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MATTER MARX S. LEOPOLD (11/24/76)

SUPREME COURT OF PENNSYLVANIA


decided: November 24, 1976.

IN THE MATTER OF MARX S. LEOPOLD

COUNSEL

Marx S. Leopold, pro se.

Charles F. Lieberman, Harrisburg, for respondent Disciplinary Bd.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Jones

[ 469 Pa. Page 386]

OPINION

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

[ 469 Pa. Page 387]

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

[ 469 Pa. Page 388]

    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.

[ 469 Pa. Page 389]

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 Mr. Pofit's money. Petitioner received this letter, but neglected to make any response.

Subsequently, Mr. Pofit, through Attorney Rupp, filed a civil action*fn7 in the Court of Common Pleas in Dauphin County, Pennsylvania, to recover the funds improperly retained by petitioner. Through this proceeding a judgment by default was obtained by Mr. Pofit against the petitioner. To date, the petitioner has made neither restitution to his former client, nor any effort toward that end.*fn8

[ 469 Pa. Page 391]

Petitioner Leopold does not dispute the factual determination of the Disciplinary Board as related above.*fn9 Instead, he advances the argument that the disciplinary action recommended by the Board (i. e. disbarrment) is too harsh and, that in reaching its determination the

[ 469 Pa. Page 392]

Board failed to extend sufficient consideration to his conduct between the years 1967 to 1976.

Prior to discussing the merits of this argument, we deem it appropriate to set forth the standards by which we must be guided in matters involving disciplinary measures initiated against members of the bar.

The public position of one who is a member of the legal profession is one of great responsibility. Integrity and the exercise of good faith in an attorney's professional engagements are essential for the protection of the public, the courts and the profession itself. It must be fully appreciated that each member of the bar is an officer of the Court. Consequently, it is the solemn duty of the judiciary to insure that the proper standing of its officers is preserved.*fn10 See Johnson Disbarrment Case, 421 Pa. 342, 345, 219 A.2d 593, 595 (1966); In re Davies, 93 Pa. 116, 122 (1880).

Justice Mercur, writing for this Court in In re Davies, supra, at 121, affirmed a lower court's disbarrment order noting that:

"This [disbarrment] is a power inherent in every court when a person is shown to be unfit to practice in it. . . . Such an order is a judicial act to be done in

[ 469 Pa. Page 393]

    the exercise of judicial discretion. It must, therefore, be governed by a sound judicial discretion guarding and protecting the just rights and independence of the bar, the dignity and authority of the court, and the safety and protection of the public: Ex parte Secombe, 19 Howard 9, 15 L.Ed. 565."

In the case of Maryland State Bar Association, Inc. v. Agnew, 271 Md. 543, 318 A.2d 811 (1974), Judge Digges, speaking for the Court of Appeals in affirming the disbarrment of former Vice-President Spiro T. Agnew, succinctly stated the principles applicable here:

"Few vocations offer as great a spectrum for good and honorable works as does the legal profession. The attorney is entrusted with the life savings and investments of his clients. He becomes the guardian of the mentally deficient, and potential savior for the accused. He is a fiduciary, a confidant, an advisor, and an advocate. However, the great privilege of serving in all of these capacities does not come without the concomitant responsibilities of truth, candor and honesty. In fact, it can be said that the presence of these virtues in members of the bar comprises a large portion of the fulcrum upon which the scales of justice rest. Consequently, an attorney's character must remain beyond reproach.

A court has the duty, since attorneys are its officers, to insist upon the maintenance of the integrity of the bar and to prevent the transgressions of an individual lawyer from bringing its image into disrepute. Disciplinary procedures have been established for this purpose, not for punishment, but rather as a catharsis for the profession and a prophylactic for the public." (Emphasis added).

This Court has long recognized the grave nature of disciplinary procedures and our responsibility to exercise our inherent power to impose the extreme sanction of

[ 469 Pa. Page 394]

    disbarrment with caution. E. g., In re Shigon, 462 Pa. 1, 329 A.2d 235 (1974); In re Berlant, 458 Pa. 439, 328 A.2d 471 (1974); Johnson Disbarrment Case, 421 Pa. 342, 219 A.2d 593 (1966); In re Graffius, 241 Pa. 222, 88 A. 429 (1913). In our decision of In re Graffius, supra, at 223-24, 88 A. at 430, we explained the balance which must be accomplished in fulfilling this task:

"The power of a court to disbar an attorney should be exercised with great caution, but there should be no hesitation in exercising it when it clearly appears that it is demanded for the protection of the public. The court by admitting an attorney to practice endorses him to the public as worthy of confidence in his professional relations, and if he becomes unworthy, it is its duty to withdraw its endorsement: Davies' Case, 93 Pa. 116."*fn11

Attorneys, by the very nature of their position within the legal framework, have been granted the privilege of exercising certain professional powers not possessed by members of the public at large. In re Davies, 93 Pa. 116 (1880). As overseers of the profession, the Court must remain alert to potential abuse of this professional power by members of the bar.*fn12 Therefore,

[ 469 Pa. Page 395]

    when we approach any disciplinary proceeding, we do so well-apprised of the potentially grave repercussions our decision may carry and the obligations with which we are charged.

Petitioner here contends that the Disciplinary Board failed to allot adequate consideration to his reformation which occurred subsequent to the incident giving rise to these disbarrment proceedings. We cannot agree. Petitioner was extended numerous opportunities to present to both the Board and this Court every scrap of relevant evidence he desired. Although he failed to take advantage of the numerous opportunities made available, he did, in fact, apprise the Hearing Board of some of his laudable achievements since 1967.*fn13 This information was made a part of the record which the Hearing Board had at its disposal. We must presume, therefore, in the absence of any demonstration to the contrary, that the Board considered petitioner's subsequent behavior in arriving at its recommendation of disbarrment.

Yet, even assuming arguendo that the Board neglected to attribute due consideration to the disputed evidence of reformation, it would be unnecessary to remand to the Board for further deliberation. The power to investigate the conduct of an attorney and to impose disciplinary sanctions for violation of his oath, rests with few exceptions, singularly with this Court and its official disciplinary organization.*fn14 Office of Disciplinary Counsel v. Walker, 469 Pa. 432, 366 A.2d 563 (filed July 6,

[ 469 Pa. Page 3961976]

). It is this Court, however, which dispenses the disciplinary sanctions of public censure, suspension or disbarrment. The Board is merely an extension of this Court which, when concerned with actions for public censure, suspension or disbarrment, advises this Court as to its recommendations. The recommendation submitted by the Board is not binding on this Court, although it is persuasive. See Office of Disciplinary Counsel v. Walker, supra.

In the present matter, we are not convinced that in light of petitioner's public service since 1967 disbarrment is too grave a sanction to impose under the circumstances. Rather, having thoroughly reviewed the record, and in light of the revelations contained in petitioner's brief, we are assured that disbarrment is the only adequate recourse. Supportive of our position is the observation of the Special Committee on Disciplinary Enforcement that an "attorney who has gone beyond temptation and has converted funds obviously poses a threat to any future client and the public."*fn15

It should be emphasized that petitioner's argument, that seven years have passed since the breach of trust occurred which is the substance of this disbarrment proceeding, is misleading. Mr. Pofit entrusted Mr. Leopold, not only with his money, but also with the discharge of his legal predicament. This fiduciary relationship between Mr. Leopold and his client did not terminate in 1967. Mr. Leopold had a continuing obligation to advance and not jeopardize the interest of his client. The obligation to deliver to Mr. Pofit upon request the money he held in escrow was no less in 1974, when in fact the demand was initially made, than it would have been in 1967 if Mr. Pofit would have requested the return of the

[ 469 Pa. Page 397]

    money at that time. The breach of trust which occurred under these circumstances was a continuing one, and was not consummated upon the initial unauthorized appropriation of the escrow funds.

In the case of In re Davies, supra, this Court was confronted with an analogous situation in which the attorney concerned had misappropriated a bond belonging to his client, but argued that disbarrment was not appropriate since he had procured a settlement of the dispute with his client. The words of Justice Mercur, speaking for the Court in disposing of that argument, are persuasive here:

"It is contended on the part of the plaintiff in error that this settlement operated as an absolution and remission of his offense. This view of the case ignores the fact that the exercise of the power [to disbar] is not for the purpose of enforcing civil remedies between parties, but to protect the court and the public against an attorney guilty of unworthy practices in his profession. He had acted in clear disregard of his duty as an attorney at the bar, and without "good fidelity" to his client. The public had rights which Mrs. Curtiss could not thus settle or destroy. The unworthy act had been fully consummated."

We, therefore, find no merit in petitioner's proposition that the events of his career since 1967 should have a mitigatory effect upon the recommended disciplinary sanction. See, e. g., Moyerman's Case, 312 Pa. 555, 167 A. 579 (1933); In re Davies, 93 Pa. 116 (1880).

Additionally, petitioner in his brief submits the incredible argument that the Board neglected to consider: "that Mr. Pofit never expected to have any funds returned to him"; "that Mr. Pofit is in no worse condition now than he would have been in had he simply given the money to his former employer"; and "that Mr. Pofit waited nearly seven years to inquire as to what happened." The rationale advanced by petitioner itself indicates

[ 469 Pa. Page 398]

    a lack of the necessary ethical perception demanded of members of the legal profession and an absence of a sense of fairness incumbent upon any individual whatever occupation he or she may choose to follow. Such an irresponsible conception of duty is incompatible with the high standards demanded of the profession by the Code of Professional Responsibility.

Mr. Pofit did not transfer the $5,500.00 to petitioner to be used by the petitioner to advance his personal interests. The fact is that Pofit entrusted the money to Mr. Leopold, as his attorney, for the purpose of settling the potential claims of P. J. Hydraulics, Inc., and for that purpose alone. Any other employment of those funds was violative of the fiduciary relationship established between petitioner and his client. Clearly, Mr. Pofit had a legal right to the return of the money which had not been used in the settlement of any claims made by P. J. Hydraulics, Inc. It follows that petitioner had no legal claim to the possession or use of the funds beyond the terms agreed to with his client. Here, we find it appropriate to emphasize that this petitioner's failure to make any recognizable effort to restore the misappropriated funds to his former client smacks of an irremissible indifference to his ethical obligations. We conclude that the flagrant nature of this petitioner's violation of the trust and confidence placed in him by his client merits disbarrment. The recommendation of the Disciplinary Board of the Supreme Court of Pennsylvania, that Marx S. Leopold be disbarred from the practice of law is approved.

Order

AND NOW, this 24 day of November 1976, it is ORDERED, as follows:

1. That Marx S. Leopold is disbarred from the practice of law.

2. That Marx S. Leopold shall comply with the provisions of Rule 17-17 of the Rules of Disciplinary Enforcement

[ 469 Pa. Page 399]

    of the Supreme Court of Pennsylvania pertaining to disbarred attorneys.


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