Liberi V Taitz - ECF 571 - 2012-10-10 - Sankey-Colen Declaration W PA D

Case 8:11-cv-00485-AG-AJW Document 571 Filed 10/10/12 Page 1 of 22 Page ID #:15096
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Attorney for Defendants Todd Sankey and The Sankey Firm, Inc.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION
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) ) Lisa Liberi, et al., ) ) ) Plaintiffs, ) ) vs. ) ) Orly Taitz, et al., ) ) Defendants ) ) __________________________ )
DECLARATION OF MARC S. COLEN
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LIBERI v. TAITZ Case No.: 8:11-cv-00485 AG page 1
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Case No.: 8:11-cv-00485 AG (AJWx) DECLARATION OF MARC S. COLEN
Date Action Filed: May 4, 2009 Hearing: October 15, 2012 Time of Hearing: 10:00 a.m. Courtroom: 10D
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Marc Steven Colen The Colen Law Firm 2 5737 Kanan Road, Ste. 347 Agoura Hills, CA 91301 3 Tele: 818.716.2891
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DECLARATION OF MARC S. COLEN I, Marc S. Colen, am over the age 18 and am the attorney for Defendants
5 stated herein, and if called to do, I could and would competently testify. I am
6 making this Declaration under the penalty of perjury of the Laws of the United
1. 2.
Attached hereto as Exhibit 1 is a copy of my letter proposing that Attached hereto as Exhibit 2 is a copy of the Pennsylvania
9 Mr. Berg prepare a draft Stipulated Protective Order. 10
11 Disciplinary Committees Report concerning some of Mr. Bergs offenses and
13
I declare under the penalty of perjury under the laws of the United States Executed on this 9th day of October 2012,
14 and California that the foregoing is true and correct. 15 16
20 21 22 23 24 25 26 27 28
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DECLARATION OF MARC S. COLEN
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17 /s/ 18 _____________________________ Marc S. Colen 19
Marc S. Colen
LIBERI v. TAITZ Case No.: 8:11-cv-00485 AG page 2
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12 violations of ethics rules.
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7 States pursuant to 28 U.S.C. 1746.
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4 Todd Sankey and The Sankey Firm, Inc. I have personal knowledge of the facts
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EXHIBIT 1
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EXHIBIT 2
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BEF'ORE THE DISCIPLINARY BOARD OF' THE SUPREME COURT OF PENNSYLVANIA
OFFICE OF' DISCPLINARY COUNSEL, Petitioner

v.
No.208 DB 2010
PHILIP J. BERG,
I.
SUMMARY OF THE CASE
In this matter, Petitioner, the Office of Disciplinary Counsel C'ODC)

Respondent Philip J. Berg, with multipie violations
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Respondent
Attorney Reg. No. 9867

(Montgomery County)
REPORT OF HEARING COMMITTEE
of the Rules of Professional Conduct in
coffrection with Respondent's representation of Ms. Diana McCracken in a federal civil rights suit, styled McCracken v. Lancaster City Bureau of Police, et al., No. 2:06-cv-04958. The rule
violations set forth by Petitioner, which will be enumerated below, specifically arise out of the
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of
Respondent's now admitted neglect and failure
to answer a motion to dismiss filed in
McCracken lawsuit and, further, failure to inform and advise Ms. McCracken not only of the
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filing of that Motion, but also of Respondent's failure to answer same and, further, that the
Motion was granted, thereby dismissing Ms. McCracken's claims altogether.
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charges the
the
FILED
JUL 3 1 2012
^ri..5
nf th3 secretary
;l:.H:T*'lt't'#l"J*':f*
It is important to note that Respondent initially proceed
ed.pro
se in defending against the
Petition and, after appearing at two disciplinary hearings on April 7,2017 and May 25,2011,
retained samuel
A third and final
hearing occurred on February 10, 2012 to allow the Respondent to
introduce mitigation evidence only. However, as of the February 10th hearing, the Respondent
had admitted to have violated all
ofthe Rules of Professional Conduct and Pennsylvania Rules of
Disciplinary Enforcement charged
by oDC, which are as follows: Rpc 1.1 involving
competence, RPC 1.2, involving scope
l.a@)Q), (3) and (a) and RPC 1.4(b), all of which involve timely and tully communicating with
a client, RPC 1.6 (d) involving prejudice to a client upon withdrawal, Rpc g.4(c) involving
misrepresentation to a client, and RPC 8.4(d) involving conduct contary to the administration
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20ll
of representation, Rpc 1.3, involving diligence, Rpc
justice.
il.
STATEMENTOT'THECASE
On October 18, 2010, Petitioner filed its Petition for Discipline against Respondent in
connection with the Respondent's representation of the Plaintiff tn the McCracken lawsuit as
described hereinabove.
conference was held on January 20,2011 before committee chair Steven B. Banett, Esquire.
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Two separate days of hearings followed on April 7fr and May 256, 2011, at which the filed several motions, all of which were
Respondent represented himself. The Respondent
eventually denied. After the May 25, Stretton, whose Motion
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on December 17,2010, this committee was appointed and a pre-hearing
hearing, Respondent retained Attomey Samuel C.
ie
to Re-Open the Trial Record for purposes of introducing mitigating
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of
c. stretton, Esquire,
as his attomey
during the balance ofthese proceedings.
evidence was granted with a final hearing taking place on February
|O,2OD.| In his Motion
to Re-Open the Trial Record, Respondent admitted to his misconduct and violating the Rules of
Professional Conduct set forth in the Petition for Discipline, specifically rules 1.1, 1.2(a), 1.3, 1.4@)Q), 1.4(a)(3), 1.4@)$), 1.4(b),
1.
1
6(d), 8.a(c), 8.a(d).
At the February 10,2012 hearing, Respondent submitted evidence of what he argued
mitigating factors and the Petitioner submitted evidence of what ODC argued as aggravating
factors. On April 11, 2012, Petitioner filed a Supplemental Brief to the Hearing Committee,
seeking a five year suspension as discipline for Mr. Berg. On April 24,2012, the Respondent submitted his Brief to the Hearing Committee asking that the Committee recommend Mr. Berg be given a public censure or no more than a suspended sentence to be stayed in its entirety with
one year probation. As further discussed below, the Hearing Committee recommends that
Respondent be suspended from the practice of law for one year and one day.
III.
ABSTRACTOFEVIDENCE
During the tluee days of hearings, ODC offered a total of 38 exhibits, all which were admitted into evidence including Joint Stipulations. Respondent offered
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similarly were admitted into evidence.
IV.
F'INDINGS OF FACT
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1.
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On October 18, 2010, Petitioner filed its Petition for Discipline
Respondent Philip J. Berg.
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I It should be noted that the Respondent, in his motion for continuing the May 25, 201 I hearing, asserted that he had eontacted Mr. Stretton and that Mr. Stretton advised that he would only enter his appearance should the Respondent's Motion for Continuance be ganted. In Respondent's Motion to Re-open the Trial Record, as fited by Mr. Shetton, it was confirmed at paragmph 2 thereofthat tr/ft. Berg's representation to the Hearing Committee was accurate with respect to N4r. Stretton's unavailability to appeat atthe May 25,201 I hearing.
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as
exhibits which
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against
2. 3.
Respondent was personally served with a copy of the Petition, a Notice to Plead,
with Respondent filing an Answer to the Petition for Discipline on December 13, 2010.
against the Lancaster City Bureau
of Police for an alleged wauantless search and seizure that
had occurred at her home on or about Novernber 8, 2004 at approximateiy
Ms. McCracken also claimed to have been assaulted by one of the police officers during the wanantless search. 1N.7. 36-37, Stip.
4l
Ms. McCracken's husband hired an attorney to represent hirn in his criminal
matter and the attomey refened Ms. McCracken
llespondent spoke on the phone several times and also communicated via email. [N. T. 40-41]
5.
On November 8, 2006. Ms. McCracken met with Respondent in his offrce and
provided hard copies of the documents she had previously sent, via email. Ms. McCracken
reported to Respondent the events of the evening on which her house was raided. Respondent
told Ms. McCracken that he would need additional records from her regarding lrer
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to
Respondent.
52-5
4.
including medical records to support her alleged damages. Late that evening, as the statute of limitations
wa*s about
of
to expire. Respondent filed the Complaint in Fecleral Court ou behalf of

3,
Ms. McCracken. lN.T. 48-49,
II
B,
I 3 8, ODC-41.
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6.
On November 13,2006, Respondent sent a letter to Ms. McCracken and enclosed
a copy
of a contingent Fee Agreement for her to sigr and return to Respondent and a copy of the
Complaint. [N.7. 54-56, ODC-4, Stip.7).
7.
Ms. McCracken uever spoke to anyone in Respondent's office other than
Respondent. Ms. McCracken and Respondent communicated via email and teleph.one. Ms.
McCracken's enail address never changed.
['{'T. i&
4
I 17' 143]
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a.m.
In 2006, Respondent spoke with Diana McCracken regarding a possible lawsuit
Ms. McCracken and
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case,
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December 19- 2006, the rbliowing email excha,ge occr,.red be1\,een Ms.
McCracken and Respondent:
case
/MI 58-59, ODC-SJ; b.) Respondenr replied and asked if Ms. McCracken,s husbancl had been
hin to be released before
released from prison because Responclent was waiting for
serving the del-endalts in the case 1tr4 T. 60, ODC-|J;
Ms. McCracken ansrvered tlrat her husband had been released
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c.)
ODC-6J;uld
d.)
12131106?"
Respondent replied, ,,Can you get someone to serve the [s]umrnons before
[N.7. 61, ODC-6, Slip. 5l
9.
On December 22,2006, Respondent sent a letter to Ms. McCracken inquiring as

def'endants namecl
to whethel'her husband. Teny McCracken. could serve the
[N.r. 61-62, 0DC-7, Stip
10.
On or about January 16, 2007, tbe defendants filed a Joint Motion to Dismiss the
Complaint in its entirety under Rule 12(bX6) of the Federal Rules of Civil Procedure or i1 the altemative. asking for a more definitive statement under Rule
of
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tal.
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Respondent failed
to
answer
to the Joilt Motion to
Respondent failed to seek an extension of time in which to
file an answer to the .Ioint Motion to
ie
Disnriss. [N.7. 190-]91J Respondent did not fi1e a motion to rvithdrar.v as counsel tbr Ms.
McCraoken.
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[N.f.
191].
12.
On t.rr about Febnrary 16.2007, The Honorable Lawrence F. Stengel granted

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p[
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a.)
Ms. Mccracken ema ed Respondent and inquired into the status of the
in the lawsqit.
l\(e). [N.7. 1,95, ADC-8, Stip.
Dismiss. IODC-IOJ
defendants' Joint Motion to Disrriss, pursuaft to Local Rule of Civil procedue Respondent failed to file a respo,se to the Joinr Motion to Dismiss.
7.
1(c) because
foDc-lo, stip. I lJ.
Respondent's failure
to
state a valid claim under the Fourth Amendment rather than flre
Fouteenth Amendment. IODC-IOJ.
13'
1s01.
Neither Respondent, nor anyone associated with Respondent's office, ever
contacted Ms. Mccracken to advise her that the District court had dismissed her case. [N. T.
14.
Ms' Mccracken called Respondent on his cell phone and/or office phone on
J:uly 3,2007 , and
lantxy 22,2007,February 26,2007,
her case. Each time she either received a voice mail message and left a message or spoke to
Respondent and received a response, "I'11 get back to you.', fN.T. 65-69, 153, ODC-9, ODC-11,
oDC-151.
that she was moving at the end of June of 2007 and inquired into the status of her case. [N. T.
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73-74, ODC-I2I Ms. McCracken received a "read" receipt from Respondent via email. [NT. 74, oDC-131.
16.
updated home address, mailing address, current cell phone number and new home number. Ms.
Mccracken also requested that Respondent send her an email response letting her know
Respondent had received the email and asked him to provide a status of the case. [N.T. 77-79,
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15.
On May 3l,2007, Ms. McCracken sent an email to Respondent to notiff him
On June 15,2007, Ms. McCracken sent an email to Respondent and provided an
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July 3r,2oo7 to inquire into the status of
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Stengel stated additional reasons for granting the Joint Motion
to Disrniss, which included
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17
Ms. McCracken called Respondent on his cell phone on July 3, 2007 and July 31,
2007, to inquire into the status of her case. [N. T. 67-69, ODC-I5] Respondent failed to return Ms. McCracken's calls. [N.T. 93].
18.
On September 27,2007, Ms. McCracken sent Respondent an email inquiring
into the status of her case. [Nf.T. 80, ODC-16] Ms. McCracken received a read receipt from
Respondent via email. [N.T 81,
ODC-I7] Respondent never answered Ms. McCracken.
19.
On June 19,2008, Ms. McCracken sent Respondent an email seeking advice
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regarding a township tree that had fallen on her vehicles during a storm in June
McCracken asked if there was " [a]ny chance we can get our case with Lancaster over and done
with
so we can have some money?" Ms. McCracken requested that Respondent call her.
84, ODC-I8, Stip. 121 On the date Ms. McCracken emailed Respondent about the tree accident,
Respondent was her attorney INT 82, 87,150, 151].
20. 21.
On June 20, 2008, Respondent sent Ms. McCracken a reply email that "[he was
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tree accident. Although aaswering her inquiry about the fallen tree, Respondent failed to provide
Ms. McCracken with information or a status on her civil rights action. [N.T. 85-86, ODC-19]
Further, Ms. McCracken never received a response from her emails to Respondent requesting a
status update on her case. [N.T. 86] As of June, 2008, Ms. McCracken believed that her case
was open and that Respondent was working on it. [N. T. 86].
22.
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look into it [and he would] get back to [Ms. McCracken]." [N.T. 84, ODC-18, Stip. 13].
On June 20,2008, Respondent sent Ms. McCracken an email in response to the
On February 9,2009, Ms. McCracken, while conducting a search of her name
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2008. Ms.
INT 81-
ODC-14]. Ms. McCracken's email address has never changed. [N.T. 79].
about February 15,2007 , due to Respondent's failure to file an answer to the defendants' Joint Motion
to Dismiss. [N.T. 87-89, ODC-IO] Ms. McCracken called Respondent on his cell phone and office
phone four times. [N.T. 69-73,90, ODC-22] During one of those phone calls, Ms. McCracken spoke
with Respondent, who advised Ms. McCracken that "he would check into it and get back to [her] within
a day or
two." Respondent never called back. [N.T. 101].
23.
On February 9,2009, Ms. McCracken sent an email to two of Respondent's
email addresses advising Respondent ofher discovery and demanded to know what Respondent did and asked for an explanation. INT 91-93, ODC-20, ODC-21].
24.
On February 18,2009, Ms. McCracken sent Respondent an email to both of his advised
email addresses, philjberg@gmail.com and philjberg@obamacrimes.com, and
Respondent that she was going to contact the Pennsylvania Disciplinary Board. [N.T 96-97,
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full. [N.T. 97-98, ODC-24).
ODC-231Ms. McCracken attempted to receive a read receipt but was unable to because both
Respondent's mailboxes were
McCracken an email and advised Ms. McCracken that Respondent had been in a deposition and
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court and that Respondent had not been in the office. Ms. Liberi advised that she would pull Ms.
McCracken's file to review the matter and that she would respond to Ms. McCracken shortly. [ODC-25, Stip. 75] Ms. Liberi claimed to recail sending a letter to Ms. McCracken regarding her
case; however,
also claimed to remember the defense threatening to seek sanctions, including their costs and attomey fees, from Ms, McCracken and Respondent. However Ms, McCracken had never been
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25.
On February 18,2009, Lisa Liberi, one ofRespondent's support staff, sent Ms.
Ms. McCracken never received any letter from Ms. Liberi. [N.T. 99] Ms. Liberi
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online, came upon a court website and leamed for the first time that her case had been dismissed on or
Hanna and David Karamessinis, never spoke with Respondent or anyone in Respondent,s oflice about seeking attomey's fees or costs. fN.T. 233, V.T.D. 111.
26.
Ms. Mccracken never received a response from Respondent to her February 1g,
2009 emails. E{. T. 991 on February 19,2009, Ms. Mccracken sent ar email to Lisa Liberi, in
which she thanked her for responding to Ms. Mccracken's email to Respondent. [N.T. 99-100,
ODC-26, Stip.
161.
27.
On February 19,2009, Ms. Liberi sent an email to Ms. McCracken and informed
her that Respondent was out sick, had been in court and depositions and that she would give Ms. McCracken the answers that she was seeking regarding the case. [N.T. 102, ODC-271.
28. 29.
as
On February 20,2009, Ms. McCracken emailed Ms. Liberi and thanked her ,'for
trying to work this out." [N.T. 104, ODC-28, Stip. 17].
On March 3, 2009, Ms. McCracken sent a final email to Ms. Liberi and inquired
to whethff Ms. Liberi had leamed anything out about Ms. Mccracken's case. Ms. Mccracken
Monday. [N.T. 105, 106, ODC-29].
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30. 31.
years of age with a date of birth of
of
also informed Ms. Liberi that she would be contacting the Pennsylvania Discipiinary Board on
The Respondent, Philip Berg, at the time ofthe disciplinary hearing, was 67
The Respondent was admitted to practice law in 1971 and had been practicing
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1aw for approximately 40 years in the Commonwealth of Pennsylvania.
32.
The Respondent had been previously married and has two adult children.
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His adult son is a practicing lawyer in Califomia and his daughter is a pharmacist in Florida.
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April 13, 1944.
G\f.T. 46).
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(f{.T. 47)
told that by either Ms. Liberi or Respondent. Il.r.T.
991 Further, opposing counsel, Robert G.
33.
Respondent received a Bachelor of Science in Market Management in 1966
from Temple University. The Respondent then graduated from University ofToledo School of Law in Ohio in 1970 and received his J.D. (N.T. 50).
34.
After the Respondent graduated from law school, he then worked for the
Attorney Generai's Office ofPennsylvania and was in charge ofcollections for Southeastem Permsylvania. He was initially an assistant attomey general and then promoted to a deputy attomey general. He left that position in 1980. (N.T. 53, 54).
35.
The Respondent then began his own practice of law in 1980 and has continued to
practice law through the time ofthe disciplinary hearing. The Respondent's law practice has been essentially a general practice of law. At one point, he emphasized personal injury cases. (N.T. se).
36.
The Respondent was very active with the Democratic Party of Montgomery
County. He was elected Chairman of the Montgomely County Democratic Party from 1978 to
1980. (Nr.T. 64,65).
37.
and then
In the 1990s, the Respondent ran for Govemor against Bob Casey in the primary,
in 1994 ran for Lt. Govemor, and in 1998 again ran for Govemor. (N.T. 62, 63) The
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Respondent then ran for the United States Senate in 2000. (N.T. 64).
38.
The Respondent, from 1981 to 2072 as a fire police officer, has averaged 125 to 150 fires per year. His role at the fire scene is essentially that of directing traffic and insuring safety on the
of
The Respondent has worked as a volunteer fire policeman since 1981. (N.T. 65).
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highway around and about the fire scene. (N.T. 67, 68) The Respondent has reached tlte rank
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of
(N.T.48 and 49).
39.
Sherry Klein, who served as a fire police captain in the same unit as Mr. Berg,
confirmed that the Respondent underwent all ofthe appropriate training and put his life on the
line directing traffic. Q{.T. 32, 33, 34) She confirmed the Respondent has been one of the most
active fire police and is very consistent in his performance of his duty. (N.T. 35) She further
confirmed Mr. Berg's service is as an unpaid volunteer (N.T. 36,37), Nd that Mr. Berg,s
reputation among the fire company and fire police for truthfulness, honesty, and as a peaceful
and law abiding person was excellent. (N.T. 37).
40.
The Respondent was also very active with the Wellness Community in
Philadelphia for approximately 15 years. This is an organization for cancer patients. (N.T. 70, 71) The Respondent has also been an active member with the Whitemarsh Lion's Club and
also served on the Board of Directors of the Terry Lynn LokoffDaycare. (N.T. 72).
41. 42. 43.
The Respondent testified that he, in his law practice, handles a number ofpro
bono cases, which he estimates to be 20Yo to 25% ofthe his practice. (N.T. 75).
During the years 2004 throu gh 2009, &e Respondent had significant family
responsibilities. (NI.T.
of
).
The Respondent testified his brother became
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surgery and chemotherapy during the time between 2004-2008. The Respondent's brother
stayed with their mother, but the Respondent took care of him over the weekends and the Respondent was his primary support and caregiver. (N.T. 83) The Respondent, during that
time period, would take his brother back and forth to the University of Peffrsylvaria and/or Presbyterian Hospital for regular cancer treatment. (N.T. 83).
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cancer and had to have
lieutenant as a fire policeman. (\1.T. 67)
Perursylvania and the Respondent must regularly tend to certain ofhis mother's needs. (N.T. 84, 85).
45.
The Respondent testified that in hindsight he believes the time he spent helping
his brother and his mother did impact on his ability to properly handle his legal cases (N.T.
85), yet also admitted that his brother's passing in December of2008 was not an excuse
neglecting Ms. McCracken's case. (N.T. 91).
46. 47.
The Respondent ageed that he did not follow through on Ms. McCracken's
case and that he failed in his responsibilities in his representation
The Respondent accepted and admitted to all ofthe Rule ofProfessional
Conduct violations, as charged, which are Rules 1.1, 1.2, 1.3,1.4, 1.16(d), 8.a(d) aad 8.a(c). O{.T. 88, 89,90).
48.
The Respondent apologized to Discipiinary Counsel and the Hearing
Committee for his conduct during the first two hearings when he did not fully cooperate and
made frivolous arguments. OI.T. 99, 100).
49. V.
accepting responsibility. Q.,l.T. 101, 102).
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CONCLUSIONSOF'LAW
By his conduct as set forth above, as well as the admissions of Respondent,
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The Respondent admitted he was wrong at the first two hearings in not
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Respondent violated the following Rules
Professional Conduct and Rules
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Disciplinary Enforcement: a. RPC 1.1, which states, a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, ski1l, thoroughness and preparation reasonably necessary for the representation;
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for ofhis client. (N.T. 87, 88).
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44.
The Respondent's mother is 94 years ofage. Respondent's sisters do not live rn
b.
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RPC 1.3, which states, a lawyer shall act with reasonabie diligence
promptness in representing a client;
RPC 1.a(a)(2), which states, a lawyer shall reasonably consult with the client about the means by which the client's objectives are to be accomplished;
RPC 1.a(a)(3), which states, a lawyer shall keep the client reasonably
informed about the status of the matter:
e. RPC
1 .4(b), which states, a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions
regarding the represenLationl
RPC 1.16(d), which states, that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refrurding any advance payment of fee or expense that has not been eamed or incurred;
RPC 8.a(c), which states, it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation; and
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DISCUSSION
of
RPC 8.4(d), which states, it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration ofjustice.
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f.
RPC 1.4@)@), which states, a lawyer shall promptly comply with reasonable requests for information;
The primary purpose
Pennsylvania's lawyer disciplinary system is
public. Office of Disciplinary Counsel v. Wliam
537 Pa. 45, 644 A.2d 1186 (1994).
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Petitioner has the burden of proving, a preponderaace of the evidence that Respondent's action constitute professional misconduct. This burden must be established by clear and satisfactory
evidence. Office of Disciplinary Counsel v. Surrick, 561 Pa. 167,749 A.2d 441(2000); OfJice
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and
to protect the
m
of
RPC 1.2(a), which states, in pertinent part, a lawyer shall abide by a client's decisions conceming tle objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pusued;
Disciplinary Counsel v. Grigsby, III, 493 Pa. 194, 425 A.2d. 730 (i9S1).
Petitioner contends that Respondent violated rules 1.1, 1.2(a), 1.3, 1.a@)e), 1.a(a)(3),
at first challenging the Petition, Respondent ultimately admitted to violating these rules
much,
if
not all, of the factual predicate of the Petition. This Committee finds that
allegations established violations
of the preceding Rules of
Notwithstanding that the Respondent chose to take on Ms. McCracken's case at the literal "11th
Hour," and in fact filed the lawsuit on her behalf, such actions and representation attached an
obligation to the Respondent to discharge his duty to his client, which Respondent failed to do in appropriately monitoring his file, discharging and completing necessary services in a timely and
responsible manner, and properly advising his client on the status of the matter and his efforts. Indeed, his conduct made the outcome of the case a certainty with the court's dismissal of the
action.' Further, it is
.)_
abundantly clear that the Respondent neglected
inquires made by his client over an extended period of time.
Therefore, the sole issue left for the Committee is to consider the degree of discipline
warranted by Respondent's misconduct. The appropriateness ofa disciplinary sanctions based on
the nature and gravity of the misconduct and the aggravating and mitigating factors. In Re:
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Anonymous No. 85 DB 19gi (44 Pa. D. &. C.
of
In
considering the appropriate discipline, the fact that Respondent has three prior
incidents of disciplinary action is clearly an aggravating factor. Respondent's conduct in the case as cited in the Petition demonstrates neglect, failure to communicate with his client, and lack
2
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4th
299, 1,999).
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The Committee notes that given the Hearing testimony of the lawyers involve d with the McCracker lawsuit, there a reasonable basis to conclude that Ms. McCracken's case may very well not have been successful notwithstanding Respondent's failings. This is not to suggest thal Respondent's neglect is in any way excusable.
is
1.4
ow .c o
and those
1.4(a\ ), 1.4(b), 1.16(d),8.4(c),8.4(c),8.4(d), of the Rules of Professional Conducr. Although
Professional Conduct.
to respond to direct
m
of
persistence is to a cefiain extent consistent with prior incidents and evidences and ongoing pattem of negligence and lack of concern. Under these circumstances a more severe discipline
must be recommended.
In Office of Disciplinary Counsel v. Bernard Turner, 52 DB 1979 and 1 16 DB 1992, and
30 DB 1993, 24 Pa. D.
& C. 4th 447 (1994) involved
what the Board characterized as an
extensive pattern of misconduct during a period in excess
of five and one-half (5 %) yeats'
involving eleven (11) cases in which Turner was eitler appointed or retained to represent clients
and consistently failed to protect their interest. The Board recommended that Tumer receive a
two (2) year suspension, with which the Supreme Coutl concurred. Id. At 469-470, 473. In Office of Disciplinary Counsel v. Amy B. Burd, 132 DN 2003, Burd was found to have
engaged
in continued client neglect in two (2) instances that were strikingly similar in nature.
She failed to file briefs, failed essentially to take action in the matter at hand, and failed to communicate with her client. She also failed to disclose to the Court her inactive status for failure to pay her arurual assessment and she represented the Commonwealth in ajury trial on the
day after her inactive status was effective. The Board recommended that Burd teceive
suspension one (1) year and one (1) day and the Supreme Court concurred'
Th eF og b
15
In O/fice of Disciplinary Counsel v. Darrell Lee Cadunce,2 DB 2004, Cadunce was
Fr
ie
nd s
found to have committed numerous improper acts in the representation of his client. Among
other things, he never converted a praecipe filed on behalf of his client into a formal complaint,
he failed to properly obtain a fee agreement, he failed to properly and effectively communicate
with his client, he ignored telephone calls and letters, he never properly accounted for the costs
advanced by his client, and he did not tetum unearned funds until compelled to do so by the
disciplinary process. Coupled with a history of prior discipline involving similar activities, the
of
ow .c o
a
Board recommended that cadunce receive a suspension of one (1) year and one (1) day, with which the Supreme Court concurred.
have violated numerous Rules of Professional Conduct arising out of his handling of three (3) separate matters. The record demonstrated that he engaged
incompetence over the course of several years. He failed to properly obtain a fee agreement, he
failed to follow through with necessary legal services, and he misled his clients about the status
cases. Bases
on his serial neglect and misrepresentation of clients, the
Th eF og b
to
1,6
of their
recommended that Artist be suspended of period

Supreme Court concurred.
of one (1) year and one (1) day, and the
As to mitigating factors, it is clear that the Respondent has served his commgnity both in
chadtable endeavors and as a first responder. The uncontroverted evidence with respect to his
work as a first responder is substantial. Additionally, being the family member primarily
responsible for Respondent's elderly mother and now deceased brother does not go unnoticed by
the Hearing committee, particularly given the fact that the Respondent undertook
McCracken's case at the end of his brother's battle with canoer.
VII.
RECOMMENDEDDISPOSITION
nd s
The Committee has taken into account that the primary function of
of
disciplinary system is to maintain the integrity of the legal system. The aggravating factors
introduced by Petitioner, parlicularly the mamer in which the Respondent litigated the Petition
se, weighs heavily on the coilective mind of the Committee. As stated, this is tempered by
Fr
ie
pro
the mitigating factors offered by the Respondent. In view of these considerations, the Hearing
Committee unanimously recommends that Respondent be subjected
ow .c o
in a pattern of
neglect and
Board Ms.
the
rn office of Disciplinary Counsel v. sterling Artist, 153 DB 2005, Artist was found to
suspension by the
Srrprcmc CloUrt
lbr
a pcriod
ofonc year nnd one dny.
Durc,
I i"
Fr
ie
nd s
of
Th eF og b
ow .c o
oaw,-!20.f)tzt-

Liberi V Taitz - ECF 571 - 2012-10-10 - Sankey-Colen Declaration W PA D

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Case 8:11-cv-00485-AG-AJW Document 571 Filed 10/10/12 Page 1 of 22 Page ID #:15096

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

DECLARATION OF MARC S. COLEN

LIBERI v. TAITZ Case No.: 8:11-cv-00485 AG page 1

Case No.: 8:11-cv-00485 AG (AJWx) DECLARATION OF MARC S. COLEN

Case 8:11-cv-00485-AG-AJW Document 571 Filed 10/10/12 Page 2 of 22 Page ID #:15097

9 Mr. Berg prepare a draft Stipulated Protective Order. 10

11 Disciplinary Committees Report concerning some of Mr. Bergs offenses and

14 and California that the foregoing is true and correct. 15 16

DECLARATION OF MARC S. COLEN

17 /s/ 18 _____________________________ Marc S. Colen 19

LIBERI v. TAITZ Case No.: 8:11-cv-00485 AG page 2

12 violations of ethics rules.

7 States pursuant to 28 U.S.C. 1746.

Case 8:11-cv-00485-AG-AJW Document 571 Filed 10/10/12 Page 3 of 22 Page ID #:15098

Case 8:11-cv-00485-AG-AJW Document 571 Filed 10/10/12 Page 4 of 22 Page ID #:15099

Case 8:11-cv-00485-AG-AJW Document 571 Filed 10/10/12 Page 5 of 22 Page ID #:15100

Case 8:11-cv-00485-AG-AJW Document 571 Filed 10/10/12 Page 6 of 22 Page ID #:15101

BEF'ORE THE DISCIPLINARY BOARD OF' THE SUPREME COURT OF PENNSYLVANIA

OFFICE OF' DISCPLINARY COUNSEL, Petitioner

SUMMARY OF THE CASE

In this matter, Petitioner, the Office of Disciplinary Counsel C'ODC)

Attorney Reg. No. 9867

REPORT OF HEARING COMMITTEE

of the Rules of Professional Conduct in

Respondent's now admitted neglect and failure

to answer a motion to dismiss filed in

Case 8:11-cv-00485-AG-AJW Document 571 Filed 10/10/12 Page 7 of 22 Page ID #:15102

It is important to note that Respondent initially proceed

se in defending against the

A third and final

hearing occurred on February 10, 2012 to allow the Respondent to

ofthe Rules of Professional Conduct and Pennsylvania Rules of

Disciplinary Enforcement charged

by oDC, which are as follows: Rpc 1.1 involving

competence, RPC 1.2, involving scope

of representation, Rpc 1.3, involving diligence, Rpc

Respondent represented himself. The Respondent

eventually denied. After the May 25, Stretton, whose Motion

on December 17,2010, this committee was appointed and a pre-hearing

hearing, Respondent retained Attomey Samuel C.

to Re-Open the Trial Record for purposes of introducing mitigating

during the balance ofthese proceedings.

Case 8:11-cv-00485-AG-AJW Document 571 Filed 10/10/12 Page 8 of 22 Page ID #:15103

evidence was granted with a final hearing taking place on February

|O,2OD.| In his Motion

6(d), 8.a(c), 8.a(d).

At the February 10,2012 hearing, Respondent submitted evidence of what he argued

similarly were admitted into evidence.

On October 18, 2010, Petitioner filed its Petition for Discipline

Respondent Philip J. Berg.

Case 8:11-cv-00485-AG-AJW Document 571 Filed 10/10/12 Page 9 of 22 Page ID #:15104

against the Lancaster City Bureau

of Police for an alleged wauantless search and seizure that

had occurred at her home on or about Novernber 8, 2004 at approximateiy

Ms. McCracken's husband hired an attorney to represent hirn in his criminal

matter and the attomey refened Ms. McCracken

to expire. Respondent filed the Complaint in Fecleral Court ou behalf of

Ms. McCracken. lN.T. 48-49,

On November 13,2006, Respondent sent a letter to Ms. McCracken and enclosed

Complaint. [N.7. 54-56, ODC-4, Stip.7).

Ms. McCracken uever spoke to anyone in Respondent's office other than

In 2006, Respondent spoke with Diana McCracken regarding a possible lawsuit