Nuclear War Destroys Career

The Pennsylvania Supreme Court has disbarred an attorney based on findings of misconduct relating to the sale of his home and subsequent course of conduct.

From the report of the Disciplinary Board

The background of this matter is the 2004 sale of a home by Respondent and his ex-wife, Ms. Koresko, to Ms. White. At the time of the sale, Respondent failed to disclose a second mortgage that existed against the property. In 2008, when the mortgagee learned that the house had been sold without repayment being made, litigation commenced against Respondent, his ex-wife, and Ms. White. In connection with this litigation, Respondent initiated multiple new claims against the parties and their attorneys, which Petitioner alleges were false and frivolous, needlessly delayed discovery, and resulted in blatant conflicts of interest.

Our review of this extensive record leads the Board to conclude that Respondent violated the Rules as charged in the Petition. The record is replete with multiple instances to sustain each of the alleged violations.

Respondent violated Rule 1.1 by failing to exhibit the requisite competence in professional matters. He filed numerous pleadings, motions and interlocutory appeals improperly and on meritless grounds. Similarly, he violated RPC 1.3 by deliberately blocking his opponents’ attempt to conduct permissible discovery, as well as by failing to conduct discovery after filing various pleadings and claims. Although RPC 1.3 requires an attorney to act with diligence and promptness, Respondent intentionally prevented opposing counsel from taking the depositions of Michelle Sullivan and Margaret Lawson for nearly one year.

Respondent violated RPC 1.7(a) and 1.7(b) by representing his employee, Michelle Sullivan, and his ex-wife, Bonnie Koresko, as well as himself. This constituted a concurrent conflict of interest. Ms. Sullivan notarized the deed to the real property at issue. In 2009, Respondent submitted an affidavit from Ms. Koresko in which she claimed she did not appear at the 2004 real estate settlement and had not signed the deed. When Ms. White’s attorney sought to resolve the issue by deposing Ms. Sullivan, Respondent filed a Motion for Protective Order in an effort to stop her deposition. Respondent submitted conflicting affidavits signed by Ms. Sullivan concerning the settlement. Ms. White then had to file a Motion to Disqualify Respondent and his firm from representing Ms. Koresko and Ms. Sullivan.

The Court held a hearing and ultimately precluded Respondent from representing Ms. Sullivan, finding that (1) Respondent did not “vigomusly and carefully” represent Ms. Sullivan and her independent interests; (2) Respondent’s ability to represent Ms. Sullivan had been materially limited by his responsibilities to Ms. Koresko and himself; and, (3) Respondent filed the Motion for Protective Order to protect himself and Ms. Koresko, not Ms. Sullivan. An undeniable concurrent conflict existed because Respondent already represented himself and Ms. Koresko. Even if Ms. Sullivan endorsed Respondent’s representation of her, no scenario exists in which Respondent could have permissibly represented Ms. Sullivan.

Respondent’s frivolous filings, dishonest conduct, and bad faith efforts to obstruct his opponents’ legitimate discovery violated RPC 3.1, 3.2, 3.3(a)(1 ), 3.3(a)(3)…

Respondent’s barrage of threats and abusive behavior at multiple targets violated RPC 4.4(a). A lawyer is prohibited from employing means that are designed to embarrass, delay, burden or violate the rights of third persons. Respondent threatened Ms. Lawson, his former employee, with the enforcement of a $250,000 confession of  judgment if she were to testify when subpoenaed. He also threatened Ms. White with eviction. He acted to prevent the depositions of Ms. Sullivan and Ms. Lawson for a very lengthy period. Clearly, Respondent’s abusive litigation behavior cannot be excused as zealous representation or good faith defensive strategies.

On sanction

…no mitigating factors are present in this case. Respondent’s testimony about a prior head injury, and the December 17, 2013 letter he submitted from his neurologist, do not constitute the type of evidence required to establish a mental health disorder as a mitigating factor…

We do, however, find Respondent’s lack of remorse to be a significant aggravating factor. Respondent remained intractable in his positions, despite the overwhelming evidence to the contrary. He compounded and intensified matters, over a long period of time, through his relentless misuse of civil proceedings and abusive litigation tactics designed to intimidate, lie, and obfuscate the facts. He deliberately chose his course of action each step of the way, and remained tireless in his efforts to protect his own interests and that of Ms. Koresko while laying blame on every other party. He accused his opponents of provoking the “nuclear war” that he launched in the trial and appellate court system, claiming they “brought the lawsuit that started the whole thing”…

The evidence produced by the Office of Disciplinary Counsel convincingly proved that Respondent is a danger to the public and the profession itself. A suspension of five years is warranted to comply with the guiding decisions…and to call appropriate attention to Respondent’s prolonged, serious abuse of Pennsylvania’s legal system.

While the court imposed disbarment rather than a five year suspension, it appears that the order has the same substantive effect.

Rule 218 of the Pennsylvania Rules of Disciplinary Enforcement provides

… (b)  A person who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment…

Presumably the court intends to have indicated a marginally-higher level of condemnation of the behavior by calling it disbarment rather than a suspension of five years.

The Pennsylvania Supreme Court rarely (if ever) explains its reasoning in bar discipline cases. Rather, the court enters an order and appends the Disciplinary Board report.

Update: I am advised that case law indicates that the burden on a disbarred attorney in reinstatement is a higher one than for a suspended attorney. (Mike Frisch)