In re Anonymous No. 58 D.B. 82

McDONALD, Member, Pursuant to Rule 208(d) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania (board) herewith submits its findings and recommendations to your honorable court with respect to the above petition for discipline. I. HISTORY OF PROCEEDINGS The within petition for discipline was filed on September 23, 1982 against [respondent], the within respondent (respondent) with respect to action in taking the Pennsylvania Bar examination on behalf of his wife, [A], by posing as [A] and using her assigned applicant number to take the examination in [ ] on July 28 and 29, 1981. The petition for discipline alleged that respondent had violated the following Disciplinary Rules of the Code of Professional Responsibility: A. D.R. 1-101(B), which requires that a lawyer shall not further the application for admission to the Bar of another person known by him to be unqualified in respect to character, education, or other relevant attribute; B. D.R. 1-102(A)(3), which prohibits an attorney from engaging in illegal conduct involving moral turpitude; C. D.R. 1-102(A)(4), which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; D. D.R. 1-102(A)(5), which prohibits an attorney from engaging in conduct that is prejudicial to the administration of justice; — 473 — E. D.R. 1-102(A)(6), which prohibits an attorney from engaging in other conduct which adversely reflects on fitness to practice law; and F. , D.R. 1-103(A), which requires an attorney possessing unprivileged knowledge of a violation of D.R. 1-102 to report said knowledge to a tribunal or other authority empowered to investigate or act upon such violation. Hearing committee [ ] was assigned to hear these charges and, upon due notice to all parties, a hearing was conducted on January 27, 1983. On July 5, 1983, hearing committee [ ] filed its report, in which it found respondent’s conduct violated D.R. 1-102(A)(3), D.R. 1-102(A)(4), D.R. 1-102(A)(5), and D.R. 1-102(A)(6). The majority of the hearing committee found no violation of D.R. 1-101(B), which prohibits a lawyer from furthering the application of admission to the Bar of another person known by him to be unqualified in respect to character, education or other relevant attribute. The chairman of the hearing committee, however, dissented and found that D.R. 1-101(B) had been violated. With respect to D.R. 1-103(A), the hearing committee found that the failure of the respondent to disclose the violation of which he was aware was constitutionally protected and, therefore, a violation of D.R. 1-103(A) had not been established. Based upon such violations, a majority of hearing committee [ ] recommended that respondent receive a three year suspension. The chairman, however, dissented and recommended that the respondent be disbarred. No exceptions were filed to the findings or recommendation of hearing committee [ ] by either Petitioner, Office of the Disciplinary Counsel, or the respondent. — 474 — Accordingly, this board, after an independent consideration of this matter, adopted the following findings of fact. ■ II. FINDINGS OF FACT 1. Respondent is an attorney admitted to the practice of law in the Commonwealth of Pennsylvania, having been admitted to the Pennsylvania Bar on or about May 6, 1981. He has no record of discipline in Pennsylvania. 2. Respondent married [A] in August of 1980 and was married to her during the relevant events of these charges. 3. On July 29-30, 1980, [A] took the Pennsylvania Bar examination in Philadelphia and failed. On February 24-25, 1981 [A] took the Pennsylvania Bar examination in Philadelphia for the second time and once again failed. In early June, 198l, [A] applied to take the Pennsylvania Bar examination for the third time, this time in' Pittsburgh, Pennsylvania. [A] paid an additional fee of $100 and was granted permission to take the July, 1981 Bar examination and was assigned applicant number 548. 4. Respondent and [A] traveled to Pittsburgh together and arrived there on Sunday night, July 26, 1981. Respondent testified that because of apparently serious emotional difficulties resulting from the death of a relative and his wife’s inability to pass the Bar examination, [A] was in a very difficult emotional state and asked if respondent “could take” the Bar examination on her behalf. At some time on either July 26 or July 27, 1981, respondent agreed to do so knowing full well that it was a wrongful act in violation of the Code of Professional Responsibility and a fraud upon the admission procedures of the Supreme Court of Pennsylvania and the Board of — 475 — Law Examiners. Respondent also knew that he was jeopardizing his own professional career by taking the examination on behalf of [A], 5. On July 28 and 29, 1981, respondent used [A’s] admission letter and applicant number and took the Pennsylvania Bar examination on her behalf, representing himself as applicant number 548. Respondent placed [A’s] assigned number 548 on each of the eight essay booklets on July 28, 1981. Respondent also placed [A’s] assigned number as well as her birthdate on the multi-state Bar examination sheets on July 29, 1981. 6. Respondent achieved a very high score on the multi-state portion of the Bar examination which ranked him 36th out of approximately 1,800 persons taking the examination. 7. [A], apparently assured of passing the Bar examination. through the efforts of respondent, filed a declaration of office address and domicile on August 15, 1981 and did not disclose the cheating on the Bar examination. [A] also denied cheating on the Bar examination during two meetings with investigators from the Pennsylvania Attorney General’s office. 8. From the date of the examination in July of 1981 through .the date of the hearing on July 27, 1983, respondent did not voluntarily disclose to the Pennsylvania Board of Law Examiners or the Pennsylvania Attorney General’s office the fact that [A] did not take the examination and that respondent had taken it on her behalf. However, respondent did disclose his taking the examination on [A’s] behalf on July 9, 1982 in response to questions from Disciplinary Counsel. He reiterated his admissions fully and openly on the record on January 27, 1983 at the hearing. — 476 — III. CONCLUSIONS OF LAW Respondent has violated D.R. 1-102(A)(3), D.R. 1-102(A)(4), D.R. 1-102(A)(5), and D.R. 1-102(A)(6) by willfully representing himself to be his wife and taking the Bar examination on her behalf. With respect to D.R. 1-101(B), which requires that a lawyer shall not further the application for admission to the Bar of another person known by him to be unqualified in respect to character, education or other relevant attributes, this board concludes, as did the chairman of the hearing committee in dissent, that respondent’s conduct violated that rule. The fact that [A] would permit someone to take the Bar examination in her stead renders her unqualified in respect to character and respondent was aware of that deficiency. With respect to D.R. 1-103(A), a violation was not established. IV. DISCUSSION This case presents a clear example of a willful and fraudulent attempt to have an unqualified person admitted to the Bax of the Supreme Court of Pennsylvania. In concluding that a three year suspension should be imposed rather than disbarment, the majority of the hearing committee relied upon the unique and difficult situation which imposed tremendous pressures on respondent causing him to take the unlawful action. A distinction has also been drawn between this case and those situations where an applicant performs dishonestly in order to procure his own admission to the Bar. Based upon the entire record, this board agrees that the thrée year suspension recommended by the hearing committee is appropriate. Accordingly, the recommendation of hearing committee [ ] is accepted and adopted by this — 477 — board, which recommends the imposition of a three year suspension upon respondent. V. RECOMMENDATION The Disciplinary Board of the Supreme Court of Pennsylvania accepts the recommendation of hearing committee [ ] that respondent receive a suspension from the practice of law for a term of three years and hereby recommends such disposition to the Supreme Court of Pennsylvania. It is further recommended that all costs incurred in the investigation and prosecution are to be paid by respondent. Mrs. Hammerman, Mrs. Neuman and Prof. Keck dissent and would recommend Disbarment. Messrs. Daniels, Krawitz and Curran did not participate in the adjudication.