Opinion
2979 Disciplinary Docket 3 158 DB 2023
11-21-2023
OFFICE OF DISCIPLINARY COUNSEL Petitioner v. DAVID EDWARD MULOCK Respondent
Attorney Registration No. 319725 (Westmoreland County)
ORDER
AND NOW, this 21st day of November, 2023, 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 DAVID EDWARD MULOCK 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.
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 Thomas J. Farrell, Chief Disciplinary Counsel, and David M. Lame, Disciplinary Counsel, and Respondent, David Edward Mulock, by and through his counsel Craig Evan Simpson, Esq., file this Joint Petition in Support of Discipline on Consent under Rule 215(d) of the Pennsylvania Rules of Disciplinary Enforcement (hereinafter "Pa.R.D.E.") and respectfully state and aver the following:
1. Petitioner, whose principal office is located at the Pennsylvania Judicial Center, 601 Commonwealth Avenue, Suite 2700, P.O. Box 62485, Harrisburg, PA 17106, is invested, pursuant to Pa.R.D.E. 207, 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, David Edward Mulock, was born on May 30,1985.
3. Respondent was admitted to practice law in the Commonwealth of Pennsylvania on December 9, 2014 and he is currently on active status.
4. Respondent maintains a registered mailing address at the Westmoreland County Public Defender's Office, P.O. Box 1683, Greensburg, PA 15601.
5. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
SPECIFIC FACTUAL ADMISSIONS
6. Respondent's misconduct stems from his behavior at the 2021 Westmoreland County Bench-Bar Conference ("Conference"), held at the Seven Springs Mountain Resort, Champion, PA (Somerset County) over the period of September 15 through 17, 2021.
7. As a result of Respondent's behavior, he was arrested, charged and ultimately pled guilty to two criminal offenses.
8. At the time of the Conference, Respondent was employed as an Assistant Public Defender by the Westmorland County Public Defender's Office.
9. On September 15, 2021, shortly after 7:00 p.m. Pennsylvania State Police (PSP) from the Somerset Barracks were dispatched to the Seven Springs Resort after receiving a telephone call from Seven Springs Resort security requesting assistance in dealing with an unruly patron inside the Bavarian Bar located on the Seven Springs property.
10. Upon arrival PSP encountered an individual in the parking lot outside the Bavarian Bar who security identified to the Troopers as the person who was acting unruly inside the bar.
11. The Troopers asked the individual for identification and the individual, later identified to be the Respondent, David Edward Mulock, ignored the request, and according to the Affidavit of Probable Cause, responded to the Troopers that they did not need to see his ID, or words to that effect.
12. In the Affidavit the Troopers noted the individual smelled of alcohol and exhibited traits of someone who had been drinking.
13. Despite being told to stop resisting and that he was being placed under arrest, Respondent continued to ignore the Troopers commands and remained uncooperative by kicking his legs, clenching his keys in a closed hand, and refusing to enter into a PSP patrol car once he had been handcuffed. 14. Once placed into the patrol car Respondent was transported to the Somerset County Jail for arraignment.
15. At his Preliminary Hearing on November 18, 2021, Respondent with his counsel waived the charges to the Court of Common Pleas of Somerset County.
16. On February 2, 2022, the District Attorney of Somerset County filed a criminal information against Respondent at CP-56-CR-0000773-2021, charging Respondent with:
(a) One count of Aggravated Assault in violation of 18 Pa.C.S.A §2702(a)(3), a felony of the 2nd degree;
(b) One count of Simple Assault in violation of 18 Pa.C.S.A §2701(a)(1), a misdemeanor of the 2nd degree;
(c) One count of Resisting Arrest in violation of Pa.C.S.A §5104, a misdemeanor of the 2nd degree;
(d) One count of Disorderly Conduct-Engaged in Fighting in violation of 18 Pa.C.S.A §5503(a)(1), a misdemeanor of the 3rd degree; and,
(e) One count of Public Drunkenness and Similar Misconduct in violation of 18 Pa.C.S.A §5505, a summary offense.
17. On December 15, 2022, in the Court of Common Pleas of Somerset County at CP-56-CR-0000773-2021, Respondent entered a counseled plea of guilty to one count of Disorderly Conduct in violation of 18 Pa.C.S.A. §5503(a)(1), a misdemeanor of the third degree; and the summary offense of Public Drunkenness and Similar Misconduct in violation of 18 Pa.C.S.A. §5505.
18. On February 21, 2023, the Court imposed the following sentence on Respondent:
(a) On the charge of Disorderly Conduct (18 Pa.C.S.A §5503(a)(1)), serve a one (1) year term of probation, pay a fine of $400, and pay the costs of the prosecution and supervision;
(b) On the charge of Public Drunkenness (18 Pa.C.S.A §5505), pay a fine of $300 and the costs of the prosecution; and,
(c) Comply with the standard terms of probation, and the special conditions of probation found in the pre-sentence report which the Court adopted.
19. Respondent did not appeal his conviction or sentence.
20. Respondent has consistently made payments toward his court-ordered fines and costs.
21. Respondent complied with Rule 214(a), Pa.R.D.E., by notifying ODC of his arrest and conviction in Somerset County.
DISCIPLINARY RULE VIOLATIONS
22. By his conduct, as set forth in paragraphs 6 through 21, Respondent admits to violating the following Rule of Professional Conduct and further acknowledges that his conviction is a ground for the imposition of discipline pursuant to Rule of Disciplinary Enforcement 203(b)(1):
(a) Rule of Professional Conduct 8.4(b) - "It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;" and,
(b) Pennsylvania Rule of Disciplinary Enforcement 203(b)(1) - "The following shall also be grounds for discipline .. . conviction of a crime."
SPECIFIC JOINT RECOMMENDATION FOR DISCIPLINE
23. In this case ODC and Respondent jointly recommend that the appropriate discipline for Respondent's misconduct is a Public Reprimand.
24. Respondent hereby consents to the discipline being imposed upon him by this Honorable Board. Attached to this Petition is Respondent's executed Affidavit, required by Pa.R.D.E. 215(d), stating that Respondent consents to the recommended discipline and including the mandatory acknowledgements contained in Pa.R.D.E. 215(d)(1) through (4).
25. In mitigation:
(a) Respondent has, throughout ODC's investigation, expressed sincere remorse for his conduct at the events at Seven Springs;
(b) Respondent has no prior disciplinary history;
(c) ODC's investigation has produced no evidence that Respondent poses an ongoing risk of similar behavior;
(d) Respondent has been reinstated as an Assistant Public Defender in the Westmoreland County Office of the Public Defender; and
(e) Respondent has accepted responsibility for his misconduct by virtue of his consent herein to the imposition of a public reprimand.
26. In this Commonwealth there are a number of cases involving attorneys who were convicted of charges involving fighting, disorderly conduct, and public drunkenness, similar to the charges to which Respondent pled guilty. Many of those cases, like those involving convictions for DUI, arose from incidents in the personal life of the respondent-attorney and did not occur during the practice of law, nor impact a client of the respondent-attorney.
27. As our Supreme Court has stated there is no per se rule for discipline in disciplinary cases as each case is considered based on the facts and circumstances presented. See, Office of Disciplinary Counsel v. Robert S. Lucarini, 472 A.2d 186, 190 (Pa. I983) Likewise, in any disciplinary case arising from a criminal conviction, the events surrounding the criminal conviction must be taken into account when determining an appropriate measure of discipline. Office of Disciplinary Counsel v. Philip A. Valentino, 730 A.2d 470 (Pa. 1999) Consideration is to be given to any aggravating and mitigating factors. Id.
28. In this case Respondent was attending the Bench Bar Conference, was clearly intoxicated and behaved in an egregious and disrespectful manner toward the Pennsylvania State Troopers. Clearly the Pennsylvania Rules of Disciplinary Enforcement provide for sanctions against attorneys convicted of crimes occurring in the realm of an attorney's private life.
29. Based on precedent, cases similar to that of Respondent's have resulted in discipline ranging from a public reprimand to a period of suspension.
(a) In a case strikingly similar to the instant matter, Office of Disciplinary Counsel v. Timothy J. McMahon, 159 DB 2019 (Board Order 10/2/2019), the Disciplinary Board accepted a Joint Petition in Support of Discipline on Consent for a Public Reprimand. McMahon was attending the 2017 Dauphin County Bar Association Bench Bar conference at the Omni Bedford Springs. At the time McMahon was a
Managing Partner at Marshall, Dennehey, Warner, Coleman & Goggin, P.C. On the first evening of the Conference, McMahon went to the resort's bar. Seated near McMahon were female members of the Bar who were attending the Conference. As the evening progressed, McMahon consumed numerous alcoholic beverages and became increasingly intoxicated. McMahon began making unwanted and inappropriate advances toward the female attorneys seated near him and inappropriately touched two of the female attorneys. After the two female attorneys moved away from him, McMahon began similar behavior and conduct toward a third female attorney seated at the bar. At some point, other patrons attempted to intervene and stop McMahon's conduct toward the third female attorney, but McMahon persisted in his behavior. When McMahon tried to order another alcoholic beverage and was denied by the resort staff, he became belligerent and had to be escorted back to his room by members of the resort security department.
McMahon was subsequently charged with various criminal offenses. Based upon a plea agreement McMahon entered a plea
of guilty to the Summary Offense of Harassment - Course of Conduct with No Legitimate Purpose, 18 Pa.C.S.A § 2709(a)(3), and Disorderly Conduct - Engaging in Fighting, 18 Pa.C.S.A § 5503(a)(1), a Misdemeanor of the 3rd degree. In addition to the criminal penalties, he was forced to resign as Managing Partner at Marshall Dennehey and was also dismissed from the Dauphin County Bar Association.
(b) In Office of Disciplinary Counsel v. Joseph James D'Alba, No. 17 DB 1996, 182 Disciplinary Docket No. 3 (S/Ct Order 4/29/ 2002), the respondent-attorney was convicted of criminal trespass, indirect criminal contempt and simple assault involving two occupants of a house, one of whom was his former girlfriend, along with a policeman and a fireman. The respondent-attorney received a three-month suspension.
(c) In Office of Disciplinary Counsel v. Robert Thomas Gibson, No. 161 DB 2002, 777 Disciplinary Docket No. 3 (S/Ct. Order 11/4/2004) the respondent-attorney was convicted of Aggravated Assault, Aggravated Harassment By Prisoner, Simple Assault, and summary offenses of Disorderly Conduct and Public Drunkenness for
his conduct during a barroom brawl. The respondent-attorney did not cooperate with the police, spat on the police officers, and punched one in the face while she was attempting to put him in an ambulance to go to the hospital for injuries the respondent-attorney sustained in the fight. The Supreme Court placed the respondent-attorney on temporary suspension. At the disciplinary hearing, ODC recommended a two-year suspension, which the Hearing Committee recommended to the Disciplinary Board. A majority of the Board recommended a private reprimand and requested that the Court dissolve the temporary suspension. Four members dissented and recommended a year suspension retroactive to the date of the temporary suspension. The Supreme Court imposed the retroactive suspension and ultimately dissolved the temporary suspension allowing the respondent-attorney to resume the practice of law.
30. The primary function of the disciplinary system is "not to punish but rather to protect the public and uphold the integrity of the profession." Office of Disciplinary Counsel v. Clayton William Boulware, No. 97 DB 2011 (D.Bd. Opinion 9/4/2013). As presented in the preceding cases, there is a wide range of sanctions imposed for the type of behavior Respondent exhibited at Seven Springs. While not directly involving a client, Respondent's actions occurred in the presence of his peers, the fellow attendees of the Westmoreland County Bench Bar. Respondent's actions brought disrepute to the profession as the incident received wide newspaper coverage in the local paper serving Westmoreland County. As a result, Respondent was suspended as an Assistant Public Defender until the completion of the Court proceedings in Somerset County. Accordingly, a Public Reprimand is appropriate.
WHEREFORE, ODC and Respondent respectfully request that, pursuant to Pennsylvania Rules of Disciplinary Enforcement 215(e) and 215(g), a three-member panel of the Disciplinary Board review and approve the Joint Petition in Support of Discipline on Consent and the Disciplinary Board thereafter issue an order directing that: (a) Respondent pay the necessary expenses incurred in the investigation and prosecution of this matter within thirty (30) days after the notice of taxed expenses is sent to Respondent; and (b) Respondent receive a public reprimand.
Respectfully submitted, OFFICE OF DISCIPLINARY COUNSEL
THOMAS J. FARRELL
CHIEF DISCIPLINARY COUNSEL
David M. Lame, Disciplinary Counsel
David Edward Mulock, Esquire Respondent
Craig E. Simpson, Esquire Counsel for/Respondent
VERIFICATION
The statements contained in the foregoing Joint Petition in Support of Discipline on Consent Under Rule 215(d), Pa.R.D.E. 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. §4904, relating to unsworn falsification to authorities.
AFFIDAVIT UNDER RULE 215(d). Pa.R.D.E.
Respondent, David Edward Mulock, hereby states that he consents to a Public Reprimand, as jointly recommended by Petitioner, Office of Disciplinary Counsel, and Respondent, in the Joint Petition in Support Of Discipline On Consent, and further states that:
1. He is an attorney admitted in the Commonwealth of Pennsylvania, having been admitted to the bar on December 9, 2014.
2. He desires to submit a Joint Petition in Support of Discipline on Consent Pursuant to Rule 215(d), Pa.R.D.E.
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 a pending proceeding involving allegations that he has been guilty of misconduct, as set forth in the Joint Petition in Support of Discipline on consent Pursuant to Rule 215(d), Pa.R.D.E., to which this affidavit is attached.
5. He acknowledges that the material facts set forth in the Joint Petition are true.
6. He consents because he knows that if the matter pending against him is prosecuted, he could not successfully defend against the charges.
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 retained, consulted or 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).
Sworn to and subscribed before me this 1st day of November, 2023.
___ Notary Public
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: David M. Lame
Signature: ____
Name: David M. Lame
Attorney No. (if applicable): 49531