Opinion
No. 2216 Disciplinary Docket No. 3 No. 176 DB 2015
05-12-2017
OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. ALLAN CHRISTOPHER SMITH Respondent
Attorney Registration No. 204756 (Bucks County) ORDER PER CURIAM
AND NOW, this 12th day of May, 2017, upon consideration of the Recommendation of the Three-Member Panel of the Disciplinary Board, the Joint Petition in Support of Discipline is granted, and Allan Christopher Smith is suspended on consent from the Bar of this Commonwealth for a period of five years retroactive to October 27, 2015. He shall comply with all the provisions of Pa.R.D.E. 217. A True Copy Patricia Nicola
As Of 5/12/2017 Attest: /s/_________
Chief Clerk
Supreme Court of Pennsylvania
DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
Attorney Reg. No. 204756 JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT PURSUANT TO Pa.R.D.E. 215(d)
Petitioner, the Office of Disciplinary Counsel by Paul J. Killion, Chief Disciplinary Counsel, and Harold E. Ciampoli, Jr., Disciplinary Counsel, and Respondent, Allan Christopher Smith (hereinafter, "Respondent"), file this Joint Petition In Support of Discipline on Consent Pursuant to Pennsylvania Rule of Disciplinary Enforcement ("Pa.R.D.E.") 215(d), and respectfully represent:
1. Petitioner, whose principal office is situated at Pennsylvania Judicial Center, 601 Commonwealth Ave., Suite 2700, P.O. Box 62485, Harrisburg, PA 17106 is invested, pursuant to Pa.R.D.E. 207, 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 the aforesaid Enforcement Rules.
2. Respondent, Allan Christopher Smith, was born on April 4, 1968, and was admitted to practice law in the Commonwealth on March 14, 2007. His attorney registration number is 204756.
3. Respondent's public mailing address is 347 Stockham Avenue, Morrisville, PA 19067.
4. On October 15, 2015, Petitioner and Respondent filed with the Supreme Court of Pennsylvania a Joint Petition to Temporarily Suspend an Attorney.
5. By Order dated October 27, 2015, the Supreme Court granted the Joint Petition and placed Respondent on temporary suspension.
6. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.
SPECIFIC FACTUAL ALLEGATIONS ADMITTED
7. On April 15, 2015, agents from the Pennsylvania Office of Attorney General executed a search warrant at Respondent's home and discovered on his laptop computer at least three hundred videos and images of child pornography.
8. Respondent was incarcerated in the Bucks County Jail from April 16, 2015 through April 18, 2015, prior to posting bail.
9. On May 13, 2015, Respondent submitted to a Psycho-Sexual Evaluation by Jonathan Roberds, Psy.D. and Sarah Wodder, Psy.D.
10. On June 15, 2015, Drs. Roberds and Wodder issued a Report, which inter alia, stated their opinion "to a reasonable degree of psychological certainty, that Mr. Smith's use of child pornography for psychosexual gratification represents a serious symptom within his broader sexuality of a coping style that is likely to benefit from psychotherapy with a specialist in sexually problematic behavior." They further opined that "Mr. Smith represents a Low to Low-moderate Risk for sexually acting out with a child..."
11. On June 2, 2015, Respondent appeared before Magisterial District Judge Michael J. Burns and waived his preliminary hearing in connection with the pending charges against him.
12. On or about July 2, 2015, Respondent was formally arraigned in the Court of Common Pleas of Bucks County on three hundred counts of Sexual Abuse of Children-Possession of Child Pornography, 18 Pa.C.S.A. §6312(d), a felony of the third degree, and one count of Criminal Use of a Communication Facility, Sexual Abuse of Children-Possession of Child Pornography, 18 Pa.C.S.A. §7512(a), a felony of the third degree.
13. On August 17, 2015, Respondent entered a guilty plea before the Honorable Jeffrey L. Finley, in the matter captioned: Commonwealth v. Allan Christopher Smith, Docket No. CP-09-CR-0003664-2015, Court of Common Pleas of Bucks County.
14. Respondent pled guilty to one hundred fifty counts of Possession of Child Pornography.
15. Respondent's sentencing was deferred pending a Sexually Violent Predator Assessment to be completed by the Sexual Offenders Assessment Board.
16. The report of the Sexual Offenders Assessment Board indicated that Respondent does not qualify or meet the criteria to be classified as a sexually violent predator.
17. On December 18, 2015, Judge Finley sentenced Respondent on Count One of the Information to county probation for a term of five years and determined that Respondent should not be classified as a sexually violent predator. As conditions of probation, Respondent was required to engage in and successfully complete sexual offenders treatment; comply with the requirements of the sexual offender registration Tier 3 classification; pay the costs of supervision; and have no unsupervised contact with persons under the age of fourteen, other than his own child. No further penalty was imposed on the remaining counts that had not been nolle prossed. A Tier 3 offender is required to register for life with the Pennsylvania State Police and to verify registration information on a quarterly basis.
18. Respondent began individual outpatient therapeutic treatment for illegal sexual behaviors on July 2, 2015, and engaged in weekly, then twice-monthly, individual sessions with Elizabeth Palumbo, a Forensic Mental Health Specialist, until October 28, 2015. As part of his Sexual Offender Treatment Program, Respondent has attended group therapy from November 10, 2015 to the present.
19. In December 2016, the Pennsylvania State Police, sua sponte, reclassified Respondent's registration status to Tier 1, which requires only once a year registration and will terminate after fifteen years.
20. Respondent's conviction constitutes an independent basis for discipline, pursuant to Rule 203 (b)(1),Pa.R.D.E.
SPECIFIC RULE OF PROFESSIONAL CONDUCT AND
RULE OF DISCIPLINARY ENFORCEMENT VIOLATED
Respondent violated the following Rules of Professional Conduct and Disciplinary Enforcement:
RPC 8.4(b), which states that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; and
Pa.R.D.E. 203(b)(1), which states that conviction of a crime is a ground for discipline.
SPECIFIC RECOMMENDATION FOR DISCIPLINE
21. Petitioner and Respondent jointly recommend that the appropriate discipline for Respondent's admitted misconduct is a five-year suspension retroactive to the date Respondent was placed on temporary suspension.
22. Respondent hereby consents to that discipline being imposed upon him by the Supreme Court of Pennsylvania. Attached to this Petition and marked Exhibit "A" is Respondent's executed Affidavit required by Rule Pa.R.D.E. 215(d), stating that he consents to the recommended discipline and including the mandatory acknowledgements contained in Rule 215(d)(1) through (4), Pa.R.D.E.
23. In support of Petitioner and Respondent's joint recommendation, it is respectfully submitted that the following mitigating circumstances are present:
a) Respondent showed remorse and acceptance of responsibility by waiving his preliminary hearing and by pleading guilty to his crimes;
b) Respondent immediately and voluntarily went into therapy after his arrest at great expense to himself despite losing his job and being in the process of declaring bankruptcy;
c) Respondent's initial evaluation by Dr. Roberds and Dr. Wodder indicate he represents a low to low-moderate risk for sexually acting out with a child;
d) Respondent has positively responded to his therapy with his current therapist, Dr. Elizabeth Palumbo. Dr. Palumbo has submitted a letter which states, inter alia: "[Respondent] has made significant progress gaining insight into the factors that led him to behave in an illegal sexual manner, and he has made the necessary changes in his life in order to keep himself, and the community, safe. Of note, Mr. Smith has taken an active role in his recovery and seems motivated to be a productive member of his community, and a good role model for his child."
e) Respondent has admitted engaging in misconduct and violating the charged Rule of Professional Conduct and Rule of Disciplinary Enforcement;
f) Respondent requested and agreed to be placed on temporary suspension as evidenced by his participation in the filing of a Joint Petition to Suspend;
g) Respondent is remorseful for his misconduct and understands he should be disciplined, as is evidenced by his cooperation with Petitioner and his consent to receiving a five-year suspension;
h) Respondent has no prior record of discipline;
i) Attached as Exhibit "B" are four letters submitted to Respondent's sentencing judge from members of Respondent's community attesting to his honesty, good character and remorse; and
j) Respondent has no prior criminal history.
24. A suspension of five years is appropriate in light of the specific facts of this case and has been imposed in three cases with similar fact patterns.
In Office of Disciplinary Counsel v. Robert Vincent Mitchell, 73 DB 2009 (2012), Mitchell downloaded and viewed on his office computer approximately six hundred images depicting child pornography. The FBI executed a search warrant on Respondent's computer and recovered the images Mitchell had deleted. Mitchell pled guilty to one count of possession of child pornography and was sentenced to thirty months in prison followed by eight years of supervised release. At his disciplinary hearing, Mitchell presented compelling evidence of his efforts to seek treatment for the underlying psychological problems that ultimately led him to pornography. Mitchell's psychologist opined that Mitchell had a good prognosis, a low risk of recidivism and a high probability of readjusting to society. Mitchell also submitted letters from numerous character witnesses. Relying on the five-year suspensions imposed in Office of Disciplinary Counsel v. Christie, 639 A.2d 782 (Pa. 1994) and Office of Disciplinary v. Andrew Malone, No. 131 DB 2004 (2006), the Disciplinary Board recommended that Mitchell be suspended for five years and that his suspension be prospective because of his lengthy term of supervised release. The Supreme Court suspended Mitchell for five years retroactive to the date of his temporary suspension.
In Christie, supra, Christie invited two male minors, ages twelve and fourteen, to his apartment on separate occasions during a ten-day period. Christie provided the minors with alcoholic beverages, showed them x-rated video tapes, and masturbated in their presence. He did not have any sexual contact with the youths. He ultimately pled guilty to thirteen misdemeanor sex counts of sexual harassment, indecent exposure, endangering the welfare of a child and unlawfully dealing with a child. He was sentenced to five years of supervised adult probation. At his disciplinary proceeding, Christie presented expert testimony establishing that he suffered from a psychological disorder known as non-exclusive or regressed homosexual pedophilia, which caused him to be sexually attracted to both minor and adult males. The Disciplinary Board recommended that Christie be suspended for a period of three years and forty-five days. The Supreme Court imposed a five-year suspension, yet still found the following mitigating factors: Christie's criminal conduct was induced by the psychiatric disorder, lack of any prior disciplinary or criminal record, cooperation with authorities, remorse, apology to his victims, continued participation in therapy, and low risk for recidivist behavior.
In Malone, supra, Malone was arrested as a result of a sting operation conducted by the Pennsylvania Attorney General's Office. An agent, posing as a mother of two girls aged seven and nine, made arrangements through the internet to meet Respondent ostensibly to engage in various sexual activities with the three females. Respondent appeared at the pre-arranged meeting location with Barbie dolls for the "children", a gift for the "mother", and sexual lubricant and condoms in his possession. Malone entered a plea of nolo contendere to the offense of criminal attempt to commit involuntary deviate sexual intercourse and was sentenced to twelve months less one day of imprisonment and a consecutive five-year term of probation. The Disciplinary Board found that Malone's psychologist's reports established Braun mitigation in that he suffered from Avoidant Personality Disorder, Sexual Addiction and Depression which were causally related to his misconduct. In recommending a five-year suspension, the Board also cited the mitigating factors of remorse and acceptance of responsibility, an unblemished record of practicing law for over thirty years, evidence of good character as attested to by longtime friends and colleagues and a positive record of community service. The Supreme Court concurred and suspended Malone for five years.
25. Petitioner and Respondent submit that a five-year suspension, retroactive to the date of temporary suspension, is the appropriate resolution based upon the specific facts of this case and an analysis of prior cases involving similar criminal misconduct.
WHEREFORE, Petitioner and Respondent respectfully request that, pursuant to Pennsylvania Rules of Disciplinary Enforcement 215(e) and 215(g), a three-member panel of the Disciplinary Board review and approve the Joint Petition in Support of Discipline on Consent and file a recommendation with the Supreme Court of Pennsylvania that Respondent receive a five-year suspension, retroactive to October 27, 2015, and that Respondent be ordered to pay all necessary expenses incurred in the investigation and prosecution of this matter.
Respectfully submitted,
OFFICE OF DISCIPLINARY COUNSEL
PAUL J. KILLION
Attorney Reg. No. 20955
Chief Disciplinary Counsel Date: 2/24/17
/s/_________
HAROLD E. CIAMPOLI, JR.
Disciplinary Counsel
Attorney Reg. No. 51159
820 Adams Avenue, Suite 170
Trooper, PA 19403
(610) 650-8210 Date: 2/22/17
/s/_________
ALLAN CHRISTOPHER SMITH
Respondent
VERIFICATION
The statements contained in the foregoing Joint Petition In Support of Discipline on Consent Pursuant to Pa.R.D.E. 215(d) are true and correct to the best of my knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. 2/24/17
Date
/s/_________
HAROLD E. CIAMPOLI, JR.
Disciplinary Counsel 2/22/17
Date
/s/_________
ALLAN CHRISTOPHER SMITH
Respondent
DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
Attorney Reg. No. 204756 CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing document upon all parties of record in this proceeding in accordance with the requirements of 204 Pa. Code §89.22 (relating to service by a participant).
First Class and Overnight Mail, as follows:
Allan Christopher SmithDated: 2/24/17
347 Stockham Avenue
Morrisville, PA 19067
/s/_________
HAROLD E. CIAMPOLI, JR.
Disciplinary Counsel
Attorney Reg. No. 51159
Office of Disciplinary Counsel
District II Office
Suite 170
820 Adams Avenue
Trooper, PA 19403
(610) 650-8210
Exhibit A
DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
Attorney Reg. No. 204756 AFFIDAVIT
UNDER RULE 215(d), Pa.R.D.E.
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF BUCKS:
ALLAN CHRISTOPHER SMITH, being duly sworn according to law, deposes and hereby submits this affidavit consenting to the recommendation of a five-year suspension retroactive to October 27, 2015, in conformity with Pa.R.D.E. 215(d) and further states as follows:
1. He is an attorney admitted in the Commonwealth of Pennsylvania, having been admitted to the bar on or about March 14, 2007.
2. He desires to submit a Joint Petition in Support of Discipline on Consent Pursuant to Pa.R.D.E. 215(d).
3. His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress, and he is fully aware of the implications of submitting this affidavit.
4. He is aware that there is presently pending a proceeding into allegations that he has been guilty of misconduct as set forth in the Joint Petition in Support of Discipline on Consent to which this affidavit is attached.
5. He acknowledges that the material facts set forth in the Joint Petition are true.
6. He submits the within affidavit because he knows that if charges predicated upon the matter under investigation were filed, or continued to be prosecuted in the pending proceeding, he could not successfully defend against them.
7. He acknowledges that he is fully aware of his right to consult and employ counsel to represent him in the instant proceeding. He has not retained, consulted and acted upon the advice of counsel in connection with his decision to execute the within Joint Petition.
It is understood that the statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904 (relating to unsworn falsification to authorities).
Signed this 22 day of February, 2017.
/s/_________
ALLAN CHRISTOPHER SMITH Sworn to and subscribed before me this 22 day of February, 2017. /s/_________
Notary Public
Exhibit B
Dear Judge, Kindly accept this letter in lieu of my appearance. Had an office conflict not arisen I'd be more than proud to attend this hearing to express my opinion of Allan. I am managing partner at the firm of Kasuri & Levy, LLC in Edison, NJ where we practice general litigation. We have recently hired Mr. Smith as an independent contractor to function as a senior paralegal and mentor to our junior attorney, who recently graduated law school. I know that Allan was arrested and pled guilty to possession of child pornography charges. I also know he has been in ongoing therapy for this soon after his arrest. With full knowledge of all this, I did not hesitate to contact him to join my firm as a legal professional. Although it has only been a month, he has proven himself invaluable to my practice. He has more than validated my belief in him as a work colleague and as a human being. It has been my honor to know, work with and respect Allan C. Smith for over 10 years. We worked together as attorneys in the creditors' rights field for 5 years from 2006 to 2011, when I was his direct supervisor. And now I sought him out to work with me again due to my belief in his strong work ethic and high moral character. I am a proud 27 year member of both the NJ and PA bar and have meet and developed relationships with many lawyers over that time. I am an attorney in good standing and pride myself in practicing law with honor and respect. I have found Allan be honest, professional, kind, considerate and compassionate. I consider myself lucky that Allan is not just someone I have and currently work with, but someone I am fortunate enough to call my friend. Allan is an exceptional human being who is a credit to the legal profession as well a credit to the human race. I believe myself and my life for the better for having met Allan and developed a long-term friendship with such a fine and exceptional human being. Sincerely, /s/
Harrison Ross Byck, Esq. PA Bar no. 61511
NJ Bar no. 026831988
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