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Attorney E-Newsletter

July 2010

Supreme Court Lawyering Up

The United States Supreme Court seems to be thinking about lawyers a lot these days. The National Law Journal notes that there were 16 cases relating to the practice of law on the Supreme Court’s decision docket this year – nearly 20% of the total. Court observers note that this is a remarkably high number for a topic the Court usually addresses only a few times each term.

Quoted in the National Law Journal, Professor Renee Knake of Michigan State University College of Law identifies two major issue areas the decisions address -- limits on legal representation and protection from bad lawyering.

Among the most significant cases in the former category are:

In the latter category, the Court decided in Padilla v. Kentucky that a lawyer representing a defendant weighing a guilty plea must inform the client of the immigration consequences of such a plea. The Court also decided several ineffective assistance of counsel cases which are summarized in the National Law Journal article.

The Heaviest Burden: The Duty to Inform Tribunals

In its report released last month, the Interbranch Commission on Juvenile Justice expressed concern that no lawyers reported the misconduct of the judges whose actions led to the appointment of the Commission.

This may be a good time to review the requirements of the Rules of Professional Conduct to inform the appropriate tribunals of misconduct. Most lawyers are reluctant to criticize the conduct of other lawyers, but these requirements are an important element of professional responsibility.

Rule 8.3 of the Rules of Professional Conduct provides:

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

It is worth noting that the rule does not require reporting all misconduct – only that which “raises a substantial question” as to the lawyer’s or the judge’s fitness. Examples of conduct which would almost certainly meet this requirement include:

  • Materially false statements, especially under oath or in judicial settings[1];
  • Theft or other mismanagement of client funds;
  • A pattern of substance abuse or dysfunction affecting multiple cases; and,
  • Criminal conduct in the practice of law.

Comment (3) to the Rule notes, “The term 'substantial’ refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.”

Although the need to inform authorities of serious misconduct is one which the Disciplinary Board takes very seriously, there are no reported cases in Pennsylvania of a lawyer being disciplined for failing to do so since the adoption of the Rules of Professional Conduct.[2] Disciplinary counsel have the option to open a complaint on their own motion, and will often do so if a lawyer who brought forward information in compliance with RPC 8.3 prefers not to be considered a complainant.

“Informing the appropriate authority” may, under some circumstances, refer to law enforcement authorities as well, if the conduct in question is criminal. Lawyers who have practiced law for a long time sometimes recall a prohibition on threatening to report misconduct solely to gain advantage in a civil matter. That recollection may stem from Disciplinary Rule 7-105(A) of the Code of Professional Responsibility, which stated, “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” That rule proved difficult to enforce, and no such provision was carried over when the Disciplinary Rules were superseded by the Rules of Professional Conduct in 1988. However, Comment (4) to Rule 8.3 makes it clear that the decision whether to report may involve discretion, but is not strategic, stating, “the discretionary reporting of misconduct should not be undertaken for purposes of tactical advantage over another lawyer, to punish or inconvenience another for a personal or professional slight, or to harass another lawyer.”

Present Company Not Excepted

We have learned that sometimes lawyers who are employed full-time by corporations or other businesses assume that they do not have to be admitted to practice law in Pennsylvania if they only do work for the company by which they are employed. This is not accurate.

Rule 302 of the Pennsylvania Bar Admission Rules provides that a lawyer not admitted to the practice of law in Pennsylvania must obtain a limited In-House[3] Corporate Counsel License if she or he:

  • is employed by a corporation, company, partnership, association or other non-governmental business entity; and
  • performs legal services in Pennsylvania on more than a temporary basis; or
  • maintains an office or other “systematic or continuous presence” in Pennsylvania.

The rule contains extensive lists of activities which a lawyer holding a limited in-house counsel license may and may not perform. Applications for such a limited license are available from the Pennsylvania Board of Law Examiners here.

The in-house counsel limited license is one of several limited licenses which are now recognized in Pennsylvania. Others include:

Bulletin – Deadline for CLE Delinquent/Noncompliant Lawyers Extended to September 1

Last month we reported that attorneys who were transferred to inactive status for failure to pay the annual fee, for failure to comply with Continuing Legal Education requirements, or other grounds set forth in Rule 219(k), Pa. Rules of Disciplinary Enforcement, have until August 1, 2010 to request reinstatement to active status. That deadline has now been extended to September 1, 2010. Attorneys on inactive status for these reasons must request reinstatement, or face transfer to administrative suspension.[4]

It’s Not Easy Being Green

As if Pennsylvania has not had enough prominent public figures in legal trouble, the Philadelphia Daily News reports that the beloved Phillie Phanatic is a frequent target of litigation. In light of a new suit, the paper describes the Galapagos-born “bird-anteater hybrid” as a “big green litigation machine” due to its “rotund girth”[5] and exuberant hijinks.[6] A study by Nova Southeastern University law professor Bob Jarvis, reported in a 2002 law review article, gave the Phanatic the dubious honor of being the most-sued mascot in sports. A Phillies spokesperson disputed the claim, noting that the Phanatic has only been sued twice in the last decade.[7] We do not have information on the litigation record of the Pirate Parrot, despite the other green bird’s reported proclivity for hot dog launching.[8]

Got a Tip?

Or a question, a comment, an idea you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.

[1] Although a “materially false statement” does not necessarily mean “a statement with which one disagrees.”

[2] But see In Re Anonymous No. 60 DB 77, 10 Pa. D. & C. 3d 775 (1978): an attorney was not obligated under the predecessor rule to report an illegal payment arrangement, where her only knowledge of the arrangement was through privileged client-attorney communications.

[3] Please do not write and tell us why you think the term “in-house counsel” is wrong. We’ve heard those arguments. That is the terminology the rule uses. We particularly don’t need to hear the “out-house counsel” jokes.

[4] Which is worse. So if you are in that situation, don’t put it off!

[5] 300 pounds with a 90-inch waist, according to its bio.

[6] Is “hijinks” the only common word in the English language with three straight dotted letters?

[7] Oh, that’s all?

[8] At least someone in the Pirates organization can reach the stands with regularity.