*1 907A.2d 452 Petitioner, COUNSEL, OF OFFICE DISCIPLINARY DIANGELUS, Respondent. J. Lawrence Pennsylvania. Supreme Court of Argued Oct. Sept. 27, 2006.
Decided *2 Davis, Alan for Esq., Philadelphia, J. Office Disciplinary Counsel. Stretton, Chester,
Samuel Esq., C. West William Costopou- los, for Lemoyne, Lawrence DiAngelus. J. CAPPY, C.J., CASTILLE, NIGRO,
BEFORE: and SAYLOR, NEWMAN, BAER, EAKIN JJ.
OPINION NEWMAN. Justice has filed DAngelus (DiAngelus) Lawrence J.
Respondent Board to the recommendation exceptions reasons that (Board) For the he should be disbarred. and as a in misconduct follow, engaged that DiAngelus we find five-year suspension. a sanction of a impose result
Background in 1972. bar Pennsylvania admitted to DiAngelus was consent an Order disbarment In Court issued of client misappropriation misuse and upon DiAngelus’ based loans, com- client unauthorized securing funds obtained to account failing client funds mingling converting requested to do so. We funds disposition these when 2002, DAngelus him on December reinstated *3 an incident from resulting an informal admonition received DiAngelus’ matter. in a DUI While when he was co-counsel co- without country, DAngelus, out of the co-counsel was signed co-counsel’s name knowledge permission, counsel’s and verification. petition on a 1, 2003, of Disciplinary the Office Counsel December
On (ODC) DAngelus’ based on Discipline filed a Petition for in matters. of two clients two different representation matter, his representa- the course of alleged first ODC (Closs), magisterial lied to a DAngelus of Robert Closs tion matter, that while alleged In the second ODC judge. district (Dubolino), lied Patricia Dubolino representing a plea about the existence of attorney the assistant district The assistant district arresting officer. agreement with advising the upon misrepresentation relied when attorney in the matter. position judge prosecution’s on Discipline filed an to the Petition Answer 24, Hearing 2003. A three-member Committee December Following on 21 and submis- April held proceedings filed a on Report the Committee parties, sion of briefs 23, 2004, to meet that ODC had failed its finding September burden to establish that DiAngelus any violated Rules of (RPC) Professional Conduct regarding the Closs matter I). However, (Charge respect the Dubolino matter II), (Charge the Committee held that DiAngelus violated the (1) 4.1(a), following Rules: RPC which prohibits lawyer “[i]n the course of a client” representing from “knowingly mak[ing] (2) a false statement of material fact or person,” law to third 8.4(c), prohibits RPC lawyers from in con- “engaging] fraud, duct involving dishonesty, deceit or misrepresentation,” (3) 8.4(d), RPC which prohibits “conduct that is prejudicial to the administration of justice.” The Committee recom- mended that be disbarred.
ODC filed a 8, 2004, Brief on on Exceptions object- October ing to the Committee’s dismissal of I. Charge DiAngelus filed a Brief on Exceptions Response to Exceptions ODC’s on 12, 2004, October objecting to the Committee’s finding of violations II Charge and the recommendation of disbar- ment. DiAngelus requested argument oral before the Board. ODC filed a Brief Opposing Respondent’s Exceptions Octo- ber
A three-member panel of the Board held oral argument on November 2004. The adjudicated Board this matter at a meeting on November 2004. By Report and Recommen- dation dated March the Board agreed with the Hearing Committee with regard to dismissal of Count the finding of violations in Charge II. A majority of the Board recommended disbarment.1 agree
1. We with the Committee and the Board that ODC did *4 any not establish a violation of Rules of Professional Conduct (Count I). respect sought Closs matter prove ODC to that on 25, 2002, DiAngelus misrepresented June Magisterial Judge to District Liberace) (Judge (Officer Gerald Liberace that Officer Sean Clifton Clifton) of Township Department the Haverford agreed Police had to charge against reduce the driving operating privilege Closs from while suspended, license, driving § is 75 Pa.C.S. to without a valid 75 § Pa.C.S. they 1501. Closs and his mother testified that saw courtroom, speak to Officer Clifton outside the and that Officer Clifton present during proceedings Judge before Liberace when DiAn- gelus stated agreement that he had reached arresting an with the officer. Dubolino Matter Establishing Misconduct
Evidence (Officer Shields Officer William September Shields) issued Township Department Police of the Haverford Motor 1786 of the violating for Section a citation to Dubolino (failure maintain (Code), § 1786 to 75 Pa.C.S. Vehicle Code of the offense guilty She was found responsibility). financial conviction, the After her in district court. magisterial (DOT) it notified her Transportation Department for three months. privileges her suspend operating would an in to file thirty days of the which Following expiration court, district magisterial from the decision of the appeal suspension file a license Dubolino retained civil criminal pro summary nunc tunc and a nunc tunc pro appeal in the Pleas. On Court Common appeal Kenneth before the Honorable Clouse DiAngelus appeared Duboli- County Pleas of of Common Delaware Court hearing, At the pro summary appeal. no’s nunc tunc charge violation agreed Commonwealth withdraw for Dubolino exchange pleading Section 1786 Code, of the of Section 1301 lesser violation (driving unregistered prohibited).2 § vehicle Pa.C.S. disposi- to this agreed that the Commonwealth alleged ODC to then misrepresentation by DiAngelus tion on a based (ADA District Stollsteimer Stollst- Attorney Assistant Jack eimer) agreed to a reduction Officer Shields before the ADA testified as follows charges. Stollsteimer three-member Committee: Counsel): Now, any did (Disciplinary Mr. Davis about conversations with presented Judge before it was Clouse? 1301(a) provides: of the MVFRL Section unregistered person drive or Driving prohibited. vehicle shall —No knowingly permit be carrier shall move and no owner motor regis- any highway any upon vehicle driven or moved exempt the vehicle is from tered in this Commonwealth unless registration. 1301(a). §
75 Pa.C.S. *5 Yes, negotiated guilty plea. [ADA]: Davis: And do recall officer was in you citing police who this matter? Shields, Bill an officer from Haverford Township.
[ADA]: your And did name come inup Davis: his conversation? I present day, It did. He was not court that [ADA]: remember if he had talked to Officer asking DiAngelus for us to the one got drop Shields and his charge. and for her to to the lesser plead And did Mr. tell DiAngelus you? Davis: what me that he talked to He told Officer Shields [ADA]: agree. that he did And that agreed?
Davis: who agreed disposition Officer Shields [ADA]: case. you’re present
Davis: And Shields not saying Officer was that day? the courtroom earlier, I if He was not. don’t know he was there
[ADA]: there, but at time I that matter he handling was about that. why and that’s asked (N.T.), 4/21/04, at Testimony Notes of 234-35. Sullivan, an intern at the
Kelly Esquire, who was Delaware incident, at the County Attorney’s District time of the Stollsteimer, stated, testimony corroborated the of ADA “My recollection is that Mr. told Stollsteim- [ADA to a certain in the agreed disposition Officer Shields er] case.” Id. at 271.
Meanwhile, that, contrary Officer Shields testified to DiAn- had gelus’s representations, had no conversations with DiAngelus regarding prior January the Dubolino case (“[Davis]: Id. at 285 Did hearing. any discus- at Mr. DiAngelus sions all with about the Dubolino matter None.”). before 2001? January Officer Shields [Shields]: also testified that he and Mark Werlinsky (Attorney Werlin- sky), attorney, a PennDOT encountered at Duboli- on March suspension hearing no’s license and that DiAngelus again asserted that he had an agreement reached with Officer Shields on an assertion that Officer vehemently Specifically, Shields denied. Officer Shields testi- *6 fied as follows: you Werlinsky
Davis: Did and Mr. any have conversations Mr. to DiAngelus prior suspension] hearing the [license before Judge Clouse?
Shields: Yes. please
Davis: And tell the during Committee what occurred those conversations. After I had Werlinsky
Shields: chatted with Mr. and ex- case, plained my nature of in this involvement Mr. up walked to Mr. and I Werlinsky standing next to Mr. Mr. Werlinsky, Werlinsky said to Mr. DiAnge- I just lus that to spoke Office Shields and he told me he in wasn’t court on 31st of January year reference to this case. ], looked at me says you remember you [sic here, and you agreed dispositions
were on the two I I citations. said wasn’t in County Delaware Common day, Pleas Court on that I agree any and didn’t disposi- tions because I wasn’t here. calendar,
I out pulled my schedule, and I said this my you 31st, can look for right January it, here and I pointed to I I said didn’t have court scheduled on day that and I wasn’t remember, here. And then he you said don’t you were here for court on I day. that said I wasn’t here for court on that I day, and didn’t agree any dispositions, and then Mr. DiAngelus left the courtroom and into walked the hall. Id. at Attorney 286-88. Werlinsky testified regarding same encounter:
Werlinsky: I remember Officer Shields saying something the effect that there had never been a hearing, and at that point something said to the effect were at a hearing you agreed lower the charge, and Officer Shields said it happened. never
8 got and then he his hearing for the date he asked believe on anything have down out to didn’t
calendar show date____ not court Officer Shields was Clearly, because Id. at consented withdraw- he could Motor 1786 of the Vehicle violating Section ing Act. con unprofessional to prove is sufficient
Evidence the con establishes preponderance duct if satisfactory. is clear and of such conduct proof and the duct Pa. 425 Grigsby, v. 493 Counsel novo, addition, our review is de while A.2d the Disciplinary findings Committee witnesses,” credibility “guidelines judging are Board Lucarini, 504 Pa. v. Disciplinary Counsel Office of (1983), “substantial defer given and should be A.2d Attorney Anonymous *7 Disciplinary Counsel ence.” ., testimony The 552 Pa. 714 A.2d A and the Board Hearing the Committee provided cited above to conclude that factual basis on which a sufficient ADA that DiAn Stollsteimer falsely represented DiAngelus fraud, dishonesty, deceit involving “engaged conduct gelus a establishing violation RPC thereby misrepresentation,” 8.4(c). However, misrepresen that the fraudulent establish 4.1(a), fact,” “prejudi and was of a “material RPC tation was 8.4(d), the justice,” RPC ODC was cial to the administration affected the out to establish that the violation required also essentially argues proceedings. come of the While addition to establish these that there is not sufficient evidence facts, disagree. al above, found that the the Committee
As stated charge a to the lesser based accepted plea ADA and judge However, con- misrepresentation. DiAngelus’s greater charge, not dismiss the that the trial court did tends be- i.e., responsibility, financial driving without charge rather, but found agreement, purported plea cause of the present- on evidence charge of that based Dubolino not husband, not estranged that Dubolino’s hearing ed at the herself, car. the of the uninsured owner Dubolino was the assertion, transcript DiAngelus cites of this support provides as follows: hearing, guilty plea which matter, in this Your an reached We’ve [ADA]: Honor. withdrawing of the two will be one Commonwealth
[The] Honor, 5550106-2, a reflective citations, Your which is Mr. 1786, Required Responsibility. Financial that I think evidence, Your Honor presented has why reason like to on the record about the put would withdrawing charge. this Commonwealth Honor, hands, I’ve my Your have DiAngelus: Mr. attorney, certifícate —or prosecuting it to shown this car was registration, of title shows notification Dubolino, not Patricia. So registered Joseph her vehicle.
The We’ll note record. Okay. Court: record go It has on the because we DiAngelus: Mr. you after March and suspension appeal coming a license attorney] says. Werlinsky PennDOT [the know what All The right. Court: ... the Court DiAngelus: So I’ll let me see it a note that for record. Just Court: has document—the docu- The Court examined the
minute. DRT2087, # it is Title 51802880307DU and plate ment for Dubolino, S. not the —I will note registered Joseph me of at the time for the record can remind *8 up Werlinsky. comes with Mr. suspension appeal the license Ford Mustang And this a Ford —1994 DiAngelus: Mr. was I at and personally The Court: looked the matter it way certified that that’s the is. Mustang a DiAngelus: Coupe
Mr. It was Ford Citation, Your Honor. is what reads on The I that for the record. certify Court: that, DiAngelus: day, That you your we’ll remind
Honor. Well,
The Werlinsky Court: remind me too. will Honor, resolved, Your I with that matter think [ADA]: that Citation, reflecting Driving a 5550101-4 Vehicle with an be Expired Registration, there will a guilty plea to that.
The ... Okay Court: I find Okay. you guilty Court: to the 1786. Accept your to the 1301 plea guilty impose fine plus $75 costs....
N.T., 1/31/01,at 3-6. testimony,
Based this DiAngelus takes the that position Dubolino was guilty driving found not without financial responsibility charge because that showed she was, fact, However, not guilty. ADA Stollsteimer viewed the transcript differently:
... [DiAngelus] to put wanted that in the record. [evidence] I had no comment about whether or not the he evidence was true, in was nor I an putting opinion did have about it. He put asked to that into the and I record him to.... allowed N.T., 4/21/04, at ADA 245. Stollsteimer further commented point at the put wanted to the evidence on record, “stepped he then out itof because had a guilty plea negotiation. Whether the it judge judge saw and what the and he I talking were about didn’t lot of attention pay to.” 248-49, Indeed, Id. at ADA, 714 A.2d according to the his only concern was “that Officer Shields had been talked to agreed whether not he a fair id. disposition,” at 714 A.2d only because would enter into if he had the consent of Officer Shields.3 More- you plea bargain you Would have entered if [Davis]: into this did not believe that had the concurrence of Officer Shields? attorney, you No. As an pleas [ADA]: assistant district conduct fashion____ time, you dispose
all the cases [W]hat
11 Sullivan, intern, explained the over, Kelly and both the ADA on a plea agreement of indication specific that there was no record, off always are the negotiations plea record because the Id. documented. plea typically the only guilty ultimate and 237-39, 402. A.2d at 714 the he did contest testified that
ADA Stollsteimer willing he was DiAngelus because presented by upon plea in reliance the the Dubolino charges against dismiss officer had charging the he believed Thus, dishonesty DiAngelus was “material” the of assented. 4.1(a); justice.” administration of RPC to the “prejudicial
and 8.4(d). DiAnge- the established that Accordingly, ODC RPC misconduct. professional lus committed Discipline correctly the Board Hearing Committee as to ADA Stollsteimer the dishonesty viewed court, and therefore cited deceit (1993), Holston, 1054 v. Pa. 619 A.2d 533 Counsel appropri that disbarment was their determination support Holston, judge attorney signature In an of a forged ate. of that subsequently origins an order lied about of his attorney In because forged disbarring document. dishonesty, is the cornerstone of “[t]ruth we noted alle judicial system requires and a license to law practice to truth.” Id. giance fidelity at certainly not condone acts of dishon- “While does Court requiring se rule esty, adopt per we have declined Disci- acts misconduct.” specific disbarment for Office of Chung, 548 Pa. A.2d plinary Counsel attorney an five counts Chung, pled false to a insured financial insti- making federally statements always did make sure had the concurrence of [I] ... was to apprised had him of police involved in the case or at least officer good practice. going do did it. It's [I [I] what before was] N.T., by guilty plea, ADA at Had the matter not been resolved 235-36. with- the Commonwealth would not have Stollsteimer testified (failure charge of of Section 1786 drawn the serious the violation more been responsibility, and the matter would have to maintain financial hearing). disposed separate of in Id. at tution. We disagreed with the recommendation of disbarment made the Disciplinary Board. Based on our consideration of several factors including the nature of the misconduct and the community involvement and excellent reputation *10 attorney, imposed a five-year suspension. In the instant matter, DiAngelus’s misrepresentation to the ADA is a serious offense, yet we that it recognize falls short of the egregious- ness of the forging of a court order lying to the court that we confronted in Holston. We acknowledge that DiAngelus was disbarred on consent in but his disbarment occurred more twenty than years ago, and was based on misconduct that he committed while addicted to cocaine. DiAngelus has not used cocaine or other intoxicants since of 1985. noted, As previously DiAngelus received an informal admonition, which resulted from an incident when was co- counsel in a DUI matter. While his co-counsel out of country, DiAngelus, without co-counsel’s knowledge permis- sion, signed co-counsel’s name on a petition and verification
DiAngelus presented credible testimony by eight character regarding truthfulness, witnesses his reputation for honesty, and law abidingness. He president serves as of the Associa- tion for Traffic License Lawyers and is involved with the County Delaware Bar Association and Lawyers Concerned for Lawyers, an organization that assists members of the bar who struggle with substance abuse and addiction.
Our independent review of the record leads us to conclude that DiAngelus committed serious misconduct that merits the severe five-year sanction of a suspension. further We order that he is to comply with the provisions of Pa.R.D.E. 217 and costs, that he shall pay any, if to the Disciplinary Board pursuant to Pa.R.D.E. 208(g). SAYLOR,
Justice EAKIN join and BAER opinion. Former Justice NIGRO did not participate the decision of this case.
Chief Justice CAPPY files a dissenting opinion in joins. Justice CASTILLE CAPPY, dissenting.
Chief Justice Majority’s recommendation dissent from the I respectfully disciplinary dismiss the and would five-year suspension of a DiAngelus. J. against Respondent filed Lawrence charges us, it is clear of the record before de novo review Upon (ODC) to demon- has failed Counsel that Mr. satisfactory clear and strate Conduct.1 alleged Rules of Professional violated “anew; afresh, as Dictionary Black’s Law defines “de novo” ed.1990). (6th Dictionary time.” Black’s Law a second reviewing body that the The sine non of de novo review is qua at an authority independent exercise the to arrive possess and Area dispute. on the matter in West Chester School judgment School, 571 Pa. 812 A.2d Collegium District Charter 1172, 1178n. 9 standard, transcript of the
Based on review *11 31, 2001 held on Dubolino’s motor January hearing, which was violations, transcript Respondent’s as as the of vehicle well stray to hearing, my independent judgment leads disciplinary from that of the and the tribunals.2 Majority lower 31, that transcript January hearing
The of the 2001 reveals ADA informed the court Mr. Stollsteimer to the presenting why would be evidence as Commonwealth 1786, of withdrawing was the of a violation Section “registrant” a motor vehicle’s “owner” or to requires which N.T., 1/31/01, maintain financial of the vehicle. responsibility court a certificate of DiAngelus presented at 3.3 Mr. evidence, by proving, preponderance the a of the ODC has burden of attorney’s professional ODC v. that an actions constitute misconduct. Kiesewetter, 477, 47, Pa. A.2d 54 n. 5 This burden must 585 889 satisfactory Id. be established clear and evidence. January transcript the 2. The Board did not reference the of hearing report. in its 1786(d) provides: 3. Section
(d) Registration Privilege.— Suspension Operating of (1) Department Transportation suspend registration shall the required period for if it determines the of a vehicle a three months required by chapter responsibility not this financial secured as registrant suspend operating privilege the owner for and shall the or title demonstrated that the registration, which vehicle was Id. registered Joseph to Dubolino and not Patricia Dubolino. trial examined the at 3-4. The court document and certified Id. at 4. registered the vehicle was not to Patricia. Further, prior entering hearing the on January maintained that he ADA showed Stollsteimer vehicle, the owner’s card for the motor which noted that car Patricia by Joseph was owned Dubolino. N.T. Thus, Disciplinary Hearing of at as Patricia 4/22/04 Dubolino registrant was neither nor owner of the vehicle, motor there seems to have been no basis for prosecut- her for a violation of 1786 and little ing Section motivation to ADA misrepresented Stollsteimer that he a plea agreement arresting entered into with the officer to exonerate her.4 The transcript hearing supports position. examining After certificate of title the trial court registration, proceeded find violating Patricia Dubolino not Section 1786 and § her accepted plea guilt violating 75 Pa.C.S.
applies person driving moving or the vehicle with an registration.5 expired if
Additionally, disagree Majority misrep- with the a made, resentation was such statement was “material” and “prejudicial justice” pursuant to the administration of to RPC 4.1(a) 8.4(d). case, Under the unusual facts of this period department of three months if the determines that the owner registrant operated permitted operation has or of the vehicle required responsibility.... without the financial 1786(d) added). (emphasis §
75 Pa.C.S. 4. The matter was before the trial court because Patricia Dubolino had *12 erroneously pled guilty sought appeal to the offense and later her pro conviction nunc tunc when she was notified that her license would suspended be for three months. “Registration required,” 5. Section entitled and Certificate of title provides as follows: (a) Driving unregistered prohibited. vehicle person shall drive or —No knowingly permit move and no owner or motor carrier shall to be any highway any upon regis- driven or moved vehicle which is not exempt tered in the vehicle this Commonwealth unless from registration. 1301(a) added). (emphasis § 75 Pa.C.S. misrepresentation regarding plea agreement would not alter DiAngelus’ the outcome of the because Mr. client proceeding of the offense. culpable underlying circumstances, these Under find of the support alleged violations Rules Professional satisfactory. Conduct falls somewhere short clear and Committee and Hearing Disciplinary Board dismissed for lack proof very disciplinary charges matter the of miscon- relating duct to Robert Closs.6 I reach that same would conclusion as to the charges relating misconduct to Patricia Dubolino.
Accordingly, join I cannot in the Majority’s imposition of discipline. joins opinion.
Justice CASTILLE this dissenting
Argued Dec. 2005. Sept. 27, Decided matter, alleged the Robert Closs ODC that Mr. lied to a magisterial judge regard plea agreement police district to a with a regarding officer Closs’s motor vehicle violations. The Com- testimony mittee found that the of ODC’s witnesses were either incon- sistent or incredible and that ODC therefore did not meet its burden proof.