Opinion
No. 2232 Disciplinary Docket No. 3 No. 203 DB 2014
12-08-2015
OFFICE OF DISCIPLINARY COUNSEL Petitioner v. NICHOLAS C. STROUMBAKIS Respondent
ORDER
PER CURIAM
AND NOW, this 13 day of April, 2016, upon consideration of the responses filed, the Rule to Show Cause entered by this Court on February 10, 2016, is discharged, Nicholas C. Stroumbakis is suspended from the Bar of this Commonwealth for a period of six months, and he shall comply with all the provisions of Pa.R.D.E. 217. Respondent shall pay costs to the Disciplinary Board pursuant to Pa.R.D.E. 208(g). A True Copy Patricia Nicola
As Of 4/13/2016 Attest: /s/_________
Chief Clerk
Supreme Court of Pennsylvania Attorney Registration No. 73135 (Berks County)
REPORT AND RECOMMENDATIONS OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA:
Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania ("Board") herewith submits its findings and recommendations to your Honorable Court with respect to the above-captioned Petition for Discipline.
I. HISTORY OF PROCEEDINGS
By Petition for Discipline filed on December 18, 2014, Office of Disciplinary Counsel charged Respondent, Nicholas C. Stroumbakis with violations of the Pennsylvania Rules of Disciplinary Enforcement arising out of Respondent's failure to appear before Chief Disciplinary Counsel and fulfill the conditions of an Informal Admonition. Respondent failed to file an Answer to Petition for Discipline.
A prehearing conference was scheduled to be held on March 25, 2015. On March 24, 2015, Respondent requested a continuance due to a death in his family. A new prehearing conference was scheduled for April 9, 2015. Respondent failed to appear for the prehearing conference.
A disciplinary hearing was held on April 30, 2015, before a District II Hearing Committee comprised of Chair Nicholas M. Mancini, Esquire, and Members Carin Ann O'Donnell, Esquire and Gunther O. Carrie, Esquire. Respondent appeared pro se.
Following the submission of a Brief by Petitioner, the Hearing Committee filed a Report on September 4, 2015, concluding that Respondent violated the Rules as charged in the Petition for Discipline and recommending that he be suspended for a period of three months.
No Briefs on Exception were filed by the parties.
This matter was adjudicated by the Disciplinary Board at the meeting on October 22, 2015.
II. FINDINGS OF FACT
Pursuant to Pa.R.D.E. 208(b)(3), all factual allegations in the Petition for Discipline are deemed admitted as a consequence of Respondent's failure to answer the Petition.
The Board makes the following findings:
1. Petitioner, Office of Disciplinary Counsel, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid Rules.
2. Respondent is Nicholas C. Stroumbakis. He was born in 1969 and was admitted to practice law in the Commonwealth of Pennsylvania in 1994. His attorney registration address is 539 Court Street, Reading, PA 19601-3488. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
3. Respondent has no record of prior discipline.
4. Respondent is a criminal defense attorney handling primarily court-appointed conflicts work, with 99% of his business located in Berks County. N.T. 48, 53-54.
5. Respondent owns the office building at 539 Court Street in Reading and pays the mortgage. N.T. 46, 51-52.
6. Respondent lists the 539 Court Street address as an address of record; however, Respondent only goes to the office building "but every once in a great while" to "see if there is anything that needs attending to mostly for the maintenance of the building." N.T. 53, 57, ODC-19.
7. Carol Anne Donohoe, Esquire maintains an office in Respondent's building at 539 Court Street and puts Respondent's mail in his office. N.T. 58-59, 62.
8. Respondent's building is essentially shut down, but for the one tenant listed above. N.T. 30.
9. Respondent has an office at his home and meets clients at the courthouse lawyers' lounge. N.T. 103-104. The majority of his paperwork is received via email. N.T. 53.
10. Respondent never meets clients at the 539 Court Street office. N.T. 84.
11. Respondent keeps closed files at the 539 Court Street office. N.T. 104.
12. By letter dated October 7, 2013, Petitioner advised Respondent that:
a. Respondent's client, Theadore R. Williams had made a disciplinary complaint against him;
b. Respondent had been appointed by the court to file post-sentence motions on behalf of Mr. Williams, or, in the alternative, to perfect an appeal on his behalf after both those rights had been reinstated by the court;
c. Respondent failed to undertake either action and essentially abandoned Mr. Williams's case;
d. Respondent had failed to keep Mr. Williams advised of the status of his case and the fact that Respondent was not going to file such post-sentence motions or otherwise perfect an appeal; and
e. Respondent remained - as of the date of the letter - Mr. Williams's attorney of record.
ODC - 3.
13. By letter dated December 10, 2013, Respondent advised Petitioner that:
a. Respondent had "no substantial disagreement" with the procedural history set forth in the October 7, 2013 letter;
b. Respondent had allowed the matter to "languish" and that he had "mishandled" the matter and had taken no action because of his "high caseload"; and
c. Respondent would do "what I can to help resolve this situation."
ODC-4.
14. Petitioner thereafter unsuccessfully attempted to contact Respondent on six occasions between December 19, 2013 and February 25, 2014. ODC-5.
15. Petitioner contacted Respondent by email on January 29, 2014 and February 25, 2014 regarding attempts to contact him by telephone and requesting the status of Respondent's efforts to assist Mr. Williams. ODC-6.
16. Respondent advised Petitioner on February 26, 2014 by email that he did not "receive voicemail on that number at present" and "just noticed" the email and that he would in the future be "porting over my office line to a cell." Respondent was "sorry for the delay" and stated that "this case is an albatross and I must address it immediately." Respondent advised that he would make inquiries as to filing a nunc pro tunc motion or a no merit brief and asked for "a little more leeway and I will take care of it." ODC-7.
17. Despite Respondent's statement to Petitioner, and despite the urging of Petitioner, he took no action on behalf of his client. N.T. 71; ODC-20, ODC-21.
18. By letter dated August 4, 2014, Chief Disciplinary Counsel Paul J. Killion informed Respondent that:
a. Respondent had been previously advised of a complaint against him alleging violations of the Rules of Professional Conduct and that the investigation into the complaint had been completed;
b. It had been determined that Respondent should receive an Informal Admonition in File No. C2-13-5, for violations of RPC 1.2(a), RPC 1.3, RPC 1.4(a)(2), RPC 1.4(a)(3), RPC 1.4(a)(4), RPC 1.4(b), RPC 1.16(d) and RPC 8.4(d);
c. The Informal Admonition was conditioned upon Respondent providing to the Office of Disciplinary Counsel documented proof that he took whatever steps necessary to restart or revive Mr. Williams's appeal process in the Berks County Court of Common Pleas criminal case, and that when appropriate, file a motion to withdraw from the case;
d. Respondent had the option of notifying the Secretary of the Disciplinary Board and the Office of Disciplinary Counsel, in writing, within twenty (20) days, that Respondent did not wish to receive an informal admonition with conditions and that he would like to have the question of his conduct determined by formal proceedings pursuant to Pa.R.D.E. 208(a)(6) and Disciplinary Board Rule §87.54; and
e. The failure to file such a request within twenty days of a Notice to Appear would result in the loss of Respondent's right to demand formal proceedings, pursuant to Disciplinary Board Rule §87.54(b).
ODC-9; Pet. ¶4.
19. Chief Disciplinary Counsel sent the August 4, 2014 letter to Respondent by certified mail, return receipt requested and by first class mail, to his registered mailing address of 539 Court Street, Reading, Pennsylvania 19601 in Berks County. Pet. ¶ 5; ODC-10.
20. Respondent did not claim the certified mailing of the August 4, 2014 letter; however, the first class mailing was not returned to Petitioner. Pet. ¶6; ODC-10.
21. Respondent received Chief Disciplinary Counsel's August 4, 2014 letter. Pet. ¶7
22. A condition attached to the Informal Admonition was set forth in detail in Chief Disciplinary Counsel's letter of August 4, 2014. ODC-9.
23. Respondent did not request formal proceedings. Pet. ¶8.
24. By Notice to Appear dated August 20, 2014, Chief Disciplinary Counsel advised Respondent that his Informal Admonition had been scheduled for Wednesday, September 10, 2014, at 10:30 a.m. in Petitioner's District II office at 820 Adams Avenue, Suite 170, Trooper, Pennsylvania 19403. Pet.¶ 9; ODC-11.
25. Chief Disciplinary Counsel sent the August 20, 2014 Notice to Appear by certified mail, return receipt requested, and by first class mail, addressed to Respondent's address of record. Pet. ¶10; ODC-11, ODC-12.
26. On or about August 24, 2014, Respondent received the certified mailing. Pet. ¶11, ODC-12.
27. The Notice to Appear sent to Respondent by first class mail was not returned to Petitioner. Pet. ¶12.
28. Respondent received the August 20, 2014 Notice to Appear sent by first class mail. Pet. ¶13.
29. Respondent failed to contact either the Secretary of the Disciplinary Board or the Office of Disciplinary Counsel to inform them that:
a. He did not wish to receive the Informal Admonition;
b. He wished to institute formal proceedings before a Hearing Committee;
c. He was unable to satisfy the condition prior to September 10, 2014; and
d. He was unable to attend the Informal Admonition on September 10, 2014.
Pet. ¶14.
30. On August 25, 2014, Petitioner contacted Respondent via email, to:
a. Determine whether Respondent had completed the condition as stated in Chief Disciplinary Counsel's letter dated August 4, 2014;
b. Request that Respondent let Petitioner know; and
c. Remind Respondent that the condition must be completed before his Informal Admonition scheduled on September 10, 2014.
Pet ¶15; ODC-13.
31. On August 25, 2014, Respondent sent a response to Petitioner, via email, and stated he did not know what Petitioner meant by "the condition." Pet ¶16; ODC-13.
32. On August 25, 2014, Petitioner sent Respondent a detailed email stating exactly what "the condition" was and a summarization of four emails that Petitioner had previously sent to Respondent on the topic. Pet. ¶17; ODC 5-8; ODC-13.
33. Respondent did not appear for the September 10, 2014 Informal Admonition. N.T. 11, 96-97.
34. On or about October 17, 2014, over a month after the Informal Admonition was scheduled to be held, Respondent contacted Chief Disciplinary Counsel and stated he was not able to attend because he was in court. Pet. ¶18; N.T. 60-61, 68-69.
35. By Notice to Appear dated October 17, 2014, Chief Disciplinary Counsel advised Respondent that his Informal Admonition was scheduled for Thursday, October 30, 2014 at 12:00 p.m. in Petitioner's District II Office at 820 Adams Avenue, Suite 170, Trooper, Pennsylvania 19403. Pet. ¶19; ODC-14.
36. Chief Disciplinary Counsel sent the October 17, 2014 Notice to Appear letter to Respondent by certified mail, return receipt requested and by first class mail to his address of record. Pet. ¶20; ODC-15.
37. Respondent did not claim the certified mailing of October 17, 2014; however, the first class mailing was not returned to Petitioner. Pet. ¶21; ODC-15.
38. Respondent received the October 17, 2004 Notice to Appear letter. Pet. ¶22.
39. Respondent failed to provide Office of Disciplinary Counsel with documentation to show that he complied with the condition prior to his Informal Admonition scheduled for October 30, 2014. Pet. ¶23; N.T. 75-76.
40. On October 30, 2014, Respondent failed to appear for his Informal Admonition. Pet. ¶24; ODC-16.
41. On November 26, 2014, Chief Disciplinary Counsel sent a letter to Respondent at his address of record, via first class mail, and notified Respondent, inter alia, that:
a. By letter dated October 17, 2014, he was advised that an Informal Admonition was to be administered to him;
b. He failed to appear at the time and date scheduled;
c. §87.52(b) of the Disciplinary Board Rules provides that "the neglect or refusal of the respondent-attorney to appear for the purposes of informal admonition without good cause shall (as provided by Enforcement Rule 203(b)(2)) constitute an independent act of professional misconduct..."; and
d. If he had any reason he wished to offer for not appearing at the scheduled informal admonition that might represent "good cause," Respondent should advise Chief Disciplinary Counsel within 10 days from receipt of the letter.
Pet. ¶25; ODC-16.
42. Chief Disciplinary Counsel's November 26, 2014 letter, sent via first class mail, was not returned to Petitioner. Pet. ¶26.
43. Respondent received Chief Disciplinary Counsel's letter dated November 26, 2014. Pet. ¶27.
44. Respondent failed to respond to Chief Disciplinary Counsel's letter dated November 26, 2014. Pet. ¶28.
45. Petitioner filed a Petition for Discipline against Respondent on December 18, 2014. ODC-1.
46. On December 29, 2014, ODC Investigator Stephen J. Schmitt personally served Respondent with the Petition for Discipline, a Notice to Plead and a cover letter at his residence in West Lawn, Pennsylvania. ODC-1, ODC-2.
47. Respondent failed to answer the Petition for Discipline. ODC-17.
48. Respondent appeared at the disciplinary hearing on April 30, 2015 and testified on his own behalf.
49. In his opening statement, Respondent explained that "Due to problems, a variety of personal problems and problems with my office I did not take the appropriate measures to make sure that I was receiving all correspondence. That is my failure. I am deemed to have admitted it. I understand that." N.T. 15-16.
50. Respondent further stated he "didn't willfully fail to appear" and "I am not stipulating to actual notice." N.T. 15, 17.
51. Respondent testified that he did not receive several letters from Chief Disciplinary Counsel or the Disciplinary Board sent by certified mail or regular mail to his address of record. Respondent received Petitioner's DB-7 letter, dated October 7, 2013, Chief Disciplinary Counsel's letter dated August 20, 2014 and an annual attorney registration fee form at the address of record. N.T. 54-56, 60-61; ODC-4.
52. Respondent admitted that he was "guilty of being an ostrich" and "sticking [his] head in the sand." N.T. 31-32, 106.
53. Respondent has not officially changed his attorney registration address from the Court Street office address to a P.O. Box or home address. N.T. 86
54. Respondent has not implemented any procedures to ensure that he receives mail delivered to his Court Street office address. N.T. 86.
55. Respondent did not express sincere remorse.
III. CONCLUSIONS OF LAW
1. By his conduct as set forth above, Respondent has violated the following Pennsylvania Rules of Disciplinary Enforcement:
a. Pa.R.D.E. 203(b)(2) - Willful failure to appear before Disciplinary Counsel for informal admonition shall be grounds for discipline.
b. Pa.R.D.E. 203(b)(3) - Willful violation of any other provision of the Enforcement Rules shall be grounds for discipline, via Pa.R.D.E. 204(b), which provide that conditions may be attached to an informal admonition and the failure to comply with such conditions, shall be grounds for reconsideration of the matter and prosecution of formal charges.
2. As a result of Respondent's failure to demand the institution of formal proceedings, Respondent is conclusively deemed to have violated the following Rules of Professional Conduct in connection with the disciplinary complaint filed by Mr. Williams:
a. RPC 1.2(a) - A lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.
b. RPC 1.3 - A lawyer shall act with reasonable diligence and promptness in representing a client.
c. RPC 1.4(a)(2) - A lawyer shall reasonably consult with the client about the means by which the client's objectives are to be accomplished.
d. RPC 1.4(a)(3) - A lawyer shall keep the client reasonably informed about the status of the matter.
e. RPC 1.4(a)(4) - A lawyer shall promptly comply with reasonable requests for information.
f. RPC 1.4(b) - A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
g. RPC 1.16(d) - 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.
h. RPC 8.4(d) - It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.
IV. DISCUSSION
Petitioner bears the burden of proving, by a preponderance of evidence that is clear and satisfactory, that Respondent's actions constitute professional misconduct. Office of Disciplinary Counsel v. Surrick, 749 A.2d 441 (Pa. 2000). Petitioner has met that burden by virtue of the facts pled in the Petition for Discipline, which are deemed admitted pursuant to Rule 208(b)(3), Pa.R.D.E., due to Respondent's failure to file an Answer to Petition and respond to the allegations.
In connection with a complaint filed against Respondent by Theadore R. Williams, Jr., Petitioner advised Respondent by letter dated October 7, 2013, that Petitioner had received a complaint, detailed the nature of the complaint involving allegations of neglect of Mr. Williams's matter, referenced potential rule violations, and required a response. Respondent received this letter and responded by letter of December 10 2013, advising Petitioner that he had allowed the matter to "languish" and was working to resolve the situation.
Unfortunately, Respondent took no action to assist Mr. Williams. Petitioner attempted to contact Respondent on six occasions between December 2013 and February 2014, with no success. Although Respondent outlined an approach to assisting Mr. Williams in emails dated February 26 and March 25, 2014, he did not follow through. Respondent's inaction and lack of communication resulted in Chief Disciplinary Counsel's letter dated August 4, 2014, informing Respondent that it had been determined that Respondent should receive an Informal Admonition with the condition that Respondent provide to Petitioner documented proof that he took the necessary steps to restart or revive Mr. Williams' appeal process.
Respondent was given the opportunity to contest the charges by requesting formal proceedings in lieu of the Informal Admonition, but never indicated to Petitioner that he did not wish to receive the Informal Admonition. The Informal Admonition scheduled for September 10, 2014 was not held as Respondent did not appear. Respondent contacted Chief Disciplinary Counsel approximately one month later and informed him that he could not attend because he was in court. A new date was scheduled by Chief Disciplinary Counsel for October 30, 2014. Respondent received notice of the rescheduled date by letter of October 17, 2014. Respondent's misconduct continued to escalate, as he did nothing to cooperate with Petitioner, to satisfy the conditions or to assist Mr. Williams in any way. Respondent failed to appear for the Informal Admonition on October 30, 2014 and further failed to provide good cause for his failure to attend.
Respondent vehemently denies that he willfully failed to appear for his Informal Admonition, as he claims he did not receive actual notice of the October 30, 2014 scheduled date. The evidence of record supports the conclusion that Respondent had notice of the Informal Admonition and that his acts were willful.
Respondent received communications from Petitioner by letter dated August 4, 2014, August 20, 2014, October 17, 2014 and November 26, 2014 and by email dated August 25, 2014 regarding the imposition of the Informal Admonition, the conditions that accompanied it, the dates of the Informal Admonition and the consequences of the failure to comply. Respondent was a participant in at least one email exchange and one phone call with Petitioner regarding these topics. He had knowledge of the complaint against him and the proceedings that were underway.
Respondent's claim that he never willfully ignored communications from Petitioner is not credible and falls flat in the face of his own testimony that he never collected mail from his office, which was his registered address for the practice of law, went to his office building as little as possible, usually for maintenance work, and never formally changed his attorney registration address or implemented procedures to collect his mail. Respondent further admitted that he was "guilty of being an ostrich" and "sticking [his] head in the sand." N.T. 31-32, 106.
It is well-established by the evidence of record that Respondent violated the Rules of Professional Conduct and Rules of Disciplinary Enforcement. This matter is ripe for the determination of discipline. The Hearing Committee has recommended that Respondent be suspended for a period of at least three months. After considering the nature and gravity of the misconduct as well as the presence of aggravating or mitigating factors, Office of Disciplinary Counsel v. Gwendolyn Harmon, 72 Pa. D. & C. 4 115 (2004), the Board is persuaded that a suspension for six months is appropriate discipline.
In evaluating professional discipline, each case must be decided on its own unique facts and circumstances. Office of Disciplinary Counsel v. Lucarini, 427 A.2d 186 (Pa. 1983). The Board is mindful when adjudicating each case that the primary purpose of the lawyer discipline system in Pennsylvania is to protect the public, preserve the integrity of the court and deter unethical conduct. Office of Disciplinary Counsel v. Czmus, 889 A.2d 117 (Pa. 2005).
Although Respondent's underlying misconduct in connection with his representation of Mr. Williams was isolated and relatively minor, as reflected by the original disposition of an Informal Admonition, Respondent's misconduct was significantly exacerbated by his failure to appear for the Informal Admonition. His lack of cooperation continued with his failure to answer the Petition for Discipline and failure to appear at the prehearing conference. Perhaps realizing the potential problems he was creating for himself, Respondent wisely attended the disciplinary hearing, although he did not avail himself of the opportunity to file a brief with the Hearing Committee following the hearing.
Respondent on several occasions acknowledged his wrongdoing in connection with his representation of Mr. Williams. He further acknowledged that his failure to collect his mail led to complications of his disciplinary issues. We conclude that Respondent's expressions of remorse are not sincere and are belied by his actions. Respondent never did anything to put Mr. Williams in a better positon than he left him even though Respondent had the ability to do so and was repeatedly asked to do so by Petitioner. Respondent admitted that he still has not changed his attorney registration address and is still not going to his office building with any regularity.
Respondent brought his health issues to light during his testimony in the disciplinary proceedings; however, he offered no medical testimony necessary to show a causal connection between those issues and his misconduct. Therefore, mitigation based on those issues is not appropriate under Office of Disciplinary Counsel v. Braun, 533 A.2d 894 (Pa. 1989).
Prior discipline cases where an attorney fails to appear for an informal admonition have resulted in sanctions ranging from public reprimand to disbarment. Office of Disciplinary Counsel v. Alfred Joseph Falcione, No. 114 DB 2012 (2013) (respondent received informal admonition but failed to comply with the condition; answered petition and appeared at hearing; public reprimand imposed); Office of Disciplinary Counsel v. Kathleen D. Dautrich, No. 114 DB 2006 (2007) (respondent failed to appear for informal admonition and failed to comply with condition; prior history of private discipline; expressed remorse; 90-day period of suspension); Office of Disciplinary Counsel v. Adam James Lee, 71 DB 2007 (2008) (respondent failed to appear for an informal admonition; made no contact with Office of Disciplinary Counsel; failed to answer Petition for Discipline; failed to appear at disciplinary hearing; suspension for one year and one day); Office of Disciplinary Counsel v. Joseph A. Rizzo, 85 DB 2014 (2015) (respondent failed to appear for and meet conditions of an informal admonition; failed to answer the Petition for Discipline; failed to appear at the disciplinary hearing or participate in any way; absconded with $1,500 of client funds that were the subject of the condition; disbarment).
Respondent was lackadaisical in his approach to his disciplinary problems. He was in contact with Petitioner on various occasions and appeared for his disciplinary hearing, which evidences some willingness on Respondent's part to participate in the process to determine the consequences of his admitted misconduct. However, Respondent did not take any corrective action, nor did he appear remorseful. Respondent has been practicing law in Pennsylvania since 1994 and has no prior discipline. This matter does not warrant a sanction requiring Respondent to petition for reinstatement to the bar. A suspension for six months is appropriate and will serve to remind Respondent that he must meet his professional responsibilities.
V. RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the Respondent, Nicholas C. Stroumbakis, be Suspended from the practice of law for a period of six months.
It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the Respondent.
Respectfully submitted,
THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
By:/s/_________
P. Brennan Hart, Board Member Date: December 8, 2015 Board Members Porges and Cordisco did not participate in the adjudication.