Opinion
No. 2259 Disciplinary Docket No. 3 No. 6 DB 2017
03-22-2017
OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. JAMES JOHN WALSH, Respondent
Attorney Registration No. 310107 (Philadelphia) ORDER PER CURIAM
AND NOW, this 22nd day of March, 2017, upon consideration of the Recommendation of the Three-Member Panel of the Disciplinary Board, the Joint Petition in Support of Discipline on Consent is granted, and James John Walsh is suspended on consent from the Bar of this Commonwealth for a period of one year. He is to serve three months, with the remainder of the suspension stayed. Respondent shall comply with all the provisions of Pa.R.D.E. 217.
During the stayed suspension, Respondent is placed on probation for a period of nine months, subject to the following conditions:
1. Respondent shall not violate any Rules of Professional Conduct or Rules of Disciplinary Enforcement;
2. Respondent shall abstain from using alcohol, drugs, or any other mood or mind-altering chemicals;
3. Respondent shall attend weekly Alcoholics Anonymous meetings;
4. Respondent shall obtain a sponsor in Alcoholics Anonymous and maintain weekly contact with that sponsor;
5. A sobriety monitor shall be appointed to monitor Respondent in accordance with Disciplinary Board Rule §89.293(c).
6. Respondent shall furnish his sobriety monitor with his Alcoholics Anonymous sponsor's name, address, and telephone number;
7. Respondent shall establish his weekly attendance at Alcoholics Anonymous meetings by providing written verification to the Board on a Board-approved form;
8. Respondent shall undergo any counseling, out-patient or in-patient treatment, prescribed by a physician or alcohol counselor;
9. Respondent shall submit to any alcohol or drug testing ordered by his treating physician, and shall disclose the testing results to the sobriety monitor;
10. Respondent shall file quarterly written reports with the Secretary of the Board;
11. With the sobriety monitor, Respondent shall:
a) meet at least twice monthly;
b) maintain weekly telephone contact;
c) provide the necessary properly executed written authorizations to verify his compliance with the required substance abuse treatment; and
d) cooperate fully.
12. The appointed sobriety monitor shall:
A True Copy Patricia Nicolaa) monitor Respondent's compliance with the terms and conditions of the order imposing probation;
b) assist Respondent in arranging any necessary professional or substance abuse treatment;
c) meet with Respondent at least twice monthly, and maintain weekly telephone contact with Respondent;
d) maintain direct monthly contact with the Alcoholics Anonymous chapter attended by Respondent;
e) file with the Secretary of the Board quarterly written reports; and
f) immediately report to the Secretary of the Board any violations by the Respondent of the terms and conditions of the probation.
As Of 3/22/2017 Attest: /s/_________
Chief Clerk
Supreme Court of Pennsylvania BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA No. DB 2017 ODC File Nos. C1-15-1062 and C1-16-221 Atty. Reg. No. 310107 JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT UNDER Pa.R.D.E. 215(d)
Petitioner, Office of Disciplinary Counsel ("ODC"), by Paul J. Killion, Chief Disciplinary Counsel, and Michael D. Gottsch, Disciplinary Counsel, and by Respondent, James John Walsh, Esquire, and Samuel C. Stretton, Esquire, Counsel for Respondent, file this Joint Petition in Support of Discipline on Consent Under Pennsylvania Rule of Disciplinary Enforcement ("Pa.R.D.E.") 215(d), and respectfully represent that:
1. Petitioner, whose principal office is located at Pennsylvania Judicial Center, Suite 2700, 601 Commonwealth Avenue, P.O. Box 62485, Harrisburg, Pennsylvania, is invested, pursuant to Pa.R.D.E. 207, with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.
2. Respondent, James John Walsh, was born in 1977, and was admitted to practice law in the Commonwealth on November 1, 2010. Respondent was assigned Attorney Registration No. 310107 and is currently registered as "active."
3. According to attorney registration records, Respondent's address is 2815 Chapel Avenue, Cherry Hill, NJ 08002.
4. Pursuant to Pa.R.D.E. 201(a)(1), Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
5. Respondent hereby stipulates that the following factual allegations are true and correct and that he violated the charged Rules of Professional Conduct and Pennsylvania Rules of Disciplinary Enforcement as set forth herein.
SPECIFIC FACTUAL ADMISSIONS AND
RULES OF PROFESSIONAL CONDUCT VIOLATED
CHARGE I: THE CRIMINAL CONVICTION
(ODC File No. C1-15-1062)
6. On August 17, 2015, Respondent pled guilty to Driving Under the Influence—High Rate of Alcohol (BAC .10% - .16%) (First Offense—ungraded misdemeanor), pursuant to 75 Pa.C.S. § 3802(b) ("DDI") in the Pike County Court of Common Pleas, in a case captioned Commonwealth of Pennsylvania v. James John Walsh, No. CP-52-CR-0000679-2014.
7. On December 3, 2015, Pike County Common Pleas Court Judge Gregory H. Chelak sentenced Respondent as follows:
a. incarceration for not less than twenty days nor more than six months in the Pike County Jail;
b. payment of costs of prosecution and related fees;
c. payment of a fine of $500;
d. payment of a supervision fee for each month of parole supervision;
e. full Drug and Alcohol Evaluation and completion of recommended treatment;
f. completion of Alcohol Highway Safety Program or equivalent;
g. payment of $100 pursuant to the Crime Victims' Act; and
h. suspension of driver's license for minimum of twelve months.
8. By letter dated December 8, 2015, Respondent notified ODC of his conviction.
9. In his December 8, 2015 letter, Respondent acknowledged that his self-report was untimely, but stated he had believed he was not required to notify ODC of his conviction until after he had been sentenced.
10. On March 30, 2016, ODC served Respondent with a DB-7 Request for Statement of Respondent's Position dated March 30, 2016 ("DB-7 Letter") regarding his DUI conviction.
11. By Answer dated April 7, 2016 from Respondent's Counsel, Samuel C. Stretton, Esquire, Respondent admitted all allegations of the DB-7 Letter. Further, Respondent accepted responsibility and stated he had a drinking problem that he had been addressing through intensive inpatient rehabilitation, Alcoholic Anonymous meetings, and other therapy.
CHARGE II: RESPONDENT'S UNAUTHORIZED PRACTICE OF
LAW WHILE ON ADMINISTRATIVE SUSPENSION
(ODC File No. C1-16-221)
12. By Order dated July 15, 2015, the Court transferred Respondent to administrative suspension, effective August 14, 2015, for failure to comply with CLE requirements.
13. Respondent took the requisite number of CLE course credits as of December 23, 2015, but remained administratively suspended because he had not timely filed a Statement of Compliance or paid the required fee. (Respondent ultimately filed his Statement of Compliance on March 30, 2016).
14. During the time of his administrative suspension, and until December 31, 2015, Respondent was employed by the Chartwell Law Offices in Philadelphia, Pennsylvania.
15. During the time of his administrative suspension, Respondent continued to hold himself out as a licensed attorney eligible to practice law.
16. Through his counsel, Respondent voluntarily disclosed the instances of unauthorized practice of law in which he had engaged while on administrative suspension. Respondent's unauthorized practice occurred in five client matters over a three-month period:
a) appearing at two settlement conferences on the same day on behalf of his client, Home Depot (even though Respondent was precluded from participating, because the court informed him that he was under administrative suspension, at which point Respondent's co-counsel got involved and participated by conference phone); Respondent nevertheless handled the pre-conference negotiations;
b) defending two depositions in a federal case; and
c) defending an arbitration on December 2, 2015, which resulted in a defense award in favor of Respondent's client.
17. Respondent failed to withdraw his appearances in the respective matters referred to in the preceding paragraph, and failed to notify his clients, opposing counsel, and the courts in those matters that he had been administratively suspended and could not represent any clients.
18. Respondent has admitted that he failed to notify the Clerk of the United States District Court for the Eastern District of Pennsylvania of his administrative suspension. Such failure violated Pa.R.D.E. 217(c)(3) and Eastern District Local Rule of Civil Procedure 83.6, Rule II.A.
RULE VIOLATIONS
19. By his conduct as alleged above, Respondent violated the following Rules of Professional Conduct and Pennsylvania Rules of Disciplinary Enforcement:
a. RPC 1.16(a)(1), which states that except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct or other law;
b. RPC 5.5(a), which states that a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist
another in doing so;
c. RPC 8.4(b), which states that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
d. RPC 8.4(d), which states that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice;
e. Pa.R.D.E. 203(b)(1), which states that conviction of a crime shall be a ground for discipline; and
f. Pa.R.D.E. 203(b)(3), which states that a wilful violation of any other provision of the Enforcement Rules shall be grounds for discipline, via:
(1) Pa.R.D.E. 217(b), which states that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the disbarment, suspension, administrative suspension or transfer to inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the
disbarment, suspension, administrative suspension or transfer to inactive status. The notice to be given to the client shall advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney. In the event the client does not obtain substitute counsel before the effective date of the disbarment, suspension, administrative suspension or transfer to status, it shall be the responsibility of the formerly admitted attorney to move in the court or agency in which the proceeding is pending for leave to withdraw. The notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the formerly admitted attorney. The notice required by this subdivision (b) may be delivered by the most efficient method possible as long as the chosen method is successful and provides proof of receipt. See Note after subdivision (a) [of Rule 217]. At the time of the filing of the verified statement of compliance required by subdivision (e) (1) of this Rule, the formerly admitted attorney shall file copies of the notices required by this subdivision and proofs of receipt with the Secretary of the Board and shall serve a conforming copy on the Office of Disciplinary Counsel. See D.Bd. Rules § 91.92(b) (relating to filing of copies of notices);
(2) Pa.R.D.E. 217(c)(1), which states that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, of the disbarment, suspension, administrative suspension or transfer to inactive status, all persons or their agents or guardians, including but not limited to wards, heirs and beneficiaries, to whom a fiduciary duty is or may be owed at any time after the
disbarment, suspension, administrative suspension or transfer to inactive status;
(3) Pa.R.D.E. 217(c)(2), which states that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, of the disbarment, suspension, administrative suspension or transfer to inactive status, all other persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that he or she continues as an attorney in good standing;
(4) Pa.R.D.E. 217(c)(3), which states that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, of the disbarment, suspension, administrative suspension or transfer to inactive status, any other tribunal, court, agency or jurisdiction in which the attorney is admitted to practice;
(5) Pa.R.D.E. 217(j)(3), which states that a formerly admitted attorney may have direct communication with a client or third party regarding a matter being handled by the attorney, organization or firm for which the formerly admitted attorney works only if the communication is limited to ministerial matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages. The formerly admitted attorney shall clearly indicate in any such communication that he or she is a legal assistant and identify the supervising attorney;
(6) Pa.R.D.E. 217(j)(4)(iii), which states that a formerly admitted attorney is specifically prohibited from performing any law-related services for any client
who in the past was represented by the formerly admitted attorney;
(7) Pa.R.D.E. 217(j)(4)(iv), which states that a formerly admitted attorney is specifically prohibited from representing himself or herself as a lawyer or person of similar status;
(8) Pa.R.D.E. 217(j)(4)(v), which states that a formerly admitted attorney is specifically prohibited from having any contact with clients either in person, by telephone, or in writing, except as provided in paragraph (3);
(9) Pa.R.D.E. 217(j)(4)(vi), which states that a formerly admitted attorney is specifically prohibited from rendering legal consultation or advice to a client; and
(10) Pa.R.D.E. 217(j)(4)(vii), which states that a formerly admitted attorney is specifically prohibited from appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body.
SPECIFIC JOINT RECOMMENDATION FOR DISCIPLINE
20. Petitioner and Respondent jointly recommend that Respondent be suspended for a period of twelve months, with three months to be served; the remaining suspension of nine months is to be stayed, and Respondent is to be placed on probation for a period of nine months, subject to conditions.
21. Respondent hereby consents to that discipline being imposed upon him by the Disciplinary Board of the Supreme Court of Pennsylvania. Attached to this Petition is Respondent's executed Affidavit required by Rule 215(d), Pa.R.D.E., stating that he consents to the recommended discipline, including the mandatory acknowledgements contained in Rule 215(d)(1) through (4), Pa.R.D.E.
22. Further, Respondent agrees to the following conditions of his probation:
(a) Respondent shall not violate any Rules of Professional Conduct or Rules of Disciplinary Enforcement;
(b) Respondent shall abstain from using alcohol, drugs, or any other mood-altering or mind-altering chemicals;
(c) Respondent shall regularly attend Alcoholics Anonymous meetings on a weekly basis;
(d) Respondent shall obtain a sponsor in Alcoholics Anonymous and maintain weekly contact with that sponsor;
(e) A sobriety monitor shall be appointed to monitor Respondent in accordance with Disciplinary Board Rules § 89.293(c);
(f) Respondent shall furnish his sobriety monitor with his Alcoholics Anonymous sponsor's name, address and telephone number;
(g) Respondent shall establish his weekly attendance at Alcoholics Anonymous meetings by providing written verification to the Board on a Board-approved form;
(h) Respondent shall continue to attend any current individual or group therapy until discharged by the therapist(s);
(i) Respondent shall undergo any additional counseling, outpatient treatment, or inpatient treatment prescribed by a physician or alcohol counselor;
(j) Respondent shall submit to any alcohol or drug testing ordered by his treating physician, and shall disclose the testing results to the Sobriety Monitor;
(k) Respondent shall file quarterly written reports with the Secretary of the Board;
(l) With the sobriety monitor, Respondent shall:
1) meet at least twice a month;
2) maintain weekly telephone contact;
3) provide the necessary properly executed written authorizations to verify his compliance with the above requirements; and
4) cooperate fully.
(m) The appointed sobriety monitor shall:
1) monitor Respondent's compliance with the terms and conditions of the order imposing probation;
2) assist Respondent in arranging any necessary professional or substance abuse treatment;
3) meet with Respondent at least twice a month, and maintain weekly telephone contact with him;
4) maintain direct monthly contact with Respondent's Alcoholics Anonymous sponsor;
5) file quarterly written reports with the Secretary of the Board; and
6) immediately report to the Secretary of the Board any violations by the Respondent of the terms and conditions of the probation.
23. In support of Petitioner and Respondent's joint recommendation, it is respectfully submitted that there are several mitigating circumstances:
a. Respondent self-reported his DUI conviction to Petitioner;
b. Respondent has admitted engaging in misconduct and violating the charged Rules of Professional Conduct and Rules of Disciplinary Enforcement;
c. Respondent has remained sober since January 20, 2016;
d. To date, Respondent has successfully undergone treatment for his alcohol problem, as evidenced by a May 20, 2016 report (attached as "Joint Exhibit A") from Clare Seletsky, MA, Clinical Manager of Livengrin Foundation for Addiction Recovery;
e. Respondent continues to participate in Alcoholics Anonymous meetings each week;
f. If the matters proceeded to hearing, Respondent would present expert evidence to establish mitigation under Office of Disciplinary Counsel v. Braun , 553 A.2d 894 (Pa. 1989).
g. Respondent has cooperated with Petitioner, as is evidenced by Respondent's admissions herein and his consent to receiving a one year suspension, with three months to be served, and nine months to be stayed in favor of nine months of probation with conditions;
h. Respondent has no record of discipline; and
i. Respondent is remorseful for his misconduct and understands he should be disciplined, as
is evidenced by his consent to receiving the suspension.
24. An aggravating factor in this matter is that Respondent was on notice of his administrative suspension when he engaged in the unauthorized practice of law.
25. In Pennsylvania, there is no per se discipline for a particular type of misconduct; rather, each disciplinary case is reviewed individually. Office of Disciplinary Counsel v. Lucarini , 417 A.2d 186 (Pa. 1983).
26. The position of the Disciplinary Board and the Supreme Court of Pennsylvania is that complying with Continuing Legal Education requirements, filing the attorney fee form, and paying the annual fee are not mere ministerial acts, as an attorney has an affirmative duty to know the status of his or her professional license and to comply with professional obligations. Office of Disciplinary Counsel v. Harry Curtis Forrest , Jr., 72 Pa. D.&C.4th 339, 350-51 (2004).
27. The Disciplinary Board has recognized that "[t]he Supreme Court of Pennsylvania has considered several instances of lawyers practicing while on inactive status, and recently has established a line of cases indicating that the appropriate sanction for such conduct is suspension for one year and one day." Office of Disciplinary Counsel v. Sharon Goldin-Didinsky a/k/a Sharon Goldin Ciborowski , No. 87 DB 2003 (D.Bd. Rpt. 8/27/04, p. 13)(S.Ct. Order 12/13/04) (one-year-and-one-day suspension). In two cases decided in 2005, both of which resulted in a suspension of one year and one day, the Disciplinary Board stated that "[d]epending on the presence of aggravating and mitigating factors and the degree of willfulness exhibited, suspensions ranging from three months to two years have been imposed in recent cases." Office of Disciplinary Counsel v. Davis , 77 Pa. D.&C.4th 563, 575 (2005); In re Ferleger , 78 Pa. D.&C.4th 437, 446 (2005).
28. Generally, for the unauthorized practice of law while on administrative suspension, an attorney may receive a term of suspension of less than one year when the misconduct is limited in scope and of short duration. Office of Disciplinary Counsel v. Paul Charles Quinn , 39 DB 2006 (D.Bd. Rpt. 6/14/07) (S.Ct. Order 10/19/07) (three-month suspension for engaging in the unauthorized practice of law in one client matter over a four-month period, although Respondent Quinn remained on inactive status for two years); Office of Disciplinary Counsel v. Ruth Ann Price , No. 113 DB 2006 (Recommendation of the Three-Member Panel of the Disciplinary Board 6/30/06) (S.Ct. Order 10/10/06) (six-month suspension imposed on Respondent Price for having engaged in the unauthorized practice of law in three client matters over a period of approximately six months); Office of Disciplinary Counsel v. David Steven Bloom , No. 44 DB 2008 (Recommendation of the Three-Member Panel of the Disciplinary Board 4/21/10) (S.Ct. Order 6/20/10) (six-month suspension imposed on Respondent Bloom for having engaged in the unauthorized practice of law in four client matters while he was on inactive status for a period of approximately six months); Office of Disciplinary Counsel v. Jeffrey C. Moore , No. 32 DB 2009 (Recommendation of the Three-Member Panel of the Disciplinary Board 4/15/09) (S.Ct. Order 7/13/09) (six-month suspension for having engaged in the unauthorized practice of law over an eleven-month period; Respondent Moore provided limited legal services in his capacity as general counsel of a company, with the majority of legal services being provided by in-house and outside counsel). Respondent Walsh's unauthorized practice of law involved five client matters over three-month period but occurred prior to January 2016, the month when Respondent achieved sobriety.
29. Probation may be appropriate where the respondent has a dependence or impairment problem. D.Bd. Rules § 89.293 (Substance abuse probation). Here, Respondent acknowledges having an alcohol problem, has to date successfully undergone treatment for that problem, has participated in AA in order to overcome that problem, and agrees to continue to participate in AA and to obtain any additional treatment recommended by professionals.
30. In light of the limited nature of Respondent's unauthorized practice of law, the mitigating factors, and the applicable precedents, Petitioner and Respondent submit that appropriate discipline for Respondent's misconduct is that Respondent be suspended for a period of twelve months, with three months to be served; the remaining suspension of nine months is to be stayed, and Respondent is to be placed on probation for a period of nine months, subject to conditions.
WHEREFORE, Petitioner and Respondent respectfully request that:
a. Pursuant to Pa.R.D.E. 215(e) and 215(g)(2), the three-member panel of the Disciplinary Board review and approve the Joint Petition in Support of Discipline on Consent and recommend to the Court that Respondent be suspended for a period of twelve months, with three months to be served; the remaining suspension of nine months to be stayed, and Respondent to be placed on probation for a period of nine months, subject to conditions; and
b. Pursuant to Pa.R.D.E. 215(i), the three-member panel of the Disciplinary Board enter an order
for Respondent to pay the necessary expanses incurred in the investigation and prosecution of this matter as a condition to the grant of the Petition, and that all expenses be paid by Respondent before the imposition of discipline under Pa.R.D.E. 215(g)(2).
Respectfully and jointly submitted,
OFFICE OF DISCIPLINARY COUNSEL
PAUL J. KILLION
CHIEF DISCIPLINARY COUNSEL 1-11-17
Date
By /s/_________
Michael D. Gottsch
Disciplinary Counsel 1/9/17
Date
By /s/_________
Samuel C. Stretton Esquire
Counsel for Respondent 1/6/17
Date
By /s/_________
James John Walsh, Esquire
Respondent
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VERIFICATION
The statements contained in the foregoing Joint Petition In Support Of Discipline On Consent Under Pa.R.D.E. 215(d) are true and correct to the best of our knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. 1-11-17
Date
/s/_________
Michael D. Gottsch
Disciplinary Counsel 1/9/17
Date
/s/_________
Samuel C. Stretton Esquire
Counsel for Respondent 1/6/17
Date
/s/_________
James John Walsh, Esquire
Respondent
AFFIDAVIT UNDER RULE 215(d), Pa.R.D.E.
Respondent, James John Walsh, hereby states that he consents to the imposition of a one-year suspension, with three months to be served; the remaining suspension of nine months is to be stayed, and he is to be placed on probation for a period of nine months, subject to conditions, as jointly recommended by Petitioner, Office of Disciplinary Counsel, and Respondent in the Joint Petition in Support of Discipline on Consent and further states that:
1. His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress; he is fully aware of the implications of submitting the consent; and he has consulted with Samuel C. Stretton, Esquire, in connection with the decision to consent to discipline;
2. He is aware that there are presently pending investigations into allegations that he has been guilty of misconduct as set forth in the Joint Petition;
3. He acknowledges that the material facts set forth in the Joint Petition are true; and
4. He consents because he knows that if charges predicated upon the matters under investigation were filed, he could not successfully defend against them.
/s/_________
James John Walsh, Esquire
Respondent Sworn to and subscribed before me this 6th day of January, 2017. /s/_________
Notary Public