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Attorney E-Newsletter

April 2008

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. Content will be pertinent to the conduct of lawyers and the legal profession in the Commonwealth. Article focus will be on changes in the Rules of Professional Conduct, activities of the Disciplinary Board, Ethics Education, and advice from members of the staff of the Disciplinary Board.

Again, comments and suggestions from the readership are encouraged!

The editors

It was Twenty Years Ago Today...

We recently celebrated the 20th anniversary of the adoption of the Pennsylvania Rules of Professional Conduct, which replaced the Pennsylvania Code of Professional Responsibility on April 1, 1988. And no, the April Fool’s Day defense has never worked.

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Late Breaking News

On April 22, 2008, the Supreme Court named Smith B. Gephart, of Dauphin County, as Chair of the Disciplinary Board, and William Pietragallo, Allegheny County, as Vice-Chair.

Mr. Gephart succeeds outgoing Chair Jonathan H. Newman of Philadelphia, under whose leadership he served as Vice-Chair.

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May Flowers Bring... Your Registration Statement

Every year, just about the time when you are recovering from tax filing time, the mail brings your annual Lawyer Assessment statement. Forms for 2008-2009 will be mailed some time toward the middle of May.

If no news is good news, then there’s good news because there’s no news. There are no major changes in this year’s form, and the assessment will be the same as last year -- $175. Late charges will be... well, you don’t want to pay the late charges. Forms and payments are due July 1, 2008.

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Lessons from Qualcomm

The litigation community was rocked in January when Magistrate Judge Barbara Major of the United States District Court for the Southern District of California, in the case of Qualcomm Inc. v. Broadcom, Inc. (No. 05cv1958-B), entered an order imposing sanctions of $8.5 million against the plaintiff and its counsel, and referred six attorneys associated with a respected law firm to the California Bar for possible disciplinary action. The order was based on Qualcomm’s failure to produce over 300,000 pages of relevant material, much of it consisting of emails, and some of which was devastating to Qualcomm’s case. The case highlighted the difficulties and the incredibly high stakes of discovery in the age of electronic communications.

A number of writers have attempted to distill the lessons of the Qualcomm debacle. They do not all arrive at the same conclusions, although they seem to agree there are five.

In the ABA Law Practice Management Section’s Law Technology Today newsletter, legal technology author John Tredennick identifies the following lessons:

  1. You Better Check Your Witness’s Computer Before Allowing Him/Her to Testify. Qualcomm’s outside litigation counsel had relied on the in-house legal team to collect email data. Tredennick sees in the order a directive to litigation counsel to affirmatively oversee the collection process.
  2. It Doesn’t Help to be a Lowly Associate. One of the attorneys referred for discipline testified that he had expressed reservations to his supervisors about the adequacy of the collection process.
  3. Whatever You Do, Don’t Be Cutesy When You Question Your Witnesses. Counsel knew that the witness whose testimony revealed the existence of undisclosed documents had them, but attempted to steer around the problem by limiting the questioning. However, the damage was done on cross examination.
  4. The Smarter They Are, The Harder They Fall. The reputation of the plaintiff’s firm for skill and experience may have hurt it, undermining the court’s willingness to consider the possibility that the omissions were inadvertent or negligent.
  5. The Legal Team May Be Responsible for Your Client’s Collection Efforts. Although trial counsel relied on inside counsel to supervise data collection, the court held that this was a specific responsibility of trial counsel.

Alan Cohen of law.com’s Corporate Counsel, speaking from the perspective of the corporate inside counsel, lists the following lessons:

  1. Outside counsel should know that they won't be penalized for pursuing the evidence. Corporate clients must allow outside counsel to ask the hard questions and press inquiries the client would rather not respond to.
  2. Keep asking questions. Outside counsel should be asking questions of company witnesses up and down the ladder, and not assuming that the “playbook” was followed.
  3. Don't outsource e-discovery -- oversee it closely, at the very least. The corporate client, as well as outside counsel, must make a strong commitment to full compliance with discovery.
  4. Don't annoy the judge. Qualcomm had fought every discovery request in the case, even quarreling over the meaning of ordinary words. This may have hurt them when the remedial order was imposed.
  5. Document the document collection. Qualcomm’s counsel relied on memory for many key points as to what was done and why, and often testified that they could not remember facts. This underscores the importance of keeping a careful record of the actions and decisions of the discovery process.

Both articles explain these observations in much more detail, and should be read to understand the full context of the conclusions.

On appeal, a District Judge modified the judgment to vacate the sanctions against the six attorneys, and remanded the matter to the Magistrate Judge to give the attorneys an opportunity to defend themselves using the “self-defense exception” to attorney-client confidentiality [order here]. The corporate client attributed the failures to litigation counsel, and the district judge held that counsel should be allowed to respond to those allegations.

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Self Defense Privilege under RPC 1.6

The provision often described as the “self-defense exception” to client confidentiality is found in the Pennsylvania Rules of Professional Conduct at Rule 1.6(c)(4) of the Pennsylvania Rules of Professional Conduct. The rule states that a lawyer may reveal otherwise confidential information:

... to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Comment 14 takes a fairly broad view of this exception:

[W]here a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense... Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person; for example, a person claiming to have been defrauded by the lawyer and client acting together.

However, Comment 20 counsels care in the exercise of such disclosures:

... a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

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That’s a One Followed by Seven Zeroes

The $8.5 million sanctions order against Qualcomm is not even the largest in recent months. A Massachusetts Federal judge imposed a fine of $10 million and additional attorney fees against Medtronic Corp., just weeks after the medical equipment giant also suffered a multimillion dollar sanctions assessment in a Colorado case. The Massachusetts order found that Medtronic’s legal team had “prolonged the proceedings unnecessarily,” elected to proceed with a defense that “threatened to mislead and confuse the jury,” and attempted to "obscure, evade or minimize" a previous federal court ruling. In both cases, Medtronic had relied on experts who used patent claim constructions that have been rejected by Federal courts.

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We Want to Hear From You

In 2006, The Disciplinary Board of the Supreme Court of Pennsylvania conducted an online survey to gather your feedback regarding the Attorney E-newsletter. To continually improve and grow, we would like to ask you to provide your thoughts on the e-newsletter, whether it’s improved over time, and how beneficial it is to you.

Keep your eyes open for the online survey, as it will be delivered to your inbox in the beginning of May!

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

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