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The Disciplinary Board of the Supreme Court of Pennsylvania

Attorney News – September 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. Please do not reply to this email. Send any comments or questions to comments@padisciplinaryboard.org.

Thanks a Million: Lawyers Fund Sets Some Limits

Our sister organization, the Pennsylvania Lawyers Fund for Client Security (PLFCS), has proposed a rule change that would set some limits on claims for reimbursement of losses due to the misconduct of attorneys.

In a proposed rule change published in the Pennsylvania Bulletin, the PLFCS stated its intention to adopt two new limitations on claims:

  • Business organizations with 20 or more employees will no longer be eligible to file claims.
  • A maximum of $1,000,000 in total claims per covered attorney would be imposed. However, the PLFCS Board would have authority to petition the Supreme Court for permission to exceed the $1,000,000 ceiling when it concludes the circumstances warrant an exception, and the financial health of the Fund permits.

The proposal was published at 43 Pa.B. 4967 on August 31, 2013. The comment period extended through September 23, 2013.

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Supreme Court Appoints Kelly to Disciplinary Board; Burgoyne Becomes Treasurer of National Organization of Bar Counsel

By order dated July 17, 2013, the Supreme Court of Pennsylvania appointed attorney Lawrence M. Kelly, a partner at Luxenberg, Garbett, Kelly & George, P.C. in New Castle, Lawrence County, to serve on the Disciplinary Board for a term expiring January 29, 2015.

Kelly earned his undergraduate degree from Slippery Rock University in 1975 and graduated cum laude with his Juris Doctorate from the University of Akron in 1983. He concentrates his practice in the areas of personal injury, medical malpractice, and worker’s compensation.

Board certified as a civil trial advocate by the National Board of Trial Advocacy since 1995, Kelly also has been recognized as a “Pennsylvania Super Lawyer” seven times.

Kelly served for six years as a Disciplinary Board Hearing Committee member and for six years as an alternate member in District IV. He currently serves on the Board of Governors and the Executive Committee of the Pennsylvania Association for Justice. He also is the vice president of the Western Pennsylvania Trial Lawyers Association and the president of Cray Youth and Family Services Inc.

In other Board news, Paul J. Burgoyne, Deputy Chief Disciplinary Counsel of the Office of Disciplinary Counsel, has been elected Treasurer of the National Organization of Bar Counsel (NOBC). He also will serve as the Vice-Chair of the Program Planning Committee. Previously, Burgoyne served as the Secretary of the NOBC from 2012-2013 and as a Director-at-Large 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.

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AVVOcacy: Lawyer Faces Charges for Response to Negative Review

An Illinois lawyer has been charged with professional misconduct for information disclosed in a response she posted to a sharply negative review on the lawyer review website AVVO.

Betty Tsamis represented the client in an employment security matter arising from his termination from employment as an airline flight attendant. After he lost the unemployment compensation case, the client posted a sharply negative review on AVVO, blaming Tsamis for taking his money when he had no hope of succeeding under the law. Tsamis posted a response, in which she discussed details of the client’s case that led to his loss. Both the review and response were later deleted and replaced with a more generic complaint and response.

The Administrator of the Attorney Registration and Disciplinary Commission of Illinois filed a complaint against Tsamis, alleging that in the response she posted, Tsamis revealed information learned in the representation in violation of the confidentiality requirements of Rule 1.6(a), used means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4, and committed conduct prejudicial to the administration of justice or which brings the legal profession into disrepute, in violation of Rule 8.4(d). Through her counsel, Tsamis has denied the charges and intends to defend the complaint.

Rule 1.6(b)(5) states that a lawyer may reveal confidential information to the extent necessary “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . or to respond to allegations in any proceeding concerning the lawyer’s representation of the client,” but this exception has not generally been interpreted to authorize the disclosure of confidential information in a public forum outside the context of proceedings. As it develops, the case may shed further light on the extent of that privilege.

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Former State Bar President Reprimanded for Conduct in Office

A former President of the Kentucky State Bar has been reprimanded for actions she took in her official capacity in that office.

Barbara Bonar served as President of the Kentucky Bar Association from July 2008 until July 2009. Prior to taking office, Bonar entered into an agreement with attorney Stan Chesley to pursue a series of sexual abuse lawsuits against the Roman Catholic Diocese of Covington. A falling out occurred between counsel, and Bonar withdrew from the case and filed a lawsuit for fees against Chesley’s firm. An ethics complaint was filed against Bonar, alleging that she had a conflict of interest due to ties with the Diocese and its counsel.

Shortly after Bonar took office as Bar President, she issued letters to four members of the Ethics Committee of the Bar, informing them that their terms had expired as of June 30, 2008. This was false, as the members’ terms expired in 2009 and 2010. Each of the four members who were dismissed had some ties to the Chesley firm. The Bar appointed a committee to investigate the dismissals, and Bonar made statements to the Bar’s investigator that were not true, claiming she had not been given information she had in fact received, that she had no way of knowing the members had been reappointed, and misrepresenting the content of conversations with staff.

The Bar filed disciplinary charges alleging that Bonar’s false statements violated SCR 3.130(8.3)(c), which forbids a Kentucky lawyer to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Eventually Bonar accepted a settlement and filed a motion seeking a public reprimand, which the Supreme Court of Kentucky imposed by Opinion and Order dated September 10, 2013. In the opinion, the Court noted that research indicated no precedent either in Kentucky or elsewhere where an attorney serving as a bar officer had been disciplined specifically for conduct committed in the course of those duties. One previous Bar President was disbarred after leaving office, but that was for conduct unrelated to his service.

In addition to the public reprimand, Bonar was ordered to pay $22,500 for costs of the proceeding.

As regular readers of this newsletter know, we have been nagging you for months about completing your registration on time.[1] Those who let this slide may take comfort in knowing that even ethics counsel sometimes fall remiss in this regard. This month it is reported that Robert Cohen, special counsel and director of ethics and lobbying for the New York Joint Commission on Public Ethics, continued to practice in that position after allowing his law license to lapse in 2012. All was reportedly forgiven after Cohen was informed of his status[2] and paid the back fees. Evidently New York is more tolerant of such lapses than some other jurisdictions, such as the one immediately to the south of the 42nd Parallel. Do not try this at home.

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Infringing Potties, Unreasonably Dangerous Lillies, Guitar Hero Underwear, and Blue Men: A Wild Month in Litigation

It’s been wild and wooly on the litigation front this month. The following are a few of the weird lawsuits that crossed our screens.

Two come out of Portland, Oregon.[3] The Portland Loo, a street toilet developed by the City of Portland, is such a successful design that the city has registered a trademark and markets the design to other cities. However, a Southern Oregon company, Romtec, offered for sale a competing product, the Sidewalk Restroom, at about half the price.[4] Portland has filed a lawsuit, alleging that the “strikingly similar” design of the Sidewalk Restroom infringes its trademark.[5] Portland seeks to have all existing Sidewalk Restrooms destroyed and all proceeds paid as damages.

Also in Portland, lawyer Charley Gee offered a romantic gesture to his wife – he bought her a tiger lily.[6] They didn’t think about their cat, Boogaloo, who chewed on the leaves. Within 24 hours, Gee and his wife had to rush Bogaloo to a veterinary hospital, where he spent four days and was placed on kidney dialysis. Although a label on the flower warned that it was not for human consumption, it did not mention that, like all lilies, it is highly toxic to cats. Gee has filed suit against the grocery store where he bought the flowers and its floral contractor, alleging that the lily is an ‘unreasonably dangerous” product.

For owners concerned about the safety of their furry friends, here is a (long) list of plants toxic for cats. Hint: plants dangerous to our feline friends include most of the plants associated with Easter – lilies, daffodils, tulips, hyacinths, azaleas[7] – and with Christmas, including poinsettia, holly, and mistletoe.

Not all our strange lawsuits come out of Oregon. From Altoona in our own commonwealth comes the story of the suit filed by James Weyant against the Altoona Police Department and an officer who shot and wounded Weyant in a 4 a.m. confrontation in a dark alley. The officer said he thought Weyant was holding a weapon and told him to drop it, but the “weapon” turned out to be a pair of black Guitar Hero boxer shorts. Weyant had been wearing them, until the elastic gave out while he was walking home.[8] Weyant recovered, but states he still has “shooting” pains in his arm.[9]

Finally, a California man is suing the Blue Man Group (BMG), the troupe of wordless, face-painted comics/acrobats/musicians/mimes whose antics have amused audiences around the world for more than 25 years. Most attendees at BMG shows know what to expect (i.e., just about anything). But Stan Michelman contends that during a show in San Francisco, “a large blue plastic or rubber-like ball was thrown into the audience without warning to [Michelman],” which caused him "shock and injury to his nervous system" when he extended his arm to block the incoming missile. The lawsuit suggests the Blue Men should have warned the audience that objects would be thrown into the audience.[10] A video of a BMG aerial assault is here.

Just in case you’re feeling Blue, here’s something for that.

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[1] Thought we wouldn’t mention it this month, eh? No such luck. The Administrative Suspension Order for non-payment of annual fees was issued on September 18 and will take effect on October 18. After October 18, delinquent attorneys will be assessed an additional $300 reinstatement fee.

[2] By a law blogger critical of the Commission, no less.

[3] And we thought nothing strange comes out of Portland.

[4] A Cincinnati official told Williamette Week that the Portland Loo comes with “all the frills and thrills.” Frills we could see, but “thrills” would not be a word that would occur to us in connection with a sidewalk potty. At least he didn’t say “bells and whistles.” Nobody needs bells and whistles here.

[5] Which includes, of course, a “prayer for relief.”

[6] Why did they name a plant poisonous to cats after a cat?

[7] Pussy willows are not. That would just be too ironic.

[8] We are sure the boundary of “too much information” has been crossed, although we are not sure quite where.

[9] We did not make that up.

[10] Such as huge plastic beach balls.

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.