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OFFICE DISCIPLINARY COUNSEL v. JOHN J. KELLER (03/21/86)

decided: March 21, 1986.

OFFICE OF DISCIPLINARY COUNSEL, PETITIONER,
v.
JOHN J. KELLER, RESPONDENT



No. 491 Disciplinary Docket No. 2, Disciplinary Board No. 6 DB 83; On Exceptions from the Report and Recommendation of the Disciplinary Board of the Supreme Court of Pennsylvania, Dated May 21, 1985 and Docketed at No. 6 DB 83.

COUNSEL

Richard J. Orloski, Allentown, for respondent.

Albert M. Nichols, Chief Counsel, John W. Herron, Asst. Disciplinary Counsel-in-charge, Alan J. Davis, Asst. Disciplinary Counsel, Philadelphia, for petitioner.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Nix

[ 509 Pa. Page 575]

OPINION

We are here called upon to consider the recommendation of the Disciplinary Board of the Supreme Court of Pennsylvania (hereinafter "Board") that Respondent, John J. Keller, be disbarred from the practice of law in the Commonwealth of Pennsylvania. The Board found, inter alia, violations of Disciplinary Rule 1-102(A)(3) (illegal conduct involving moral turpitude) and Disciplinary Rule 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation).*fn1 After hearing testimony in the matter, the Hearing Committee recommended the imposition of the sanction of disbarrment. The Board, after review of the entire matter, adopted that recommendation and recommended further that Respondent be ordered to pay the cost of the investigation and prosecution of this matter. Pursuant to Pennsylvania Rule of Disciplinary Enforcement ("Pa.R.D.E.") 208(e) we are now called upon to determine the appropriate sanction, if any, to be imposed in this matter. For the following reasons we are constrained to conclude that the sanction of disbarrment is appropriate and, therefore, accept the recommendation of the Board.*fn2

The instant petition for discipline alleged professional misconduct with reference to two charges. Charge I relates to the Respondent's handling of the Estate of Mary Griffith. Charge II concerns Respondent's representation

[ 509 Pa. Page 576]

    of Mr. and Mrs. James Molinaro with reference to the sale of their home. Hearings on the charges were held before a hearing committee and testimony was received on June 7, 1983, September 7, 1983, October 11, 1983, October 19, 1983 and December 8, 1983. Respondent was represented throughout by counsel. The report of the Hearing Committee was filed January 25, 1985 in which the Hearing Committee adopted sixty findings of fact proposed by the Petitioner and nine findings of fact proposed by the Respondent. The Hearing Committee concluded that Respondent violated ten disciplinary rules including DR 1-102(A)(3) and DR 1-102(A)(4). The Committee recommended to the Board that Respondent be disbarred.

Petitioner and Respondent subsequently filed briefs with the Disciplinary Board and oral arguments were heard before a three-member panel of that body. On May 21, 1985 the Board issued its report in which it adopted the findings of fact of the Hearing Committee, modified certain Conclusions of Law and concurred in the recommendation of disbarrment. In its Conclusions of Law the Board, inter alia, affirmed the conclusion reached by the Hearing Committee that Respondent had violated Disciplinary Rules 1-102(A)(3) and 1-102(A)(4).*fn3 Briefs were filed by both parties in this Court and Respondent timely filed a request pursuant to Pa.R.D.E. 208(e)(2) requesting oral argument which was granted. The matter is now ripe for decision.

[ 509 Pa. Page 577]

Charge I averred that Respondent had forged the endorsement on a check drawn on the account of an estate represented by Respondent and made payable to a Ms. Miriam Scheetz, a beneficiary of the estate in question. It is alleged that Respondent deposited that check with the forged endorsement in his trust account and thereafter converted those proceeds to his own use. Further, Respondent commingled his own funds with entrusted funds to make restitution from his trust account for the monies due to Miriam Scheetz. Finally, Respondent misrepresented to his client, the Administrator of the Estate, the cause for Ms. Scheetz's not having promptly received said monies.

Charge II averred that Respondent wrongfully withheld $10,400 from the proceeds of a real estate settlement. This amount was to be used for paying off the seller's mortgage, the payment of taxes and a water bill, and payment of a title insurance premium. Respondent deposited these funds in his trust account and subsequently converted them to his own use. Respondent neglected to pay those obligations for which the funds were being held in a timely fashion. Subsequently, he commingled his own funds with the remaining portion of the entrusted funds in order to pay the aforementioned obligations. Finally, Respondent failed to remit the title insurance premium to the title insurance company.

In response to these charges, Respondent attempts to frame an argument challenging the sufficiency of the testimony to support the Board's Conclusions of Law. This argument, as will be seen from our discussion, is a little more than a transparent makeway. The real defense in this matter is the contention that this misconduct would not have occurred but for the serious mental and emotional disfunction that Respondent was experiencing during the period of time in which this misconduct occurred. Respondent is in fact urging that the sanction of disbarrment, in view of his emotional condition at the time, is too harsh a

[ 509 Pa. Page 578]

    result and has urged this Court to consider the imposition of a period of suspension.

To fully understand the thrust of Respondent's principle argument, it is necessary for us first to discuss the difference between suspension and disbarrment. These are the two most severe types of discipline that this Court is empowered to impose for misconduct by a member of our bar.*fn4 Both of these punishments involve the withdrawal of the offending attorney's privilege to practice law before the courts of this Commonwealth. Suspension is the withdrawal of the privilege of practicing law for a specified ...


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