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Attorney News – September 2012
Articles & Updates
Things to Remember
This newsletter is intended to inform and educate members of the legal profession regarding activities and initiatives of the Disciplinary Board of the Supreme Court of Pennsylvania. To ensure you receive each newsletter and announcement from the Disciplinary Board of the Supreme Court of PA, please add us to your "safe recipients" list in your email system.
ABA 20/20 Committee Proposes Rule Changes on Foreign Lawyer Admission
Last month we reported that the American Bar Association House of Delegates approved a series of changes to the Rules of Professional Conduct proposed by the ABA’s Committee on Ethics 20/20.
As one of its few remaining projects, the 20/20 Committee has published a set of proposed rule changes relating to the limited admission of foreign lawyers for specified purposes.
One proposal would amend Rule 5.5, Unauthorized and Multijurisdictional Practice of Law, to allow a lawyer in good standing in a foreign country to provide legal services in connection with the law of that country, in consultation with a U.S. lawyer authorized to practice in that area. This limited authorization would not apply if the issue in question is one of international law. Rule 5.5 of the Pennsylvania Rules of Professional Conduct currently allows for a foreign lawyer to provide temporary legal services under some circumstances.
A second proposal would amend the ABA’s Model Rule for Registration of In-House Counsel to allow a foreign lawyer who is employed by an organization and who maintains a continuous presence in the licensing jurisdiction to serve as in-house counsel providing advice on the law of the jurisdiction where he or she is admitted, in consultation with a locally admitted attorney. Services of in-house counsel are currently covered by Rule 302 of the Pennsylvania Bar Admission Rules, which does not provide for admission of foreign lawyers.
The third proposal addresses admission of foreign attorneys on a pro hac vice basis. The proposal provides that a court or agency of a state “may, in its discretion, admit a foreign lawyer in a particular proceeding pending before such court or agency to appear pro hac vice as co-counsel with an in-state lawyer, or in an advisory or consultative role, in that proceeding.” Such appearances would always require the involvement of local counsel, who would bear primary responsibility for the conduct of the litigation. The proposal sets forth a long list of criteria the court or agency may consider, including the foreign lawyer’s expertise on foreign, international, and U.S. law, and English language ability. Rule 301 of the Pennsylvania Bar Admission Rules, which governs pro hac vice appearance in Pennsylvania courts, already allows the admission of foreign attorneys.
None of the ABA proposals would take effect here unless incorporated into the Pennsylvania rules by order of the Supreme Court of Pennsylvania.
Sixth Circuit: Attorney’s Criticism of Commission Not Unethical
The United States Court of Appeals for the Sixth Circuit handed down a decision with a considerable impact on the issue of whether a disciplinary agency may discipline a lawyer for public speech.
The case of Berry v. Schmitt arose when Kentucky lawyer John M. Berry, Jr., published a letter critical of the Kentucky Legislative Ethics Commission for its handling of an inquiry into alleged fund-raising improprieties by the state senate president. After the Commission closed the inquiry, Berry wrote that the Commission’s procedures could cause the public to think that the “deck was stacked.”
The Commission filed a complaint with the Kentucky Bar Association Inquiry Commission, which dismissed the complaint but issued a letter warning Berry that his conduct violated Kentucky Rule of Professional Conduct 8.2(a), which forbids a lawyer to “make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer,” and advising him to refrain from similar conduct in the future.
Berry filed a suit seeking an injunction against enforcement of the warning as applied to future statements. After his case was dismissed at the trial level, Berry appealed. Berry urged the Court of Appeals to apply the test of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), under which his speech could be sanctioned only if it was knowingly false or made with reckless disregard of its falsity. The Court of Appeals, however, looked to a standard set forth in United States District Court v. Sandlin, 12 F.3d 861, 867 (9th Cir.1993): a court should “determine what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.”
The Court concluded that everything in Berry’s letter was either admitted to be true or protected expression of opinion. The Court therefore concluded there was no basis for the bar to sanction Berry for “similar conduct” in the future. The Court took no position on the constitutionality of sanctioning a lawyer for speech that was false, involved profanity or threats directed against the courts, or other examples of a lawyer’s unmitigated expression of disrespect for the law, even outside the courtroom.
In addition, the Court ordered the Bar to pay attorney fees in the amount of $191,588 to Berry’s counsel, the American Civil Liberties Union.
Discipline: Not Even Close
This month’s featured disciplinary case is that of Donald Litman. This case explores issues of frivolous claims and unjustified arguments.
Litman became involved in a company which was trying to operate a landfill it had acquired in a bankruptcy sale, using a non-transferable solid waste permit held by a bankrupt company. He filed an appeal to the Environmental Hearing Board (EHB), then attempted to remove it to the United States District Court.
In a highly critical opinion, Chief Judge Yvette Kane rejected all of Litman’s arguments, finding that “reasonable inquiry” would have revealed the lack of evidentiary support for his factual claims, and that his legal theories were faulty as well. Judge Kane found 12 different violations of Rule 11 of the Federal Rules of Civil Procedure, imposed monetary sanctions on Litman, and remanded the matter back to the EHB.
On remand before the EHB, Litman reasserted the same claims Judge Kane rejected, arguing that since her opinion was unpublished it was not binding, citing a statute which applied only to state cases and contained a law of the case exception. Subsequently, the matter was settled.
The Disciplinary Board was troubled by the fact that Respondent was unable to recognize the error in his arguments even at the disciplinary hearing, and raised for the first time an assertion that another attorney had altered his pleadings.
The Board examined several cases involving false claims in pleadings and the advancement of frivolous arguments, and concluded that the appropriate discipline as indicated in these cases was public censure before the Supreme Court. The Supreme Court accepted the Board’s recommendation, and imposed public censure on Litman.
Deputy Chief Counsel Burgoyne Elected to National Association Office
Paul J. Burgoyne, Deputy Chief Counsel of the Office of Disciplinary Counsel, has been elected to serve as Secretary of the National Organization of Bar Counsel (NOBC). Burgoyne previously served as a director from 2008-2012.
The NOBC is a non-profit organization of legal professionals whose members enforce ethics rules that regulate the professional conduct of lawyers who practice law in the United States, Canada and Australia.
“Throughout my terms on the NOBC Board of Directors, it has been an honor to serve many talented and devoted public servants,” said Burgoyne. “In my term as Secretary, I look forward to working alongside my dedicated NOBC colleagues to continue to improve communication among the jurisdictions in this era of increasing lawyer mobility.”
For more than 30 years, Burgoyne has worked in the Office of Disciplinary Counsel (ODC) in Pennsylvania and has served as Deputy Chief Disciplinary Counsel since 1993.
Graphic Representation: Lawyer Turns Cartoonist to Argue Case
New York lawyer Bob Kohn sought to file an amicus brief in an antitrust case, challenging the government’s proposal to settle a claim against e-book publishers seeking to counter Amazon’s e-book pricing. Kohn submitted a 25-page brief, but U.S. District Judge Denise Cote directed him to limit his amicus brief to five pages. Frustrated, and relying on the adage that “a picture is worth a thousand words,” Kohn adopted a novel approach to his brief – or rather, a graphic novelette approach.
Kohn submitted as his brief a five-page, 45-panel cartoon, or “graphic novelette” as he describes it, depicting Kohn typing out his argument on a laptop computer and discussing the issues with his daughter, complete with footnotes and citations.
Kohn’s imaginative approach to briefing brevity elicited no reaction from the Court, but Judge Cote approved the settlement in an opinion issued the day after Kohn’s brief, contrary to the position he advocated.
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