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 In the Matter of DAVID J. HIRSCH PETITION FOR REINSTATEMENT No. 134 Disciplinary Docket No. 3 Supreme Court No. 90 DB Disciplinary Board Attorney Registration No (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 On December 28, 2001, Petitioner, David J. Hirsch, filed a Petition for Reinstatement to the bar of the Supreme Court of Pennsylvania. Petitioner was disbarred on consent by Order of the Supreme Court of Pennsylvania dated July 26,

2 A reinstatement hearing was held on July 31, 2003, before Hearing Committee 1.17 comprised of Chair Gilbert J. Scutti, Esquire, and Members Heather Gallagher Tucker, Esquire, and Martin N. Lisman, Esquire. Petitioner was represented by John Rogers Carroll, Esquire. The Hearing Committee filed a Report on January 20, 2004, and recommended that the Petition for Reinstatement be denied. Office of Disciplinary Counsel filed a Brief on Exceptions on February 4, 2004, contending that the misconduct for which Petitioner was disbarred is so egregious as to forever preclude Petitioner's reinstatement. Petitioner filed a Brief on Exceptions on February 11, 2004, contending that Petitioner has met his burden of proof and should be reinstated. Petitioner filed a Brief Opposing Exceptions and Request for Oral Argument on February 25, Office of Disciplinary Counsel filed a Brief Opposing Exceptions on March 2, Oral argument was held on May 11, 2004, before a three member panel of the Disciplinary Board chaired by Marc S. Raspanti, Esquire, with Members Laurence H. Brown, Esquire, and Min S. Suh, Esquire. This matter was adjudicated by the Disciplinary Board at the meeting of May 18,

3 II. FINDINGS OF FACT The Board makes the following findings of fact 1. Petitioner was born in 1952 and was admitted to the practice of law in Pennsylvania in He resides at 516 Ott Road, Bala Cynwyd, PA In 1987, Petitioner entered into a partnership for the practice of law with one Eugene Raitman, a non-lawyer. The partnership agreement provided for Mr. Raitman to be a 50% de facto partner in the law firm. 3. Mr. Raitman provided personal injury clients to Petitioner from medical centers run by members of Mr. Raitman s family. These clients were involved in a scheme of fraudulent or staged accidents. 4. Petitioner was aware that the partnership arrangement with Eugene Raitman was impermissible and that his firm was engaging in fraud. 5. The scheme ended in 1992 when the government executed a search warrant on Petitioner s office. 6. Petitioner was indicted in 1994 and subsequently cooperated with the government. 7. In May 1995 Petitioner was convicted in the United States District Court for the Eastern District of Pennsylvania on a guilty plea entered to charges of racketeering and criminal forfeiture. 3

4 8. Petitioner was incarcerated from approximately May 6, 1996 to April 6, After his release from incarceration, Petitioner lived in a halfway house for two months. He was on supervised release from June 6, 1997 to June 6, Petitioner s sentence also included a forfeiture of $250,000 and restitution of $100,000. Petitioner has paid these amounts. 10. In addition to the criminal misconduct forming the basis of Petitioner's disbarment on consent, Petitioner admitted that he converted $13,900 belonging to a client, Anne Long. Petitioner made restitution of these funds. 11. Petitioner is an alcoholic with a drinking history starting at the age of fifteen. Petitioner began daily drinking in the 1980 s and would drink as much as a fifth of liquor every night. 12. During the period of Petitioner's incarceration in 1996 and through his supervised release following his confinement, Petitioner stayed sober. He was randomly tested during this period. 13. Petitioner was involved in Alcoholics Anonymous while he was at the Lewisburg Federal Penitentiary. While on supervised release he was involved in one or more AA programs, and underwent alcohol counseling for six months. 14. After his release from supervision, Petitioner relapsed in the summer of 2000 and continued drinking until March In March 2001 Petitioner was involved in an automobile accident with his daughter in the car. At that time he recommenced attending AA meetings and entered an experimental program at the University of Pennsylvania for one year. 4

5 16. Petitioner obtained an AA sponsor and currently attends three meetings per week. At the time of the hearing Petitioner had been sober for two and a half years. 17. Richard F. Limoges, M.D., a forensic psychiatrist, was called to testify about Petitioner's alcoholism. 18. Dr. Limoges saw Petitioner as far back as 1995 and has seen him more recently. Dr. Limoges described Petitioner as suffering from alcoholism since adolescence. 19. Dr. Limoges opined that Petitioner's automobile accident shocked him into a more realistic appraisal of his relation to alcohol and allowed him to emerge from his denial and become a more active participant in AA. 20. Dr. Limoges has met with Petitioner six to ten times since April 2003, and has also met with Petitioner s wife. He believes that Petitioner's prognosis is excellent if he continues to stay active in his recovery. 21. Four witnesses testified on behalf of Petitioner as to his recovery efforts. All of these witnesses felt very positive about Petitioner s ability to remain sober. 22. Petitioner has been gainfully employed since his release from prison, first as a paralegal, then running a veterinary hospital, and as a contract courier. 23. Petitioner is currently a licensed real estate agent. This license was granted with full disclosure of Petitioner's past problems. 5

6 III. CONCLUSIONS OF LAW 1. The misconduct for which Petitioner was disbarred is not so egregious as to preclude immediate consideration of his Petition for Reinstatement. 2. Petitioner has been disbarred since 1995; however, he has not engaged in qualitative rehabilitation during this time and therefore, he has failed to meet the threshold burden set forth in Office of Disciplinary Counsel v. Keller, 605 A.2d 872 (Pa. 1986). IV. DISCUSSION This matter comes before the Disciplinary Board upon a Petition for Reinstatement filed by David J. Hirsch. Petition was disbarred on consent by Order of the Supreme Court dated July 26, The sole issue before the Board is whether Petitioner s request for readmission to the Pennsylvania bar should be granted. Petitioner bears the burden of proof by clear and convincing evidence that he is qualified for readmission. Pa.R.D.E. 218(c)(3)(i). Petitioner s request for reinstatement to the bar after disbarment is initially governed by the standard set forth by the Supreme Court of Pennsylvania in Office of Disciplinary Counsel v. Keller, 506 A.2d 872 (Pa. 1986). The Keller opinion articulates a threshold standard which must be met by a disbarred petitioner before the petitioner s qualifications under Pa.R.D.E. 218(c) (3)(i) are examined. 6

7 The preliminary inquiry mandated by Keller is whether the magnitude of the breach of trust would permit the resumption of practice without a detrimental effect on the integrity and standing of the bar or administration of justice nor be subversive of the public interest. Keller, 506 A.2d at 875. Keller thus requires a determination that the original misconduct was not so egregious as to preclude reinstatement. Petitioner was convicted of racketeering and criminal forfeiture. Petitioner entered into a partnership for the practice of law with a non-lawyer, Eugene Raitman. Mr. Raitman provided personal injury clients to the law firm from medical centers owned by Mr. Raitman s family. The personal injury cases had been fraudulent either in the accident part or in the injury and treatment part. Petitioner was aware that his partnership arrangement with Eugene Raitman was unethical and was aware that his firm was engaged in fraud. Although he testified that he made efforts to ensure that his employees rejected fraudulent cases, he did become involved in processing claims for a substantial number of fake accidents and false claims of injury. Additionally, Petitioner engaged in conversion of client funds in the amount of $13,900 from one client. The Hearing Committee concluded that Petitioner s misconduct was not so egregious as to preclude him from reinstatement. Office of Disciplinary Counsel took exception to this finding, setting forth the argument that Petitioner s misconduct is so egregious as to forever bar him from the practice of law in Pennsylvania. Office of Disciplinary Counsel cites the case of In the Matter of Phillips, 801 A.2d 1208 (Pa. 2002) to support this contention. Romaine Phillips was disbarred after being convicted of conspiracy to engage in racketeering acts that struck at the heart of the legal system. Mr. Phillips 7

8 conspired with a Common Pleas Court judge in an arrangement in which bribes were funneled to the judge for preferential dispositions of criminal cases. The Supreme Court determined that the misconduct was so egregious that Mr. Phillips should be forever barred from practicing law in Pennsylvania. Petitioner s actions unequivocally constitute grave misconduct, commencing with his incredible lack of judgment in forming a partnership with a non-lawyer and continuing through his representation of clients engaged in fraud and his conversion of client funds. Upon review of the underlying offenses and the case law, however; the Board concludes that Petitioner s misconduct is not so egregious as to preclude Petitioner from reinstatement. The Supreme Court has reinstated attorneys who have been disbarred for similar egregious behavior. In Matter of Verlin, 731 A.2d 600 (Pa. 1999), the petitioner for reinstatement arranged for an imposter to impersonate a decreased client at a deposition. The Court observed that the conduct was not so egregious as to act as an outright bar to consideration of the petition for reinstatement. The Court has sanctioned reinstatement in cases where disbarred attorneys committed perjury and obstruction of justice, bankruptcy fraud, theft by deception and criminal conspiracy. See, Matter of Greenberg, 749 A.2d 434 (Pa. 1999), Matter of Costigan, 664 A.2d 518 (Pa. 1995), In re Anonymous No. 105 DB 88, 29 Pa. D. & C. 4 th 114 (1995). Attorneys who converted client funds have been reinstated. In re Anonymous No. 47 DB 82, 29 Pa. D. & C. 4 th 304 (1995). The Board is not persuaded that Petitioner s actions share the same degree of egregiousness as in the Romaine Phillips matter so as to require permanent disbarment. 8

9 Having concluded that Petition s misconduct is not so egregious as to preclude reinstatement, the Board must consider the issue of whether a sufficient period of time has passed during which Petitioner has engaged in a substantial rehabilitative effort. In re Perrone, 777 A.2d 413 (Pa. 2001). This question focuses on the amount of time that Petitioner has been disbarred and whether that time has been spent engaged in constructive activities indicating rehabilitation from the misconduct. Pursuant to Keller, a disbarred attorney has the opportunity to petition for reinstatement five years after the effective date of disbarment; however, reinstatement is not automatic. Often times a longer absence from the practice of law suggests that a petitioner had an increased opportunity for a meaningful rehabilitation, and a better chance of successfully demonstrating he or she gained insight into the misconduct and an understanding of how to avoid it in the future. The record evidences that Petitioner is an alcoholic who has been sober for the past two and a half years. He has a twelve year history of unsuccessful sobriety attempts. Since 1991 Petitioner made five attempts to achieve sobriety without relapse and was unable to do so. Petitioner has been disbarred since During the time period 1996 to 2000 Petitioner was incarcerated, followed by a stay in a half way house and supervised release. He underwent random urine testing during this time period. He was able to stay sober during this time period and participated in Alcoholics Anonymous. After he finished his supervised release in 2000 he relapsed and began drinking. Petitioner s involvement in a car accident in March 2001 prompted his return to AA with a more serious 9

10 view to achieving sobriety. From all accounts Petitioner has maintained his sobriety and is actively pursuing recovery. Petitioner has been disbarred since 1995, but has been sober only since March This date must be considered the real start of his rehabilitation. It is admirable that Petitioner has stayed sober for two plus years; however, viewed in the context of Petitioner s history of alcoholism, it is simply not a sufficient period of substantial qualitative rehabilitation. In re Anonymous No. 36 DB 83, 14 Pa. D. & C. 4 th 359 (1991) (reinstatement after five years of sobriety); In re Anonymous No. 90 DB 85, 17 Pa. D. & C. 4 th (1992) (reinstated after six years of sobriety). Indeed, in a recent matter an attorney was denied reinstatement on the basis that his 13 month period of sobriety was insufficient to show substantial rehabilitation. In re Frankel, 205 Disciplinary Docket No. 3, (Pa. Oct. 24, 2003). Petitioner has tried sobriety before and failed. His longest period of sobriety was when he was incarcerated and on supervised release, which was a total of approximately four years. Clearly there were very definite limitations on his ability to consume alcohol during that time. Shortly after his supervised release ended, he started drinking and kept doing so for about one year. Now Petitioner has remained sober for over two years. Whether he will be able to remain sober is a critical issue as demonstrated by his past history. The Board concludes that Petitioner has not engaged in a qualitative period of rehabilitation during his disbarment. As Petitioner has failed to meet the Keller standard for reinstatement, no further discussion is necessary as to Petitioner s qualifications under Pa.R.D.E. 218 (c) (3)(i). 10

11 Reinstatement be denied. For the above reasons, the Board recommends that the Petition for V. RECOMMENDATION The Disciplinary Board of the Supreme Court of Pennsylvania recommends that Petitioner, David J. Hirsch, be denied reinstatement to the practice of law. The Board further recommends that, pursuant to Rule 218(e), 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 Marc S. Raspanti, Member Date June 29, 2004 Board Member Rudnitsky did not participate in the May 18, 2004 adjudication. 11

12 PER CURIAM AND NOW, this 28 th day of September, 2004, upon consideration of the Report and Recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated June 29, 2004, the Petition for Reinstatement is DENIED. Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the Board in the investigation and processing of the Petition for Reinstatement. 12