Opinion
No. 120 DB 2018
05-03-2019
OFFICE OF DISCIPLINARY COUNSEL Petitioner v. ROBERT IRA LIPKIN Respondent
Attorney Registration No. 30276 (Schuylkill County) ORDER
AND NOW, this 3rd day of May, 2019, in accordance with Rule 215(g), Pa.R.D.E., the three-member Panel of the Disciplinary Board having reviewed and approved the Joint Petition in Support of Discipline on Consent filed in the above captioned matter; it is
ORDERED that the said ROBERT IRA LIPKIN be subjected to a PUBLIC REPRIMAND by the Disciplinary Board of the Supreme Court of Pennsylvania as provided in Rule 204(a) and Rule 205(c)(9) of the Pennsylvania Rules of Disciplinary Enforcement.
BY THE BOARD:
/s/_________
Board Chair TRUE COPY FROM RECORD
Attest: /s/_________
Marcee D. Sloan
Board Prothonotary
The Disciplinary Board of the
Supreme Court of Pennsylvania JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT PURSUANT TO Pa.R.D.E. 215(d)
Petitioner, the Office of Disciplinary Counsel (hereinafter, "ODC") by Paul J. Killion, Chief Disciplinary Counsel, and Daniel S. White, Disciplinary Counsel, and Respondent, Robert Ira Lipkin, (hereinafter "Respondent"), respectfully petition the Disciplinary Board in support of discipline on consent, pursuant to Pennsylvania Rule of Disciplinary Enforcement ("Pa.R.D.E.") 215(d), and in support thereof state:
1. ODC, whose principal office is situated at the Pennsylvania Judicial Center, 601 Commonwealth Avenue, Suite 2700, P.O. Box 62485, Harrisburg, Pennsylvania, 17106, is invested, pursuant to Pa.R.D.E. 207, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid Enforcement Rules.
2. Respondent, Robert Ira Lipkin, was born on April 14, 1947, and was admitted to practice law in the Commonwealth on October 17, 1979. Respondent is on active status and his current public mailing address is P.O. Box 99, Orwigsburg, PA 17961. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.
SPECIFIC FACTUAL ALLEGATIONS ADMITTED
3. Respondent's affidavit stating, inter alia, his consent to the recommended discipline is attached hereto as Exhibit "A".
Ronald Dalton
4. In December of 2014, Ronald Dalton retained Respondent to file a Chapter 13 bankruptcy petition on his behalf in exchange for a legal fee in the amount of three thousand eight hundred dollars ($3,800.00).
5. By check number 2079 dated December 10, 2014, Mr. Dalton paid Respondent two thousand dollars ($2,000.00).
6. By check number 2107 dated February 12, 2015, Mr. Dalton paid Respondent nine hundred dollars ($900.00).
7. By check number 2165 dated April 24, 2015, Mr. Dalton paid Respondent one hundred dollars ($100.00).
8. By check number 2173 dated May 9, 2015, Mr. Dalton paid Respondent one hundred dollars ($100.00).
9. Respondent failed to deposit of any Mr. Dalton's advance payments, set forth in paragraphs 5-8 supra, into a Trust Account or IOLTA.
10. Respondent failed to obtain Mr. Dalton's informed consent, confirmed in writing, to not maintain such funds in a Trust Account or IOLTA.
11. Respondent failed to file a Chapter 13 bankruptcy petition on Mr. Dalton's behalf.
12. Mr. Dalton called Respondent several times between January 2017 and June 2017.
13. Respondent rarely answered or returned Mr. Dalton's calls.
14. In or after May of 2017, Mr. Dalton sent two tetters to Respondent requesting a refund of his advance payments.
15. Respondent failed to respond to Mr. Dalton's letters.
16. Respondent failed to promptly refund any portion of Mr. Dalton's advance payments.
Wayne Drumheller
17. In or before May of 2014, Wayne Drumheller hired Respondent to file a bankruptcy petition on his behalf in exchange for four thousand five hundred dollars ($4,500.00).
18. Respondent had not previously represented Mr. Drumheller.
19. Respondent failed to explain the basis or rate of bis fee to Mr. Drumheller in writing.
20. On May 28, 2014, Mr. Drumheller paid Respondent four thousand five hundred dollars ($4,500.00) in cash.
21. Respondent failed to deposit Mr. Drumheller's advance payment into a Trust Account or IOLTA.
22. Respondent failed to obtain Mr. Drumheller's informed consent, confirmed in writing, to not maintain such funds in a Trust Account or IOLTA.
23. Respondent failed to file a bankruptcy petition on Mr. Drumheller's behalf.
24. In January of 2017, Mr. Drumheller terminated Respondent's representation and requested a refund of his four thousand five hundred dollar ($4,500.00) advance payment.
25. Respondent agreed to provide Mr. Drumheller with a full refund, but advised that it would be issued by way of several payments due to Respondent's financial situation.
26. Respondent failed to promptly refund any portion of Mr. Drumheller's advance payments.
Failure to Comply with Condition of Informal Admonition
27. By letter dated April 17, 2018, Chief Disciplinary Counsel Paul J. Killion advised Respondent, inter alia, that it had been determined that Respondent should receive an informal admonition for his misconduct as set forth in paragraphs 4-26 supra.
28. This letter informed Respondent that:
There is a Condition attached to this sanction:
You shall refund advance payments of legal fees in the amount of three thousand one hundred dollars ($3,100.00) to Mr. Dalton and four thousand five hundred dollars ($4,500.00) to Mr. Drumheller. Your satisfaction of this condition has no effect on Mr. Drumheller's right to pursue any other damages to which be may be entitled in the matter of Drumheller v. Lipkin , S-2154-2017 (Court of Common Pleas of Schuylkill County). This condition must be completed within 30 days of this letter.
(emphasis in original)
29. By undated letter to Chief Disciplinary Counsel Paul J. Killion received on May 16, 2018, Respondent advised that "with respect to your condition of payments to Dalton and Drumheller, I am unable to do so. I lost my previous employment in January 2018..."
30. By letter to Respondent dated May 21, 2018, Disciplinary Counsel directed Respondent to comply with the condition set forth in paragraph 28 supra within thirty (30) days.
31. By letter to Disciplinary Counsel and Chief Disciplinary Counsel Paul J. Killion dated June 19, 2018, Respondent stated his "desire to promptly and reasonably resolve this situation," and referenced a "restitution check in the amount of $50.00" that he was "willing to pay...on a monthly basis hoping that they so appear."
32. Respondent failed to comply with the condition set forth at paragraph 28 supra.
33. In or before February of 2019, the Pennsylvania Lawyers Fund for Client Security (hereinafter "Client Security") awarded four thousand five hundred dollars ($4,500.00) to Mr. Drumheller.
34. By check number 1127 dated March 13, 2019, Respondent provided a refund to Mr. Dalton in the amount of three thousand one hundred dollars ($3,100.00). Mr. Dalton successfully negotiated this check.
35. In or before April of 2019, Respondent reimbursed Client Security for its award to Mr. Drumheller and paid the interest charged by Client Security pursuant to Pa.R.D.E. 531. Respondent's obligation to Client Security was thereby satisfied in full.
SPECIFIC RULES OF PROFESSIONAL CONDUCT VIOLATED
36. With respect to his representations of both Mr. Dalton and Mr. Drumheller, Respondent violated RPC 1.3, which states that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."
37. With respect to his representations of both Mr. Dalton and Mr. Drumheller, Respondent violated RPC 1.4(a)(3), which states that "[a] lawyer shall keep the client reasonably informed about the status of the matter."
38. With respect to his representation of Mr. Drumheller, Respondent violated RPC 1.5(b), which states that "[w]hen the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation."
39. With respect to his representations of both Mr. Dalton and Mr. Drumheller, Respondent violated RPC 1.15(b), which states that "[a] lawyer shall hold all Rule 1.15 Funds and property separate from the lawyer's own property. Such property shall be identified and appropriately safeguarded."
40. With respect to his representations of both Mr. Dalton and Mr. Drumheller, Respondent violated RPC 1.15(e), which states, in pertinent part, that "[e]xcept as stated in this Rule or otherwise permitted by law or by agreement with the client or third person, a lawyer shall promptly deliver to the client or third person any property, including but not limited to Rule 1.15 Funds, that the client or third person is entitled to receive."
41. With respect to his representations of both Mr. Dalton and Mr. Drumheller, Respondent violated RPC 1.15(i), which states that "[a] lawyer shall deposit into a Trust Account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, unless the client gives informed consent, confirmed in writing, to the handling of fees and expenses in a different manner."
42. With respect to his representations of both Mr. Dalton and Mr. Drumheller, Respondent violated RPC 1.16(d), which states, in pertinent part, that "[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as...refunding any advance payment of fee or expense that has not been earned or incurred."
43. With respect to his representations of both Mr. Dalton and Mr. Drumheller, Respondent violated RPC 3.2, which states that "[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client."
SPECIFIC RECOMMENDATION FOR DISCIPLINE
PUBLIC REPRIMAND
44. Respondent and Petitioner previously submitted a Joint Petition in this matter, recommending a private reprimand with conditions that Respondent make monthly payments to Mr. Dalton and Mr. Drumheller until he had fully refunded their advance payments.
45. On November 5, 2018, a three-member panel of this Honorable Board denied this Joint Petition and noted its recommendation that Respondent should "receive a public reprimand."
46. A public reprimand is appropriate in cases of IOLTA misuse, neglect, and failure to promptly refund unearned legal fees. Office of Disciplinary Counsel v. Bernard, 52 DB 2015 (2015) (misappropriation of client funds required to be held in an IOLTA, reimbursement of such funds, and no record of discipline in almost forty years); Office of Disciplinary Counsel v. Taglianetti, 197 DB 2015 (2016) (failure to retain settlement funds necessary to resolve Medicare lien in one client matter, failure to file a real estate deed or refund legal fee until ODC investigation in another matter, and a record of discipline consisting of an informal admonition).
47. Respondent has no history of discipline in over thirty-nine (39) years as a member of the Bar of the Commonwealth of Pennsylvania.
48. Respondent has belatedly accepted responsibility, expressed remorse, refunded unearned fees to Mr. Dalton and reimbursed Client Security in connection with its award to Mr. Drumheller.
WHEREFORE, Petitioner and Respondent respectfully request that, pursuant to Pennsylvania Rules of Disciplinary Enforcement 215(e) and 215(f), a three-member panel of the Disciplinary Board review and approve the Joint Petition in Support of Discipline on Consent and enter an appropriate order granting such petition and directing that Respondent receive a public reprimand.
Respectfully submitted,
OFFICE OF DISCIPLINARY COUNSEL
PAUL J. KILLION
Attorney Reg. No. 20955
Chief Disciplinary Counsel 4/30/19
DATE
/s/_________
DANIEL S. WHITE, ESQUIRE
Disciplinary Counsel
Attorney Registration Number 322574
Office of Disciplinary Counsel
District II Office
820 Adams Avenue, Suite 170
Trooper, PA 19403
(610) 650-8210 4/30/19
DATE
/s/_________
ROBERT IRA LIPKIN, ESQUIRE
Respondent
VERIFICATION
The statements contained in the foregoing Joint Petition In Support of Discipline on Consent Pursuant to Pa.R.D.E. 215(d) are true and correct to the best of my knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. 4/30/19
DATE
/s/_________
DANIEL S. WHITE, ESQUIRE
Disciplinary Counsel 4/30/19
DATE
/s/_________
ROBERT IRA LIPKIN, ESQUIRE
Respondent
EXHIBIT A
AFFIDAVIT UNDER RULE 215(d), Pa.R.D.E.
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF SCHUYLKILL:
ROBERT IRA LIPKIN, being duly sworn according to law, deposes and hereby submits this affidavit consenting to the recommendation of a public reprimand in conformity with Pa.R.D.E. 215(d) and further states as follows:
1. He is an attorney admitted in the Commonwealth of Pennsylvania, having been admitted to the bar on or about October 17, 1979.
2. He desires to submit a Joint Petition in support of Discipline on Consent Pursuant to Pa.R.D.E. 215(d).
3. His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress, and he is fully aware of the implications of submitting this affidavit.
4. He is aware that there is presently pending a proceeding regarding allegations that he has been guilty of misconduct as set forth in the Joint Petition in Support of Discipline on Consent Pursuant to Pa.R.D.E. 215(d) to which this affidavit is attached.
5. He acknowledges that the material facts set forth in the Joint Petition are true.
6. He submits the within affidavit because he knows that if charges predicated upon the matter under investigation were filed, or continued to be prosecuted in the pending proceeding, he could not successfully defend against them.
7. He acknowledges that he is fully aware of his right to consult and employ counsel to represent him in the instant proceeding. He has not retained, consulted and acted upon the advice of counsel in connection with his decision to execute the within Joint Petition.
It is understood that the statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904 (relating to unsworn falsification to authorities).
Signed this 30 day of April, 2019.
/s/_________
ROBERT IRA LIPKIN Sworn to and subscribed before me this 30 day of April, 2019. /s/_________
Notary Public Board File Nos. C2-17-525 & C2-17-720 CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing document upon all parties of record in mis proceeding in accordance with the requirements of 204 Pa. Code §89.22 (relating to service by a participant).
First Class Mail, as follows:
Robert Ira Lipkin, Esquire
P.O. Box 1376
Pottsville, PA 17901 Dated: 4/30/19
/s/_________
DANIEL S. WHITE
Disciplinary Counsel
Office of Disciplinary Counsel
District II Office
820 Adams Avenue, Suite 170
Trooper, PA 19403
(610) 650-8210
Attorney Reg. No. 322574
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.
Submitted by: Office of Disciplinary Counsel
Signature: __________
Name: Daniel S. White
Attorney No. (if applicable): 322574 Rev. 12/2017