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Attorney E-Newsletter

October 2007

Having celebrated Bob Dylan and Bruce Springsteen Months in this newsletter, we worry that a subtle gender bias may be slipping into our coverage. Ergo, in recognition of the rich lode of songwriting from the distaff delegation, and in honor of the release of Shine1, her first album of new material in nearly ten years, we declare October to be Joni Mitchell Month.

Former Commonwealth Court President Judge Colins Announces Resignation

You know it never has been easy/Whether you do or you do not resign/Whether you travel the breadth of extremities/Or stick to some straighter line. Hejira, Copyright © 1976; Crazy Crow Music

Another top Pennsylvania jurist is stepping down. In a letter dated October 2, 2007, James Gardner Colins, a member of the Commonwealth Court of Pennsylvania for more than 20 years and the court’s immediate past president judge, informed Governor Rendell that he is resigning his commission effective January 7, 2008. Judge Colins stated that he is resigning to pursue other interests. One interest he expresses is to “more actively warn the public of the increasing threat to the independence of the judiciary.” He states, “I am looking forward to once again becoming a member of the practicing bar, so that I may more vigorously speak out on behalf of my fellow judges.”

President Judge Colins joined the Pennsylvania judiciary in 1980, when he was appointed to the Philadelphia Municipal Court. He was elected to the Commonwealth Court in 1983 and retained in 1993 and 2003. He served as President Judge from 1994 to 1999, and again from 2002 to 2007. President Judge Colins also served as Chairman of the Pennsylvania Judicial Conduct Board from January 1999 through February 2001.

ABA Committee Gives Nod to Collaborative Law Practice

Hana has a special knack/For getting people back on the right track/Cause she knows/They all matter/So she doesn't argue or flatter. Hana, Copyright © 2007; Crazy Crow Music

On August 9, 2007, the ABA Committee on Ethics and Professional Responsibility published Formal Opinion 07-477, in which it addressed ethical questions posed by the practice of collaborative law practice. The Committee concluded that the practice does not inherently violate the Rules of Professional Conduct, but discussed steps lawyers entering into such relationships should take to assure that clients are informed of the arrangements and give meaningful consent.

Collaborative law practice is a type of alternative dispute resolution in which the parties and their lawyers commit to work cooperatively to reach a settlement. The Committee further clarifies the process by noting:

The parties structure a mutually acceptable written resolution of all issues without court involvement. The product of the process is then submitted to the court as a final decree. The structure creates a problem-solving atmosphere with a focus on interest-based negotiation and client empowerment. . . . To ensure the commitment of the lawyers to the collaborative process, the four-way agreement also includes a requirement that, if the process breaks down, the lawyers will withdraw from representing their respective clients and will not handle any subsequent court proceedings.

Collaborative law practice departs from the usual paradigm of legal representation, in which the lawyer’s ultimate duty is to the client, in the recognition that the lawyer is committed to the amicable resolution of the controversy in the interest of both clients, even if that resolution is not the optimal outcome for the lawyer’s own client.

The first imperative the Committee notes is the duty under RPC 1.2(a) to seek the client’s informed consent after full disclosure of the material risks of and reasonably available alternatives to the limited representation. The Committee notes that this kind of representation seems fully consistent with Comment 6 to that Rule, which states, "[a] limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives."

The Committee then turned its attention to the question of whether collaborative representation violates RPC 1.7, concerning conflicts. It notes that one ethics opinion argued that that the "four-way agreement" under which counsel agree to withdraw if the matter is not resolved creates a non-waivable conflict of interest under Rule 1.7(a)(2). The Committee rejects this view, and concludes that “When a client has given informed consent to a representation limited to collaborative negotiation toward settlement, the lawyer's agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client's limited goals for the representation.”

The Formal Opinion is available at www.abanet.org for free download by ABA members, and it is available on legal databases which carry ABA ethics opinions.

Disciplinary Board Moves to Make Decisions Available Immediately

Land of snap decisions/Land of short attention spans/Nothing is savored/Long enough to really understand. Dog Eat Dog, Copyright - © 1985; Crazy Crow Music

The Disciplinary Board has redesigned the "Recent Decisions" section of our Web site, www.padb.us. Previously, the "Recent Decisions" were set forth in a table which was hand-prepared2 from monthly reports, sometimes months after the fact.

In order to make the latest disciplinary decisions immediately available, the home page has been modified to display a continuing item labeled Recent Supreme Court Actions. By clicking on that link, viewers will see disciplinary determinations made by the Supreme Court in the last 60 days. As with the previous system, if the action is embodied in a posted Supreme Court opinion, Board Report, or Discipline on Consent Petition, a direct link to view the Opinion is provided. Results will be generated directly from the Disciplinary Board's own database and should be online within days after the decisions are filed. Please visit www.padb.us to view the Recent Supreme Court Actions. As a reminder, the Supreme Court Actions are also available on a yearly basis.

Rule 1.6: Protecting Client Confidences

I'm not above gossip/But I'll sit on a secret where honor is at stake. Talk to Me, Copyright © 1976; Crazy Crow Music

Most lawyers have the principle of client confidentiality engraved in their professional DNA, having learned from law school that the confidentiality of client-lawyer communications is one of the most protected of privileges.

Rule 1.6 of the Rules of Professional Conduct, dealing with client confidences, must be distinguished from the attorney-client privilege as it is observed in the law of evidence. Attorney-client privilege applies mostly to direct communications, while RPC 1.6 is somewhat broader. It applies to all "information relating to representation of a client," except for disclosures to which the client has given informed consent or which are “impliedly authorized in order to carry out the representation.” Moreover, as Comment 4 notes, “This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.” A situation in which such an extended disclosure could occur is outlined in our Tip of the Month, below.

There are numerous exceptions to the confidentiality requirement. Comments 9 through 19 to the Rule identify several of these.

An extensive discussion of the changes to Rule 1.6 was provided in our February 2006 newsletter, which is archived here.

Tip of the Month: Rikki, Don’t Use that Number3

Ray's dad teaches math/Zero/I'm a dunce/I'm a decimal in his class/Last night's kisses won't erase
Zero/I just can't keep the numbers in their place.
Ray’s Dad’s Cadillac, Copyright © 1988, 1991; Crazy Crow Music

Subscriber Lisa M. Greason, a Carlisle attorney, provides our October Tip of the Month.

She notes that some attorneys are in the habit of listing client Social Security numbers in pleadings and public filings, when such disclosure is not required by the rules governing the proceedings in question. She points out that the revelation of a client’s Social Security number in a public proceeding opens the client up to a risk of fraud through identity theft. Drivers’ license numbers are also highly sensitive information. These articles from the Electronic Privacy Information Center and Consumer Reports illustrate how information such as Social Security numbers and drivers license numbers can be used by identity thieves to cause the numbers’ owners immense injury.

Attorneys who are professional and conscientious about protecting their clients from identity theft and fraud should think carefully about what information is needed in public documents and what should be protected.

Rule 509(b)(2) of the Pennsylvania Rules of Judicial Administration provides that financial records in the possession of the Unified Judicial System setting forth a person’s social security number, home address, home telephone number, date of birth, operator's license number, e-mail address, financial institution account numbers, credit card numbers, personal identification numbers (PINs) and passwords used to secure accounts, and “any part of a record setting forth information presenting a risk to personal security [or] personal privacy” are not available to the public. Diligent attorneys may find it useful to consider whether these types of information should be revealed in documents filed for public access.

Gotta Tip?

Or a comment, a question, a request, a suggestion? Let us know at comments@padisciplinaryboard.org.

1 Which your Editor, moonlighting in his occasional avocation as a music critic, affirms does in fact “shine.”

2 By your humble Editor’s hands, in fact.

3 Too bad it’s not Steely Dan Month.