Opinion
No. 932 Disciplinary Docket No. 3 No. 113 DB 2004
01-08-2019
In the Matter of MICHAEL RADBILL PETITION FOR REINSTATEMENT
ORDER
PER CURIAM
AND NOW, this 13th day of March, 2019, the Petition for Reinstatement is denied. Petitioner is directed to pay the expenses incurred by the Board in the investigation and processing of the Petition for Reinstatement. See Pa.R.D.E. 218(f). A True Copy Patricia Nicola
As Of 03/13/2019 Attest: /s/_________
Chief Clerk
Supreme Court of Pennsylvania Attorney Registration No. 17053 (Philadelphia)
REPORT AND RECOMMENDATIONS OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA:
Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, The Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your Honorable Court with respect to the above captioned Petition for Reinstatement.
I. HISTORY OF PROCEEDINGS
By Order dated June 19, 2006, retroactive to July 29, 2004, the Supreme Court of Pennsylvania disbarred Michael Radbill for his conduct arising from his conviction in the United States District Court for the Eastern District of Pennsylvania on one count of Health Care Fraud and one count of Fraud and False Statements in connection with a federal tax return. On February 25, 2010, Petitioner filed a Petition for Reinstatement ("the 2010 Petition"); on March 31, 2011, the Board granted Petitioner leave to withdraw the 2010 Petition. On May 15, 2014, Petitioner filed a second Petition for Reinstatement ("the 2014 Petition"); by Order dated November 19, 2015, the Supreme Court adopted the Board's recommendation set forth in its October 28, 2015 Report and denied the 2014 Petition.
On August 8, 2017, Petitioner filed a third Petition for Reinstatement and a Reinstatement Questionnaire. On December 5, 2017, Office of Disciplinary Counsel ("ODC") filed a Response to Petition and opposed Petitioner's reinstatement.
On December 20, 2017, the Petition for Reinstatement was referred to a District I Hearing Committee ("Committee") comprised of Chair Marc P. Weingarten, Esquire, and Members Josh J.T. Byrne, Esquire, and Robert M. Cavalier, Esquire.
Following a prehearing conference on January 3, 2018, the Committee conducted a reinstatement hearing on February 9, 2018. The parties submitted Joint Stipulations of Fact. Petitioner introduced exhibits and testified on his own behalf. ODC introduced exhibits and did not present any witness testimony.
On March 14, 2018, Petitioner filed a brief to the Committee in support of his reinstatement. On April 5, 2018, ODC filed a brief to the Committee in opposition to reinstatement.
The Committee filed a Report on June 18, 2018 and recommended that the Petition for Reinstatement be denied.
On July 5, 2018, Petitioner filed a Brief On Exceptions to the Committee's Report and recommendation and requested oral argument before the Board.
On July 12, 2018, ODC filed a Brief Opposing Exceptions.
A Board panel held oral argument on October 10, 2018.
The Board adjudicated this matter at the meeting on October 25, 2018.
II. FINDINGS OF FACT
1. Petitioner is Michael Radbill, born in 1943 and admitted to practice law in the Commonwealth in 1973. His attorney registration address is 1708 W. Marlton Pike, Cherry Hill, NJ 08002. Petitioner is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
Findings of Fact 2 - 17 are based on the facts set forth in the Board's November 21, 2005 Report in the underlying discipline matter, which were adopted by the Supreme Court in its June 19, 2006 disbarment Order (ODC-64):
2. On July 21, 2003, the Office of United States Attorney filed in the United States District Court for the Eastern District of Pennsylvania a Criminal Information in the criminal prosecution captioned United States of America v. Michael Radbill.
3. On September 18, 2003, Petitioner pleaded guilty to one count of Health Care Fraud, in violation of 18 U.S.C. §1347 and one count of Fraud and False Statements in connection with a federal tax return, in violation of 26 U.S.C. §7206(1).
4. On January 15, 2004, the Honorable Marvin Katz sentenced Petitioner to serve a term of imprisonment of one year and one day and three years of supervised release following Petitioner's release from prison; to make restitution in the amount of $261,447.16; and to pay a special assessment of $200.
5. Petitioner's criminal conduct that led to his guilty plea occurred from 1995 through 2000.
6. The investigation undertaken by the United States Attorney's Office produced evidence that from 1995 through November 2000, Petitioner represented twenty-nine clients in personal injury cases, knowing that those clients were not injured and did not require medical treatment.
7. In those twenty-nine fraudulent personal injury cases, twenty insurance carriers were defrauded and their total loss amounted to $261,447.16.
8. The evidence against Petitioner was based, in part, on information received from a cooperating witness, identified as "D.S.," who posed as an accident victim.
a. Petitioner filed suit on behalf of D.S., forged the signature of D.S. on court documents, and represented D.S. at an arbitration hearing that took place on September 30, 1998.
b. Petitioner represented D.S. at the arbitration hearing knowing that the treatment records were false and that D.S. had not sustained any injuries.
c. Petitioner directed D.S. to lie to the arbitration panel in order to obtain a recovery.
d. The arbitration panel awarded D.S. $5,000.
9. The evidence established that Petitioner operated his personal injury practice by engaging in the following acts:
a. Petitioner paid runners to recruit clients for his personal injury practice;
b. Petitioner's runners also staged "slip and fall" injuries for his clients;
c. Petitioner himself, and through the use of runners, directed Petitioner's clients to those medical providers who would falsify treatment records and health care claims; and,
d. Petitioner coached his clients to provide false testimony in connection with the litigation of their personal injury claims in order to obtain a recovery.
10. Over a thirty-year period, Petitioner used runners to solicit personal injury cases and knew that the majority of the clients he represented in personal injury cases were not injured.
11. Petitioner's federal tax returns for the years 1997 through 2000 contained false information, in that Petitioner under-reported his earned income and exaggerated and falsified his business expenses.
12. Petitioner concealed his income by negotiating settlement checks at check cashing agencies or by depositing the settlement checks into his personal account as opposed to his escrow account.
13. Petitioner claimed as business expenses salaries he was paying to both his wife and his girlfriend, when neither individual worked at Petitioner's law office.
14. For the tax years 1997, 1998, and 1999, Petitioner reported a taxable income of less than zero; for the tax year 2000, Petitioner reported a taxable income of $12,581.
15. Over the tax years 1997 through 2000, Petitioner reported less than 24% of his gross income.
16. Petitioner's under-reporting of his income and his falsifying and exaggerating business expenses resulted in the United States government incurring a total tax loss of $235,788.
17. Petitioner was placed on temporary suspension by Order of the Supreme Court dated July 29, 2004, and he was disbarred from the practice of law by Order of the Supreme Court on June 19, 2006.
Findings of Fact 18-42 are based on the facts set forth in the Board's October 28, 2015 Report in the 2014 reinstatement (ODC-65):
18. Before Petitioner's sentencing on January 15, 2004, he was directed by a presentence investigator to complete a financial affidavit that requested certain personal financial information.
19. Petitioner failed to provide truthful information when completing the financial affidavit.
20. On the financial affidavit, Petitioner left blank Section M, which, inter alia, inquired if someone else was holding assets on behalf of Petitioner.
21. The presentence investigator questioned Petitioner about Section M on the financial affidavit and marked off "none" after receiving Petitioner's verbal response.
22. Petitioner failed to disclose on the financial affidavit that he and his wife, Marilyn Radbill, had transferred joint ownership of 1118 Warren Avenue, Cherry Hill, NJ ("the NJ house") and an adjacent vacant lot to E.M., Inc., a company whose sole corporate owner and shareholder was Petitioner's sister-in-law, Leonna Rothstein.
23. Petitioner testified that he transferred the NJ house because he had $100,000 in credit card debt and wanted to protect the NJ house from creditors; however, Petitioner's testimony was not credible.
24. In reality, the transfer was to protect the home from being utilized by the federal government to satisfy any restitution required of Petitioner based on his criminal conduct. In reality, Petitioner had a small credit card debt, much less than the amount he had testified to.
25. Upon Petitioner's release from prison in December 2004, a probation officer required Petitioner to complete a personal financial statement ("the 12/2004 statement"), which was again required to be completed in October 2005 ("the 10/2005 statement").
26. Based on review of the 10/2005 statement, the federal probation department determined that Petitioner's monthly restitution payments should be increased from $30.00 to $500 per month.
27. Thereafter, the United States Attorney's Office deposed Petitioner on January 12, 2006 for the purpose of obtaining testimony with regard to Petitioner's assets.
28. Petitioner failed to disclose the existence of an individual retirement account and a joint investment account on any of the pertinent statements.
29. In May 2006, the probation department filed a petition to have Petitioner's supervised release revoked because:
a. He had failed to make restitution payments in the amount of $500 per month;
b. He had failed to accurately disclose the security accounts that he owned; and
c. He, in fact, transferred the funds in the security accounts to another brokerage house.
30. Thereafter, by Order dated July 14, 2006, the United States District Court revoked Petitioner's supervised release, imprisoned him for three additional months and ordered him to serve a one-year term of supervised release.
31. At the 2014 reinstatement hearing, Petitioner testified that he inadvertently failed to disclose on three different pre-sentence statements the existence of his retirement accounts. Petitioner's testimony was not credible as there is direct evidence contradicting the testimony by the statements he has made and other forms that he has filled out.
32. Petitioner transferred title to his home in New Jersey to his two sons prior to the commencement of his prison term in order to insulate the house from being utilized to satisfy the court-ordered restitution and being subjected to a lien by the IRS. He was advised by the United States Attorney's Office that transferring ownership of the NJ house to Petitioner's sons could be considered a fraudulent transfer as to the restitution judgment entered against him in the criminal case.
33. Although Petitioner and his wife did not pay rent to their sons for residing in the NJ house, Petitioner falsely claimed on their New Jersey tax returns in 2004 through 2009 that they paid rent for residing in the NJ house.
34. In December 2010, Erik Radbill, who is Petitioner's son, and Erik's wife filed a Chapter 7 bankruptcy action in the United States Bankruptcy Court for the District of New Jersey. The Chapter 7 Trustee discovered that Petitioner's son was a one-half owner of the NJ house. Thereafter, in April 2011, Erik Radbill and his wife received a Chapter 7 discharge and in May 2011, the two sons transferred the NJ house to their mother for $1.00.
35. In June 2012, the Chapter 7 Trustee filed an adversary complaint that sought to void the 2011 transfer to Petitioner's wife; Petitioner and his wife were named as defendants.
36. During the course of the adversary proceeding, Petitioner, Mrs. Radbill, and Petitioner's two sons were deposed.
37. During his deposition, Petitioner again claimed that he had over $100,000 in credit card debt and wished to transfer the NJ house to his sons because of concerns over that debt. He further stated that he had not discussed the deed with his wife or sons before signing over the deed to the NJ house to his sons. Petitioner also acknowledged that he had a current judgment against him for court-ordered restitution and finally stated that he had not paid any rent to his sons for the period 2004 through 2011, when he was living in the house.
38. In contrast, Petitioner's sons testified that they never had any conversation with their father with regard to why the house was transferred to them, nor did they have any knowledge that Petitioner actually transferred the real estate to them. Further, they never paid any expenses associated with the maintenance and upkeep of the household and never received any rent payment from Petitioner or their mother.
39. Petitioner's testimony at the 2006 deposition for the United States Attorney's Office relating to his reasons for transferring the NJ house to his sons, his conversations with his wife and his sons about the transfer, and his sons' payment of expenses for the NJ house, was inconsistent with Petitioner's later testimony at the adversary deposition and the deposition testimony of Mrs. Radbill and Petitioner's two sons.
40. In a Memorandum Opinion dated July 16, 2013, the Bankruptcy Court found that Petitioner had intended to transfer the entire interest in the NJ house to the two sons; at the 2006 deposition Petitioner characterized the transfer to the sons as a legitimate transfer of interests, but in the adversary proceeding Petitioner characterized the transfer as motivated by his pending incarceration, credit card debt and restitution judgment; and that the deed conveying the house to Petitioner's sons did not reserve any rights in favor of Petitioner or his wife. The Court found valid the 2004 transfer from Petitioner and his wife to their sons, and voided the 2011 transfer of the NJ house to Mrs. Radbill.
41. Petitioner offered testimony at the 2014 reinstatement hearing that either lacked candor or was false:
a. Petitioner falsely testified that his private practice of law consisted "mostly of collection work" and that he only had "one or two personal injury cases a year"; the record shows that the majority of his practice was personal injury work;
b. Petitioner falsely testified that when he transferred the NJ house to E.M., he owed "close to $100,000 in credit card debt"; Petitioner's actual credit card debt was no more than $35,000;
c. Petitioner testified that the Bankruptcy Trustee filed the adversary proceeding against Petitioner and Mrs. Radbill to force the sale of the NJ house in order to obtain $150,000 from the sale to satisfy Petitioner's court-ordered restitution; in fact, a settlement agreement reached in the adversary proceeding between the Trustee and Mrs. Radbill provided that the Trustee received $62,000 from the sale of the NJ house to be used to pay Erik Radbill's creditors;
d. Petitioner misrepresented at the hearing that in August 2012, his employment at Fiesta Publications, Inc. was terminated because his employer had discovered that Petitioner had been named as a defendant in
the adversary proceeding; in fact, Petitioner's employment at Fiesta was terminated in August 2013 due to insufficient work for Petitioner.
42. In connection with the 2014 reinstatement hearing, Petitioner made significant omissions in other circumstances:
a. Petitioner failed to disclose on the Reinstatement Questionnaire the adversary proceeding and a subsequently filed civil case against the bankruptcy Trustee. These matters concluded in February and March, 2014, shortly before Petitioner completed and filed the Questionnaire;
b. Petitioner failed to disclose on the Questionnaire that he had not paid in full his federal tax obligation for tax years 2011, 2012 and 2013. He also failed to disclose that he and his wife had begun making monthly payments toward repaying a mortgage that they had received from the South Jersey Federal Credit Union;
c. Petitioner failed to disclose that he was employed at Prestige Motor Cars Imports, Inc. and did not disclose the amount of his compensation or the duration of his employment;
d. Petitioner did not disclose his 2010 and 2011 IRA distributions from different sources;
e. Petitioner failed to disclose that he had claimed his son as a dependent on his federal income tax returns from 2009 through 2013
notwithstanding the fact that Petitioner's son did not reside with Petitioner and received no financial support from him.
The following findings of fact are based on the evidence presented during the February 9, 2018 reinstatement hearing:
43. Petitioner admitted he offered false or misleading testimony during the August 31, 2010 hearing (N.T. 27) concerning his New Jersey house (N.T. 55-56), his use of "runners" beginning in the "mid 90s" (N.T. 56-57), and his personal contact with medical providers who prepared fictitious reports for his clients. N.T. 36-37, 57-62.
44. Petitioner confirmed he offered false testimony at the December 10, 2014 reinstatement hearing (N.T. 19, 27) regarding his New Jersey house (N.T. 39-40, 43), disclosure of his investment accounts (N.T. 40-43), the nature of his law practice (N.T. 43-44), use of "runners" (N.T. 50-51), the reason his employment at Fiesta Publications, Inc. was terminated (N.T. 49-50), and that he did not know the majority of his clients in personal injury cases were not injured. N.T. 51-55.
45. On April 8, 2013, Petitioner offered false testimony in an adversary action deposition wherein he was a defendant in the matter of Hargrave v. Radbill , et al., then pending in the United States Bankruptcy Court in New Jersey, No. 12-1627-GMB.
46. At the February 9, 2018 reinstatement hearing, Petitioner refused to admit that at the December 10, 2014 reinstatement hearing, Petitioner had falsely testified that the bankruptcy trustee (Hargrave) was seeking to obtain $150,000 from Petitioner to satisfy his court ordered restitution. N.T. 45-49; ODC-61; ODC-65.
47. During the 2013 adversary deposition, Petitioner denied that his sons had an ownership interest in the New Jersey house, which was inconsistent with Petitioner's testimony at the 2006 asset deposition, and the August 31, 2010 and the December 10, 2014 reinstatement hearings. JS 10-11; ODC-40; ODC-65.
48. In connection with the adversary proceeding, on or about February 23, 2015, while prospective buyers were viewing the New Jersey house, Petitioner handed the prospective buyers a document entitled: "Major concerns with title to 1118 Warren Avenue, Cherry Hill NJ 08002"; stated to prospective buyers that there were issues concerning the title to the New Jersey house; pointed out a crack in the house; and by Order dated April 8, 2015, the Honorable Gloria M. Burns prohibited Petitioner from being present at future showings of the house. JS 24; N.T. 71-72, 74-78; ODC-33; ODC-82; ODC-83.
49. On August 25, 2005, during oral argument in Petitioner's disciplinary matter, Petitioner misrepresented to the three-member Board panel that he was not employed, despite being employed by Fiesta Publications since July 2005. JS 7.
50. Petitioner made omissions on his 2017 Reinstatement Questionnaire.
51. In Petitioner's response to Question 7(d) on the Questionnaire, he failed to disclose that he was reciprocally disbarred by the United States Court of Appeals for the Third Circuit. JS 22; N.T. 70-71l ODC-67.
52. Although Petitioner was admitted to practice before the Third Circuit, he did not contact the Third Circuit prior to completing the Questionnaire to determine if he had been the subject of any disciplinary proceeding. N.T. 70-71.
53. In Petitioner's response to Question 10 on the Questionnaire, Petitioner failed to disclose: two cases that were filed in the Superior Court of New Jersey for Gloucester County; one case that was filed in the Superior Court of New Jersey for Camden County; one case that was filed in the Superior Court of New Jersey for Atlantic County; one case that was filed in the Court of Common Pleas of Philadelphia County; and four cases that were filed in Philadelphia Municipal Court. JS 23; N.T. 67-68; ODC-68 through 76.
54. Petitioner testified that he relied on his memory when he provided his responses to Question 10 on the Questionnaire. N.T. 68.
55. Petitioner failed to contact the clerks of court or perform searches to identify any cases in which he appeared as a party. N.T. 68-69.
56. Petitioner testified that he works part-time as a driver for Cherry Hill Imports doing dealer swaps and works two or three times per month for Fiesta Publications, a company that solicits donations for fire and police. Petitioner collects the donations. N.T. 11-12.
57. Petitioner testified that he has been involved in charitable work during his disbarment, including for the Make-A-Wish organization and for several Veterans organizations. His charitable activities mostly involve fundraising and making donations. On two occasions he accompanied veterans to Washington, D.C.; on one occasion he worked at an antique car show for the Wounded Warriors organization, and on one occasion he brought an ill child to the Philadelphia Zoo on behalf of Make-A-Wish. N.T. 21-26, 88, 89, 92-93.
58. Petitioner testified that he never realized what an honor it is to practice law and further testified that he brought shame upon his family and profession. N.T. 18.
59. Petitioner testified that while he was in prison, he talked to a rabbi, who encouraged Petitioner to tell the truth. N.T. 18.
60. Petitioner admitted that he did not follow the rabbi's advice and for the next ten years or so, he tried to "wiggle out" of things and made excuses. N.T. 19.
61. Petitioner testified that "My deception had—it just had so many tentacles...I mean, it was just a litany of things that I've done...And it wasn't—I wasn't truthful." N.T. 27.
62. Petitioner testified that he was sorry and apologized to everyone who came in contact with him during his long period of criminal and unethical conduct. N.T. 20.
63. Petitioner testified that after the Board issued its October 28, 2015 Report and the Court issued its November 19, 2015 Order denying his reinstatement, he came to understand that he needed to be honest and candid in his dealings. Petitioner testified that he has not engaged in any misconduct since that time. N.T. 17-27, 37.
64. If reinstated, Petitioner intends to perform pro bono work, as well as seek employment with either a large firm or perhaps employment doing federal criminal defense work. N.T. 26.
65. Petitioner's character evidence consisted of nineteen letters with no live testimony. P-1 through P-19.
III. CONCLUSIONS OF LAW
1. The misconduct for which Petitioner was disbarred is not so egregious as to preclude consideration of his petition for reinstatement. Office of Disciplinary Counsel v. John Keller , 506 A.2d 872 (Pa. 1986).
2. Petitioner failed to prove by clear and convincing evidence that he has engaged in a quantitative period of qualitative rehabilitation. In the Matter of Jerome Verlin , 731 A.2d 600 (Pa. 1999).
3. Petitioner failed to demonstrate by clear and convincing evidence that he possesses the moral qualifications and competency required to practice law in Pennsylvania, and that the resumption of the practice of law within the Commonwealth will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest. Rule 218(c)(3), Pa.R.D.E.
IV. DISCUSSION
Petitioner seeks reinstatement to the bar of the Supreme Court of Pennsylvania following his disbarment by Order of the Supreme Court dated June 19, 2006, retroactive to July 29, 2004. The instant Petition represents Petitioner's third attempt at reinstatement, following his withdrawal of his 2010 petition and the denial of his 2014 petition by Order of the Supreme Court dated November 19, 2015.
Petitioner's burden of proof with respect to his request for reinstatement from disbarment is heavy. As the Supreme Court of Pennsylvania held in Keller , "[i]n the case of disbarment, there is no basis for an expectation by the disbarred attorney of the right to resume practice at some future point in time." Keller , 506 A.2d at 875. The threshold issue when a petitioner seeks reinstatement from disbarment is whether the misconduct that resulted in the disbarment was of such magnitude as to preclude the Board's consideration of the petitioner's reinstatement. In the Matter of Robert Costigan , 664 A.2d 518, 520 (Pa. 1995).
Petitioner was disbarred for his criminal conduct consisting of a six-year period of fraud in representing twenty-nine clients in personal injury cases and a four-year period of fraud in the filing of his federal tax returns. In the twenty-nine fraudulent personal injury cases, twenty insurance carriers were defrauded and their total loss amounted to $261,447.17. Petitioner's scheme to under-report his income and falsify his business expenses resulted in the United States government incurring a total tax loss of $235,788. In addition, over a thirty-year period, Petitioner used runners to solicit personal injury cases and knew that the majority of the clients he represented were not injured.
In its October 28, 2015 Report issued in Petitioner's 2014 reinstatement request, the Board analyzed the Keller threshold issue and concluded that although Petitioner's misconduct was extremely serious, it was not so egregious that it should prohibit his reinstatement. ODC-65, pp. 12-13. In so concluding, the Board reviewed case law and determined that Petitioner's misconduct was similar to that of other disbarred attorneys who met the Keller threshold. See, In the Matter of Lawrence Greenberg , 749 A.2d 434 (Pa. 2000) (misappropriation of two million dollars and commission of perjury in a bankruptcy not so egregious to warrant permanent disbarment); In the Matter of William Perrone , 777 A.2d 413 (Pa. 2001) (disbarred attorney's misconduct in filing false and misleading fee petitions to obtain payment for legal services to indigent defendants was not so deplorable as to preclude reinstatement); Costigan , 664 A.2d at 518 (theft conviction is not a breach of trust of sufficient magnitude to forever bar an attorney seeking readmission); Verlin , 731 A.2d at 600 (attorney's misconduct in assisting personal injury client in impersonating dead man at deposition not so egregious that it precluded consideration of reinstatement); In the Matter of Robert Edward Faber , 13 DB 1997 (D. Bd. Rpt. 10/2/2007) (S. Ct. Order 11/7/2007) (attorney disbarred for conviction of mail fraud, wire fraud and aiding and abetting the criminal conduct of others; underlying misconduct involved prosecuting personal injury cases that were fabrications; conduct not so egregious as to bar reinstatement).
In the several years that have passed since the Supreme Court's November 19, 2015 denial of Petitioner's 2014 reinstatement request, no cases have been decided that compel a different result. The decisional law reinforces the Board's conclusion that Petitioner's misconduct is not so egregious as to preclude reinstatement at this time. In the Matter of Jay Ira Bomze , No. 149 DB 2002 (D. Bd. Rpt. 11/21/2017) (S. Ct. Order 12/26/2017) (disbarred for conviction of health care fraud for directing four clients in two separate personal injury matters to obtain unnecessary medical treatment and coaching the clients to lie about the circumstances, in order to falsely inflate the value of the personal injury settlements; conduct not so egregious as to bar reinstatement); In the Matter of Stephen Greg Doherty , No. 69 DB 2010 (D. Bd. Rpt. 9/13/2017) (S. Ct. Order 10/27/2017) (disbarred for conviction of mail fraud, wire fraud, bankruptcy fraud, and money laundering based on scheme of real property sales and leaseback transactions; conduct not so egregious as to bar reinstatement).
Next, the Board must consider whether, under Keller , Petitioner has proven that his "current resumption" of the practice of law would not be detrimental to the profession, the courts or the public. Perrone , 777 A.2d at 416. This requires an evaluation of the misconduct in relation to the number of years of disbarment to determine whether "a sufficient amount of time has passed to dissipate the detrimental impact of [a petitioner's] misconduct on the public trust," Id , and whether the petitioner engaged in qualitative rehabilitation during that time. Verlin , 731 A.2d at 602. Upon this record, we conclude that Petitioner has failed to meet his burden, both as to the length of time and the nature of his rehabilitation.
Petitioner has been disbarred since July 29, 2004, the retroactive date of the Court's June 19, 2006 Order, a period of approximately fourteen years. The focus of the Board's attention is entirely upon Petitioner's troubling, lengthy history of dishonesty during his disbarment, which includes repeated false statements under oath in civil, criminal, disciplinary and reinstatement proceedings.
Petitioner, seemingly unaffected by the significance of his disbarment for criminal and unethical activity, persisted in acting unethically for approximately the first ten years of his disbarment period. In 2004 and 2005, he acted dishonestly by intentionally omitting assets when completing financial statements required by the probation department. Petitioner falsely claimed on his New Jersey tax returns from 2004 through 2009 that he and his wife paid rent for residing in their New Jersey home. In 2005, Petitioner made a misrepresentation to a Board panel at oral argument; in 2006, he provided false testimony at an asset deposition; in 2010, he provided false testimony at his reinstatement hearing; in 2013, he offered false testimony at the adversary deposition; and in 2014, he provided false testimony at his reinstatement hearing.
Petitioner acknowledged the criminal and unethical misconduct that resulted in his disbarment and his unethical acts during his disbarment, and stated that he was sorry. Petitioner suggested that his conversations with a rabbi during his period of imprisonment, well over ten years ago, now provide guidance to him in charting a course of honest conduct. According to Petitioner, the realization that he needs to be candid and honest came to him after the Court denied his reinstatement in 2015, approximately three years ago, and since that time he has not engaged in any misconduct. Based on Petitioner's admissions, our review of Petitioner's rehabilitative efforts is necessarily restricted to the past three years.
Petitioner endeavored to establish his rehabilitation by offering his testimony and character letters.
Petitioner offered evidence that he works part-time for a car dealer and part-time for a publication that collects donations for fire and police organizations. He testified in a general manner regarding his charitable activities, essentially describing the work of the charities, but not his specific involvement. Upon closer questioning, he revealed that he engaged in several isolated instances of actual work for particular organizations, and made donations to the organizations.
Petitioner did not present live witness testimony but offered nineteen character letters, all from non-attorney members of his community. After consideration, we conclude these letters do not meaningfully assist Petitioner's effort to meet his burden of proof and are not entitled to significant weight. While the authors of the letters all state that they have many times heard Petitioner offer sincere, genuine remorse and regret for his actions and accept responsibility, the Committee did not make those findings. Instead after listening to Petitioner's testimony and observing his demeanor, the Committee concluded that Petitioner is "untrustworthy." HC Report, p. 6. Upon our review of the record, the depth and genuineness of the remorse, regret and acceptance noted by the character references were not apparent in Petitioner's reinstatement testimony. In the Board's view, character letters can serve to support and bolster a petitioner's remorse, but cannot serve to create such remorse when the petitioner himself has not expressed it in a meaningful way.
Upon this record, we conclude that Petitioner's rehabilitation is not of sufficient quality to establish fitness to resume the practice of law. See, In the Matter of Grahame P . Richards , Jr., 43 DB 1996 (D. Bd. Rpt. 8/23/2016) (S. Ct. Order 9/21/2016); In the Matter of Milton E. Raiford , No. 50 DB 1994 (D. Bd. Rpt. 2/16/2010) (S. Ct. Order 4/16/2010)(Richards and Raiford met their burden to show qualitative rehabilitation through evidence of extensive and significant contributions to civic and charitable organizations and presented compelling character evidence).
The Court in Greenberg stated, "[t]he operative question is, if the public knew of petitioner's transgressions, would the fact that he was able to resume practicing law after [the actual number of] years of disbarment adversely affect the public's perception of the legal profession?" Greenberg , 749 A.2d at 437. In the instant matter, the answer to that question is a resounding "no," as the greater part of Petitioner's disbarment was spent engaged in additional dishonest and unethical conduct. Upon this record, Petitioner can only be said to have started the rehabilitation process a mere three years ago, and while it can be said that he is "working towards rehabilitation," Perrone , 777 A.2d at 416, he has not yet achieved it. This short duration of time is simply an insufficient period in which to demonstrate the qualitative rehabilitation necessary to dissipate the taint of Petitioner's many years of pre- and post-disbarment misconduct.
Our review of prior matters did not reveal any reinstatement cases where a petitioner was reinstated after three years of minimal rehabilitation. On the shorter end, some petitioners have been reinstated from disbarment after five, six, or seven years, while many disbarred attorneys have waited longer. See, In the Matter of Mark Kovler , 172 DB 2002 (D. Bd. Rpt. 5/15/2009) (S. Ct. Order 7/24/2009) (reinstatement after 5 years and 11 months); In the Matter of Charles C. Gentile , No. 87 DB 2010 (D. Bd. Rpt. 3/2/2017) (S. Ct. Order 4/27/2017) (reinstatement after six years); In the Matter of Leroy Frank Grimm , Jr., No. 107 DB 2009 (D. Bd. Rpt. 12/28/2016)(S. Ct. Order 3/13/2017) (reinstatement after seven years); In the Matter of Gerard Emmett Evans , No. 10 DB 2001 (D. Bd. Rpt. 10/3/2008) (S. Ct. Order 12/15/2008) (reinstatement after 7 years); In the Matter of Philip G. Gentile , 54 DB 2007 (D. Bd. Rpt. 2/20/2018) (S. Ct. Order 3/16/2018) (reinstatement after ten years); In the Matter of Thomas S. Roman , Jr., 121 DB 2005 (D. Bd. Rpt. 10/3/2016) (S. Ct. Order 10/26/2016) (reinstatement after eleven years); In the Matter of Grahame P. Richards , Jr., 43 DB 1996 (D. Bd. Rpt. 8/23/2016) (S. Ct. Order 9/21/2016) (reinstatement after twenty years).
Petitioner's post-disbarment conduct and his three-year period of minimal rehabilitation do not meet his burden to show by clear and convincing evidence that he has engaged in a quantitative period of qualitative rehabilitation.
Determining whether Petitioner's present resumption of practice is warranted also requires consideration of the criteria set forth in Rule 218(c)(3), Pa.R.D.E., related to moral qualifications, competency and learning in the law. Additionally, Rule 218(c)(3) requires evaluation of whether a petitioner's resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.
Petitioner's conduct for the majority of his disbarment period demonstrated a distinct lack of moral qualifications. Petitioner admitted that he engaged in dishonest and unethical conduct for many years until approximately 2015, when he came to realize that he must be candid in his dealings with the courts and the public in general. Unfortunately, Petitioner's new-found enlightenment, when balanced against his past record of untrustworthiness, makes it difficult to believe that he will comport himself with honesty in the future. Likewise, Petitioner's competency is questionable, as after three attempts at reinstatement, he still made errors in completing his 2017 Questionnaire, such as failing to disclose civil cases and the reciprocal disbarment imposed by the Third Circuit. Petitioner's explanations for these omissions were not satisfactory, as he testified that he relied on his memory to respond to the questions, rather than contacting the clerks of court or doing an online search to obtain accurate information.
Petitioner failed to establish by clear and convincing evidence, that he has the moral qualifications and competency to resume practicing law. His lack of these qualifications is detrimental to the integrity and standing of the bar and the administration of justice, and is subversive of the public interest.
In summary, upon this record we conclude that for several decades, Petitioner engaged in unethical conduct while a practicing attorney and a disbarred attorney. His latent appreciation that he must conform his conduct to be truthful comes too late to establish in these proceedings that he is qualified for reinstatement.
V. RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the reinstatement of Petitioner, Michael Radbill, be denied.
The Board further recommends that, pursuant to Rule 218(f), Pa.R.D.E., Petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the Petition for Reinstatement.
Respectfully submitted,
THE DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
By:/s/_________
Jerry M. Lenocky, Member Date: 1-8-19