Opinion
No. 2075 Disciplinary Docket No. 3 No. 86 DB 2014
03-18-2016
OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. LeROY NATHANIEL STRICKLAND, Respondent
Attorney Registration No. 29498 (Out of State) ORDER
PER CURIAM
AND NOW, this 18th day of March, 2016, upon consideration of the Recommendation of the Three-Member Panel of the Disciplinary Board, the Joint Petition in Support of Discipline on Consent is hereby granted, and LeRoy Nathaniel Strickland is suspended on consent from the Bar of this Commonwealth for a period of one year, retroactive to November 6, 2014, and he shall comply with all the provisions of Pa.R.D.E. 217.
It is further ORDERED that Respondent shall pay costs to the Disciplinary Board pursuant to Pa.R.D.E. 208(g). A True Copy Patricia Nicola
As Of 3/18/2016 Attest: /s/_________
Chief Clerk
Supreme Court of Pennsylvania BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA 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, LeRoy Nathaniel Strickland, 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, 601 Commonwealth Avenue, Suite 2700, P.O. Box 62625, Harrisburg, PA 17106-2625, 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, LeRoy Nathaniel Strickland, was born on December 22, 1949, and was admitted to practice law in the Commonwealth of Pennsylvania on May 16, 1979.
3. Attorney registration records state that Respondent's public access address is 616 Torrington Place, Dayton, Ohio 45406; Respondent is currently residing at 849 NW 3rd Street, Webster, FL 33597-4763.
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.
5. By Order dated October 7, 2014, the Supreme Court placed Respondent on temporary suspension.
II. FACTUAL ADMISSIONS AND VIOLATIONS OF RULES OF
PROFESSIONAL CONDUCT
6. Respondent specifically admits to the truth of the factual allegations and conclusions of law contained in paragraphs 1 through 31.
CHARGE
7. On August 27, 2013, Respondent and his client had a luncheon meeting to discuss Respondent's client's case.
8. After lunch, Respondent requested that his client drive him to Walmart, located at 1950 Normandie Avenue, Los Angeles, California.
9. While Respondent was in Walmart, the Walmart security guards purportedly observed Respondent place electronic equipment, valued at $70, in his pants pocket and leave the store without paying for the merchandise.
10. The Walmart security guards contacted the Los Angeles County Police Department, whose officers took Respondent into custody for the alleged shoplifting.
11. Thereafter, Respondent was charged with Robbery, in violation of Cal.Pen.Code § 211, a felony of the second degree.
12. On September 13, 2013, Respondent had a preliminary hearing before the Honorable Richard R. Romero and was held for court as charged. The People of the State of California v. Leroy Nathaniel Strickland , No. NA096686, Superior Court, Los Angeles County.
13. On January 28, 2014, prior to the commencement of trial, Judge Romero granted the District Attorney's motion to amend the charges to add a violation of Commercial Burglary, Cal.Pen.Code § 459, a felony of the second degree.
14. On January 28, 2014, Respondent's trial commenced before a jury and Judge Romero.
a. Respondent called his client to testify as a witness at his trial.
15. On January 31, 2014, the jury found Respondent guilty of Commercial Burglary and acquitted Respondent of Robbery.
16. The penalty for Commercial Burglary is imprisonment "in a county jail for 16 months, or two or three years." Cal.Pen.Code §§ 1170(h)(i), 461(b).
a. Respondent was convicted of a "crime" as defined by Rule 214(h), Pa.R.D.E.
17. On February 5, 2014, Judge Romero sentenced Respondent to:
a. sixteen months of imprisonment in the county jail, credit for 42 days in custody (21 days actual custody and 21 days good time/work time);
b. a "restitution fine" of $300;
c. a $40 court security fee; and
d. a $30 government facilities fee.
18. Respondent failed to report his conviction to the Office of Disciplinary Counsel, as mandated by Pa.R.D.E. 214(a).
19. Respondent was in custody at the Men's Central Jail, Los Angeles County, from August 27, 2013 to September 8, 2013, and from January 31, 2014 to August 30, 2014, for a total of 223 days.
20. On November 4, 2014, California passed Proposition 47, which amended the Penal Code to permit a person who has been convicted of shoplifting items valued at less than $950, to petition the Court to have his or her felony reclassified as a misdemeanor.
21. On December 17, 2014, Respondent filed a petition with the Court to have his felony conviction reclassified as a misdemeanor conviction.
22. On February 19, 2015, the Court considered Respondent's petition and entered an order reclassifying Respondent's felony conviction as a misdemeanor conviction.
23. By his conduct as alleged in paragraphs 7 through 22 above, Respondent violated the following Rules of Professional Conduct and Pennsylvania Rules of Disciplinary Enforcement:
a. RPC 8.4(b), which states that 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;
b. RPC 8.4(c), which states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
c. 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;
d. Pa.R.D.E. 203(b)(1), which states that conviction of a crime shall be grounds for discipline; and
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 Pa.R.D.E. 214(a), which provides that an attorney convicted of a crime shall report the fact of such conviction within 20 days to the Office of Disciplinary Counsel. The responsibility of the attorney to make such report shall not be abated because the conviction is under appeal or the clerk of the court has
transmitted a certificate to Disciplinary Counsel pursuant to subdivision (b) [of Rule 214].
III. JOINT RECOMMENDATION FOR DISCIPLINE
24. Petitioner and Respondent jointly recommend that the appropriate discipline for Respondent's admitted misconduct is a suspension of one year, retroactive to November 6, 2014, the effective date of Respondent's temporary suspension.
25. 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).
26. Petitioner and Respondent respectfully submit that there is the following aggravating factor:
a. Respondent had a prior arrest in Florida for Grand Theft and Obstructing or Resisting Officer Without Violence, which resulted in Respondent's entering a plea of nolo contendere to both charges on August 18, 2004, the court's withholding the
adjudication of guilt, and the court's placing Respondent on probation for a period of 12 months with a special condition that Respondent be eligible to terminate probation after 6 months. State of Florida v. Leroy Strickland , No. CRC 04-04565 (Circuit Court, Pinellas, FL).
27. Respondent and ODC respectfully submit that there are the following mitigating factors:
a. other than the temporary suspension in this matter, Respondent has no discipline of record;
b. Respondent has cooperated with ODC's investigation and prosecution; and
c. by virtue of Respondent's signing this Discipline on Consent, Respondent has expressed recognition of his violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement.
28. Applicable precedent indicates that a suspension of one year, retroactive to November 6, 2014, is the appropriate quantum of discipline to be imposed on Respondent.
29. Attorneys who have been convicted of retail theft have received public discipline ranging from a four-month to a five-year suspension. When an attorney has been convicted of multiple counts of retail theft or the retail theft is in addition to an attorney's conviction for a serious felony, then the attorney receives a lengthy term of suspension for the combined convictions. See, e.g., Office of Disciplinary Counsel v . Trout , No. 51 DB 1999 , D.Bd. Rpt. 9/20/2012 (S.Ct. Order 11/13/2000)(Supreme Court imposed a three-year suspension on an attorney who had seven shoplifting convictions and a conviction for possession of drug paraphernalia); Office of Disciplinary Counsel v. Heisterkamp , Nos. 29 DB 93 and 36 DB 94 , D.Bd. Rpt. 11/16/1995 (S.Ct. Order 1995) (Supreme Court imposed a five-year suspension, retroactive to the date of temporary suspension, on a former assistant district attorney who was convicted of retail theft and stealing cocaine from the evidence room). Yet if an attorney has only a single summary retail theft conviction unaccompanied by other convictions, then the attorney receives a short term of suspension. See Office of Disciplinary Counsel v . Richard D. Gilchrist , 13 DB 85 , 43 Pa. D.&C.3d 459 (1987)(Gilchrist received a four-month suspension for his summary retail theft conviction of shoplifting a pair of $29 slacks).
30. The facts of Gilchrist are analogous to the instant case. In Gilchrist , the attorney was shopping at a mall in Pennsylvania and placed a pair of slacks under his overcoat with the intent to convert the merchandise to his own use. Following a proceeding before a District Magistrate, Gilchrist was found guilty of retail theft as a summary offense. Gilchrist also had another retail theft arrest, which resulted in an ARD disposition and expungement of his record. In recommending a four-month suspension, the Hearing Committee explained that although Gilchrist's acts "revolve around minor if not pathetic events," it felt that a period of suspension was necessary because the wrongdoing involved dishonesty and deceit. 43 Pa. D.&.C.3d at p. 4 64. The Supreme Court agreed and imposed a four-month suspension.
Here, Respondent was convicted of commercial burglary for shoplifting electronic equipment, valued at approximately $70, from Walmart. As was the case with Gilchrist, Respondent attempted to conceal the merchandise in his clothing as he left the store. In addition, both Respondent and Gilchrist have a prior theft arrest for which they received a non-conviction, rehabilitative disposition. Although the value of the merchandise for which Respondent was convicted of shoplifting was greater than the value of the merchandise for which Gilchrist was convicted, the $43 monetary difference between the items that were shoplifted should not make a difference in the quantum of discipline to be imposed.
But there are significant differences between the facts of these two cases—Respondent was initially convicted of a felony of the second degree (which was reclassified as a misdemeanor) and served a lengthy term of imprisonment for his crime, whereas Gilchrist was convicted of a summary offense and did not serve any time in prison. Moreover, Respondent failed to report his conviction as mandated by Pa.R.D.E. 214(a). Of further significance is the fact that Respondent's retail theft tacitly involved his client, who drove Respondent to Walmart and waited in his car while Respondent stole the electronic equipment.
While Respondent's commercial burglary conviction is not as egregious as the litany of crimes committed by the attorneys in Trout and Heisterkamp , supra, the circumstances surrounding Respondent's crime warrant Respondent's receipt of more substantial discipline than that which was imposed on Gilchrist. A term of suspension that would require Respondent to undergo a reinstatement hearing, however, is not necessary to protect the public, courts, and profession. Based on the totality of the facts and circumstances, a suspension of one year would be appropriate.
31. Accordingly, ODC and Respondent jointly request that Respondent receive a suspension of one year, retroactive to November 6, 2014, the effective date of the Order placing Respondent on temporary suspension.
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 suspension of one year, retroactive to November 6, 2014, the effective date of the Order placing Respondent on temporary suspension;
b. Pursuant to Pa.R.D.E. 215(g) and 215(i), the three-member panel of the Disciplinary Board enter an Order that Respondent pay the necessary costs and expenses incurred in the investigation and prosecution of this matter, the Board Secretary immediately file the recommendation of
the panel and the Petition with the Supreme Court without regard to Respondent's payment of costs and expenses, and all costs and expenses be paid by Respondent within thirty of the date of the panel's approval of the Discipline on Consent unless Respondent and the Board Secretary enter into a plan, confirmed in writing, to pay the necessary costs and expenses at a later date.
Respectfully and jointly submitted,
OFFICE OF DISCIPLINARY COUNSEL
PAUL J. KILLION
CHIEF DISCIPLINARY COUNSEL 2/4/2016
Date By /s/_________
Harriet R. Brumberg
Disciplinary Counsel 2/11/2016
Date By /s/_________
LeRoy Nathaniel Strickland
Respondent BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
VERIFICATION
The statements contained in the foregoing Joint Petition In Support Of Discipline On Consent Under Pa.R.D.E. 215(d) are true and correct to the best of our knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. 2/4/2016
Date By /s/_________
Harriet R. Brumberg
Disciplinary Counsel 2/11/2016
Date By /s/_________
LeRoy Nathaniel Strickland
Respondent BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
AFFIDAVIT UNDER RULE 215(d), Pa.R.D.E.
Respondent, LeRoy Nathaniel Strickland, hereby states that he consents to the imposition of a suspension of one year, retroactive to November 6, 2014, and further states that:
1. His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress; he is fully aware of the implications of submitting the consent; and he has not consulted with counsel in connection with the decision to consent to discipline;
2. He is aware that there is presently pending a proceeding involving allegations that he has been guilty of misconduct as set forth in the Joint Petition;
3. He acknowledges that the material facts set forth in the Joint Petition are true; and
4. He knows that if the charges continued to be prosecuted in the pending proceeding, he could not successfully defend against them.
/s/_________
LeRoy Nathaniel Strickland
Respondent Sworn to and subscribed before me this 12th day of February, 2016. /s/_________
Notary Public