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Attorney E-Newsletter

August 2005

Disciplinary Board Proposes Mandatory Liability Insurance Disclosure

The Disciplinary Board has published a Notice of Proposed Rulemaking for a new Section (c) of Rule 1.4 of the Pennsylvania Rules of Professional Conduct, Communication. The new rule would require lawyers to notify new clients in writing if they do not carry professional liability insurance in the amounts of $100,000 per occurrence and $300,000 in the aggregate per year. The rule would also require lawyers to inform existing clients in writing at any time if the lawyer's malpractice insurance drops below those amounts or if the lawyer's malpractice insurance is terminated.

The full text of the proposed rulemaking is posted at
http://www.padisciplinaryboard.org/documents/RPC14c_NPR.pdf
Comments are requested by September 30, 2005.

Rule 3.6: Trial Publicity

Over the years, the restrictions on extrajudicial statements by lawyers imposed by Rule 3.6 of the Rules of Professional Conduct, have been heavily litigated, as they involve an often difficult balancing of the right of lawyers to freedom of speech with the rights of litigants to a fair trial.

Rule 3.6 was extensively revised by the amendments to the Rules of Professional Conduct which took effect January 1, 2005. The core principle of the rule, as set out in Rule 3.6(a), is still the same:

A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know:

  • will be disseminated by means of public communication AND
  • will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

The 2005 revisions make following changes in this Rule:

  • The phrase "who is participating or has participated in the investigation or litigation of a matter" is added to clarify that the restriction applies only to lawyers actually involved in a professional capacity in the investigation or litigation of a case. Television pundits and law bloggers will not face discipline for commenting on pending cases.
  • The language regarding intent is modified to specify that the lawyer must reasonably know both that the statement will be disseminated, and that there is a likelihood of prejudice.
  • The "laundry list" of specifically prohibited topics formerly set forth in Rule 3.6(b) is stripped out and moved to Comment 5 to the Rule. The list of acceptable statements formerly contained in Rule 3.6(c) is retained, although the comments that may be made regarding a pending investigation are pared back somewhat.
  • A new Subsection (c) is added, noting that "a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client." This is consistent with the language of the ABA Model Rule 3.6. This "self-defense" privilege is not an unlimited license to speak freely about a case however; the second sentence of the section makes it clear that statements are authorized only to the extent necessary to mitigate recent adverse publicity.
  • A new Rule 3.6(d) makes it clear that whenever a lawyer is prohibited from making a public statement under the rule, that prohibition extends to all lawyers in that lawyer's firm or government agency.

The revised Comments elaborate on the duties created and the rights preserved by the Rule. Comments 4 and 5 explore the boundary line between permitted and prohibited statements. Comment 5 notes that the statements specifically enumerated under former Rule 3.6(b) are still "more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration."

Comment 6 notes that the prejudicial effect of extrajudicial statements may vary with the type of case involved: "Another relevant factor in determining prejudice is the nature of the proceeding involved. Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitration proceedings may be even less affected."

Possible Scam Alert

The Office of Disciplinary Counsel has received word of a possible scam operation targeting lawyers. In what might be a variation on the common Nigerian bank scam, a source purporting to be a Canadian lawyer has contacted Pennsylvania lawyers through lawyer referral services, seeking assistance in opening a Pennsylvania estate to make a claim on an alleged two million dollar California estate. The contacts use the name of an actual Canadian lawyer and a real California estate, but the communications are not authorized by the lawyer named. Police authorities in Canada are reportedly investigating the incidents. Lawyers receiving inquiries matching this fact situation should investigate the authenticity of such communications with great care.

Attorney Registration

Post card reminders will be mailed on or before August 15, 2005 to all attorneys who have not yet registered for the 2005-2006 Fiscal Year.

The following message will appear on the post card:

2005-2006 PA Attorney's Annual Fee/Form
WAS due July 1, 2005

If you desire ACTIVE status for the 2005-2006 Fiscal Year and you have not filed the annual fee form, a late payment penalty of $100.00 will be assessed if payment and fee form are not RECEIVED on or before September 16, 2005*. After 30 days, the names of every attorney who has failed to respond to this notice shall be certified to the Supreme Court, at which time the late payment penalty will be increased to $200.00.

If your status was INACTIVE or RETIRED for the 2004-2005 Fiscal Year and you have an original inactive status date of 7/1/2002, unless you pay by September 16, 2005, you will be over three (3) years inactive and will be required to file a petition for reinstatement in order to resume the practice of law.

If you need a duplicate form, please visit our website at www.padisciplinaryboard.org.

*POSTMARK ON ENVELOPE WILL NOT BE HONORED

LATE FEES WILL BE ATTACHED

Tip of the Month

The most common complaint clients make about lawyers is failure to return telephone calls or to answer letters. Establish an office policy that all client communications will be answered within 24-48 hours, preferably in the same mode in which it is received. The duty to respond to communications can be delegated to staff, but lawyers and staff alike should get in the habit of documenting telephone calls with at least a brief file memo.