an investigator named "Andrew Freeman," with whom you purportedly communicated regarding the Petition; you misrepresented that the USCIS was seeking additional information in order to process the Petition; you misrepresented that the Immigration and Customs Enforcement ("ICE") was conducting a fraud investigation of the Petition; you misrepresented that you had forwarded on two separate occasions documents to the USCIS and ICE; and you misrepresented your reason for being absent from the Obermayer firm from May 3, 2012 to May 15, 2012.
In February of 2012, you submitted time records to the law firm that billed Purolite for services you had allegedly provided that related to the Petition. The firm then unwittingly used the false time records to submit a bill to Purolite for legal services that you had either not performed or performed to conceal your misconduct.
Under cover of a letter dated April 11, 2012, you filed with the USCIS the Petition and other necessary forms and documents on behalf of Ms. Fey, and used your personal checks to pay the filing fees. You neglected to inform Mr. Brodie and your law firm that you had filed the Petition. The Petition was returned to Purolite because one of the personal checks you used to pay the filing fees was in the wrong amount. In an email to Mr. Brodie, you misrepresented the reason the Petition was returned for unpaid fees and falsely claimed that the "original petition was submitted back in January and remains in effect."
On May 3, 2012, you and your wife left the country for a vacation in Kenya and returned on May 15, 2012. You claimed you were away from the office because of a family health crisis, but upon your return, you were questioned by the firm regarding the Petition and your absence. You subsequently admitted that you made misrepresentations concerning these matters.
Your actions have violated the following Rules of Professional Conduct:
1. RPC 1.3 - A lawyer shall act with reasonable diligence and promptness in representing a client;
2. RPC 1.4(a)(3) - A lawyer shall keep the client reasonably informed about the status of the matter;
3. RPC 1.4(a)(4) - A lawyer shall promptly comply with reasonable requests for information;
4. RPC 1.4(b) - A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation;
5. RPC 1.5(a) - A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee;
6. RPC 4.1(a) - In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person;
7. RPC 8.4(a) - It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
8. RPC 8.4(c) - It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
We note that you have been practicing law since 2008 and have no history of discipline. We further note that you voluntarily sought therapy to address personal issues related to this matter and informed your current law firm of the instant circumstances.
Mr. Ernst, the conduct that has brought you to this moment is in the record of this proceeding and is now fully public. This Public Reprimand is now a matter of public record.
As you stand before the. Board today, we remind you that you have a continuing obligation to adhere to the Rules of Professional Conduct and Rules of Disciplinary Enforcement. This Public Reprimand is proof that Pennsylvania lawyers will not be permitted to engage in conduct that falls below professional standards. Be mindful that any future dereliction may subject you to disciplinary action.
This Public Reprimand shall be posted on the Disciplinary Board's website at www.padisciplinaryboard.org.
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Designated Member
The Disciplinary Board of the
Supreme Court of Pennsylvania
Administered by a designated panel of three Members of The Disciplinary Board of the Supreme Court of Pennsylvania, at Philadelphia, Pennsylvania, on March 10, 2014.
ACKNOWLEDGMENT
The undersigned, Respondent in the above proceeding, herewith acknowledges that the above Public Reprimand was administered in his presence and in the presence of the designated panel of The Disciplinary Board at the Board Offices located at 16th Floor, Seven Penn Center, 1635 Market Street, Philadelphia, Pennsylvania, on March 10, 2014.
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Max Josef Ernst