George J. Kanuck, Jr., Allentown, for respondent.
Alan J. Davis, Philadelphia, for disciplinary counsel.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion.
This disciplinary proceeding stems from a report of the Disciplinary Board of the Supreme Court of Pennsylvania*fn1
recommending that Respondent, George J. Kanuck, Jr., be suspended from the practice of law in this Commonwealth for a period of five (5) years. The Board found, inter alia, that Respondent had violated Disciplinary Rule 1-102(A)(3) (illegal conduct involving moral turpitude), Rule 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation), Rule 1-102(A)(5) (conduct prejudicial to the administration of justice), and Rule 1-102(A)(6) (conduct that adversely reflects on fitness to practice law). After hearing testimony in this matter, the Hearing Committee recommended imposition of the sanction of disbarrment. The Board, after review of the entire matter, concluded that the sanction of disbarrment was too severe and recommended a five (5) year suspension with costs of the investigation and prosecution to be paid by Respondent. Having heard oral argument, and after a full review of the record submitted by the Board and briefs of the Office of Disciplinary Counsel and Respondent, we conclude that the appropriate sanction to be imposed in this case is a five-year suspension and, therefore, accept the recommendation of the Board.
The record reveals that on May 16, 1986, a Petition for Discipline was filed against Respondent by the Office of Disciplinary Counsel. That petition set out five charges detailing conduct constituting violations of several Disciplinary Rules of the Code of Professional Responsibility. Respondent subsequently filed an answer in which he denied "each and every allegation contained in the petition." Hearings were held before Hearing Committee 2.06 on September 25 and 26, 1986. On January 16, 1987, the Committee found that Respondent had violated DR1-102(A)(3), (4), (5), (6); 6-101(A)(3); 7-101(A)(1), (2), (3); 9-102(A) and 9-102(B)(2), (3), (4),*fn2 and recommended that Respondent be disbarred. Respondent filed exceptions to the report of the Committee and a three-member panel of
the Board heard oral argument on the exceptions. On April 22, 1987, the Board submitted its report and recommendation
which made substantially the same findings of fact and identical conclusions of law as did the Committee, but recommended a five (5) year suspension retroactive to the date of Respondent's original suspension, December 6, 1985 (which suspension was the result of a Petition for Emergency Interim Suspension Order previously filed by the Office of Disciplinary Counsel pursuant to Rule 208(f) Pa.R.D.E.).
By Order dated May 29, 1987, this Court issued a Rule on Respondent to show cause why he should not be disbarred. See Rule 208(e)(3) Pa.R.D.E. Pursuant to Rule 208(e)(2) Pa.R.D.E., we granted Respondent's request for oral argument. On November 10, 1987, we heard argument and the matter is now ripe for decision. The facts are not in dispute. Having reviewed the record de novo, we find no basis for disturbing the Board's findings as set forth in the report, and, therefore, substantially adopt them in the discussion that follows. The relevant facts of each of the charges made in the Office of Disciplinary Counsel's petition will be set forth separately, followed by Respondent's explanation in mitigation. Respondent admits his misconduct, with regard to commingling of funds, but denies that he converted any funds. He also argues that the Committee erred in failing to consider his testimony in mitigation of the charged violations, and in their recommendation of disbarrment.
Charge I relates to Respondent's representation of Mr. and Mrs. Robert Zuercher in a real estate closing on January 11, 1985, at which time they gave Respondent a check in the amount of $12,451.86. The portion due the sellers, Mr. and Mrs. James Hoffman, was $11,631.86. Respondent advised the Hoffmans that he would hold the money in an escrow account pending resolution of certain title matters. However, without their knowledge or consent, the funds were deposited in Respondent's personal account in the American Bank and were used to purchase a money order in the amount of $6,250.00 payable to Prudential Insurance Company. This money order was paid to Prudential to satisfy an obligation of another client, Raymond Kohler, as
will be discussed in Charge II. In addition, $5,000.00 of the Hoffman funds were used in settlement of a malpractice claim asserted against Respondent by Daniel Koehler, which matter is discussed in Charge III. After several complaints by Mrs. Hoffman, Respondent made restitution by delivering a check in the amount of $9,631.86 on March 23, 1985, and a check for $2,000.00 on April 25, 1985, to the Hoffmans. Respondent attempted to justify the delay in payment by explaining that the title search presented problems with regard to defects in the chain of title which had to be resolved, and he anticipated the possibility of undetermined costs. Respondent pointed out that the delay in paying over the funds was only sixty or ninety days, which he did not consider unreasonable under the circumstances. The actual delay in paying over the entire amount due the ...