In Grave Danger

A year and a day suspension has been imposed by the Pennsylvania Supreme Court for misconduct in connection with a putative client (Ms. Kissinger) whose home had been declared a public hazard and demolished.

Attorney Wencker was appointed as Ms. Kissinger’s counsel.

Ms. Kissinger had been charged in a criminal information as well as a civil matter involving a lien for an unpaid water bill. 

Respondent became involved

In late October 2019, Respondent was contacted by Beth McCreary, a friend of Ms. Kissinger’s and a member of a Facebook group called “Barb’s Besties.”

Respondent met with Ms. McCreary on November 2, 2019.

Ms. McCreary sought assistance in locating Ms. Kissinger, whom she had not seen since July 2019.

Findings of misconduct

it is undisputed that on the morning of November 5, 2019, Respondent executed and filed a petition in the civil matter against Ms. Kissinger, requesting that the County Sheriff accompany Respondent to a residence on Deforrest Street, where, according to that filing, Ms. Kissinger was “believed to be held against her will by an individual who is armed.” It is also undisputed that, at the time Respondent filed the November 5 Petition, she did not represent Ms. Kissinger, had no first-hand knowledge of Ms. Kissinger’s situation and, in fact, had never met or spoken with her. Indeed, Mr. Wencker, who (unlike Respondent) represented Ms. Kissinger and had spoken with her, attempted to disabuse Respondent of the notion that Ms. Kissinger was in danger. Yet, despite having no factual basis for making such a serious allegation—and ignoring the assurance of an officer of the Court with a fiduciary duty to protect Ms. Kissinger’s interests—Respondent submitted a written document to the Court, claiming that Ms. Kissinger was believed to be in grave danger.

In her exceptions, Respondent does not genuinely maintain that she had a reasonable basis for believing that Ms. Kissinger was in danger or being held against her will at gunpoint. Rather, highlighting the fact that the November 5 Petition is phrased in the passive voice, she maintains that to meet its burden of establishing a violation of Rules 3.1 and 3.3(a)(1), Petitioner was required to “prove either that no one believed [Ms.] Kissinger was held involuntarily, or that no one believed that the house where [Ms.] Kissinger was staying was [sic] the house of an individual with weapons—and that Respondent was aware of at least one of those facts.” Resp’t’s Br. at 7. This is so, according to Respondent, because the November 5 Petition merely relays facts that someone believed to be true.

Respondent’s warped perception of her ethical obligations does not withstand scrutiny and should not be countenanced by the Court. As an initial matter, even if Respondent’s formulation of Rules 3.1 and 3.3 were to be accepted, her conduct plainly violated Rule 8.4(c)—a provision that is cited, but not meaningfully developed in Respondent’s brief on exceptions. In this regard, the Court has explained that “[w]hen the alleged misconduct is misrepresentation in violation of Rule 8.4(c), a prima facie case is made where the record establishes that the misrepresentation was knowingly made, or made with reckless ignorance of the truth or falsity of the representation.” Office of Disciplinary Counsel v. Neil Werner Price, 732 A.2d 599 (Pa. 1999). Recklessness, in turn, “may be described as the deliberate closing of one’s eyes to facts that one had a duty to see or stating as fact, things of which one was ignorant.” Id. (internal quotation marks and citations omitted)

Lack of competence

Respondent’s handling of the November 5 Petition and her subsequent arguments in connection therewith also lay bare her lack of competence. For instance, as Respondent has repeatedly acknowledged, her only “client” at that time was Ms. McCreary and the Barb’s Besties Facebook Group—neither of whom were parties to the civil action. Thus, before seeking substantive relief in the Kissinger Civil Action, Respondent was required to seek intervention on behalf of her clients, or at a minimum, should have filed her Petition to Intervene simultaneously. Yet, the November 5 Petition makes no mention of the fact that Respondent represented non-parties and was seeking relief on their behalf. Given the rudimentary nature of this legal principle, we find Respondent’s filing demonstrates a lack of basic competence.

Persistence

As detailed above, during the November 7, 2019 hearing, Ms. Kissinger expressly stated that she did not wish to be represented by Respondent in her criminal matter and, immediately after the proceeding concluded, Respondent informed Ms. Kissinger—both in writing (R-8) and orally—that the attorney-client relationship was terminated relative to the civil and criminal matters. Yet, as demonstrated by Petitioner’s evidence, Respondent continued to contact Ms. Kissinger (ODC-21, ODC-23, ODC-24, ODC-25, ODC-26, ODC-28, ODC-36, ODC-37, R-49), Mr. Wencker (ODC-18, 2/17/22 N,T. 21-24), and third parties and opposing counsel (ODC-12, ODC-15, ODC-17, ODC19, ODC-20, ODC-22, ODC-28, ODC-30, ODC-31, ODC-31, ODC-38). In fact, in November 2019, Respondent entered her appearance on behalf of Ms. Kissinger in the civil lien matter and filed pleadings on Ms. Kissinger’s behalf, even though the attorney-client relationship had been terminated. (ODC-6, ODC-32, ODC-33)

Sanction

Here, Respondent’s position throughout the course of the disciplinary proceedings has been that her conduct was in full accord with her ethical obligations and not a single violation of the rules has occurred. Based on the record, reasonable minds may differ about the extent of Respondent’s violations and the appropriate discipline. But, in our view, no reasonable practitioner, upon reflection, could conclude that the conduct involved in this matter was beyond reproach. Yet, that is precisely what Respondent has maintained.

Time and again, Respondent left no doubt that, in her view, she was the most intelligent and competent person in the room and every person involved in the Kissinger matters (except for her) made mistakes and failed to follow the rules. (8/30/22 N.T. 53-54). As the record demonstrated, despite not being experienced in criminal law and not appearing before Judge Zanic in civil cases on a frequent basis (2/16/22 N.T. 58), Respondent questioned the decisions and actions made by Judge Zanic, Mr. Wencker, Ms. Heaton, Mr. Wilson and others. For example, Respondent testified that Judge Zanic and Mr. Wencker did not comply with the Rules of Criminal Procedure, that Judge Zanic’s December 16, 2019 Order did not comply with the Rules, that Judge Zanic’s instructions to her to file a petition with her proposed Order was irregular, Mr. Wencker’s praecipe to substitute counsel was irregular, and the November 12, 2019, transcript contained errors. (ODC-32, ODC-33, ODC-34; 4/27/22 N.T. 88, 94, 139, 174, 176; 5/10/22 N.T. 23-25, 30-40, 33, 52, 55, 58, 105, 189, 190; 8/29/22 N.T. 51, 127). But as noted above, on many (if not all) of these points, it is Respondent that misunderstood the rules. At oral argument before the Board, Respondent continued to advocate her position that the evidentiary record contained nothing to indicate that her conduct was other than rule compliant and there was no identifiable misconduct.

(Mike Frisch)