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Attorney E-Newsletter

March 2006

PA Disciplinary Board is a "Model of Reform" for the Rest of the Nation

Consumer group ranks state's attorney disciplinary system 5th in the nation

As you may know, over the past few years, the Disciplinary Board of the Supreme Court of Pennsylvania has made many improvements to the disciplinary system. Several of the improvements involve direct outreach to attorneys to educate and inform our state's talented legal professionals about the Pennsylvania Rules of Professional Conduct. The Disciplinary Board's communication efforts and other improvements have been recently recognized as a "model of reform" for the rest of the nation.

Joseph Farrell, executive director of the Disciplinary Board shares his thoughts on what the Board has accomplished and other changes underway to further improve the system.

HALT recently issued its 2006 Lawyer Discipline Report Card giving Pennsylvania the nation's top honors for "Most Improved" as it ranked 5th in the U.S.--up from 51st in 2002. What is the Disciplinary Board's response to this consumer legal reform group's accolades?

Although we appreciate the national recognition, the system's improvements were not in response to HALT's past criticism or any other legal reform group's evaluation for that matter. Rather, the Board continues to make systemic changes to provide better information to attorneys who practice law in the state while improving the credibility of the system with the public.

How is the Disciplinary Board providing better information to attorneys?

I do have to say that we are proud that our web site has been referred to as "one of the best disciplinary web sites in the nation." The web site was established in 2003 (www.padisciplinaryboard.org) and in just a few weeks, we will be launching a new, consumer-friendly enhanced site making it even better. The Board also disseminates an attorney e-newsletter each month.

ELECTRONIC PRESS KIT:

What other dramatic improvements were cited as instrumental in moving Pennsylvania into 5th position?

We scored very high in comparison to other states in several categories including -publicity and responsiveness; openness of the process; and fairness of disciplinary procedures. As you may know, last year the PA Supreme Court adopted the Board's recommended amendments to the confidentiality component of the existing system, which allows disciplinary proceedings to be open to public review only after formal charges are filed against an attorney. The group considered this initiative a major advancement. Our Board spent a great deal of time in carefully drafting the amendments to promote positive change to the disciplinary proceedings while protecting the reputation of attorneys. We believe that an "open" system will enhance the integrity of an already excellent legal system.

What does the national recognition and the Disciplinary Board's continued effort to enhance the system mean to those practicing law in Pennsylvania?

It should be viewed as a significant step forward in advancing the legal system in the state of Pennsylvania. Part of the Disciplinary Board's mission is to maintain the integrity of the legal profession. With more than 55,000 practicing attorneys in the state and only a minimal number of attorneys who are disciplined each year, we believe we have one of the best legal systems in the country. The majority of our attorneys perform quality, ethical work on a daily basis and Pennsylvania consumers need to know they have access to reputable and professional attorneys, as well as to a legal system that is fair and just. Our national recognition and ongoing communication efforts with consumers as well as attorneys and law students should only enhance the perception of the state's legal system.

What future improvements can we expect from the Disciplinary Board?

Although we have made substantial changes in the past few years, this progressive Board is exploring other areas where there is room for improvement. As we continue to expand our databases, more attorneys can expect to receive our monthly e-newsletter. We are also coordinating seminars designed to inform attorneys about the rules of professional conduct and ways to avoid unethical actions.

How can an attorney subscribe to the e-newsletters?

Subscribing to the e-newsletter is easily done through the Disciplinary Board web site.

Again, congratulations on the Board's national recognition.

Thank you, but we are not through making improvements yet. As our communication efforts increase, I'm sure you will be hearing more from the Disciplinary Board.

Disciplinary Board Adopts New Open System Rules

On Saturday, February 25, 2006, the Disciplinary Board published amendments to the Rules of the Disciplinary Board to implement the Open System initiative adopted by changes to the Pennsylvania Rules of Disciplinary Enforcement announced on October 26, 2005.

Much of the rulemaking is devoted to harmonizing the language of the Rules of the Disciplinary Board with the terms of the Enforcement Rules. However, a few new provisions are included:

  • Section 93.102(g) is amended to provide that requests for copies of documents made available to the public are to be in writing, directed to the Office of the Secretary. A copying fee must be prepaid at the time of the request.
  • Section 93.102(h) states that copies of transcripts and exhibits introduced in hearings will not be available to the public. Transcripts may be obtained from the official reporter.
  • Section 93.103 states that the identity of a Hearing Committee member who reviews an Office of Disciplinary Counsel recommendation for action will not be available to the public, just as it is not available to the respondent-attorney.
  • Section 93.104(d) provides a list of additional restrictions on available documents, including:
    • Dismissed complaints;
    • Pending but undisposed complaints, unless otherwise determined by the Office of Disciplinary Counsel with the concurrence of the Board Chair or Vice Chair;
    • Informal admonitions administered without formal proceedings; and
    • Informal admonitions or private reprimands administered more than six years before the request for access.
  • Section 93.106(b), regarding protective orders, provides that application for a protective order barring public access to a proceeding may be directed to and acted upon by the Hearing Committee. The Hearing Committee's ruling on the application may be appealed to the Board, upon which the Hearing Committee may, at its discretion, stay hearing on the matter until the Board rules. In an official note, parties are urged to apply for protective orders at the time of the prehearing conference, to allow time for an appeal to the Board.

The amendments to the rules are published at 36 Pa.Bulletin 929.

RPC 1.18: Prospective Clients

Rule 1.18 was not added to the Rules or changed as part of the Ethics 2000 amendments, but since it is a fairly new rule some lawyers may be unfamiliar with it.

Rule 1.18 deals with "prospective clients," a new term referring to a relationship in which a lawyer is consulted by someone seeking legal representation or advice, but no client-lawyer relationship is formed. Such relationships have given rise to much debate over the years, with some concluding that the lawyer has no responsibilities in the absence of a formal relationship, and others arguing that even a casual conversation can give rise to the full range of conflicts- and confidentiality-related duties. Rule 1.18 clarifies these responsibilities.

The rule defines a prospective client as "a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter," regardless of whether a professional relationship results from the discussion.

The rule then creates two major duties: 1) a duty not to use or reveal information learned in the discussion [subsection (b)], and 2) a duty not to engage in adverse representation [subsection (c)].

The duty not to use or reveal information is limited to information that may be "significantly harmful" to the client. This term appears nowhere else in the Rules of Professional Conduct. The exceptions stated with regard to a former client in Rule 1.6 also apply (see RPC 1.6(c) and February E-Newsletter).

As to future adverse representation, the rule prohibits a lawyer from representing "a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter." The concepts of "materially adverse" representation and "substantially related matter" are patterned after the duties established toward former clients under RPC 1.9. However, these prohibitions apply only if the lawyer received "significantly harmful" information, a more stringent limitation than that applied under RPC 1.9. Note that "materially adverse interests" is not necessarily the same as directly adverse representation; it could apply, for example, to business competitors, even if they are not opponents in litigation. See Maritrans GP Inc. v. Pepper, Hamilton, and Sheetz , 529 Pa. 241, 602 A.2d 1277 (1992).

Imputed disqualification: If one lawyer in a firm has received disqualifying information from a prospective client, all other lawyers in the firm are disqualified from adverse representation as well, unless both the affected client and the prospective client have given informed consent, or ALL of the following tests are met:

  • the disqualified lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client;
  • the disqualified lawyer is screened from any participation in the matter;
  • the disqualified lawyer is apportioned no part of the fee; AND
  • written notice is promptly given to the prospective client.

Comment 4 notes, "In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose," and Comment 5 adds, "A lawyer may condition conversations with a prospective client on the person's informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter." As the comments imply, the care that a lawyer takes in limiting the information received from a prospective client before a formal relationship is established may have a significant effect on whether the lawyer (and the lawyer's firm) will be disqualified from future representation adverse to the prospective client.

Tip Of The Month

In all probability most readers of this newsletter will never need the information, but attorneys who are convicted of a "serious crime" must report such a conviction to the Secretary of the Disciplinary Board within 20 days after sentencing [Pa. R.D.E. 214(a)]. A serious crime is "punishable by imprisonment for one year or upward in this or any other jurisdiction," regardless of whether that term of imprisonment is actually imposed. Also, an attorney who is suspended or disbarred in any other jurisdiction (including foreign, military or special courts) must report that fact to the Secretary within 20 days after the date of the order imposing such discipline [Pa. R.D.E. 216(e)].