*1 FLAHERTY, C.J., ZAPPALA, CAPPY, Before: CASTILLE, NIGRO, SAYLOR, JJ.
ORDER PER CURIAM:
Appeal dismissed as having improvidently been granted. Justice did participate NEWMAN not in the consideration decision this case.
Supreme Court Pennsylvania.
Argued Oct. 2000.
Decided Feb. 2001. *3 Sodroski, Disciplinary Philadelphia, for Office P. Anthony Counsel. Chester, Stretton, J. lulo. Dennis West
Samuel C. CAPPY, ZAPPALA, FLAHERTY, C.J., and Before SAYLOR, CASTILLE, NIGRO, JJ. NEWMAN OPINION CAPPY, Justice. disciplinary enforce- court as a is before the
This matter
cause
is a rule to show
specific context
proceeding. The
ment
lulo,
subject
should not be
Dennis J.
why respondent,
Jersey.
his disbarment
discipline due to
argument that the Office
reject respondent’s
Although we
“ODC”)
(hereinafter
precluded
Disciplinary Counsel
case,
set
in this
for the reasons
seeking reciprocal
below,
discharge the rule.
fully
forth more
practice
law New
was admitted
respondent
In 1972
trust account revealed
An
Jersey.
audit
Upon disclosure of
of 1981.
of trust monies
June
shortfall
Review Board New
the shortfall
suspended
practice
from the
temporarily
*4
trust shortfall led
investigation
A criminal
in 1982.
law
knowing misappli
of
conviction on two counts
respondent’s
to
to
response
funds. N.J.S.A. 2C:21-15.
cation of clients’
conviction,
Jersey permanently
Supreme Court of New
the
the
Iulo,
498,
Matter
115 N.J.
in 1989.
respondent
disbarred
In 1990 was with- application The Bar examination. Pennsylvania Board of by to its consideration prior drawn (hereinafter “PBLE”). Examiners, Respondent again Law PBLE applied permission for to sit for the exam hearing application, respondent 1992. After a formal on the permission respon- was to sit for In 1995 denied the exam. request permission dent renewed his for to sit for the bar hearing A PBLE examination. before a member was 3, respondent’s application. held on October 1996 to review Board, by Director of After review the entire the Executive application the PBLE notified that his to sit for 203(a)(3). approved the examination had Pa.B.A.R. been under provides The subsection the bar admission rule at issue as follows:
(2) prior by applicant absence conduct which opinion general qualifi- of the Board indicates character (other scholastic) cations than incompatible with the stan- expected by dards to be bar of observed members Commonwealth. 203(b)(2).1
Pa.B.A.R. sit, Subsequent receiving approval application to to his respondent passed February 1999 bar examination. Re- 8, spondent July to bar of on admitted 28, 1999, 1999. On December this court issued a to show rule why respondent subject cause should not to Respondent disbarment. filed answer the rule and requested argument oral this court. before heard,
Argument having ripe been the matter is now disposition. As in all relating matters disci pline, this court’s novo. review de Office of Christie, (1994); Counsel v. 536 Pa. 639 A.2d (e)(5). 208(d), Pa.R.D.E. objections raises several
reciprocal discipline. objection initial princi- The is that the ples judicata estoppel of res and collateral bar ODC’s current given exploration action full 203(b)(2);
1. This subsection of the rule has since been renumbered as clarity designation for the sake of will it be referenced its current throughout opinion. *5 210 that the PBLE. asserts once
disbarment before requirements of Pa. satisfy was found to the character 203(b)(2), Jersey predicated action on the New B.A.R. further precluded Pennsylvania. in disbarment was in must be a concurrence of four conditions There judicata claim. The respondent prevail to on his res order identity there exists an judicata applies doctrine of res when issues, action, identity persons of identity an of causes action, or identity quality and parties and the Mutu parties suing being sued. capacity Safeguard the Williams, Pa. A.2d al Insurance v. 463 345 Company (1975). Similarly, estoppel claim will succeed collateral only estop with concurrence of four conditions. Collateral the prior adjudication in pel applies when the issue decided the action, presented with one in the later there was identical the merits, judgment party against was a final on the the whom party privity party or in with a plea the is asserted was adjudication, party against and whom it prior the the litigate fair opportunity asserted has had a full and prior adjudication. Id. Neither res question issue judicata estoppel apply nor collateral will the absence of an identity of Id. issues. identity by focusing on
Respondent finds issues question ruling as PBLE in his character determined upon application his to sit for the bar examina- fully apprised respondent’s transgressions tion. PBLE was Jersey. imposed and the measure of New Re- predicated action on spondent any punitory asserts further barred, this information was conduct once made, fully explored by PBLE and a determination that as qualifications necessary of 1995 the character met to sit for the bar examination. assertion, finding a distinction
ODC rebuts this between exam, necessity imposing sit fitness to for the bar reciprocal discipline outstanding as result of an order of jurisdiction. disbarment another ODC submits involving reciprocal discipline in a is whether a issue case disciplinary adjudication in jurisdiction requires discipline. posits the same or similar It that this *6 encompasses question issue more than limited of the (In attorney. fact, character individual ODC conceded argument at correctly oral that PBLE had resolved the char- issue.) reciprocal A of acter determination focuses legitimate goals systems on the of the disciplinary in the original discipline reciprocal state and the state. The issue is disciplinary necessary whether action is in reciprocal state policy to of objectives protecting further the from public fitness, attorneys questionable ensuring integrity judicial system and of similar by deterrence conduct other similarly in attorneys jurisdictions. licensed both point this agree
On we must with ODC. There no identity grant of issue between the decision of PBLE to permission to sit for the bar examination and an action of request to reciprocal discipline. ODC A current respondent possesses determination that requisite charac apply Pennsylvania ter to for admission to may the bar be relevant to a determination of whether or not in this case reciprocal discipline is appropriate, preclusive but is not question Accordingly, itself. find no merit to claim that his once character was found sufficient to meet the general requirement 203(b)(2), of Pa.B.A.R. ODC was collater ally estopped or by judicata barred res presenting from petition reciprocal discipline.
Respondent
argues reciprocal
also
discipline is barred
in this
case
equitable
laches. Laches is an
which
doctrine
precludes
party
pursuing
a complaint
it
guilty
when
diligence
a lack of
asserting
rights,
in
its
such that the
passage of time has
prejudice
caused
to
opposing party.
v. Hafer, 553
Stilp
Pa.
(1) jurisdiction; and copy of said order from the other (2) in- directing respondent-attorney an the order notice, days from form Court within 30 service the the any by respondent-attorney imposition that the claim the comparable discipline in the Commonwealth the identical or unwarranted, and the therefor. would be reasons upon this notice to served the The Board shall cause be mailing it furnished respondent-attorney by to he address by respondent-attorney registration in the state- last person such in accordance with Enforcement ment filed 219(d) periodic attorneys). (relating to assessment of Rule (b) discipline imposed the other the event there, stayed any reciprocal discipline jurisdiction has been until in the Commonwealth shall be such imposed deferred stay expires.
(c) of the Upon expiration days of 30 from service (a) of provision of subdivision pursuant notice issued rule, may impose or Supreme Court the identical or the comparable discipline unless Counsel demonstrates, respondent-attorney or the Court finds that upon upon the face of the which record predicated clearly appears: it
(1) procedure that the lacking oppor- was so notice or tunity to heard as deprivation to constitute a of due process;
(2) establishing infirmity proof there such to give misconduct as rise to clear conviction that the court could not with its consistently duty accept as final the subject; conclusion on that
(3) that comparable the same or disci- pline grave injustice; would result in or
(4) that the misconduct established has been held substantially warrant discipline in different this Common- wealth. exist,
Where the Court any determines that of said elements court shall enter such other it appropri- order as deems ate.
(d) In all respects, other adjudication final in another jurisdiction that an guilty has been of misconduct shall establish conclusively the for purposes misconduct of a disciplinary proceeding in this Commonwealth.
(e) An attorney who disciplined has been by suspension jurisdiction, disbarment report shall the fact of such suspension or disbarment Secretary Board within 20 days after the date of the imposing order discipline. *8 11, 1983, 2, 1983;
Amended March April 18, effective July 1995, 5,1995. Aug. effective
The of respondent’s opposition essence to reciprocal that, case, disbarment is of the same or comparable discipline grave would result in a injustice. Pa. 216(c)(3). R.D.E. reciprocal The issue in a discipline action is whether the order the originating requires imposi state tion in the reciprocal state. is not automatically impose mandated to disciplinary identical mea sures; in fact there remains within this court the discretion
214 stated reciprocal discipline. As greater, or no
impose lesser by examining legitimate previously, this issue resolved disciplinary states’ goals originating of the judicial public, integrity of systems, protection system and deterrence. opportunity no Jersey practical holds New
Disbarment noted, Jersey Supreme Court As New for reinstatement. only three years there have been past one hundred Wilson, Re disbarment. In following of reinstatement orders (1979). on 1153, Pennsylvania, 451, 1157 n. 5 81 409 A.2d N.J. hand, corollary a contemplates reinstatement as the other Verlin, 47, Pa. 731 Re 557 Pa.R.D.E. 218. In disbarment. 459, (1999); 541 Pa. 664 Costigan, 600 In the Matter A.2d Keller, (1995); v. 509 Disciplinary Counsel A.2d 518 Office (1986). approach This distinction Pa. 506 A.2d with disciplinary conducts matters New reveals that aspects, on the while emphasis punitive more to rehabilita- punishment prerequisite with as concerns itself tion. starting examine the point, distinction as that
With In that Jersey. in New prompted disbarment misconduct that Court, situation, Jersey Supreme reported by the New as than a bookkeeper rather proven inept an is no smok As the court noted: “there self-interested thief. of a proofs. purchase is no ing gun to be found There Iulo, at 1350. Howev 559 A.2d Cadillac with client’s funds.” er, exception for Jersey law allows no where conviction; dis permanently he must be suffers criminal Id. at 1352. barred. does although a criminal conviction Pennsylvania, discipline, the extent of an automatic basis
establish viola dependent on the nature disciplinary measure Disci facets of each case. mitigating tion and the Office of Zdrok, 538 Pa. 645 A.2d Counsel v. plinary as examining other of this necessitates Our review matter life. pects
215 currently years age. 53 of He com pleted undergraduate Fairley at his studies Dickinson Univer sity juris Loyola in and his from received doctor Univer sity of School Law in 1971. After his admission to the New
Jersey Bar, practitioner, undertaking he a solo worked as all office, running including typing, filing the tasks of his and years in bookkeeping. During practice, respondent his en gaged work, in significant pro particularly on bono behalf population the in Jersey. Subsequent homeless his suspension, respondent business, temporary operated a Pres tige and Typing By typing Services. attor Office other neys respondent support was able to himself family and his years. through relocating Pennsylvania, respon the After community dent working continued programs. related Through participated religious his church education for provided children and assistance to senior citizens.
Respondent acknowledges culpability his for the misuse of entrusted funds. using He realizes that the funds one client to pay expenses client during period cash shortage asserts, flow error in judgment. was an He and agree, we this error does not reveal a basic flaw in character, of maturity but rather a lack responsibili- fiscal ty. years Over the suspension since his practice law, respondent proven gained has that he the wisdom and experience to learn from his misstep and overcome short- comings Respondent’s that caused it. rehabilitation in this regard prompted permit what the PBLE to sit for bar passage exam. Given time from the initial violation 1981 and present until the court’s respondent’s status, consideration of find no evidence that respondent would pose a threat to public by engaging practice of law at this time.
These same considerations reveal an individual who has learned a necessity serious lesson about the of preserving integrity judicial system of the through his conduct as an Nothing officer of court. this record leads us to believe that respondent’s resumption practice of law at this juncture in his integrity life will tarnish the courts v. Counsel See
this Commonwealth. *10 Office Surrick, 561 Pa. 749 A.2d a Finally, note that deterrence is considerable we reciprocal discipline. will in matters of factor welcoming attorneys a for disbarred reputation not tolerate practice impunity law in our jurisdictions to with from other system always Although we have favored courtrooms. its weighs that each individual case on professional discipline must merits, acknowledge brightline that sometimes rule we similarly situated attor be need to deter other drawn. The is to create such a swarming to our courts cause neys from that 203 has been rule. To end the Pa.R.B.A. brightline as follows: amended
(3) standing good a certificate of from Presentation of having jurisdiction over admis- agency court or the highest every or practice and the law in state to the bar sion admitted to applicant in which has been jurisdiction law, applicant good profession- stating that the practice An applicant court standing at the bar such state. al suspended disciplinary for reasons is disbarred or who jurisdiction at the time of of law practice permission for the bar exam application for sit filing sit bar exam. eligible not be for the shall 23,1999, immediately. November effective Amended conclusion, discipline to reciprocal find that no bar we permit respon- upon the decision of the PBLE to was erected Only Bar examination. after dent to sit in this Common- practice was admitted to law why of a show subject could be the rule to cause wealth imposed. now Having should not be reciprocal discipline giving the entire record and due deference reviewed Court, find Jersey Supreme that the decision of the New in this discipline instance would be imposition reciprocal Accordingly, discharged.2 grave injustice. the rule disposition 2. of this matter we do not address Given our process. remaining fairness and due claims of fundamental concurring in which opinion ZAPPALA files a Justice joins. SAYLOR Justice concurring opinion. files a
Justice NIGRO ZAPPALA, Justice, concurring. majority that the rule to show cause should agree
I with the in this discharged, as the grave injustice would amount to a as forth particular case set 216(c)(3). however, separately, in Pa.R.D.E. I write to disas- myself portion majority’s analysis from that sociate Respondent’s underlying reevaluates the facts misconduct Jersey. It our is not the role of Court to look behind a foreign jurisdiction’s finding misconduct and sec- ond-guess discipline imposed.1 the method and manner of *11 precisely Such an evaluation is what our Court intended to in prevent by adopting Pennsylvania disbarment cases Rule of effectively precludes Bar Admission which in jurisdiction seeking who is disbarred from admis- sion in practice majority to law this Commonwealth. As the notes, however, properly applicable this rule is not yet adopted instant case as it had not been at the time Respondent sought gain to admittance bar. majority’s rehashing predicate Respon-
The of the factual transgressions infirmity dent’s demonstrates the in such an approach. majority only not The looks behind the New Jersey Supreme disciplinary ruling, Court’s but also behind disciplin- the criminal conviction which formed basis ary that proceeding. finding Respondent’s misconduct character, a in “does not reveal basic flaw but rather a lack of maturity responsibility,” Op. majority and fiscal at fact that an for which overlooks the element the offense Respondent disposition prop- was is unlawful convicted finding grave injustice, only 1. Other than a other instances where may reciprocal discipline imposed when it not be arise is clear procedure deprivation record that the was so deficient as to constitute a process, infirmity proof of due where there was an and where the substantially discipline misconduct has been held to warrant different 216(c). in this Commonwealth. Pa.R.D.E. finding something in far more serious erty.2 Implicit such by no bound immaturity. Although than our Court means Jersey rulings imposing disciplinary when the New Pennsylvania, in I find it unwise to discount them. sanction recip- grave injustice upon imposition that would occur The being wrongly Respondent rocal does not arise from Jersey, in New but rather would lie convicted disbarred every that Respondent given the fact that assurance Pennsylvania upon law in permitted practice would be passage of the bar exam. that
Although agree I that there is no evidence public by engaging practice in the pose would a threat to the time, may respon- of law at this the same be said future foreign jurisdictions and will dents who have been disbarred not admittance in under permitted seek Thus, newly adopted bar admission rule. this case should to what our exception be seen for what it is—a limited Court past practice repeated has and a that will not be done the future.3 joins Concurring Opinion.
Justice SAYLOR NIGRO, Justice, concurring.
I agree majority reciprocal discipline with the I grave injustice. separately, instant case would be write however, I not that Pa.R.B.A. 203 should because do believe bright that prohibits have been amended to create line rule *12 attorneys suspended disciplin- or for who have been disbarred ary applying in other states from to sit for the reasons Historically, Pennsylvania bar exam. this Court has taken the surrounding particular position that the events each case Jersey provides person 2. The New that "a commits a crime if he statute applies disposes property that has been entrusted to him as a fiduciary ... which he knows is unlawful and involves a manner property the owner of substantial risk of loss or detriment or to person property or not the for whose benefit the was entrusted whether pecuniary actor has derived a benefit.” N.J.S.A. 2C:21-15. recognize may similarly apply I to a limited number of 3. that this case respondents sought prior adoption admittance situated who Pa.R.B.A. 203. attorney misconduct must be taken into account when deter- mining the appropriate discipline. See Office of Valentino, 609, 479, Counsel v. 556 Pa. 730 A.2d The amendment of Pa.R.B.A. 203 ignores this long-standing Furthermore, dictate in disciplinary proceedings. two our states, Ohio, neighboring offer no opportunity anyone who has petition ever been disbarred to for rein- Consequently, statement. attorneys decisions to disbar those states will permanently preclude attorneys those applying bar, to sit for or from petitioning bar, for reinstatement to the Pennsylvania regardless of the circumstances surrounding their misconduct. For these rea- sons, not, view, Pa.R.B.A. 203 my should have been amend- ed.
Argued Oct. 2000.
Decided Feb. 2001.