Barbara S. Rosenberg, Asst. Disciplinary Counsel, Philadelphia, for petitioner.
Samuel C. Stretton, West Chester, for respondent.
Hutchinson, Justice. Roberts, C.j., concurs in the result. Larsen, J., files a concurring opinion. Zappala, J., dissents.
This matter is before us on Disciplinary Counsel's and respondent's cross-exceptions to our Disciplinary Board's report in which a majority of the Board recommended respondent's suspension from the practice of law for two years.*fn1 Disciplinary Counsel contends respondent must be disbarred because he converted clients' funds. While respondent admits he commingled clients' funds, he argues
that discipline harsher than public censure is inappropriate because his conduct, while not excused, was mitigated as the product of his self-confessed alcoholism. He points out that he recognized that problem, sought help and treatment for it and began recovery from it by abstaining before these proceedings began. Moreover, he argues no client suffered actual loss from his commingling and that his alcoholic rehabilitation shows suspension is unnecessary to protect the public. We agree that respondent should be disbarred because claimant's continuing unethical conduct after this investigation began leads us to believe his continued practice is likely to pose a danger to the public. His continued concealment of his juggling of clients' funds after this investigation began and especially his unwillingness to release the names of current clients to the Board so that the records he submitted in support of his assertion that all current client funds were accounted for could be verified by audit procedures normal in the accounting profession leaves us unconvinced of his total honesty with himself and the Board. Under such circumstances the admitted conversion of client funds is insufficiently mitigated to avoid disbarrment. Therefore, we hold respondent must be disbarred for the protection of the public.
These proceedings began when the Office of Disciplinary Counsel filed a Petition for Discipline against respondent on November 24, 1981. That petition set out four charges detailing conduct constituting violations of several Disciplinary Rules of the Code of Professional Responsibility.*fn2 On December 28, 1981, respondent filed an answer which admitted all the charged violations of the Disciplinary Rules except that alleging violation of DR 1-102(A)(3) (illegal conduct involving moral turpitude). His answer also contained affirmative defenses as evidence of his reform and rehabilitation and in mitigation of the violations. The case was assigned to a Hearing Committee of the Board, which held hearings on April 6, 7 and 22, 1982. Because respondent
had admitted the disciplinary violations, the hearings were combined to determine the facts underlying the disciplinary violations and the extent of discipline to be imposed.
The Hearing Committee filed its report on January 10, 1983, with two members recommending a one-year suspension and the third member recommending a two-year suspension. Both Disciplinary Counsel and respondent filed exceptions with the Board, and a three-member panel of the Board heard oral argument. On May 25, 1983 the Board filed its Report and Recommendation with our Court. As noted, the majority of the Board recommended a two-year suspension, while three members dissented and recommended a one-year suspension and two members recommended only public censure.*fn3 Both Disciplinary Counsel and respondent filed exceptions to this Court, we heard oral argument on June 29, 1983*fn4 and entered an order disbarring respondent on July 1, 1983, 501 Pa. 441, 462 A.2d 206, with this opinion to follow. In it we now set forth the reasons which lead us to determine that disbarrment was the appropriate discipline on the facts of this case.
At the outset we note that our review in attorney discipline cases is de novo. Thus we are not bound by the findings of the Hearing Committee or the Disciplinary Board, except as guidelines for judging the credibility of witnesses. Office of Disciplinary Counsel v. Knepp, 497 Pa. 396, 441 A.2d 1197 (1982); Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981); Matter of Green, 470 Pa. 164, 368 A.2d 245 (1977). In the ...