Opinion
No. 2050 Disciplinary Docket No. 3 No. 43 DB 2014
11-23-2015
OFFICE OF DISCIPLINARY COUNSEL Petitioner v. RANDAL E. McCAMEY Respondent
ORDER
PER CURIAM
AND NOW, this 22nd day of January, 2016, upon consideration of the Report and Recommendations of the Disciplinary Board, Randal E. McCamey is suspended from the Bar of this Commonwealth for a period of one year and one day, retroactive to August 17, 2014. He is directed to comply with all the provisions of Pa.R.D.E. 217. Respondent shall pay costs to the Disciplinary Board pursuant to Pa.R.D.E. 208(g).
Mr. Justice Eakin did not participate in the decision of this matter. A True Copy Patricia Nicola
As Of 1/22/2016 Attest: /s/_________
Chief Cierk
Supreme Court of Pennsylvania Attorney Registration No. 19847 (Allegheny 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 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania ("Board") herewith submits its findings and recommendations to your Honorable Court with respect to the above-captioned Petition for Discipline.
I. HISTORY OF PROCEEDINGS
By Order of the Supreme Court of Pennsylvania dated July 17, 2014, Randal E. McCamey was placed on temporary suspension from the practice of law pursuant to Rule 214(d)(2), Pa.R.D.E., resulting from his criminal convictions. Office of Disciplinary Counsel filed a Petition for Discipline against Respondent on September 11, 2014. Respondent failed to file an Answer to Petition for Discipline.
A disciplinary hearing was held on January 23, 2015, before a District IV Hearing Committee comprised of Chair Patricia L. Dodge, Esquire and Members Maria C. Sharp, Esquire and Jill Dominique Sinatra, Esquire. Respondent appeared pro se.
Following the submission of briefs by the parties, the Hearing Committee filed a Report on June 29, 2015, concluding that Respondent violated the Rules as charged in the Petition for Discipline and recommending that he be suspended for one year and one day, retroactive to August 17, 2014, the effective date of Respondent's temporary suspension
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 following facts are predicated upon Rule 208(b)(3), Pa.R.D.E., due to Respondent's failure to answer the averments made in the Petition for Discipline and upon Respondent's statement to the Hearing Committee that he had no issues with the Petition as everything was admitted as matter of record. N.T. 14.
The Board finds as follows:
1. Petitioner, whose principal office is located at Pennsylvania Judicial Center, Suite 2700, 601 Commonwealth Avenue, P.O. Box 62485, Harrisburg, Pennsylvania 17106-2485, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the 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 Rules.
2. Respondent is Randal E. McCamey. He was born in 1944 and was admitted to practice law in the Commonwealth of Pennsylvania in 1974. His attorney registration mailing address is 101 Reynard Drive, Natrona Heights, PA 15065. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
3. Respondent has a record of prior discipline consisting of a Public Censure imposed by the Supreme Court in 1991. The censure was based on Respondent's delivery of one-eighth ounce of cocaine to a police informant for $280. Respondent agreed to cooperate with drug enforcement personnel and as a result, no criminal charges were brought against him. PE-9.
4. In 2013, Respondent was placed on administrative suspension from the practice of law for non-compliance with the annual attorney registration and non-compliance with Continuing Legal Education requirements. N.T. 18.
5. On or about July 20, 2012, Respondent was charged with one count each of the following at CP-02-CR-0012257-2012:
a. Driving Under the Influence of Alcohol or Controlled Substance, Highest Rate of Alcohol, in violation of 75 Pa.C.S. §3802(c) and §3803(b)(4);
b. Driving Under the Influence of Alcohol or Controlled Substance in violation of 75 Pa.C.S. §3802(a)(1) and §3804(b); and
c. Driving Under the Influence of Alcohol or Controlled Substance in violation of 75 Pa.C.S. §3802(a)(1).
PE-1.
6. On February 4, 2013, Respondent, with counsel, entered a plea of guilty and was sentenced by Allegheny County Court of Common Pleas Judge Donald E. Machen as follows:
a. On the charge of Driving Under the Influence of Alcohol or Controlled Substance, Highest Rate of Alcohol, .16 percent or higher, a misdemeanor of the first degree;
i. Commencing on February 4, 2013, probation for a term of one year to be supervised by the Allegheny County Adult Probation Office;
ii. Commencing on April 5, 2013, placement in a county intermediate punishment program for a term of 90 days;
iii. Payment of a fine of $1,500.00;
iv. Directed to obtain a drug and alcohol evaluation, drug screening, attend safe driving school, attend safe driving classes, and surrender his motor vehicle driver's license; and
v. Work release.
b. The term of probation and the intermediate punishment sentence were to run concurrent with each other.
N.T. 14; PE-2.
7. Respondent did not report the conviction as required by Rule 214(a), Pa.R.D.E. N.T. 14.
8. On February 26, 2013, at CP-02-CR-0006872-2013, Respondent was charged with one count each of the following:
a. Driving Under the Influence of Alcohol or Controlled Substance, High Rate of Alcohol, 75 Pa.C.S. §3802(b) and §3803(b)(3);
b. Driving Under the Influence of Alcohol or Controlled Substance, 75 Pa.C.S. §3802(a)(1), §3803(b)(3) and §3804(b);
c. Driving Under the Influence of Alcohol or Controlled Substance, 75 Pa.C.S. §3802(a)(1) and §3802(a)(2); and
d. Careless Driving, 75 Pa.C.S. §3714(a) and §3714(c). N.T. 14; PE-3.
9. On October 31, 2013, Allegheny County Court of Common Pleas Judge Bigley imposed the following sentence on Respondent:
a. Pay all applicable fees and costs;
b. On the offense of Driving Under the Influence of Alcohol or Controlled Substance, High Rate of Alcohol, a misdemeanor of the first degree:
i. Confinement for a minimum period of 90 days to no more than 180 days at the Renewal Center, Inc. subject to the following:
1. Time served; and
2. To be paroled within 48 hours.
ii. Upon his parole, Respondent was placed on probation for a term of 18 months, supervised by the Allegheny County Adult Probation Office, subject to the following conditions:
1. Attendance at and completion of safe driving classes;
2. Undergo a drug and alcohol evaluation;
3. Payment of a fine of $1,500.00
iii. The sentence imposed by Judge Bigley was to commence on October 30, 2013.
c. On the charge of Driving Under the Influence of Alcohol or Controlled Substance, General Impairment, the court accepted the plea of guilty and imposed no additional penalty; and
d. The remaining two counts charged in the Information were withdrawn upon motion by the Commonwealth.
N.T. 14; PE-4.
10. Respondent did not report the conviction as required by Pa.R.D.E. 214(a). N.T. 14.
11. Pursuant to Pa.R.D.E. 214(d)(1), on May 16, 2014, the Supreme Court of Pennsylvania issued an Order directing Respondent to show cause why he should not be placed on temporary suspension. N.T. 14.
12. By Order dated July 17, 2014, the Supreme Court made the Rule to Show Cause Absolute and Respondent was placed on temporary suspension pursuant to Rule 214(d)(2), Pa.R.D.E., and he was directed to comply with Rule 217, Pa.R.D.E. N.T. 14; AE-1.
13. Once his temporary suspension became effective on August 16, 2014, Respondent failed to file a statement of compliance with the Office of the Secretary within ten days as required by Pa.R.D.E. 217. N.T. 14.
14. Respondent filed a Statement of Compliance on December 31, 2014. RE-1.
15. Respondent was temporarily suspended in the United States District Court for the Western District of Pennsylvania. N.T. 19.
16. Respondent currently resides in Allegheny County with his wife, adult son and his mother-in-law. N.T. 17.
17. Respondent is 70 years of age and has not engaged in the practice of law since 2013, when he ended his active practice prior to the entry of his administrative suspension order. N.T. 18.
18. Prior to his administrative suspension, Respondent engaged in a general practice of law, including family law, criminal law, real estate and business cases. N.T. 20.
19. Following his criminal conviction, Respondent spent 204 days at The Renewal Center of Allegheny County alternative housing, which the trial court authorized as the intermediate punishment portion of his sentence. N.T. 21; PE-2; PE-4.
20. At the time of the disciplinary hearing, Respondent was still subject to the supervision of the Allegheny County Adult Probation Office. N.T. 23.
21. Respondent completed all court-ordered evaluations. N.T. 24.
22. Respondent has not paid any of the imposed fines or court costs for either of his criminal cases. N.T. 25-28.
23. The Allegheny County Department of Court Records entered a judgment against Respondent for each criminal matter as a result of the balance owed. N.T. 25-29; PE-7; PE-8.
24. Respondent's only source of income is Social Security, which was suspended during his incarceration. N.T. 40.
25. Respondent's Pennsylvania Motor Vehicle License is suspended for "quite some time" as he is a "habitual offender" with three "major violations." Respondent is unaware of when he is eligible to have his privileges reinstated. N.T. 24-25.
26. Respondent described his problem with alcohol prior to his convictions as "ongoing for quite a while." N.T. 38-40.
27. Respondent currently attends Alcoholics Anonymous on average of two times per week. N.T. 27. Respondent's transportation issues due to his driver's license suspension make regular attendance at AA more difficult. N.T. 24.
28. Respondent's AA sponsor attended the disciplinary hearing with Respondent but did not testify. N.T. 35.
29. Respondent lists his date of sobriety as April 15, 2013. N.T. 36.
30. Respondent's statement to the Hearing Committee and his Brief to the Hearing Committee filed post-hearing were handwritten, as he was unable to type it himself or find someone to type it. N.T. 31 -32; R-1.
31. There is no evidence that any of Respondent's clients were harmed as a result of his misconduct.
32. Respondent accepted responsibility for his misconduct and has shown remorse and regret at the harm done by his alcohol consumption. N.T. 33-36, 44; RE-1.
III. CONCLUSIONS OF LAW
By his conduct as set forth above, Respondent violated the following Rules of Disciplinary Enforcement:
1. Respondent's criminal convictions are grounds for the imposition of discipline pursuant to Rule 203(b)(1), Pa.R.D.E.
2. Respondent's failure to report two criminal convictions to the Office of Disciplinary Counsel as required by Pa.R.D.E. 214(a) is grounds for the imposition of discipline pursuant to Rule 203(a), Pa.R.D.E.
3. Respondent's failure to file a Statement of Compliance with the Office of the Secretary as required by Rule 217, Pa.R.D.E., without good cause is grounds for the imposition of discipline.
IV. DISCUSSION
Respondent is charged with professional misconduct resulting from his criminal convictions for driving under the influence of alcohol or controlled substance, failure to report the convictions to the Disciplinary Board, and failure to file a timely statement of compliance relating to his temporary suspension from the practice of law. In disciplinary matters arising from criminal convictions, the conviction is conclusive evidence of the commission of the crime, and the sole issue to be resolved is the extent of discipline to be imposed. Rules 214(e) and 214(f)(1), Pa.R.D.E. The discipline imposed must account for the facts and circumstances surrounding the convictions. Office of Disciplinary Counsel v. Eilberg, 441 A.2d 1193 (Pa. 1982). Consideration is to be given to any aggravating or mitigating factors. Office of Disciplinary Counsel v. Francis Peter Eagen, III, No. 102 DB 2003, 73 Pa. C. & C. 4th 217 (2004).
Respondent acknowledged his criminal conduct, his failure to report his convictions, and his failure to timely file his compliance statement. He has accepted responsibility and has shown remorse and regret for the harm he has done, which he attributes to his drinking. Respondent has not practiced law since 2013. Respondent's misconduct is a result of behavior in his personal life; there is no evidence that his clients were harmed by his actions.
Respondent has a history of discipline consisting of a public censure in 1991. The underlying misconduct involved criminal activity; however, Respondent cooperated with the authorities and no criminal charges were brought against him. We note this disciplinary sanction for the record but give it little weight, having occurred more than 20 years ago.
While Respondent admitted that he has struggled with alcohol for some time prior to his criminal convictions, he has failed to mitigate the harmful effects of his drinking in any significant way. Although he attends Alcoholics Anonymous, his attendance is inconsistent as he must rely on others to provide transportation. Other aspects of his personal affairs appear to be in turmoil. He has not paid any of the fines or court costs associated with his two criminal convictions, which resulted in the entry of civil judgments against him. He has no driver's license as a result of his habitual offender status and is not aware when he will be eligible to have his privileges reinstated. Respondent's statement submitted to the Hearing Committee during the hearing and his Brief to the Committee submitted post-hearing were handwritten as he was unable to type those documents himself or find anyone to type them on his behalf.
Petitioner contends that a suspension of one year and one day, retroactive to the date of temporary suspension, is appropriate discipline. Respondent's position is that no further discipline is necessary, as he has been on temporary suspension effective August 16, 2014. After considering the evidence of record and the parties'; recommendations, the Hearing Committee has recommended a suspension for one year and one day, retroactive to the effective date of the temporary suspension.
In Pennsylvania, discipline cases concerning multiple convictions of driving under the influence of alcohol have resulted in suspension of more than one year. Office of Disciplinary Counsel v. W. Christopher Conrad, Nos. 171 DB 2007, 169 DB 2008 & 187 DB 2011 (2013) (multiple convictions of DUI; violation of alcohol probation; 18 month period of suspension); Office of Disciplinary Counsel v. Gallen, 68 Pa. D. & C. 4 th 320 (2004) (suspension of one year and one day as a result of three criminal convictions for driving under the influence and related crimes); Office of Disciplinary Counsel v. Kimberly Neeb, No. 68 DB 2006 (2006) (suspension of one year and one day retroactive to temporary suspension resulting from two criminal convictions for driving under the influence).
The Board's analysis of Respondent's misconduct compared to the previously cited cases persuades us that a one year and one day suspension is appropriate, made retroactive to the date of Respondent's temporary suspension. Respondent has not shown at this time that he is capable of practicing law and must be required to petition for reinstatement and prove his fitness if he desires to practice law in the future.
V. RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the Respondent, Randal E. McCamey, be Suspended from the practice of law for a period of one year and one day retroactive to July 17, 2014.
It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the Respondent.
Respectfully submitted,
THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
By: /s/_________
John F. Cordisco, Board Member Date: November 23, 2015 Board Member Porges did not participate in the adjudication.