
    Office of Disciplinary Counsel v. Perkel
    
      Disciplinary Board,
    No. 23 DB 2014
    May 27, 2015
   PER CURIAM,

The three-member panel of the disciplinary board of the Supreme Court of Pennsylvania, consisting of board members Lawrence M. Kelly, Brian J. Cali and P. Brennan Hart, has reviewed the joint petition in support of discipline on consent filed in the above-captioned matter on April 2, 2015.

The panel approves the joint petition consenting to a two year suspension retroactive to June 12, 2014 and recommends to the Supreme Court of Pennsylvania that the attached petition be granted.

The panel further recommends that any necessary expenses incurred in the investigation and prosecution of this matter shall be paid by the respondent-attorney as a condition to the grant of the petition.

JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT UNDER RULE 215(d), Pa.R.D.E.

Petitioner, office of disciplinary counsel, by Paul J. Killion, Esquire, chief disciplinary counsel, and by Richard Hernandez, Esquire, disciplinary counsel, and respondent, Benjamin Hart Perkel, who is represented by Andrew A, Chirls, Esquire, file this joint petition in support of discipline on consent under Pennsylvania Rule of Disciplinary Enforcement 215(d)(“the joint petition”), 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 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 an 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, Benjamin Hart Perkel, was bom in 1983, was admitted to practice law in the Commonwealth on April 22, 2010, and has a public access address at 2001 Hamilton Street, Apartment 2211, Philadelphia, Pennsylvania 19130-4216.

3. Respondent is on suspended status, having been temporarily suspended by order of the Supreme Court of Pennsylvania dated May 13,2014, effective June 12,2014 (“the suspension order”), the suspension order was based on a joint petition to temporarily suspend an attorney that was filed by petitioner and respondent.

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.

5. Respondent self-reported his misconduct by letter dated February 21, 2013, sent by respondent’s counsel to disciplinary counsel-in-charge. The letter acknowledged that respondent had violated Rule of Professional Conduct 8.4(c).

6.In connection with ODC File No. Cl-13-155, respondent received a request for statement of respondent’s position (Form DB-7) dated January 8, 2014.

7. By letter dated May 16, 2014, respondent submitted a response to the DB-7 letter; respondent resubmitted a substantially identical response through his counsel, by letter dated June 30, 2014.

8. By e-mail dated December 16, 2014, Mr. Chirls advised petitioner that respondent had agreed to enter into a joint recommendation for consent discipline.

SPECIFIC FACTUAL ADMISSIONS AND RULES OF PROFESSIONAL CONDUCT VIOLATED

9. Respondent hereby stipulates that the following factual allegations drawn from the DB-7 letter, as referenced above, are true and correct and that he violated the charged Rules of Professional Conduct as set forth herein.

CHARGE

10. At all times relevant hereto, respondent was employed as an independent staff attorney by Drinker Biddle & Reath, L.L.P. (“the firm”).

a. The firm paid respondent $40.00 an hour for his services.

11. Respondent’s employment at the firm began in November 2011 and concluded in November 2012.

12.The firm assigned respondent to review documents and to perform related tasks for a litigation matter involving Maxus Energy Corporation (“client”), a firm client; the matter was titled the “Passaic River Litigation” and assigned a matter number of 220422.

13. Respondent’s main job responsibility with respect to the Passaic River Litigation was to review documents, to answer various questions about the documents, and to record his determinations about the documents in an e-discovery program known as “relativity.”

14. Respondent was also required to record the time he spent reviewing documents and performing related tasks for the Passaic River Litigation on the firm’s time accounting system, known as “Elite.”

a. The Elite system accommodated recording time in increments as small as one-tenth of an hour.

15. In order to properly record the time respondent spent reviewing documents and performing related tasks for the Passaic River Litigation using Elite, respondent had to enter the client file number, the matter number, and the amount of hours he worked, and to provide a brief description of the work performed.

16. Commencing in November 2011, and continuing through November 2012, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation. Attached as Exhibit ODC-1 is a true and correct copy of a final report prepared by the firm that details the extent to which respondent over-reported the number of hours he spent on the Passaic River Litigation.

17. For the period of November 28, 2011 through December 16, 2011, respondent recorded on Elite that he had spent time totaling 112.7 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Kathleen Stevenson, an employee at the firm, in which he reported that his billable hours for this period were 112.7 hours.
b. In fact, during this period respondent spent only 105.5 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents, and performing related tasks for the Passaic River Litigation by 7.2 hours.

18. For the period ofDecember 19,2011 through January 18, 2012, respondent recorded on Elite that he had spent time totaling 123.5 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 123.5 hours.
b. In fact, during this period Respondent spent only 113.1 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 10.4 hours.

19. For the period of January 19,2012 through February 20, 2012, respondent recorded on Elite that he had spent time totaling 151.5 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 149.5 hours.
b. In fact, during this period respondent spent only 143.7 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 5.8 hours.

20. For the period of February 21,2012 through March 18, 2012, respondent recorded on Elite that he had spent time totaling 102.8 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 102.8 hours.
b. In fact, during this period respondent spent only 87.7 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 15.1 hours.

21. For the period of March 19, 2012 through April 19, 2012, respondent recorded on Elite that he had spent time totaling 232.5 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 232.5 hours.
b. In fact, during this period respondent spent only 219 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 13.5 hours.

22. For the period of April 20, 2012 through May 20, 2012, respondent recorded on Elite that he had spent time totaling 127 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 127 hours.
b. In fact, during this period he spent only 96.4 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 30.6 hours.

23. For the period of May 21, 2012 through June 18, 2012, respondent recorded on Elite that he had spent time totaling 150.2 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 150.2 hours.
b. In fact, during this period respondent spent only 80.1 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 70.1 hours.

24. For the period of June 19, 2012 through July 19, 2012, respondent recorded on Elite that he had spent time totaling 108.7 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 108.7 hours.
b. In fact, during this period respondent spent only 74.2 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 34.5 hours.

25. For the period of July 20, 2012 through August 20, 2012, respondent recorded on Elite that he had spent time totaling 140.8 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 140.8 hours.
b. In fact, during this period respondent spent only 107.7 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 33.1 hours.

26. For the period of August 21,2012 through S eptember 18, 2012, respondent recorded on Elite that he had spent time totaling 174.3 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 174.3 hours.
b. In fact, during this period respondent spent only 112.2 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 62.1 hours.

27. For the period of September 19, 2012 through October 18,2012, respondent recorded on Elite that he had spent time totaling 188 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 188 hours.
b. In fact, during this period respondent spent only 108.4 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 79.6 hours.

28. For the period of October 19, 2012 through November 14, 2012, respondent recorded on Elite that he had spent time totaling 112 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. In fact, during this period respondent spent only 55 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
b. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 57 hours.

29. For the period November 28, 2011 through November 14, 2012, the actual time respondent spent in reviewing documents and performing related tasks for the Passaic River Litigation totaled 1,303 hours.

30. For the period November 28, 2011 through November 14, 2012, respondent recorded on Elite that he had spent time totaling 1,721.5 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

31. For the period November 28, 2011 through November 14, 2012, respondent over-reported the time he spent in reviewing documents and performing related tasks for the Passaic River Litigation by 418.5 hours.

32. In November 2012, the firm discovered that respondent was overbilling time he recorded on Elite for the Passaic River Litigation.

a. When the firm discovered that respondent was overbilling time he recorded on Elite for the Passaic River Litigation, it had yet to issue respondent a paycheck for the 112 hours he had recorded on Elite for the period October 19, 2012 through November 14, 2012.

33. On November 27, 2012, Andrea L. D’Ambra, Esquire, an attorney with the firm who supervised respondent’s work on the Passaic River Litigation, sent respondent an e-mail requesting that he attend a meeting at the firm that would be held at 11:30 a.m.

34. On November 28, 2012, respondent went to the firm and met with Ms. D’Ambra and Wilson M. Brown, III, Esquire, a partner at the firm.

35. During the meeting, Ms. D’Ambra and Mr. Brown informed respondent of the differences in the time he recorded on Elite for reviewing documents and performing related tasks for the Passaic River Litigation and the time respondent logged on to relativity.

36. After Ms. D’Ambra and Mr. Brown heard respondent’s explanation of the differences in the time he recorded on Elite and the time he logged on to relativity, which included an acknowledgment by respondent that a substantial portion of the time at issue was over-reported, Mr. Brown told respondent that his services were terminated.

37. The firm withheld respondent’s last paycheck.

a. Based on the 55 hours of time respondent had actually spent in reviewing documents and performing related tasks for the Passaic River Litigation for the period October 19, 2012 through November 14, 2012, respondent was entitled to gross pay in the amount of $2,200.00.

38. In March 2013, the firm and respondent’s counsel agreed that respondent would pay $12,250.00 to the firm to compensate the firm for wages that respondent had received, but had not earned; respondent’s counsel advised the firm that respondent would repay the firm when he has an income.

39. In January 2015, respondent began making monthly $100.00 payments to the firm as compensation for the wages he received by having over-reported the time he spent on the Passaic River Litigation.

40. Respondent’s hourly billing rate during his employment at the firm was $245.00.

41. When the firm discovered that respondent had over-reported the time he spent in reviewing documents and performing related tasks for the Passaic River Litigation, the firm had already billed the client for part of the over-reported time entries respondent had submitted.

a. The amount of respondent’s over-reported time entries that was billed to, and paid by, the client totaled $49,752.00 (approximately 203 hours of respondent’s over-reported time entries).
b. The client is entitled to receive from the firm a refund or credit in the amount of $49,752.00.

42. By his conduct as alleged in paragraphs 10 through 41 above, respondent violated the following Rules of Professional Conduct:

a. RPC 1.5(a), which states, in relevant part, that a lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee;
b. RPC 4.1(a), which states that in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person;
c. RPC 8.4(a), which states that it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; and
d. RPC 8.4(c), which states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

SPECIFIC JOINT RECOMMENDATION FOR DISCIPLINE

43. Petitioner and respondent jointly recommend that the appropriate discipline for respondent’s admitted misconduct is a suspension from the practice of law for a period of two years retroactive to June 12, 2014, the effective date of the order placing respondent on temporary suspension.

44. Respondent hereby consents to that discipline being imposed upon him by the Supreme Court of Pennsylvania. Attached to this petition is respondent’s executed affidavit required by Rule 215(d), Pa.RD.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.

45. In support of petitioner and respondent’s joint recommendation, it is respectfully submitted that there are several mitigating circumstances, as set forth below:

a. Respondent has admitted engaging in misconduct and violating the charged Rules of Professional Conduct;
b. Respondent has cooperated with petitioner, as is evidenced by respondent’s admissions herein and his consent to receiving a suspension of two years;
c. Respondent is remorseful for his misconduct and understands he should be disciplined, as is evidenced by his consent to receive a suspension of two years;
d. Respondent has no record of discipline;
e. Respondent was a young and inexperienced attorney at the time the misconduct occurred (November 2011 through November 2012), having been admitted to practice law in New Jersey in July 2010 and in the Commonwealth of Pennsylvania in April 2010;
f. Respondent voluntarily agreed to be temporarily suspended during the pendency of the within disciplinary matter; and
g. Respondent self-reported his misconduct.

46. Respondent, through his attorney, desires to bring to the attention of the three-member panel of the disciplinary board and the Supreme Court of Pennsylvania that if the within disciplinary matter had proceeded to a disciplinary hearing, respondent would have:

a. presented evidence that when respondent engaged in the misconduct, he was suffering from, and receiving treatment for, attention deficit disorder (“ADD”), depression, and other conditions;
b. sought to establish a causal connection between his misconduct and his psychiatric conditions so he could obtain mitigation under Office of Disciplinary Counsel v. Braun, 553 A.2d 894 (Pa. 1989);
c. presented evidence that he is continuing treatment for his psychiatric conditions;
e. presented character evidence; and
f. presented evidence that he reached an agreement with the firm to pay restitution in the amount of $12,250.00, and he began making monthly restitution payments of $100.00 to the firm, commencing in January 2015.

47. Precedent supports a suspension of two years.

A two-year suspension is within the range of discipline imposed in similar disciplinary cases involving attorneys who have submitted false time sheets. The discipline imposed in those cases ranges from a suspension of six months to three years.

In Office of Disciplinary Counsel v. David P. Rovner, No. 157 DB 2000 (D. Bd. Rpt. 1/22/03) (S. Ct. Order 3/6/03), an insurance defense attorney was suspended for six months for submitting false time sheets over a two-year period. Respondent Rovner joined a new firm as a shareholder, having represented that he would continue to receive referrals from two insurance companies. Upon joining the new firm, Respondent Rovner provided a list of 39 matters that had purportedly been transferred from his old firm, but only five of the 39 files had been transferred to the new firm. Respondent Rovner prepared time sheets for non-existent files, allowed bills totaling $53,509.50 to be prepared based on the false time sheets, and misrepresented that the bills had been sent to an insurance company. In mitigation, Respondent Rovner had no record of discipline, had engaged in legal and non-legal community activities, and presented character evidence. Respondent Rovner had offered expert testimony to establish Braun mitigation, but the board determined that the Braun standard was not met.

In Office of Disciplinary Counsel v. Michael Keith Hollinger, No. 19 DB 2004 (D. Bd. Rpt. 3/21/05) (S. Ct. Order 6/16/05), a worker’s compensation defense attorney received a suspension of one year and one day for engaging in a pattern of billing clients for work he did not perform and overstating the time he spent on services. Over a period approximating ten months, Respondent Hollinger sent false bills to ten clients in twenty-four different workers’ compensation matters. Respondent Hollinger’s firm suffered a financial loss, having refunded $26,730.69 to clients who had been harmed. The firm also claimed lost lawyer productivity worth $26,350.00 due to its efforts to investigate Respondent Hollinger’s misconduct. Mitigating factors were remorse, cooperation with petitioner’s investigation, admission of misconduct, character evidence, no record of discipline, and partial restitution.

In Office of Disciplinary Counsel v. John Anthony Lord, No. 149 DB 1995 (D. Bd. Rpt. 10/20/97) (S. Ct. order 12/30/97), our court suspended Respondent Lord for one year and one day for: altering time sheets to reflect that he had done work that had been performed by others; submitting time sheets for work he had already performed or work he had not performed at all; and submitting false travel vouchers. The false billings and travel vouchers were approximately $18,000.00 and $9,000.00, respectively. Respondent Lord’s misconduct occurred over a seventeen-month period. In mitigation, Respondent Lord had no record of discipline, expressed remorse, cooperated with petitioner, admitted his misconduct, presented character evidence, showed he had rehabilitated himself by curbing his alcohol use (however, no Braun mitigation was awarded), and made partial restitution to the firm.

In Office of Disciplinary Counsel v. James Francis Pearn, No. 82 DB. 2009 (D. Bd. Rpt. 10/26/00) (S. Ct. order 12/28/00), Respondent Pearn was suspended for three years for engaging in a five-year pattern of billing clients for legal work he had not performed. Respondent Pearn’s law firm suffered reputational harm and financial harm because it had refunded more than $30,000.00 to clients. In mitigation, Respondent Pearn had no record of discipline and cooperated with petitioner.

In Office of Disciplinary Counsel v. Michael Joseph Boone, No. 156 DB 2012 (three-member panel recommendation approving joint petition in support of discipline on consent 2/5/13)(S. Ct. order 4/24/13), Respondent Boone, a workers’ compensation associate at a Harrisburg firm, Was suspended for two years for having fabricated billings in eight client matters over a three-month period. Respondent Boone’s false billings totaled $11,787.00. However, no clients were harmed because Respondent Boone’s misconduct was discovered before the clients either had paid the invoices containing the false billings or had received invoices that included Respondent Boone’s false billings. In the consent discipline petition, the following mitigating circumstances were identified; no record of discipline; remorse; admission of misconduct; and Respondent Boone ceased practicing law and assumed retired status.

48. Petitioner and respondent submit that the aforementioned disciplinary cases and the mitigating factors support the joint recommendation of a two-year suspension for respondent’s misconduct.

WHEREFORE, petitioner and respondent respectfully request that:

a. Pursuant to Rule 215(e) and 215(g), Pa.R.D.E., the three-member panel of the disciplinary board review and approve the above joint petition in support of discipline on consent and file its recommendation with the Supreme Court of Pennsylvania in which it is recommended that the Supreme Court enter an order:
(i) Suspending respondent from the practice of law for a period of two years retroactive to June 12, 2014; and
(ii) directing respondent to comply with all of the provisions of Rule 217, Pa.R.D.E.
b. Pursuant to Rule 215 (i), the three-member panel of the disciplinary board order respondent to pay the necessary expenses incurred in the investigation 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 Rule 215(g), Pa.R.D.E.

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 subj ect to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities.

AFFIDAVIT UNDER RULE 215(d), Pa.R.D.E.

Respondent, Benjamin Hart Perkel, hereby states that he consents to the imposition of a suspension of two years retroactive to June 12, 2014, 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 Andrew A. Chirls, Esquire, in connection with the decision to consent to discipline;

2. He is aware that there is presently pending an investigation 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 matter under investigation were filed, he could not successfully defend against them.

ORDER

And now, this 27th day of May, 2015, upon consideration of the recommendation of the three-member panel of the disciplinary board dated May 1, 2015, the joint petition in support of discipline on consent is hereby granted pursuant to Pa.R.D.E. 215(g), and it is

ORDERED that Benjamin Hart Perkel is suspended on consent from the bar of this Commonwealth for a period of two years retroactive to June 12, 2014, and he shall comply with all the provisions of Pa.R.D.E. 217.  