In re Anonymous No. 100 D.B. 84

DISSENTING OPINION

HILL, Member,

November 3, 1992 — I respectfully dissent from the majority of the board that has recommended that the [petitioner] be reinstated. [Petitioner] was disbarred by this Honorable Court on December 14,1984, effective January 15,1985. Petitioner had been an associate attorney at the firm of [A] & [B], P.C., in [ ], Pennsylvania. After being denied partnership, petitioner developed a devious scheme, wherein he directed clients to endorse their checks directly to him. The money thus received by the petitioner was deposited into his personal account and converted, some of the money being used to set up a pension fund for petitioner. This course of conduct continued for a number of years until [petitioner] was caught by a partner at the firm. At that time, [petitioner] admitted *330stealing $40,000, although we will never know the exact amount that was involved.1

Although petitioner had begun to make restitution, after pleading guilty to theft by deception, he was sentenced to 11 and 1/2 months to 23 months in prison, a fine of $2,000 and the payment of restitution and costs. [Petitioner] actually served 11 1/2 months.

The majority correctly sets forth the analysis necessarily applied in this or any case where a disbarred lawyer seeks reinstatement. “Whether the magnitude of the breach of trust would permit the resumption of the practice without a detrimental effect upon ‘the integrity and standing of the bar or the administration of justice nor subversive of the public interest.’ ”2 And, whether the petitioner has the moral qualifications, competency and learning in the law required to be eligible for reinstatement.3

In applying Keller, supra, our board has made it clear that

“[s]ome offenses may be of such an egregious nature that no amount of time can dissipate the adverse effect reinstatement of an offending attorney might have upon the standing and integrity of the bar. Thus, the court distinguished a disbarment from a five-year suspension in that although both involve a minimum five-year prohibition from the practice of law, disbarment carries *331with it an air of finality which requires reexamination of the offensive conduct before any consideration may be given to petitioner’s plea to regain the privilege to practice law.”4

My dissent rests on the conclusion that the breach of trust committed by the petitioner in this case is too serious to permit his reinstatement at this time without further injury to the integrity and standing of the bar and the public perception and confidence in our system. I am not suggesting that the petitioner’s reinstatement be forever foreclosed. The petitioner has been disbarred for seven years. There is no magic formula that stipulates how much time is sufficient. Clearly, as Keller has taught in some cases no amount of time is sufficient. Given the serious breach of trust committed by the petitioner, the impossibility of determining the exact amount of money taken, the fact that a court imposed a stiff sentence after partial restitution had been made and the necessity for our profession to make a statement that stealing by lawyers is intolerable, I believe petitioner’s reinstatement would be premature. The public interest and the interest in maintaining the integrity of the bar will not be served by petitioner’s reinstatement. In fact, on the record in this case, the only interest served by reinstatement would be petitioner’s.

Even though my analysis need not go further, I believe that petitioner fails to meet the requirements of Pa. R.D.E. 218(c)(3)(i). As noted above, the exact amount of money [petitioner] stole is unknown. I am not convinced that petitioner’s lack of certainty on this point is merely inattentiveness. Of the same ilk, and more disturbing to me is the non-explanation of the source of the funds used for restitution. I am also troubled *332that the petitioner suggests one of the reasons he stole from his firm is because his first wife had cancer and required expensive medical treatment. The clear implication is that petitioner’s affection for his wife partially caused his transgression. Later, [petitioner] suggests that he experienced marital problems which motivated, in part, his offense. This board is left to determine whether his love for his first wife, or the problems experienced in that marriage, or perhaps both situations, at different times, influenced him to steal.

Finally, I applaud the fact that through counseling, petitioner has learned how to deal with stress and problems. I note that many lawyers and other professionals deal with stress and career disappointment and seek guidance without first stealing money from their employer.

CONCLUSION

For the reasons stated above, I respectfully dissent from the board’s recommendation and recommend that this Honorable Court deny the petition for reinstatement.

ORDER

And now, July 21, 1993, a rule having been issued upon [petitioner] on April 29, 1993, to show cause why an order denying reinstatement should not be entered, upon consideration of the response filed, the rule is made absolute and the petition for reinstatement is hereby denied. Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the disciplinary board in the investigation and processing of the petition for reinstatement.

Messrs. Justice Zappala, Cappy and Montemuro dissenting would grant reinstatement.

. One of the contusing aspects of this case is determining the exact amount of money [petitioner] stole. When confronted by a partner, he admitted to stealing $40,000. He pleaded guilty to taking $54,398.02 and has made restitution in the amount of $76,923.14.

. Office of Disciplinary Counsel v. Keller, supra at 579, 506 A.2d at 875.

. See Pennsylvania Rules of Disciplinary Enforcement 218(c) (3)(i).

. In re Anonymous, 4 D.B. 76 at 4, no. 113 (1988).