Charles F. Lieberman, Harrisburg, for respondent Disciplinary Bd.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
This matter is before this Court on direct review*fn1 of a recommendation of the Disciplinary Board of the Supreme Court of Pennsylvania that petitioner, Marx S. Leopold, be disbarred from the practice of law for professional misconduct involving inter alia*fn2 a violation of
Disciplinary Rule 9-102(B)(4) of the Code of Professional Responsibility.*fn3
The relevant facts of this case are not contested. In 1967, the petitioner was retained by Joseph Pofit in a matter concerning a corporation known as P. J. Hydraulics, Inc., in which Pofit had been an officer and major stockholder. In connection with his engagement as attorney for Pofit, three checks were delivered to petitioner: one in July 1967 for one hundred dollars ($100.00); one in August 1967 for four hundred dollars ($400.00) and one in September 1967 for five thousand and five hundred dollars ($5,500.00). All three checks were from Pofit's personal account and drawn on a local bank. The $100.00 and $400.00 checks were paid to petitioner as attorney's fees in connection with his representation of Pofit. The $5,500.00 check was to be held by the petitioner in escrow, and to be used by him, if necessary, to settle potential claims of P. J. Hydraulics, Inc., against Pofit.*fn4 The $5,500.00 check was deposited in petitioner's
escrow account in the Harrisburg National Bank (presently the Commonwealth National Bank).
Between the time of delivery of the $5,500.00 check to petitioner in September of 1967 and October 1, 1974, there was no meaningful communication between the petitioner and Mr. Pofit. With respect to the potential claims of P. J. Hydraulics, Inc., petitioner did virtually nothing for his client.*fn5
On September 13, 1967, the day following the deposit of the $5,500.00 check into petitioner's escrow account, the balance of that account fell below $5,500.00. Approximately four months later, January 3, 1968, the balance of the escrow account had declined to $232.94 and by July 31, 1976, to a balance of $30.93. Beginning in October of 1974, after he realized that P. J. Hydraulics, Inc., was no longer asserting a claim, Mr. Pofit made several demands upon the petitioner for the reurn of the $5,500.00, or as much of that sum as had not been utilized in connection with the negotiations with P. J. Hydraulics, Inc. Pofit wrote to petitioner on November 5, 1974, requesting the return of the entrusted funds, but received no reply to this letter. Then located outside the city of Harrisburg, Pofit engaged the services of Attorney James W. Sanderson of Albany to represent him in recovering the funds still in the possession of petitioner.
Attorney Sanderson wrote two letters to petitioner, one on December 2, 1974, and the other on January 2, 1975. Petitioner failed to reply to the December 2 letter, but did send a brief telegram on January 13, 1975, to Attorney Sanderson in response to the January 2 letter.*fn6 Attorney Sanderson also made numerous telephone calls to petitioner, which were to no avail.
In April of 1975, Attorney Sanderson referred the matter to Herbert G. Rupp, Jr., Esquire, a member of the Dauphin County Bar. Attorney Rupp's attempts to reach petitioner by telephone at his office were unsuccessful. On April 28, 1975, Attorney Rupp sent a letter by registered mail to petitioner in which he demanded the return of ...