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The Disciplinary Board of the Supreme Court of Pennsylvania

Attorney News – February 2013

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 Goes Global

Just when you were coming to terms with multistate practice, the American Bar Association (ABA) is looking at new provisions for global law practice.

In February, the ABA House of Delegates considered three proposals to clarify the role of foreign lawyers in U.S. legal practice.

  • Resolution 107A would amend Rule 5.5(d) of the Model Rules of Professional Conduct to provide for qualified foreign lawyers to work as in-house counsel in the United States, in consultation with a U.S.-licensed lawyer.
  • Related Resolution 107B would require registration for foreign lawyers working as in-house counsel.

Rule 341 of the Pennsylvania Bar Admission Rules provides a procedure for foreign attorneys to gain limited admission to the practice of law in Pennsylvania as “foreign legal consultants.”

  • Resolution 107C would amend the ABA Model Rule on Pro Hac Vice Admission to provide that “A court or agency of this state may, in its discretion, admit a foreign lawyer in a particular proceeding pending before such court or agency to appear pro hac vice in a defined role as a lawyer, advisor or consultant . . .” The proposed rule allows the court or agency to deny the pro hac vice application. The tribunal is required, and vested with wide discretion, to limit the foreign lawyer’s role. It states that the court or agency may require the in-state lawyer to sign all pleadings and other documents submitted to the court or to other parties, to be present at all depositions and conferences among counsel, or to attend all proceedings before the court or agency.

At least fifteen states currently allow foreign lawyers to appear in their courts in limited roles. An advocate of the new proposal argues that the right of foreign lawyers to seek admission under the new proposal is much more limited than those of American lawyers appearing in states where they are not admitted.

Rule 301(a) of the Pennsylvania Bar Admission Rules allows lawyers admitted in a foreign jurisdiction to seek pro hac vice admission on the same basis as lawyers from other states.

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Bona Fide Again

In this month’s Getting Sorry We Even Mentioned It Department, we again visit New Jersey’s bona fide office requirement. After we reported on a New Jersey ethics opinion on the requirement of a bona fide office, then clarified it to specify that the office did not have to be in New Jersey, the Supreme Court of New Jersey pulled us back to the topic by issuing a new rule changing the requirement.

Under new Rule 1:21-1, an attorney practicing in New Jersey need not maintain a physical office at all:

An attorney need not maintain a fixed physical location, but must structure his or her practice in such a manner as to assure, as set forth in RPC 1.4, prompt and reliable communication with and accessibility by clients, other counsel, and judicial and administrative tribunals before which the attorney may practice . . .

The attorney does need to designate a physical location for certain purposes:

. . . provided that an attorney must designate one or more fixed physical locations where client files and the attorney’s business and financial records may be inspected on short notice by duly authorized regulatory authorities, where mail or hand-deliveries may be made and promptly received, and where process may be served on the attorney for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto.

So New Jersey now allows “virtual offices.”[1] And we are done with this issue. No, really.

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Social Media Security

It seems nearly impossible these days to attend a continuing legal education session that doesn’t include a social media presentation, but since we are all aTwitter©®[2] and Facebooked©® and LinkedIn©®, we never have too much advice. Nicole Hyland of Frankfurt Kurnit Klein & Selz PC in New York provides[3] a useful update at the Legal Ethics Forum. She identifies four cautionary measures every lawyer should keep in mind:

  • There is no impenetrable wall separating your personal social media use and your professional reputation;
  • The same rules apply to social media as to other marketing activities;
  • Social media can be a powerful discovery and investigatory tool; but with great power comes great responsibility;
  • You should be counseling your clients about their social media use.

Ms. Hyland has much more to say about each of these points. Our summary is intended to whet your interest in reading her article,[4] not to shortcut the process.

In another social media story, Andrew Perlman, also at the Legal Ethics Forum, raises the issue of whether endorsements on LinkedIn, a growing phenomenon in business networking, pose ethical issues. He asks whether the acceptance of an endorsement from a colleague involves questions of communications about legal services and advertising under Rules 7.1 and 7.2 of the Rules of Professional Conduct. A vigorous discussion ensues in the comments to the article.

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Supreme Court Extends Interest on Lawyers Trust Accounts (IOLTA) Fund Support

By order dated February 12, 2013, the Supreme Court of Pennsylvania extended for one registration year the allocation formula it adopted in 2012, shifting $5 each from the attorney assessments payable to the disciplinary system and the Pennsylvania Lawyers Fund for Client Security to the Pennsylvania IOLTA Board, to assist the latter in dealing with shortfalls caused by low interest rates. The total assessment paid by each active lawyer will be unaffected, remaining at $200. So if no news is good news, that’s good news.

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Thinking Outside the Box: Our Monthly Registration Nag

The Disciplinary Board's Attorney Registration Office has a new post office box number effective May 1. Our new address will appear on the website and all communications, but if you have the Hazelton address saved somewhere, be sure to change it. The new address is:

Attorney Registration
P.O. Box 3313
Lancaster, PA 17604

Also, as we are ever prone to remind you, registration forms will be mailed on May 15. Failure to receive the annual fee form by mail or electronically shall not excuse payment of the fee. The new Lancaster box should be used for all forms and check processing.

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Minnesota: No Billing While Cooing

This month’s most remarkable disciplinary case comes from Minnesota, where the Supreme Court of that state indefinitely suspended lawyer Thomas P. Lowe for “engaging in a sexual relationship with a vulnerable client and billing the client for meetings in which they engaged in sexual relations.” According to reports, Lowe coded his time spent in frolic with the client as “meetings” or “drafting memos.” [5]

The Minnesota Supreme Court found that Lowe’s conduct violated Minnesota Rules of Professional Conduct 1.7 and 1.8, which deal with conflicts of interest, and also Rule 1.5, dealing with fees. Minnesota has adopted ABA Model Rule 1.8(j), which provides that “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” This rule has been adopted by many states, including Pennsylvania, which incorporated it as Rule 1.8(j) of the Pennsylvania Rules of Professional Conduct. Some states have not adopted the specific prohibition, but almost all view such conduct as a conflict of interest, particularly where emotionally vulnerable clients are involved, as is often the case in domestic situations.

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Let Us Know

Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.

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[1] And that’s virtually official.

[2] Even the Pennsylvania Supreme Court is on Twitter now.

[3] It being the Internet and all, she also provides a picture of her cat, who is very cute.

[4] We hope we are not all whet in doing so.

[5] This is where you might expect us to insert some snarky comment. This is not, however, a humorous story. After Lowe broke off the affair, for the purposes of saving his marriage, the client attempted suicide. The truth about the affair came out while she was hospitalized after the attempt. This serves as a stark reminder that lawyer misconduct can have devastating effects on the people it affects.

This informative newsletter is being sent to you as a courtesy by The Disciplinary Board of the Supreme Court of Pennsylvania, www.padb.us. To subscribe, please send an email to subscribe@padisciplinaryboard.org. To unsubscribe, please send an email to unsubscribe@padisciplinaryboard.org. All comments and questions can be sent to us via email to comments@padisciplinaryboard.org. If you wish to contact us by other means, please address correspondence to: The Disciplinary Board of the Supreme Court of Pennsylvania, PA Judicial Center, 601 Commonwealth Ave., Suite 5600, P.O. Box 62625, Harrisburg, PA 17106-2625. (717) 231-3380.

© 2013 The Disciplinary Board of the Supreme Court of Pennsylvania.