Adventures in the Law

Man Bites Dog!

The tale that unfolded before the Disciplinary Board of the Pennsylvania Supreme Court is as unusual as the proverbial man-bites-dog story.

By Norm Tabler

It could be headlined Attorney Raids Personal Account for Clients’ Benefit!

Keith McWhirk was a partner in the Pennsylvania law firm Mandracchia & McWhirk LLC. In December 2015, while he was hospitalized for five days, associates in the firm undertook efforts to cover for him. In reviewing his files, they found evidence of bizarre and perhaps unethical activity. The firm terminated Keith.

In February 2016, three of the firm’s lawyers faxed a complaint to the Office of Disciplinary Counsel (ODC) of the Pennsylvania Supreme Court. Two days later Keith self-reported his misconduct, detailing 11 client matters.

Keith’s behavior in four of those matters was particularly noteworthy. In each case he had delivered funds from the firm to a client, stating that he had secured the funds through his representation of the client in the assigned matter. The amounts were far from insignificant: $10,000, $31,000, $69,500, and $424,000, respectively.

In fact, though, all the funds came from Keith’s own personal accounts. He had not pursued the clients’ cases as he said he had. The filings and orders he showed them were fabrications, and the judges’ signatures were forgeries.

The other seven matters were like those four, in that Keith had failed to pursue a matter, while falsely telling the client otherwise; but they didn’t involve payments by Keith.

Eight days after his self-report, Keith and the ODC filed a Joint Petition of Discipline with the Disciplinary Board of the Pennsylvania Supreme Court, including a joint petition for temporary suspension of Keith’s law license.

Four years later the Disciplinary Board and Keith issued a joint petition to the Pennsylvania Supreme Court. The report concluded that Keith had violated eight different Rules of Professional Conduct.

Seven of those Rules violations came as no surprise. Who would doubt that it was a violation to fail to (1) provide competent representation, (2) follow a client’s decisions, (3) act with diligence, (4) keep the client informed, (5) provide information to enable the client to make informed decisions, (6) refrain from false statements, and (7) refrain from dishonesty and deceit?

But the eighth Rule violation probably surprised some observers. It turns out that apart from Keith’s falsehoods, deceptions, and forgeries, the very fact that he used his own money to pay the clients was itself a violation of Rule 1.15(h), which states that a lawyer “shall not deposit the lawyer’s own funds in a trust account,” except to pay service charges on the account.

That means that by using his own money to square things with the clients whom he had neglected and deceived, Keith violated yet another Rule of Professional Conduct.

In July 2020, the Pennsylvania Supreme Court accepted the recommendation of a four-year suspension, beginning February 2016.

That’s not a typo. The court imposed a four-year suspension that ended five months before it began.

The moral? Just as a lawyer may not raid a client’s account for his own benefit, neither may he raid his own account for a client’s benefit.

The case is Office of Disciplinary Counsel v. McWhirk, Penn. Sup. Ct.

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Norm Tabler

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Norm Tabler is a retired lawyer in Indianapolis. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience and the ABA Health Law Section’s The Health Lawyerwrites a monthly column for the Indiana Bar Association’s Res Gestae and is host of the American Health Lawyers Association’s podcast, The Lighter Side of Health LawEmail Norm.