BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

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1 BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL : No. 866, Disciplinary Docket No. 3 Petitioner : : No. 21 DB 2000 v. : : Attorney Registration No THOMAS WILLIAM SMITH : Respondent : (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 208(d)(2)(iii) 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-captioned Petition for Discipline. I. HISTORY OF PROCEEDINGS On March 9, 2000, Office of Disciplinary Counsel, Petitioner, filed a Petition for Discipline against Thomas William Smith, Respondent in these proceedings. The Petition charged Respondent with neglect of eleven client matters during a three-year

2 period of time. The Petition further charged Respondent with making misrepresentations during a three-month time frame in order to hide his neglect. A disciplinary hearing was held on February 6, 2002 before Hearing Committee 1.10 comprised of Acting Chair Marc S. Raspanti, Esquire, Member Luther E. Weaver, III, Esquire, and Alternate Member Frederic M. Wentz, Esquire. John Rogers Carroll, Esquire, represented Respondent. Petitioner introduced Joint Stipulations of Fact and Law and corresponding exhibits. Respondent testified on his own behalf and presented expert testimony, as well as four character witnesses. Following the submission of briefs by the parties, the Committee filed a Report on December 31, 2002, finding that Respondent violated the Rules of Professional Conduct as charged in the Petition, and recommending that Respondent be suspended for a period of not less than one year and one day, with the condition that Respondent be subject to regular sobriety monitoring. The parties did not take exception to the Report of the Hearing Committee. March 26, This matter was adjudicated by the Disciplinary Board at the meeting of II. FINDINGS OF FACT The Board makes the following findings of fact: 2

3 1. Petitioner, whose principal office is situated at Suite 1400, 200 North Third Street, Harrisburg PA 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement (hereinafter Pa.R.D.E.), 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 in accordance with the various provisions of said Rules of Disciplinary Enforcement. 2. Respondent was born in 1943 and was admitted to practice law in Pennsylvania in Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court. 3. By Order dated November 13, 1998, effective December 13, 1998, the Supreme Court of Pennsylvania transferred Respondent to inactive status pursuant to Pa.R.C.L.E. 111(b) for failure to meet his Continuing Legal Education requirements. 4. From June 20, 1994 to January 31, 1998, Respondent was employed as an attorney with the Beasley Firm. 5. During his employment with the Beasley Firm, Respondent engaged in gross neglect of 11 client matters. This neglect resulted in the complete dismissal of the clients' claims in ten matters and partial dismissal of the client's claims in one matter. a. In four of these matters, Respondent engaged in misrepresentation to the client or a third person to conceal his neglect from the client. b. In seven of these matters, Respondent engaged in active misrepresentation to, or deception toward, his employer to conceal his neglect from his employer. 3

4 c. Respondent's misrepresentations were knowing and intentional; at all times, Respondent knew the difference between right and wrong and had the ability to tell the truth. 6. Between January and November 1997, Respondent, inter alia, failed to respond to numerous summary judgment motions. viable complex cases. 7. Respondent neglected to pursue the discovery necessary to prepare 8. On September 18, 1997, James E. Beasley, Esquire, principal and owner of the Beasley Firm, sent an to all Beasley Firm attorneys requesting a status update on all of their files. 9. Respondent responded by Inter-Office Memorandum dated October 6, 1997, wherein Respondent: a. did not indicate any problems with any of his files; and b. provided a false and/or misleading response in relation to the status of the client matters. 10. In response to a question from his employer pertaining to the Beasley Firm's malpractice insurance, Respondent, on or after January 15, 1998, falsely responded "no" to the question of whether he had "knowledge or information of any incident or occurrence which might give rise to a claim [of professional negligence] being made." 11. On or about January 31, 1998, Mr. Beasley terminated Respondent's employment with the Beasley Firm. 4

5 12. On February 6, 1998, Mr. Beasley filed a Petition for Extraordinary Relief in the Nature of an Omnibus Petition to Open Judgments and Provide Further Relief, in a case captioned In Re: Thomas W. Smith, Esquire, Misc. Dkt. No (C.C.P. Phila. Co.). a. Mr. Beasley requested, inter alia, that the judgments entered in certain client matters be opened and case management conferences be scheduled in order that the court could issue new scheduling orders. 13. The defendants in the client matters, who were the beneficiaries of dismissals, filed answers and/or supplemental answers and/or motions to dismiss and/or memoranda of law opposing the Petition for Extraordinary Relief and/or motions to disqualify Mr. Beasley and the Beasley Firm. 14. In response thereto, the Beasley Firm filed Preliminary objections seeking to strike the defendants' respective answers, supplemental answers and motions to dismiss. 15. The defendants filed responses to the Preliminary Objections. 16. By Orders dated August 20, 1998, the Honorable John W. Herron: a. granted the Petition for Extraordinary Relief and the relief requested therein; b. vacated the dismissal orders and directed that the matters be set down for case management conferences so that new scheduling deadlines could be set; c. denied the defendants' motions to dismiss and to disqualify; d. denied or overruled the defendants' Preliminary Objections; and e. dismissed other motions as moot. 5

6 17. Judge Herron issued a 70-page Memorandum Opinion dated August 20, 1998 in support of his Orders. 18. Thereafter, the defendants filed motions for reconsideration and an Application for permission to appeal an interlocutory order pursuant to Pa.R.A.P. 1311(b). 19. The Beasley Firm filed a response to the Application. 20. By Order and Amended Orders dated September 18, 1998, Judge Herron granted the Application for interlocutory appeal and stayed the matters, pending disposition of any appeal that may be granted. 21. Judge Herron issued an Opinion dated September 18, 1998 in support of his decisions to deny the defendants' motions for reconsideration but to grant the Application for interlocutory appeal. 22. On or about September 18, 1998, the defendants filed notices of appeal to the Superior Court. 23. By Orders dated January 20, 1999, the Superior Court quashed the appeals or denied requests for permission to appeal. 24. The defendants in all but four matters filed petitions for allowance of appeal and/or review and/or writ of prohibition. 6

7 25. By Orders dated October 25, 1999, the Supreme Court denied the defendants' respective petitions for allowance of appeal and/or review and one defendant's petition for writ of prohibition. 26. By Order dated March 20, 2000, the United States Supreme Court denied a petition for writ of certiorari. Children's Hospital of Philadelphia, et al. v. Michael Cunningham, et al., U.S., 120 S.Ct. 1425, 146 L.Ed. 316, 68 USLW 3587, 68 USLW 3593 (2000). 27. The civil litigation generated negative publicity in the Philadelphia area. Respondent's actions were publicized in both legal and non-legal circles and became well known in both forums. 28. After remand, four matters settled pre-trial (Garner, Cunningham, Kerwin, Mercer), three matters settled during trial (Gault, Durante, Peck), one matter was non prossed (Martino), two matters were dismissed or discontinued by agreement of counsel (Foody, Johnson), and one matter proceeded to trial and verdict (Silverstein). CHARGE I: The Cunningham Matter 29. On May 26, 1995, Respondent instituted an action in medical malpractice on behalf of James and Matthew Cunningham, and their minor sons Michael and Matthew, in the Court of Common Pleas of Philadelphia County, said action captioned Cunningham et al. v. KRN Assoc., et al., No. 3867, May Term,

8 30. Michael and Matthew Cunningham were twin babies who suffered brain damage, allegedly the result of negligent care by defendant-physicians and a defendant hospital. 31. Respondent failed to depose three of the five defendant-physicians. 32. Although Respondent obtained an oral expert witness review favorable to the Cunninghams, Respondent failed to have the reviewing physician or any other physician provide a written expert report. 33. By Orders dated October 8 and November 12, 1996, the court granted motions to compel discovery filed by the defendants. 34. The court served Respondent with copies of the Orders. summary judgment. 35. On January 24 and 27, 1997, the defendants filed motions for 36. The defendants served Respondent with the motions. 37. Respondent failed to respond to the motions. 38. By Orders filed March 5 and May 1, 1997, the court granted the defendants' uncontested motions for summary judgment and dismissed the Cunninghams' claims with prejudice. 39. The court served Respondent with copies of the Orders, and Respondent received notice of the same. 8

9 40. In his October 6, 1997 Inter-Office Memo, Respondent misrepresented to his employer that the Cunningham matter was "Awaiting trial date." 41. On November 4, 1997, Respondent met with the Cunninghams and referral counsel, John J. Marquess, Esquire, at which time Respondent: a. failed to advise the Cunninghams of the dismissal; and b. misled the Cunninghams and Mr. Marquess by discussing settlement options with them. 42. By letter dated November 6, 1997, to Respondent, Mr. Marquess confirmed his and his clients' meeting with Respondent on November 4, 1997, and their discussion. 43. On October 6 and November 4, 1997, Respondent knew that the Cunningham matter had been dismissed. assignment for trial. 44. In September 2001, the Cunningham matter was settled after CHARGE II: The Gault Matter 45. On October 31, 1994, Respondent instituted an action in medical malpractice on behalf of Stephen P. and Karen M. Gault, and their minor son Stephen R. Gault, in the Court of Common Pleas of Philadelphia County, said action captioned Gault et al. v. Norwood, et al., No. 3971, October Term,

10 46. Stephen Jr. was a baby who suffered severe brain damage, allegedly the result of negligent care by defendant-physicians, a defendant physician professional association, and a defendant hospital. 47. Respondent failed to depose any of the defendants. 48. Respondent's pre-trial discovery requests were limited to form interrogatories and requests for production of documents, to which only one defendant responded and only to the requests for production of documents. requests. 49. Respondent failed to file motions to compel answers to his discovery medical report. 50. Respondent failed to obtain, or take any steps to obtain, an expert summary judgment. 51. On November 6, 17, and 19, 1997, the defendants filed motions for 52. Respondent was served with the motions. 53. Respondent failed to respond to the motions. 54. By Orders filed December 18, 29, and 31, 1997, the court granted the defendants' uncontested motions for summary judgment and dismissed the Gaults' claims. 55. The court served Respondent with copies of the Orders. 10

11 56. By Inter-Office Memorandum dated January 21, 1998, which Respondent provided to his superior at his superior's request, Respondent misled his employer by representing that the Gault matter was one of a number of cases subject to a court-imposed stay and that the case had been scheduled for trial in Philadelphia. 57. By letter dated January 22, 1998 to the Gaults, Respondent advised the Gaults that the Commonwealth Court had entered an order that had the effect of staying all proceedings in their case for ninety days; told the Gaults not [to] despair nor think that your case will not go forward"; and advised the Gaults that the Beasley Firm was filing an action to remove the stay so their case could proceed. 58. At the time that Respondent sent the January 21, 1998 Inter-Office Memo and the letter to the Gaults, Respondent knew that the Gault case had been dismissed. 59. In October 2000, the Gault matter proceeded to jury trial and a verdict of $55 million dollars, but the award was subject to a pre-verdict settlement of $7.5 million. CHARGE III: The Peck Matter 60. On July 8, 1994, Respondent instituted an action in medical malpractice on behalf of Kevin and Mary Peck, and their minor son Brian Peck, in the Court of Common Pleas of Philadelphia County, said action captioned Peck et al. v. Children's Hospital of Philadelphia, et al., No. 821, July Term,

12 61. Brian Peck suffered brain damage allegedly the result of cardiothoracic surgery that was negligently performed. 62. Respondent sent form written discovery requests to all defendants, but the defendants did not respond. requests. 63. Respondent failed to file motions to compel answers to his discovery 64. Respondent failed to depose two of the three defendant-physicians. 65. Respondent obtained a preliminary review of the case from a neonatologist who informed Respondent that additional information was needed. 66. Respondent failed to provide the expert with the additional information or to obtain an expert medical report. 67. On October 1, 3, 6, 7, 8 and 10, 1997, the defendants filed motions for summary judgment and/or motions in limine. 68. Respondent was served with the motions. 69. Respondent failed to respond to the defendants' motions. 70. In his October Inter-Office Memo, Respondent reported to his employer a status of "Discovery ongoing" without any mention of the motions for summary judgment that had been filed. 12

13 71. By Orders filed December 9 and 19, 1997, the court granted the uncontested motions for summary judgment and dismissed the Pecks' claims with prejudice. 72. The court served Respondent with copies of the Orders. 73. Respondent included the Peck matter in his January 21, 1998 Inter- Office Memo and misrepresented therein that the case had been scheduled for trial. 74. Respondent sent to the Pecks a letter dated January 23, 1998, which was identical in substance to the letter referenced in paragraph 57, supra. 75. At the time that Respondent sent the January 21, 1998 Inter-Office Memo and the letter to the Pecks, Respondent knew that the Peck matter had been dismissed with prejudice. 76. In February 2001, the Peck matter was settled during trial, with the terms of the settlement placed under court seal. CHARGE IV: The Foody Matter 77. On October 20, 1994, Respondent instituted a medical malpractice action on behalf of Barbara and John Foody in the Court of Common Pleas of Philadelphia County, said action captioned Foody v. Chairman, D.P.M., et al., No. 2583, October Term,

14 78. Mrs. Foody suffered permanent nerve damage and severe pain in her foot, allegedly caused by an Achilles tendon lengthening operation that was negligently performed. defendants. 79. Respondent failed to make any written discovery requests of the 80. Respondent failed to depose one of the two defendant-physicians. 81. Respondent failed to take any action to obtain an expert medical report, including sending the case out for expert review. 82. On August 17, 1996, two defendants were dismissed by stipulation. 83. On December 26, 1996, the court entered an Order granting a motion to compel plaintiffs to provide full and complete discovery responses. 84. The court served Respondent with a copy of the Order. 85. On June 10, 1997, the court granted a motion for sanctions filed by one of the defendants and directed the plaintiffs to pay $300 in filing fees. summary judgment. 86. On July 23 and November 7, 1997, the defendants filed motions for 87. Respondent was served with the motions. 88. Respondent failed to respond to the motions. 14

15 89. By Orders filed September 23 and December 29, 1997, the court granted the defendants' uncontested motions for summary judgment and dismissed the Foodys' claims. 90. The court served Respondent with copies of the Orders. 91. In his October 6, 1997 Inter-Office Memo, Respondent reported to his employer that the Foody matter was "Awaiting trail [sic] date" without indicating that the main defendant had already been dismissed on an uncontested motion for summary judgment. 92. By letter dated January 26, 1998, to the Foodys, Respondent confirmed a January 23, 1998 telephone conversation with Mr. Foody in which Respondent had misrepresented to Mr. Foody that the case had been "postponed"; advised that he expected the matter to be rescheduled "for the spring, likely late April or May"; and represented that he would be in touch as developments arose. 93. At the time that Respondent spoke to Mr. Foody and sent the confirmation letter, Respondent knew that the Foodys' lawsuit had been dismissed. of all counsel. 94. On February 17, 2000, the Foody matter was dismissed by stipulation 15

16 CHARGE V: The Kerwin Matter 96. On June 1, 1995, Respondent instituted a product liability/wrongful death action on behalf of the Estate of Helen T. Kerwin through her husband, Jerome Kerwin, in the Court of Common Pleas of Philadelphia County, said action captioned Kerwin v. Copley Pharmaceutical, Inc., et al., No. 4594, May Term, Mrs. Kerwin experienced respiratory failure and died following the administration of a pharmaceutical product manufactured and/or distributed by the defendants. 98. Respondent failed to conduct any discovery, in that Respondent did not serve interrogatories or requests for production of documents, or schedule and take depositions. 99. On July 1, 1997, the court entered a Case Management Order directing the plaintiff to submit to defendants all expert witness reports by October 22, Order The court served Respondent with a copy of the Case Management 101. Respondent failed to take any steps to obtain an expert medical report. judgment On November 25, 1997, the defendants filed motions for summary 103. Respondent was served with the motions. 16

17 104. Respondent failed to respond to the motions By Order filed January 14, 1998, the court granted the defendants' uncontested motions for summary judgment and dismissed with prejudice the plaintiff's claims The court served Respondent with the Order. trial In January 2001, the Kerwin matter was settled prior to assignment for CHARGE VI: The Garner Matter 108. On April 19, 1996, Respondent filed a medical malpractice complaint on behalf of Cathy Garner in the Court of Common Pleas of Philadelphia County, said action captioned Garner v. Trustees of the University of Pennsylvania, et al., No. 2436, April Term, Garner's breast cancer This case involved an alleged four-year delay in diagnosing Ms Respondent failed to make discovery requests of the defendants Respondent failed to send the case out for expert review, thereby failing to obtain an expert medical report. 17

18 112. On April 29, 1997, the court entered an Order granting a motion to compel filed by the defendants The court served Respondent with a copy of the Order On July 7, 1997, the defendants filed a motion for summary judgment Respondent was served with the motion Respondent failed to respond to the motion In his October 6, 1997 Inter-Office Memo, Respondent reported to his employer that the Garner matter was "Awaiting trial date" without indicating that the defendants had filed a summary judgment motion that Respondent had failed to contest By Order dated October 16, 1997, the court granted the defendants' uncontested motion for summary judgment and dismissed with prejudice Ms. Garner's claims The court served Respondent with a copy of the Order On January 7, 2000, the Garner matter was settled. CHARGE VII: The Mercer Matter 121. On November 15, 1995, Respondent instituted a medical malpractice action on behalf of John E. Mercer in the Court of Common Pleas of Philadelphia County, 18

19 said action captioned Mercer v. Thomas Jefferson University Hospital, et al., No. 1383, November Term, This case involved, inter alia, an exacerbation of a paralytic condition of Mr. Mercer, allegedly caused by the negligent care of the defendants Respondent failed to send the case out for expert review, thereby failing to obtain an expert medical report. (Stip. 119) In September 1997, Respondent conducted depositions of two defendant-physicians. (Stip. 120). judgment On November 19, 1997, the defendants filed a motion for summary 126. Respondent was served with the motion Respondent failed to respond to the motion By Order filed January 14, 1998, the court granted defendants' uncontested motion for summary judgment and dismissed with prejudice Mr. Mercer's claims Respondent received notice of the Order. trial In April 2001, the Mercer matter was settled prior to assignment for 19

20 CHARGE VIII: The Silverstein Matter 131. On November 21, 1995, Respondent filed a medical malpractice complaint on behalf of Irvin and Betty Silverstein in the Court of Common Pleas of Philadelphia County, said action captioned Silverstein v. Ginsberg, M.D., et al., No. 2116, November Term, Mr. Silverstein's cancer This case involved the alleged failure of the defendants to diagnose 133. Respondent failed to depose one of the two defendants. an expert medical report Respondent did not make any attempt to obtain, and failed to obtain, 135. On September 22 and October 6, 1997, the defendants filed petitions for extraordinary relief as a result of Respondent's failure to produce an expert report Respondent was served with the petitions By Orders dated October 10 and 22, 1997, the court granted the petitions for extraordinary relief and granted each defendant leave to file a motion for summary judgment within ten days The court served Respondent with copies of the Orders. summary judgment On October 15 and 29, 1997, the defendants filed motions for 20

21 140. Respondent was served with the motions Respondent failed to respond to the motions By Orders filed November 25 and December 5, 1997, the court granted the defendants' uncontested motions for summary judgment and dismissed with prejudice the Silversteins' claims The court served Respondent with copies of the Orders In December 2000, the Silverstein matter proceeded to trial, which resulted in a verdict of $130,000 in favor of the Estate of Irvin Silverstein and Betty Silverstein against the Defendant Phillip C. Ginsberg, M.D.; the action against Defendant Albert Einstein Medical Center was settled during trial, with the court entering an order sealing the details of the settlement. CHARGE IX: The Durante Matter 145. On January 2, 1996, Respondent filed a medical malpractice complaint on behalf of Karen A. Durante in the Court of Common Pleas of Philadelphia County, said action captioned Durante v. O'Shea, M.D., et al., No. 0234, January Term, Ms. Durante had suffered an intra-abdominal hemorrhage as a result of an allegedly negligently-performed operation Respondent failed to conduct any discovery. 21

22 148. On July 15, 1997, Respondent filed a Reply to the New Matter that had been filed by one of the defendants, Chestnut Hill Hospital. judgment On October 3, 1997, Chestnut Hill Hospital filed a motion for summary 150. Respondent was served with the motion Respondent failed to respond to the motion In his October 6, 1997 Inter-Office Memo, Respondent reported to his employer that the status of the matter was "Discovery ongoing" without any mention that Chestnut Hill Hospital had filed a motion for summary judgment On November 10, 1997, Respondent filed a Petition for Extraordinary Relief, therein seeking to depose defendant-dr. Barbara M. O'Shea and alleging prejudice as a result of not having had the opportunity to depose Dr. O'Shea By Order dated November 25, 1997, the court extended the time for completion of discovery to December 12, 1997 and directed that the plaintiff's expert report be produced on or before December 31, Respondent produced an expert report on or before the extended deadline without having deposed Dr. O'Shea By Order dated November 18, 1997, the court granted the uncontested motion for summary judgment and dismissed with prejudice Ms. Durante's claims against Chestnut Hill Hospital. 22

23 157. The court served Respondent with a copy of the Order On March 24, 2000, the Durante matter was settled during trial. CHARGE X: The Martino Matter 159. On September 12, 1996, Respondent, acting on behalf of John Martino, instituted a legal malpractice action by writ of summons filed in the Court of Common Pleas of Philadelphia County, said action captioned Martino v. Panichelli, et al., No. 502, September Term, Mr. Martino's previous lawyer allegedly had failed to obtain an expert report to support a medical malpractice claim By court Order dated April 17 and filed April 23, 1997, the court sua sponte entered a Rule to File Complaint within twenty days Respondent received notice of the Rule Shortly thereafter, Respondent and the defendants verbally agreed that Respondent would provide the defendants with a copy of an expert witness report by June 20, 1997 or the matter would be dismissed with prejudice This verbal agreement was memorialized in a letter dated May 19, 1997, which the defendants sent to Respondent Respondent received the letter. 23

24 166. The Rule Returnable date for the April 17, 1997 Order was rescheduled for June 23, Respondent failed to file a complaint. copy to the defendants Respondent failed to obtain an expert witness report and to provide a the case By Order of Discontinuance filed June 23, 1997, the court dismissed 170. Respondent received notice of the Order In his October 6, 1997 Inter-Office Memo, Respondent misrepresented to his employer that the Martino matter was "In suit; awaiting review." 172. On October 6, 1997, Respondent knew that the Martino matter had been dismissed as a result of his failure to file a complaint On February 7, 2000, a judgment of non pros was entered for failure of plaintiff to file a complaint within the required time. CHARGE XI: The Johnson Matter 174. On September 13, 1994, Respondent instituted a wrongful death and survival action on behalf of Margaretta F. Johnson in the Court of Common Pleas of 24

25 Philadelphia County, said action captioned Johnson, et al. v. Cristol, M.D., No. 928, September Term, Ms. Johnson brought the action on behalf of decedent Francis Oberholtzer who had suffered a fatal myocardial infarction allegedly caused by the administration of eye drops by defendant Dr. Cristol In and under cover of a letter dated April 30, 1997, Respondent forwarded to Ms. Johnson a copy of the case management order and told her that he "expect[ed] to be able to meet all deadlines." 177. Respondent failed to conduct any discovery. Johnson's case Respondent failed to acquire medical documents crucial to Ms Respondent failed to obtain an expert medical report. the case By Judgment of Non Pros filed January 15, 1998, the court dismissed 181. Respondent received notice of the Judgment By Order to Discontinue With Prejudice dated July 7, 2000, the Johnson matter was discontinued by agreement of counsel. Additional Findings 25

26 183. On January 27, 1987, Respondent was disciplined by Public Censure before the Supreme Court of Pennsylvania in a matter captioned Office of Disciplinary Counsel v. Thomas William Smith, No. 65 DB 85, said prosecution resulting from Respondent's January 7, 1985 guilty plea in the United States District Court for the Western District of Pennsylvania to one count of willfully and knowingly failing to file a tax return relating to calendar year In re Anonymous No. 65 DB 1985, 41 Pa. D.&C.3d 480 (1986). Respondent failed to file a return for four consecutive tax years In or about 1991, while employed at McDonald and Snyder, Respondent, against his employer's policy, agreed to represent Michele Tirendi in a medical malpractice action Respondent neglected to file suit on behalf of Ms. Tirendi and allowed the statute of limitations to expire From in or about 1994 until February 17, 1998, Respondent misrepresented the status of the matter to Ms. Tirendi in order to deceive her into believing that suit had been filed and that the matter was active and would eventually be settled or proceed to trial. Some of these misrepresentations were conveyed by Respondent to Michele Tirendi through her mother, Elaine Tirendi, whom Respondent was representing in a separate matter. Falsely believing that she had an active case pending, Michele Tirendi had referred her mother to Respondent in or about

27 187. On December 2, 1998, Ms. Tirendi filed an action in legal malpractice naming Respondent, Patrick O. McDonald, Esquire, John J. Snyder, Esquire, and McDonald and Snyder, P.C., as defendants Respondent, through counsel, filed an answer denying liability and affirmatively attempted to shift "sole liability" to his former employer even though Respondent knew that he had accepted the case in derogation of law firm policy The following tax liens remain on record in the Court of Common Pleas of Philadelphia County: 190. IRS v. Thomas W. Smith, CP (filed 7/l/1992) in the amount of $284,898; 191. IRS v. Thomas Smith, CP (filed 12/3/1993) in the amount of $170,662.51; and 192. IRS v. Thomas W. & Linda L. Smith, CP (filed 3/10/2000) in the amount of $ From the time he was 15 years old, Respondent held a job and helped provide for his family, after the death of his father. After graduating from high school, because of his family obligations, Respondent stayed home and attended Duquesne University, working throughout the time he was in college. He had a scholarship the first year and paid for the rest of his education by himself, using the earnings from his afterschool jobs. 27

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