Opinion
No. 59 DB 2012 Attorney Registration No. 88261 No. 1917 Disciplinary Docket No. 3
03-28-2013
OFFICE OF DISCIPLINARY COUNSEL Petitioner v. DAMON K. ROBERTS Respondent
Harriet R. Brumberg Disciplinary Counsel Damon K. Roberts, Esquire Respondent Barbara S. Rosenberg, Counsel for Respondent
IN THE SUPREME COURT OF PENNSYLVANIA
(Philadelphia)
ORDER
PER CURIAM :
AND NOW, this 28th day of March, 2013, upon consideration of the Recommendation of the Three-Member Panel of the Disciplinary Board dated January 25, 2013, the Joint Petition in Support of Discipline on Consent is hereby granted pursuant to Rule 215(g), Pa.R.D.E., and it is
ORDERED that Damon K. Roberts is suspended on consent from the Bar of this Commonwealth for a period of thirty months and he shall comply with all the provisions of Rule 217, Pa.R.D.E.
It is further ORDERED that, at the conclusion of the suspension period, respondent shall pay the costs incurred by the Disciplinary Board in the investigation and prosecution of this matter.
A True Copy Patricia Nicola
As Of 3/28/2013
Attest: _______________
Chief Clerk
Supreme Court of Pennsylvania
OFFICE OF DISCIPLINARY COUNSEL, Petitioner
v.
DAMON K. ROBERTS, Respondent
No. 59 DB 2012
Attorney Registration No. 88261
(Philadelphia)
RECOMMENDATION OF THREE-MEMBER PANEL
OF THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
The Three-Member Panel of the Disciplinary Board of the Supreme Court of Pennsylvania, consisting of Board Members Charlotte S. Jefferies, Stephan K. Todd, and David E. Schwager, has reviewed the Joint Petition in Support of Discipline on Consent filed in the above-captioned matter on August 8, 2012.
The Panel approves the Joint Petition consenting to a 30 month suspension and recommends to the Supreme Court of Pennsylvania that the attached Petition be Granted.
The Panel further recommends that any necessary expenses incurred in the investigation and prosecution of this matter shall be paid by the respondent-attorney as a condition to the grant of the Petition.
_________________________
Charlotte S. Jefferies, Panel Chair
The Disciplinary Board of the
Supreme Court of Pennsylvania
OFFICE OF DISCIPLINARY COUNSEL, Petitioner
v.
DAMON K. ROBERTS, Respondent
No. 59 DB 2012
Atty. Reg. No. 88261
(Philadelphia)
JOINT PETITION IN SUPPORT OF DISCIPLINE
ON CONSENT UNDER Pa.R.D.E. 215(d)
Petitioner, Office of Disciplinary Counsel ("ODC"), by Paul J. Killion, Chief Disciplinary Counsel, and Harriet R. Brumberg, Disciplinary Counsel, and by Respondent, Damon K. Roberts, Esquire, and Barbara S. Rosenberg, Esquire, Counsel for Respondent, file this Joint Petition In Support of Discipline on Consent under Pennsylvania Rule of Disciplinary Enforcement ("Pa.R.D.E.") 215(d), and respectfully represent that:
I. BACKGROUND
1. Petitioner, whose principal office is located at PA Judicial Center, Suite 2700, 601 Commonwealth Avenue, P.O. Box 62485, Harrisburg, PA 17106-2485, 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 said Rules of Disciplinary Enforcement.
2. Respondent, Damon K. Roberts, was admitted to practice law in the Commonwealth on December 6, 2001.
3. Respondent maintained an office for the practice of law at 1700 Reed Street, Philadelphia, PA 19146.
4. Pursuant to Pa.R.D.E. 201(a)(1), Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
II. FACTUAL ADMISSIONS AND
VIOLATIONS OF RULES OF PROFESSIONAL CONDUCT
5. Respondent specifically admits to the truth of the factual allegations and conclusions of law contained in paragraphs 6 through 187, infra.
CHARGE I: THANIMAS A. SCOTT MATTER
6. On February 3, 2009, First Trust Bank (the bank) filed a complaint against Ms. Thanimas A. Scott seeking to recover $38,006.71 owed on Ms. Scott's mortgage for her real property located at 215 North Farson Street, Philadelphia, PA. First Trust Bank v. Scott et al., No. 00258, February Terra, 2009 (Court of Common Pleas of Philadelphia County).
7. On July 30, 2009:
a. the bank filed a praecipe to enter a default
judgment against Ms. Scott and in favor of the bank; and
b. in accordance with a court order dated June 11, 2009, the Prothonotary entered a judgment in favor of the bank,
8. On August 7, 2009:
a. Respondent had a legal consultation with Ms. Scott regarding negotiating a loan modification with the bank, obtaining an order to stay a foreclosure, and preparing a foreclosure defense to the bank's default judgment against Ms. Scott;
b. Ms. Scott paid Respondent a $150 consultation fee;
c. Ms. Scott provided Respondent with documents relevant to the bank's pending action against her property, including a copy of the July 30, 2009 praecipe to enter a default judgment that the bank had filed against Ms. Scott;
d. Respondent briefly reviewed Ms. Scott's documents, then told Ms. Scott his firm would review the matter and get started;
e. Respondent provided Ms. Scott with a written fee agreement setting forth the rate and basis of Respondent's fee;
f. Ms. Scott signed the fee agreement and dated it "8/7/09";
g. Ms. Scott agreed to pay Respondent a $5,900 legal fee; and
h. Ms. Scott agreed to pay Respondent an initial $1,500 deposit.
9. Respondent's written fee agreement with Ms. Scott provided that "upon signing the agreement, you become my client."
10. Respondent failed to:
a. act with reasonable diligence and file a motion to open the bank's default judgment within ten days; and
b. inform Ms. Scott that Respondent would not file a motion until Respondent received 'her $1,500 deposit.
11. Respondent failed to inform Ms. Scott that if Respondent filed a motion to reopen the default judgment within ten days after its entry, then the court would reopen the judgment if Respondent's answer stated a meritorious defense.
a. Respondent failed to explain a matter to the extent necessary to permit Ms. Scott to make an informed decision regarding Respondent's representation.
12. On September 4, 2009, Respondent met with Ms. Scott, during which time:
a. Respondent received $1,500 from Ms. Scott in partial payment of Respondent's legal fee;
b. Respondent informed Ms. Scott that it "could be too late" to open the default judgment;
c. Ms. Scott expressed her anger that Respondent failed to inform her of the deadline to file a motion to open the default judgment; and
d. Respondent agreed to file a motion to open the default judgment.
13. On September 24, 2009, Respondent filed a Petition to Open Judgment Pursuant to Pa.R.C.P. 237.3 (Petition to Open); Respondent alleged in:
a. paragraph 16, that the default judgment was brought to Respondent's attention on September 4, 2009;
i. Respondent's pleading was false and misleading in that on August 7, 2009,
Respondent received documents from Ms. Scott informing Respondent that a default judgment had been entered on July 30, 2009.b. paragraph 17, that on September 14, 2009, Ms. Scott did not have the necessary $54 for filing fees and the Petition was denied for lack of payment;
i. Respondent's pleading was false and misleading in that on September 4, 2009, Respondent received $1,500 from Ms.' Scott, and prior to September 24, 2009, Respondent never requested the filing fee from Ms. Scott.
14. On October 15, 2009, the bank filed an answer in opposition to the Petition to Open.
15. By Order dated December 8, 2009, the Honorable Idee Fox granted Respondent's Petition to Open and gave Respondent twenty days to file an Answer to the bank's complaint.
a. On December 28, 2009, Respondent filed an Answer.
16. On April 14, 2010, the bank filed a Motion for Summary Judgment, which Respondent received.
a. Respondent failed to inform Ms. Scott of his receipt of the Bank's motion.
b. Respondent failed to act with reasonable diligence and file a timely answer to the motion by May 14, 2010.
17. Respondent failed to act with reasonable diligence in requesting a loan modification package for Ms. Scott.
18. On April 19, 2010, Respondent received a loan modification package from the bank; on April 20, 2010, Ms. Scott completed the loan modification paperwork and gave it to Respondent.
a. Respondent failed to act with reasonable diligence and timely submit the completed loan modification package to the bank.
19. On May 24, 2010, the Court entered an Order granting the bank's motion for summary judgment and assessing damages of $38,006.71, plus interest to the date of the Sheriff Sale, and foreclosure costs.
a. Respondent received the Court's Order.
20. On June 2, 2010, Respondent filed a Memorandum of Law in Opposition to Motion for Summary Judgment (Memorandum of Law) ; on page one of in the Memorandum of Law, Respondent alleged that he had "been distracted by an unexpected family emergency and allowed the response date [for the Motion for Summary Judgment] to slip past."
a. In the event that Respondent's physical or mental condition materially impaired Respondent's ability to represent Ms. Scott, Respondent failed to withdraw from the representation.
21. Respondent failed to inform Ms. Scott that he had not filed a timely answer to the Motion for Summary Judgment, the Court had granted the motion, and her house was scheduled for a sheriff sale.
22. On June 16, 2010:
a. the bank filed a praecipe to enter judgment in its favor;
b. judgment was entered against Ms. Scott;
c. the bank filed a writ of execution; and
d. a writ of execution was entered against Ms. Scott's property.
23. As a result of Respondent's failure to act with reasonable diligence, on July 23, 2010, Ms. Scott filed a bankruptcy petition to save her home.
24. As a result of Respondent's failure to act with reasonable diligence, Ms. Scott incurred additional expenses, including interest, penalties, foreclosure fees, and bankruptcy costs.
25. On July 12, 2010, Ms. Scott, who had a copy of a June 8, 2010 invoice from Respondent, requested an accounting of Respondent's legal fee.
a. Respondent failed to provide the requested accounting.
26. On July 12 and 27, 2010, Ms. Scott requested a copy of her file.
a. Respondent failed to provide Ms. Scott with a copy of her file.
27. By his conduct as alleged in paragraphs 6 through 26 above, Respondent violated the following Rules of Professional Conduct:
a. RPC 1.3, which states that a lawyer shall act with reasonable diligence and promptness in representing a client;
b. RPC 1.4(a)(3), which states that a lawyer shall keep the client reasonably informed about the status of the matter;
c. RPC 1.4(b), which states that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation;
d. RPC 1.16(a)(2), which states that except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;
e. RPC 1.16(d), which states that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law;
f. RPC 3.3(a)(1), which states that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or
law previously made to the tribunal by the lawyer;
g. RPC 8.4(c), which states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation; and
h. RPC 8.4(d), which states that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.
CHARGE II: UNAUTHORIZED PRACTICE OF LAW
28. On December 6, 2001, Respondent was admitted to practice law in the Commonwealth of Pennsylvania.
29. Pa.R.C.L.E. 105(a)(3) requires each attorney to complete annually 12 hours of continuing legal education during the attorney's compliance period.
30. Respondent was assigned to Compliance Group 3, which assignment required that Respondent complete his annual CLE by December 31 of each year.
31. For the year 2009, Respondent failed to complete his 12 hours of continuing legal education by December 31, 2009.
a. On February 19, 2010 and May 26, 2010, Respondent received written notice from the
CLE Board of his failure to timely complete his annual CLE requirement.
32. By Order dated July 27, 2010, the Supreme Court administratively suspended Respondent from the practice of law effective August 26, 2010.
33. By certified letter dated July 27, 2010, from Suzanne E, Price, Attorney Registrar, to Respondent, Ms. Price:
a. informed Respondent that she had received a certified copy of the Supreme Court's July 27, 2010 Order providing that Respondent will be Administratively Suspended effective August 26, 2010;
b. explained that if Respondent is administratively suspended, Respondent will be required to comply with Pa.R.D.E. 217 and D.Bd. Rules §§91.91-91.99; and
c. enclosed a copy of the Supreme Court's July 27, 2010 Order.
34. Respondent is the managing attorney in the law practice of Damon K. Roberts and Associates.
35. Damon K. Roberts and Associates maintained an office for the practice of law at 1613 Spruce Street, Philadelphia, PA 19103-6306.
36. Ms. Price sent her July 27, 2010 certified letter to the attorney registration address Respondent had reported on Respondent's 2010-2011 PA Attorney's Annual Fee form, dated May 23, 2010: 1613 Spruce Street, Philadelphia, PA 19103.
37. On or after August 26, 2010, Respondent maintained an office for the practice of law at 1600 Market Street, 25th Floor, Philadelphia, PA 19103.
a. Respondent failed to advise the Attorney Registrar of his change of attorney address.
38. Upon being transferred to administrative suspension, Respondent failed to promptly notify, by registered or certified mail, return receipt requested, all:
a. clients being represented in pending matters of Respondent's transfer to administrative suspension and Respondent's consequent inability to act as an attorney;
b. clients involved in pending or administrative proceedings, and the attorney for each adverse party in such matter, of Respondent's transfer to administrative suspension and consequent inability to act as an attorney; and
c. other persons with whom Respondent may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that Respondent continued to be an attorney in good standing.
39. Respondent was admitted to practice in the United States District Court for the Eastern District of Pennsylvania.
40. Upon being placed on administrative suspension for failing to complete Respondent's CLE, Respondent failed to promptly notify the Clerk of the United States District Court for the Eastern District of Pennsylvania, as required by Local Rule of Civil Procedure 83.6, Rule IIA of the United States District Court of Pennsylvania.
41. During the time that Respondent was administratively suspended, Respondent failed to provide notice to other persons with whom Respondent may at any time expect to have professional contacts under circumstances where there was a reasonable probability that they might infer that Respondent continued to be an attorney in good standing.
42. From August 26, 2010, to September 13, 2010, Respondent engaged in the practice of law, in that Respondent:
a. performed law-related activities from an office that was not staffed by a supervising attorney on a full time basis;
b. performed law-related activities for clients, including some whom Respondent had previously represented;
c. represented himself as a lawyer able to practice law in Pennsylvania;
d. had contacts with clients in person, by telephone, and in writing;
e. participated in the management of legal actions;
f. participated in the management of Respondent's law firm;
g. provided legal advice;
h. rendered services requiring the use of legal skills or knowledge; and
i. handled client funds.
43. From at least August 26, 2010 to September 13, 2010, Respondent maintained an office for the practice of law at 1600 Market Street, 25th Floor, Philadelphia, PA 19103.
44. On September 7, 2010, Office of Disciplinary Counsel (ODC) hand-delivered a letter to Respondent; ODC's letter:
a. advised Respondent that an administratively suspended attorney is not permitted to: maintain a law office or law practice; have any client contact except for ministerial matters while under the supervision of a supervising attorney who has registered as such with the Disciplinary Board; or appear on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body;
b. stated that ODC had reason to believe that Respondent was continuing to maintain a law office, have client contact, and practice law;
c. instructed Respondent to immediately cease and desist from the foregoing activities and comply with Rule 217;
d. explained that ODC will consider Respondent's refusal to cease and desist and failure to comply with Rule 217 in any future recommendation for discipline; and
e. enclosed a copy of Enforcement Rules 217 and 219.
45. Respondent failed to immediately cease and desist from the foregoing activities and comply with the mandates of Rule 217.
46. By letter dated September 9, 2010, which date was fifteen days after Respondent was administratively suspended from the practice of law, Respondent wrote to each of his clients:
a. thanking each client for being a client of Damon K. Roberts and Associates;
b. advising each client of Respondent's office's move "over the summer to 1600 Market Street";
c. stating that "[i]n the midst of the move, however, we did not update our new address with the Continuing Legal Education (CLE) Board and missed their July 27th notice stating that I would be administratively
suspended unless I caught up with my CLE Credits";
d. claiming that on August 29 Respondent received "the notice" and has since been taking CLE classes to catch up;
e. stating that "this will not affect our ability to handle your case once reinstated";
f. professing to be "proud" to have caught up with Respondent's CLE credits "this week";
g. representing that Respondent "plan[s] to be reinstated this week";
h. explaining that the client could obtain new counsel because of Respondent's conduct; and
i. adding that the client could contact Respondent if he or she had any questions.
47. The contents of Respondent's September 9, 2010 letter to Respondent's clients were incomplete and misleading in that:
a. Respondent failed to expressly state that he had been placed on administrative suspension;
b. Respondent failed to expressly inform his clients that by Supreme Court Order dated
July 26, 2010, effective August 26, 2010, Respondent was prohibited from handling their cases until his reinstatement;
c. Respondent wrongly suggested to his clients that Respondent would be reinstated "this week"; and
d. Respondent failed to advise all clients involved in pending matters that they must seek legal advice elsewhere or obtain substitute counsel.
48. To the extent Respondent may have notified his clients of his administrative suspension, Respondent failed to keep and maintain records of the various steps he took to comply with Pa.R.D.E. 217.
49. The legal stationery on which Respondent wrote his September 9, 2010 letter to his clients contained a material misrepresentation of fact and law about Respondent's services in that the letterhead stated: "Damon K. Roberts & Associate, Real Estate/Land Use Attorneys."
50. On September 13, 2010, Respondent filed a Statement of Compliance and was reinstated to the practice of law in Pennsylvania.
51. By his conduct as alleged in paragraphs 28 through 50 above, Respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:
a. RPC 5.5(a), which states that a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so;
b. RPC 7.1, which states that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
c. RPC 7.5(a), which states that a lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government, government agency or with a public or charitable legal
services organization and is not otherwise in violation of Rule 7.1, If otherwise lawful a firm may use as, or continue to include in, its name, the name or names of one of more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession;
d. Pa.R.D.E. 203(b)(3), which states that wilful violation of any other provision of the Enforcement Rules, shall be grounds for discipline, via the Enforcement Rules charged in subsections (e) through (1), infra:
e. Pa.R.D.E. 217(a), which states that a formerly admitted attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, all clients being represented in pending matters, other than litigation or administrative proceedings, of the disbarment, suspension, administrative suspension or transfer to inactive status and the consequent inability of the formerly admitted attorney to act as an attorney
after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status and shall advise said clients to seek legal advice elsewhere;
f. Pa.R.D.E. 217(b), which states that a formerly admitted attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the disbarment, suspension, administrative suspension or transfer to inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status. The notice to be given to the client shall advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney. In the event the client does not obtain substitute
counsel before the effective date of the disbarment, suspension, administrative suspension or transfer to status, it shall be the responsibility of the formerly admitted attorney to move in the court or agency in which the proceeding is pending for leave to withdraw. The notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the formerly admitted attorney;
g. Pa.R.D.E. 217(c), which states that a formerly admitted attorney shall promptly notify, or cause to be notified, of the disbarment, suspension, administrative suspension or transfer to inactive status, by registered or certified mail, return receipt requested: (1) all persons or their agents or guardians to whom a fiduciary duty is or may be owed at any time after the disbarment, suspension, administrative suspension or transfer to inactive status, and (2) all other persons with whom the formerly admitted attorney may at any time
expect to have professional contacts under circumstances where there . is a reasonable probability that they may infer that he or she continues as an attorney in good standing. The responsibility of the formerly admitted attorney to provide the notice required by this subdivision shall continue for as long as the formerly admitted attorney is disbarred, suspended, administratively suspended or on inactive status;
h. Pa.R.D.E. 217(i), which states that a formerly admitted attorney shall keep and maintain records of the various steps taken by such person under these rules so that, upon any subsequent proceeding instituted by or against such person, proof of compliance with these rules and with the disbarment, suspension, administrative suspension or transfer to inactive status order will be available. Proof of compliance with these rules shall be a condition precedent to any petition for reinstatement;
i. Pa.R.D.E. 217(j)(l), which states that all law-related activities of the formerly admitted attorney shall be conducted under the supervision of a member in good standing of the Bar of this Commonwealth who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this subdivision (j). If the formerly admitted attorney is engaged by a law firm or other organization providing legal services, whether by employment or other relationship, an attorney of the firm or organization shall be designated by the firm or organization as the supervising attorney for purposes of this subdivision;
j. Pa.R.D.E. 217(j)(3), which states that a formerly admitted attorney may have direct communication with a client or third party regarding a matter being handled by the attorney, organization or firm for which the formerly admitted attorney works only if the communication is limited to ministerial matters such as scheduling,. billing, updates, confirmation of receipt or sending
of correspondence and messages. The formerly admitted attorney shall clearly indicate in any such communication that he or she is a legal assistant and identify the supervising attorney;
k.Pa.R.D.E. 217 (j)(4)(ii), (iii), (iv), (vi), (ix), and (x), which state that a formerly admitted attorney may not engage in any form of law-related activities in this Commonwealth except in accordance with the following requirements: Without limiting the other restrictions in this subdivision (j), a formerly admitted attorney is specifically prohibited from engaging in any of the following activities: ... (ii) performing any law-related services from an office that is not staffed by a supervising attorney on a full time basis; (iii) performing any law-related services for any client who in the past was represented by the formerly admitted attorney; (iv) representing himself or herself as a lawyer or person of similar status; (v) having any contact with clients either in person, by
telephone, or in writing, except as provided in paragraph (3); (vi) rendering legal consultation or advice to a client; . . . (ix) negotiating or transacting any matter for or on behalf of a client with third parties or having any contact with third parties regarding such a negotiation or transaction; (x) receiving, disbursing or otherwise handling client funds; and
l. Pa.R.D.E. 219(d)(3), which states that on or before July 1 of each year all persons required by this rule to pay an annual fee shall file with the Attorney Registration Office a signed form prescribed by the Attorney Registration Office in accordance with the following procedures: (3) Every person who has filed such a form shall notify the Attorney Registration Office in writing of any chance in the information previously submitted within 30 days after such change.
CHARGE III: VERNA LOWE AND SYLVIA JORDON MATTER
52. On July 23, 2007, Ms. Virmie Morgan died testate.
53. Ms. Morgan's Last Will and Testament:
a. appointed her daughter, Verna Lowe, to be the executrix of her estate; and
b. devised her real property, located at 1904 West Erie Avenue, Philadelphia, PA 19140, to three of her daughters, Verna Lowe, Sylvia Jordon, and Tina Coleman.
54. On February 1, 2010, Respondent met with Ms. Lowe and Ms. Jordon, during which time Respondent:
a. had a legal consultation with Ms. Lowe and Ms. Jordon.
1. Respondent received a $75 consultation fee.b. gave Ms. Lowe and Ms. Jordon a written fee agreement that set forth the basis and rate of Respondent's fee.
2. Respondent and Ms. Lowe signed an invoice documenting Respondent's receipt of the $75 consultation fee.
1. The fee agreement provided that "the fee for deed transfer is $590 and $2500 for will probate."c. was retained to:
2. Respondent and Ms. Jordon signed the fee agreement.
1. probate the Will of Virmie Morgan; andd. was requested by Ms. Lowe and Ms. Jordon to act expeditiously to probate their mother's will and have her real property transferred to Ms. Jordon because the Water Department would not turn on the water unless Ms. Jordon established that she was the owner of 1904 West Erie Avenue, Philadelphia, PA 19140.
2. prepare and file a deed transferring to Ms. Jordon the deceased's real property located at 1904 West Erie Avenue, Philadelphia, PA 19140.
55. Respondent received $2,500 from Ms. Lowe and Ms. Jordon.
a. Respondent failed to deposit the retainer fee Respondent received from Ms. Jordon and Ms. Lowe into an IOLTA account and to withdraw the fee as earned or expenses as incurred.
56. Respondent failed to act with reasonable diligence and have the deed transferred from the estate to Ms. Jordon.
57. During a staff meeting in early June 2010:
a. Respondent's then law associate, Jessica M. Hathaway, Esquire, reminded Respondent that the deed had not yet been prepared;
b. Respondent informed Ms. Hathaway that the sisters did not wish to have the estate probated at this time due to lack of funds;
c. Respondent instructed Ms. Hathaway to prepare the deed for recording;
d. Ms. Hathaway explained that the deed could not be recorded without Letters Testamentary; and
e. Respondent instructed Ms. Hathaway to prepare the deed and take it for recording without Letters Testamentary.
58. Respondent failed to provide competent representation when Respondent instructed Ms. Hathaway to prepare the deed and record the deed without Letters Testamentary.
59. On June 8, 2010, Ms. Lowe, acting both in her capacity as Executor of Ms. Morgan's Estate and individually, Ms. Jordon, and Ms. Coleman, signed an Indenture transferring Ms. Morgan's real property to Ms. Jordon for consideration of $1.
60. Per Respondent's instructions, Ms. Hathaway prepared the deed and related paperwork and took it to the Recorder of Deeds for recording.
61. On June 15, 2010, the Recorder of Deeds rejected the transfer of the deed because the Real Estate Transfer Tax Certification did not include decedent's name and estate number.
62. Ms. Hathaway advised Ms. Lowe that the deed could not be recorded without an Estate File Number and Letters Testamentary; Ms. Lowe informed Ms. Hathaway that she believed that she had submitted the Will for probate and obtained the necessary Estate File Number and Letters Testamentary.
63. On or before June 28, 2010, Ms. Hathaway called the Register of Wills and learned that Ms. Morgan's Will had been probated and Letters Testamentary had been issued to Ms. Lowe on March 28, 2008.
64. On June 30, 2010, Ms. Hathaway paid $200 to the Recorder of Deeds to record the transfer of Ms. Morgan's real property to Ms. Jordon.
65. Ms. Hathaway informed Ms. Lowe that she had successfully recorded the deed, after which time Ms. Lowe advised Ms. Hathaway that:
a. Ms. Lowe would handle any estate taxes with her accountant; and
b. Ms. Lowe had only hired Respondent for the deed transfer,
66. On or after June 30, 2010, Ms. Hathaway informed Respondent that:
a. Ms. Morgan's Will had been probated in March 2008;
b. she had recorded the deed;
c. Ms. Lowe would handle any estate taxes with her accountant;
d. Ms. Lowe had only hired Respondent for the deed transfer, for which Respondent charged $590; and
e. Ms. Lowe wanted a refund of Respondent's unearned fee.
67. Respondent failed to refund his unearned fee upon the completion and termination of the representation.
68. From time to time, Ms. Lowe would call Respondent's office requesting to speak with Respondent and requesting a refund of Respondent's unearned fee.
a. Respondent failed to speak to Ms. Lowe or promptly refund his unearned fee.
69. From time to time, Ms. Hathaway would remind Respondent of his duty to refund his unearned fee to Ms. Lowe.
a. Respondent failed to promptly refund his unearned fee to Ms. Lowe.
70. On or before September 3, 2010, Respondent agreed to refund $1,200 of his unearned fee to Ms. Lowe.
a. After September 3, 2010, Respondent issued a partial refund check to Ms. Lowe.
1. Respondent's first check was returned from the bank due to insufficient funds, after which time Respondent issued a replacement check.
71. By letter dated September 9, 2010, from Respondent to Ms. Lowe, Respondent confirmed that he had a verbal agreement with Ms. Lowe to refund $1,200 on or before September 15, 2010, enclosed a second check for $600, and stated that his refund was now paid in full.
72. By his conduct as alleged in paragraphs 52 through 71 above, Respondent violated the following Rules of Professional Conduct:
a. RPC 1.1, which states that a lawyer shall provide competent representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the representation;
b. RPC 1.3, which states that a lawyer shall act with reasonable diligence and promptness in representing a client;
c. RPC 1.4(a)(4), which states that a lawyer shall promptly comply with reasonable requests for information;
d. 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; and
e. RPC 1.16(d), which states that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
CHARGE IV: SHEIIA MURRAY AND LAWRENCE MURRAY MATTER
73. Ms. Sheila Murray and her son, Lawrence Murray, (the Murrays) owned real property located at 5636 Hadfield Avenue, Philadelphia, PA 19143, upon which HSBC Bank, USA, NA (HSBC) had foreclosed for nonpayment of a mortgage.
74. On March 2, 2010, Respondent met with the Murrays, during which time Respondent:
a. had a legal consultation with the Murrays.
1. received $150 in cash from the Murrays for the legal consultation.b. gave the Murrays a written fee agreement that stated:
1. Respondent's law firm was retained to "assist with negotiating with opposing counsel and to negotiate to attempt to stop sheriff's sale."
75. While the Murrays were consulting with Respondent, Carrie Johnson, Respondent's paralegal, contacted the Sheriff's Office.
a. The Sheriff's Office informed Ms. Johnson that 5636 Hadfield Street, Philadelphia, PA, had been sold at a Sheriff sale that very morning.
76. Ms. Johnson promptly informed Respondent what she had learned.
77. Respondent instructed Ms. Johnson, "Don't tell her [Ms. Murray], wait until after she pays us."
78. Respondent instructed Ms. Johnson to engage in conduct involving fraud, deceit, and misrepresentation in violation of the Rules of Professional Conduct.
79. After Respondent learned from Ms. Johnson that 5636 Hadfield Street, Philadelphia, PA, had been sold by the Sheriff's Office, Respondent failed to inform the Murrays of the material change in the status of their legal matter.
80. After Respondent learned from Ms. Johnson that 5636 Hadfield Street, Philadelphia, PA, had been sold by the Sheriff's Office, Respondent signed a fee agreement that stated Respondent's law firm was retained to "to negotiate to attempt to stop sheriff's Sale."
81. Respondent engaged in conduct involving fraud, deceit, and misrepresentation.
82. During the March 2, 2010 meeting with the Murrays, Respondent had the Murrays sign a written retainer agreement for Respondent's legal services.
83. Respondent's retainer agreement provided, in pertinent part, that Respondent's payment schedule was as follows:
1. $295 due on March 4, 2010;
2. $295 due on March 18, 2010; and
3. $295 due on April 4, 2010.
84. On March 2, 2010, Ms. Murray also signed an agreement entitled "Credit Card Authorization for Casework to Damon K. Roberts & Associates"; the agreement authorized Respondent's law firm to:
a. charge $150 to Ms. Murray's credit/debit card on March 4, 2010; and
b. charge Ms. Murray's credit/debit card for payment of the contingency fee upon the completion of services.
85. On March 4, 2010, Ms. Murray received written Notice to Occupants that the mortgage holder had acquired ownership of her property at a Sheriff Sale.
86. On March 5, 2010, Ms. Murray faxed a copy of the Notice to Occupants to Respondent.
87. Respondent did not take any action to set aside the Sheriff's Sale of the Murrays' property.
88. From March 5, 2010 to May 29, 2010, Respondent failed to take any action on the Murray matter.
89. Respondent failed to promptly discuss with Ms. Murray any options that might have been available to accomplish her objectives to stay in her house.
90. On May 30, 2010, the Murrays sent Respondent a Notice to Vacate Property that the Murrays had received informing the Murrays that their property had been purchased by Fannie Mae and they were required to vacate the property.
91. By facsimile letter dated June 9, 2010, from Ms. Johnson to Ms. Barbara Roach, an agent for the purchaser, Ms. Johnson asked whether the purchaser would consider a rent to own agreement whereby the Murrays would pay $550 monthly to remain in the property.
92. On June 14, 2010, Ms. Johnson was informed that the purchaser had denied the Murrays' rent to own request.
93. From time to time thereafter, Ms. Murray would call Respondent's office requesting information about the status of her legal matter.
a. Respondent failed to return Ms. Murray's telephone calls and promptly provide her with the requested information.
94. In or around June 24, 2010, Ms. Johnson explained to Ms. Murray that Respondent could not assist her with regaining her real property.
95. By letter dated July 9, 2010, from Respondent to Ms. Murray, Respondent advised Ms. Murray that his representation had ended and her file was closed.
96. By his conduct as alleged in paragraphs 73 through 95 above, Respondent violated the following Rules of Professional Conduct:
a. RPC 1.4(a)(2), which states that a lawyer shall reasonably consult with the client about the means by which the client's objectives are to be accomplished;
b. RPC 1.4(a)(3), which states that a lawyer shall keep the client reasonably informed about the status of the matter;
c. RPC 1.4(a)(4), which states that a lawyer shall promptly comply with reasonable requests for information;
d. RPC 1.4(b), which states that a lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the representation;
e. RPC 5.3(c)(1), which states that with respect to a non-lawyer employed or retained by or associated with a lawyer, a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved;
f. RPC 8.4(a), which states that 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; and
g. RPC 8.4(c), which states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
CHARGE V: LARRY PITT MATTER
97. On August 23, 2010, Keith Jones retained the law firm of Larry Pitt & Associates to represent him in his August 17, 2010 personal injury matter.
98. The law firm of Larry Pitt & Associates performed legal services on behalf of Mr. Jones.
99. On September 28, 2010, Mr. Jones informed Mr. Pitt that he was discharging Mr. Pitt and retaining Respondent.
100. On September 29, 2010, Mr. Jones signed a contingent fee agreement with Respondent's law firm to represent him in his August 17, 2010 personal injury matter.
101. On or before November 17, 2010, Nationwide Insurance Company of America (Nationwide) issued a $25,000 settlement check in Mr. Jones' matter, made payable to "Damon K. Roberts and Associates and Larry Pitt & Assoc PC and Keith Jones."
102. On or after November 17, 2010, Nationwide sent the $25,000 settlement check to Respondent at 1600 Market Street, 25th Floor, Philadelphia, PA 19103.
103. Respondent received the $25,000 check from Nationwide.
104. Respondent failed to promptly notify Mr. Pitt that Respondent had received the funds in which Mr. Pitt had an ownership interest.
105. Respondent did not return the $25,000 check to Nationwide and advise Nationwide to reissue a check made payable to Respondent and Mr. Jones for Respondent's portion of the settlement.
106. Respondent signed his own name to the back of the $25,000 settlement check.
107. Larry Pitt's name was also signed to the back of the settlement check.
108. Neither Respondent nor any agent of Respondent had Mr. Pitt's permission to sign Mr. Pitt's name to the back of the $25,000 settlement check.
109. Respondent or his agent forged Mr. Pitt's signature on the back of the $25,000 settlement check.
110. On or about November 29, 2010, Respondent deposited the $25,000 settlement check into Respondent's escrow account at TD Banknorth, account number 424-1330226.
111. On November 30, 2010, Respondent .withdrew $14,722.35 from Respondent's IOLTA account to pay Keith Jones his portion of the settlement.
112. On November 30, 2010, Respondent transferred $6,700 from Respondent's IOLTA account to Respondent's operating account at TD Bank North, account number 4241330218, for Respondent's portion of the Keith Jones settlement.
113. .Respondent failed to pay Mr. Pitt any portion of the settlement funds.
114. By his conduct as alleged in paragraphs 97 through 113 above, Respondent violated the following Rules of Professional Conduct:
a. RPC 1.15(d), which states that upon receiving Rule 1.15 Funds or property which are not Fiduciary Funds or property, a lawyer shall promptly notify the client or third person, consistent with the requirements of applicable law. Notification of receipt of Fiduciary Funds or property to clients or other persons with a beneficial interest in such Fiduciary Funds or property shall continue to be governed by the law, procedure and rules governing the requirements of confidentiality and notice applicable to the Fiduciary entrustment;
b. RPC 1.15(e), which states that except 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 and, upon request by the client or third person, shall promptly render a full accounting regarding the property; Provided, however, that the delivery, accounting and disclosure of Fiduciary Funds or property shall continue to be governed by the law, procedure and rules governing the requirements of Fiduciary administration, confidentiality, notice and accounting applicable to the Fiduciary entrustment;
c. RPC 1.15(f), which states that when in possession of funds or property in which two or more persons, one of whom may be the lawyer, claim an interest, the funds or property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the funds or property, including
Rule 1.15 Funds, as to which the interests are not in dispute; and
d. RPC 8.4(c), which states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
CHARGE VI: COMMINGLING FUNDS
115. Respondent maintained an IOLTA account at TD Banknorth, account number 424-1330226 ("IOLTA account").
116. Respondent maintained an operating account at TD Banknorth, account number 424-1330218 ("operating account").
A. ESCROW ACCOUNT
117. On March 2, 2011, Respondent had $64.64 in his IOLTA account.
118. On March 9, 2011, Respondent transferred $2,.500 from his operating account into his IOLTA account.
119. Respondent commingled his personal funds with fiduciary funds.
120. Respondent did not hold all Rule 1.15 funds separate from his own property.
121. On April 29, 2011, Respondent had $450.15 remaining in his escrow account.
B. OPERATING ACCOUNT
122. From March 2009 through March 2011, Respondent repeatedly deposited clients' retainer fees into his law firm's operating account upon his receipt of the fees from his clients.
123. Respondent failed to obtain his clients' informed consent, confirmed in writing, to not deposit the retainer fees into his trust account to be withdrawn by Respondent only as his fees were earned or expenses were incurred.
124. By his conduct as alleged in paragraphs 115 through 123 above, Respondent violated the following Rules of Professional Conduct:
a. RPC 1.15(b)(two counts), 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;
b. RPC 1.15(h), which states that a lawyer shall not deposit the lawyer's own funds in a Trust Account except for the sole purpose of paying service charges on that account, and only in an amount necessary for that purpose; and
c. 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.
CHARGE VII: GAIL E. COLON-HOBBS AND GEORGE HOBBS MATTER
125. On March 12, 2010, Saxon Mortgage Services, Inc. (Saxon) informed Mrs. Gail E. Colon-Hobbs and Mr. George Hobbs (the Hobbses) that Saxon was unable to assist them with a modification of a mortgage on the Hobbses' home located at 1456 South Hurffville Road, Deptford, NJ 08096.
126. On or about March 18, 2010, the Hobbses called Respondent's loan modification agent, Mr. Steven Nahas, to inquire about retaining an attorney to represent them in negotiating a loan modification of their mortgage with Saxon.
127. Mr. Nahas went to the Hobbses' home to discuss Respondent's mortgage modification services.
128. During the meeting at the Hobbses' home:
a. Mr. Nahas gave the Hobbses a written fee agreement from Respondent's law firm, Damon K. Roberts & Associates;
b. the Hobbses signed a Borrower's Certification and Authorization authorizing Respondent to apply and negotiate for a loan modification on their behalf;
c. the Hobbses signed an Authorization to Release Information to enable Respondent to obtain documents necessary for the representation; and
d. Mrs. Hobbs signed a Debit/Credit Card Authorization for Respondent's legal fee.
129. Respondent's fee agreement provided:
a. that the Hobbses were retaining Respondent to assist them in attempting to obtain a loan modification of their property;
b. Respondent's fee was $2,100 and could be paid in one lump sum or in three installments of $700; and
c. upon signing the agreement, the Hobbses become Respondent's client.
130. The Hobbses signed Respondent's fee agreement on March 18, 2010.
131. On March 18, April 18, and May 18, 2010, Mrs. Colon-Hobbs paid Respondent $700 for Respondent's legal fee.
132. Mr. Nahas advised the Hobbses, who were not behind on their mortgage when they signed Respondent's fee agreement, to allow their mortgage to become delinquent for at least two months in order for Mr. Nahas to be able to show "need" for the Hobbses' loan modification
a. The Hobbses followed Respondent's agent's advice and allowed their mortgage to become severely delinquent.
133. Respondent's agent instructed the Hobbses to engage in fraudulent and deceitful conduct.
134. As a result of the Hobbses' allowing their mortgage to become delinquent, the Hobbses incurred unnecessary late fees and penalties and had great difficulty in subsequently bringing their mortgage current.
135. On May 7, 2010, the Hobbses called Saxon and inquired about the status of their request for a mortgage modification.
136. Prior to June 9, 2010, Respondent or his agent sent the Hobbses a letter from the Law Office of Jim Kutkowski, P.C., authorizing Mr, Kutkowski to negotiate a modification of the Hobbses' mortgage with Saxon and requesting that the Hobbses complete the authorization.
a. On June 9, 2010, the Hobbses completed the authorization form and returned it to Respondent's office.
137. Thereafter, neither Respondent nor Respondent's agents had any further contact with the Hobbses.
138. Respondent failed to communicate with the Hobbses and keep them informed about the status of their legal matter.
139. Saxon never received any loan modification documents from Respondent or his agents concerning the Hobbses' mortgage.
140. Saxon never received any authorization to discuss the Hobbses' mortgage with Respondent or his agents.
141. Neither Respondent nor his agents attempted to engage in any mortgage modification discussions with Saxon about the Hobbses' mortgage.
142. On or about July 17, 2010, the Hobbses spoke to Saxon and discovered that:
a. neither Respondent nor Respondent's agents had submitted any loan modification
documents to Saxon or attempted to negotiate a modification of the Hobbses' mortgage; and
b. the Hobbses' request for a mortgage modification had been denied.
143. Respondent and Respondent's agents failed to act with reasonable diligence and attempt to negotiate a loan modification with Saxon on behalf of the Hobbses.
144. On July 22, 2010, the Hobbses terminated Respondent's legal services and notified Saxon not to discuss their file with Respondent.
145. On July 28, 2010, the Hobbses faxed a completed mortgage modification request to Saxon.
146. By letter dated August 5, 2010, Saxon advised the Hobbses that their request for a mortgage modification had been denied.
147. By letter dated September 2, 2011, sent via certified mail, from the Hobbses to Respondent, the Hobbses:
a. explained that they retained Respondent's law firm to file for and negotiate a loan modification with Saxon;
b. stated that they paid Respondent's law firm $2,100 for Respondent's legal services;
c. advised Respondent that their files regarding the loan modification were forwarded to them from The Law Office of Dean Chandler, a/k/a First American Law, a California law firm; and
d. requested that Respondent provide, within one week from the date of their letter: a summary of Respondent's legal work; an explanation why they did not receive a loan modification; an explanation of Respondent's relationship with Dean Chandler et al.;an accounting of Respondent's fee; and a refund of any unearned fee.
148. On September 6, 2011, Respondent's agent received the certified letter from the Hobbses.
149. Respondent failed to:
a. answer the Hobbses' letter;
b. provide the Hobbses with an accounting; and
c. refund Respondent's unearned fee.
150. As a partner in the law firm of Damon K. Roberts and Associates, P.C., Respondent failed to:
a. make reasonable efforts to ensure that the conduct of Respondent's non-lawyer assistants is compatible with the
professional obligations of the lawyer; and
b. make reasonable efforts to ensure that other lawyers under Respondent's supervision conform their conduct to the Rules of Professional Conduct.
151. In an effort to obtain a refund of Respondent's unearned fee, the Hobbses have filed complaints or claims against Respondent with the Pennsylvania Office of Attorney General, Pennsylvania and California client security funds, Pennsylvania and California attorney disciplinary authorities, and Philadelphia Small Claims Court.
152. On December 23, 2011, ODC sent Respondent, by facsimile and first class mail, a letter reminding him of ODC's outstanding request for the Hobbs client file.
153. Respondent did not comply with ODC s request for the Hobbs client file or provide an explanation as to why he could not produce the requested records.
154. By his conduct as alleged in paragraphs 125 through 153 above, Respondent violated the following Rules of Professional Conduct:
a. RPC 1.1, which states that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation;
b. RPC 1.3, which states that a lawyer shall act with reasonable diligence and promptness in representing a client;
c. RPC 1.4(a)(3), which states that a lawyer shall keep the client reasonably informed about the status of the matter;
d. RPC 1.4(a)(4), which states that a lawyer shall keep the client reasonably informed about the status of the matter;
e. RPC 1.16(d), which states that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property, to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law;
f. RPC 5.3(b), which states that with respect to a nonlawyer employed or retained by or associated with a lawyer: a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer;
g. RPC 8.4(a), which states that 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; and
h. RPC 8.4(c), which states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
CHARGE VIII: JOHNNIE B. LANCE, III, MATTER
155. On June 19, 2009, John E. Lance, Jr. (Decedent) died testate in Philadelphia County.
156. Decedent's Last Will and Testament:
a. bequeathed $25,000 to Decedent's son, John E. Lance, III (Lance, III);
b. bequeathed and devised the entire residue of Decedent's estate to Carmela Johnson-Brown (Decedent's foster child); and nominated Ms. Johnson-Brown as Executrix of Decedent's estate.
157. On July 10, 2009, the Philadelphia County Register of Wills issued letters testamentary to Ms. Johnson-Brown at No. 4859-2009.
158. Lance, III and Ms. Johnson-Brown had resided in Decedent's home, located at 2062 North 62nd Street, Philadelphia, PA 19151.
159. Ms. Johnson-Brown retained Bonnie Ostrofsky, Esquire, to represent her in the handling of Decedent's estate.
160. Lance, III had concerns about the cause of Decedent's death, Ms. Johnson-Brown's handling of Decedent's possessions, and Lance, Ill's ability to remain in his deceased father's residence.
a. On or before December 19, 2009, Lance, III discussed his concerns with Respondent.
161. On December 19, 2009:
a. Respondent provided Lance, III with a written fee agreement stating that for a retainer fee of $590, Respondent would
represent him in "letter writing and negotiations with" Ms. Ostrofsky; and
b. Lance, III signed the fee agreement.
162. On March 5, 2010, Ms. Johnson-Brown filed in the Orphans' Court of Philadelphia County, a Petition For Citation To Show Cause Why Real Estate Of Decedent Should Not Be Sold, which petition was docketed at No. 1421 DE 2009)(Lance, Jr. estate matter).
a. The Petition requested that the Court issue a Citation to Lance, III "to show cause why the real estate known as 2062 N. 62nd Street, Philadelphia, Pennsylvania should not be properly prepared for sale including the removal of all personal property and vehicles from the Property, and then sold."
163. On March 18, 2010, Respondent provided Lance, III with another written fee agreement; the fee agreement stated that for $2,360, Respondent would provide the following legal services: "continue negotiations with opposing counsel and attempt to get DPW waiver. Letter writing, advocacy and counsel."
164. On March 26, 2010, upon consideration of the Petition for Citation, the Orphans' Court directed Lance, III to show cause why the Court should not grant the relief requested in the Petition; on May 19, 2010, Respondent filed an Answer.
165. By Order dated August 19, 2010, the Honorable Joseph O'Keefe scheduled a conference in the Lance, Jr. estate matter for September 30, 2010.
a. Respondent received a copy of Judge O'Keefe's Order.
166. On August 26, 2010, Respondent was administratively suspended from the practice of law pursuant to Supreme Court Order dated July 27, 2010.
167. Upon being administratively suspended, Respondent failed to promptly notify Lance, III, by registered or certified mail, return receipt requested, of Respondent's administrative suspension and Respondent's consequent inability to act as an attorney.
168. Upon being administratively suspended, Respondent failed to notify other persons, including Ms. Ostrofsky, with whom Respondent may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that Respondent continued to be an attorney in good standing.
169. Respondent failed to withdraw from his representation of Lance, III in the Lance, Jr. estate matter.
170. On September 13, 2010, Respondent was reinstated to the practice of law in Pennsylvania.
171. By Order dated September 30, 2010, Judge Keefe scheduled the Lance, Jr. estate matter for a hearing on December 7, 2010.
a. Respondent received notice of the December 7, 2010 hearing.
172. Respondent advised Lance, III of the scheduled December 7, 2010 hearing.
173. On October 6, 2010, Respondent provided Lance, III with a fee agreement, which stated that for a retainer fee of $2,950, Respondent would "negotiate with opposing counsel and ... prepare for a potential hearing regarding the disposition of assets."
174. Prior to December 7, 2010, Respondent and Ms. Ostrofsky agreed to request a joint continuance of the Lance, Jr. estate matter scheduled for a hearing on December 7, 2010.
175. Respondent failed to keep Lance, III reasonably informed about the status of his legal matter and advise Lance, III that the December 7, 2010 hearing had been continued to a later date.
176. By Decree dated December 8, 2010, Judge O'Keefe rescheduled the Lance, Jr. estate matter for hearing at 10:30 a.m. on January 21, 2011.
177. By letter dated January 20, 2010 [sic], Respondent advised Lance, III that Respondent would be closing out his file, enclosed a letter sent to Ms. Ostrofsky informing her that Lance, III would be representing himself at the hearing, and wished Lance, III "the best of luck with the hearing. . . ."
178. Respondent failed to file with the Court a request to withdraw Respondent's representation, as required by Pa.R.C.P. 1012(b)(1).
179. Respondent failed to obtain the Court's permission to withdraw from the representation.
180. Respondent failed to appear on the morning of January 21, 2011, to represent Lance, III, at the scheduled hearing in the Lance, Jr. estate matter.
181. As a result of Respondent's failure to appear, Judge O'Keefe delayed the scheduled hearing, summoned Respondent to his courtroom, admonished Respondent for not obtaining the Court's permission to withdraw from the Lance, Jr. estate matter, and ordered that Respondent represent Lance, III.
182. Respondent's failure to follow court rules, obtain the Court's permission to withdraw from the Lance, Jr. estate matter, and timely appear at the scheduled hearing was prejudicial to the administration of justice.
183. Respondent represented Lance, III at the January 21, 2011 hearing.
184. On February 10, 2011, Judge O'Keefe issued a Decree in the Lance, Jr. estate matter; the Decree provided that:
a. within 45 days of the decree, Lance, III must remove his personal possessions from 2062 North 62nd Street, Philadelphia, PA;
b. Lance, III was permitted to enter 2062 North 62nd Street, Philadelphia, PA, only for purposes of removing his personal property and only when accompanied by Ms. Johnson-Brown; and
c. if Lance, III did not remove his personal property within 45 days, then Ms. Johnson-Brown may dispose of Lance, Ill's property, as she saw fit.
185. Respondent received a copy of Judge O'Keefe's February 10, 2011 Decree.
186. Respondent failed to inform Lance, III that Judge O'Keefe had issued the February 10, 2011 Decree or send him a copy of the Decree.
187. By his conduct as alleged in paragraphs 155 through 186 above, Respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:
a. RPC 1.1, which states that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation;
b. RPC 1.4(a)(3), which states that a lawyer shall keep the client reasonably informed about the status of the matter;
c. RPC 5.5(a), which states that a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so;
d. RPC 8.4(d), which states that it is professional misconduct for a lawyer to
engage in conduct that is prejudicial to the administration of justice;
e. Pa.R.D.E. 203(b)(3), which states that wilful violation of any other provision of the Enforcement Rules, shall be grounds for discipline, via the Enforcement Rules charged in subsections (f) through (h), infra:
f. Pa.R.D.E. 217(b), which states that a formerly admitted attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the disbarment, suspension, administrative suspension or transfer to inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status. The notice to be given to the client shall
advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney. In the event the client does not obtain substitute counsel before the effective date of the disbarment, suspension, administrative suspension or transfer to status, it shall be the responsibility of the formerly admitted attorney to move in the court or agency in which the proceeding is pending for leave to withdraw. The notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the formerly admitted attorney;
g. Pa.R.D.E. 217(c)(1), which states that a formerly admitted attorney shall promptly notify, or cause to be notified, of the disbarment, suspension, administrative suspension or transfer to inactive status, by registered or certified mail, return receipt requested: all persons or their agents or guardians to whom a fiduciary duty is or may be owed at any time after the
disbarment, suspension, administrative suspension or transfer to inactive status The responsibility of the formerly admitted attorney to provide the notice required by this subdivision shall continue for as long as the formerly admitted attorney is disbarred, suspended, administratively suspended or on inactive status; and
h. Pa.R.D.E. 217(c)(2), which states that a " formerly, admitted attorney shall promptly notify, or cause to be notified, of the disbarment, suspension, administrative suspension or transfer to inactive status, by registered or certified mail, return receipt requested: all other persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that he or she continues as an attorney in good standing. The responsibility of the formerly admitted attorney to provide the notice required by this subdivision shall continue for as long as the formerly
admitted attorney is disbarred, suspended, administratively suspended or on inactive status.
III. JOINT RECOMMENDATION FOR DISCIPLINE
188. Petitioner and Respondent jointly recommend that the appropriate discipline for Respondent's admitted misconduct is a thirty-month suspension.
189. Respondent hereby consents to the discipline being imposed by the Supreme Court of Pennsylvania. Attached to this Petition is Respondent's executed Affidavit required by Pa.R.D.E. 215(d), stating that he consents to the recommended discipline and including the mandatory acknowledgements contained in Pa.R.D.E. 215(d)(1) through (4).
190. Petitioner and Respondent respectfully submit that there is the following aggravating factor:
a. Respondent has been a defendant in a myriad of civil lawsuits and criminal actions, which involve:
1. creditors seeking to collect money owed, as follows: $213,653 mortgage foreclosure judgment (July 7, 2009), $2,867.49 judgment for failing to pay PA state taxes (May 4, 2012), $1,343.26
judgment for failing to pay for gas service (April 26, 2012), $924.96 judgment for failing to pay gas service (June 18, 2011), $2,659.30 complaint for non-payment of office rent (May 16, 2012), and $250.00 complaint for failing to pay water bill (October 15, 2007);
2. clients suing for malpractice (filed March 29, 2012 and August 5, 2011), and return of unearned legal fees (complaint November 30, 2011; $6,186.50 judgment entered January 18, 2012; Writ of Execution, 3/30/2012);
3. motor vehicle code violations, Driving with Suspended Vehicle Registration (April 27, 2012), Operating a Motor Vehicle Without Required Financial Responsibility (December 29, 2011), Failing to Stop at a Red Signal (September 3, 2001), and Speeding (July 2, 2001); and
4. criminal arrest charges of Resisting Arrest, Aggravated Assault, Disorderly
Conduct (March 3, 2002), and criminal conviction for Park After Dark (September 5, 2002).
191. Respondent and ODC respectfully submit that there are the following mitigating factors:
a. By virtue of Respondent's signing this Discipline on Consent, Respondent has expressed recognition of his violations of the Rules of Professional Conduct; and
b. Respondent's active involvement in community betterment programs and Philadelphia Bar Association committees as more fully set forth in Respondent's Curriculum Vitae attached hereto as Exhibit "A."
192. For over three years, Respondent violated a variety of attorney disciplinary rules while operating a small law firm that focused on real estate and land use matters.
In five client matters, Respondent neglected his clients' cases, failed to communicate with his clients, made misrepresentations to his clients to conceal his neglect, and made misrepresentations to his clients about the status of their cases in order to obtain additional legal fees. The Supreme Court often imposes a suspension of one year and one day on attorneys, like Respondent, who have no record of discipline, but engage in serial neglect coupled with misrepresentations to clients. See, e.g., Office of Disciplinary Counsel v. Howard Goldman , No. 157 DB 2003, D.Bd. Rpt. 5/20/2005 (S.Ct. Order 8/30/2005)(Supreme Court imposed a one-year-and-one-day suspension on Goldman, who neglected four client matters, made misrepresentations to conceal the neglect in two matters, failed to communicate with his clients, and failed to promptly surrender his unearned fee); and Office of Disciplinary Counsel v. W. David Delixnan , No. 91 DB 1990, 14 Pa. D.&C.4th 597, 608 (1992)(the Disciplinary Board recommended a suspension of one year and one day for Deliman's misconduct, reasoning that such discipline is the "appropriate sanction for cases of neglect and misrepresentation even where no prior discipline has been administered"; the Supreme Court adopted the Board's recommendation).
In addition to Respondent's misrepresentations to his clients, Respondent made misrepresentations in court pleadings filed in the Scott matter. Respondent's misrepresentations to the court were drafted to disguise his failing to timely file a motion to open a default judgment and an answer to a motion for summary judgment. Respondent's false statements to a tribunal should result in at least a three-month suspension. Cf. Office of Disciplinary Counsel v. Larason, No. 1 DB 2002, D.Bd. Rpt. 5/21/2004 (S.Ct. Order 8/19/2004){attorney who submitted a falsified Schedule of Creditors to the District Court, which the court relied upon in dismissing a lawsuit, received a suspension of three months).
Respondent also engaged in the unauthorized practice of law from August 26, 2010 until September 13, 2010, while he was on administrative suspension for failing to fulfill his continuing legal education requirements. During this nineteen-day time period, Respondent continued to operate his law firm, communicate with clients, use letterhead that stated "Damon K. Roberts & Associates, Real Estate/Land Use Attorneys," and hold himself out to third parties as being an attorney authorized to practice law in Pennsylvania. Although Respondent did not withdraw from court cases where he was attorney of record, Respondent did not appear in court on any of these matters during the time period of his administrative suspension. Precedent indicates that Respondent's.limited acts of unauthorized practice of law, spanning an equally limited time period, merits no more than a six-month suspension. See Office of Disciplinary Counsel v. Buffington , No. 45 DB 2004, D.Bd. Rpt. 6/22/2005, pp. 10-11 (S.Ct. Order 9/20/2005).
Furthermore, Respondent mishandled client funds and mismanaged his bank accounts. Respondent routinely placed retainer fees directly into his operating account without obtaining his clients' written informed consent not to hold their fees in Respondent's escrow account until the fees were earned or expenses were incurred. On one occasion, Respondent transferred funds from his operating account to his escrow account. Discipline for attorneys who mismanage and commingle funds as a "product of neglect and carelessness" without an "intent to steal" generally receive a minimum suspension of six months. Office of Disciplinary Counsel v. William B. Guffey , 17 Pa. D.&C.4th 170, 187-188 (1992).
Respondent's mishandling of funds extended to his knowingly depositing a settlement check with a forged signature into his escrow account. In the Pitt matter, Respondent received a $25,000 settlement check made payable to both Larry Pitt, Esquire, and Respondent. Respondent or his agent forged Mr. Pitt's name to the back of the settlement check and Respondent deposited the check into Respondent's escrow account. Respondent failed to promptly notify Mr. Pitt of Respondent's receipt of the settlement check and to deliver to Mr. Pitt his share of the settlement funds. Respondent's misconduct requires that Respondent receive an additional one-year-and-one-day suspension. Cf. Office of Disciplinary Counsel v. Robert Sitoski, No. 77 DB 93, 34 Pa. D.&C.4th 214 (1996)(attorney who engaged in deceptive conduct to avoid paying a referral fee to another lawyer received a suspension of one year).
193. Based on precedent, the amount of discipline that should be imposed for Respondent's multifarious misdeeds is a three-year suspension. Compare Office of Disciplinary Counsel v. Susan Bell Bolno , No. 162 DB 2000, D.Bd. Rpt. 12/16/2002 (S.Ct. Order 3/7/2003)(attorney who neglected four client matters, made misrepresentations to conceal her neglect, violated attorney registration regulations, failed to make restitution to clients, and had no record of discipline, received a two-year suspension), with Office of Disciplinary Counsel v. Daniel E. Houlihan, Nos. 208 DB 2003 & 110 DB 2004, D.Bd. Rpt. 1/4/2006 (S.Ct. Order 3/28/2006)(attorney with no record of discipline received four-year suspension for neglect, lack of communication, and knowingly making false statements to a tribunal).
194. Respondent's cooperation with Disciplinary Counsel and not insignificant charitable contributions should temper this three-year suspension recommendation by six months. See Office of Disciplinary Counsel v. Daniel W. Chung , 695 A.2d 405, 407-408 (Pa. 1997)h(Chung's significant history of service to the Korean community and admission of misconduct mitigated discipline imposed). Accordingly, a thirty-month suspension is the appropriate quantum of discipline to be imposed to protect the public from this patently unfit practitioner.
195. WHEREFORE, Petitioner and Respondent respectfully request that:
a. Pursuant to Pa.R.D.E. 215(e) and 215(g), the three-member panel of the Disciplinary Board review and approve the Joint Petition in Support of Discipline on Consent and file its recommendation with the Supreme Court of Pennsylvania recommending that the Supreme Court enter an Order that Respondent receive a thirty-month suspension; and
b. Pursuant to Pa.R.D.E. 215(i), the three-member panel of the Disciplinary Board enter an Order for Respondent to pay the necessary expenses incurred in the investigation and prosecution of this matter as a condition to the grant of the Petition, and that all expenses be paid by Respondent before the
imposition of discipline under Pa.R.D.E. 215(g).
Respectfully and jointly submitted,
OFFICE OF DISCIPLINARY COUNSEL
PAUL J. KILLION
CHIEF DISCIPLINARY COUNSEL
By ____________________
Harriet R. Brumberg
Disciplinary Counsel
By ____________________
Damon K. Roberts, Esquire
Respondent
By ____________________
Barbara S. Rosenberg, Esquire
Counsel for Respondent