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Attorney E-Newsletter

November 2010

Disciplinary Board Proposes to Open Disbarment Statements

Over the last decade there has been a steady progression toward greater public access to information in the disciplinary system. The Disciplinary Board is taking another major step in the direction of transparency.

Ever since the founding of the Disciplinary Board, Rule 215 of the Pennsylvania Rules of Disciplinary Enforcement has allowed the possibility of disbarment upon consent after a resignation by an attorney. Until now, the resignation statement, which sets forth the factual basis of the action, has remained confidential; only the order disbarring the attorney was public.

The Disciplinary Board has published a proposed amendment to Rule 215 which would delete language providing that the resignation statement is to remain confidential, and simply provide “Upon entry of the order disbarring the attorney on consent, both the order and the resignation statement shall be a matter of public record except in cases where the matter was already public.”

The proposed rulemaking was published on November 6, 2010 at 40 Pa.B. 6387. Comments should be sent to Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, facsimile number (717) 231-3382 on or before December 10, 2010.

More on Notaries

In response to our item last month about the increasing scrutiny of notaries in the aftermath of the mortgage meltdown, reader Dana Pirone Carosella writes to note that many attorneys put pressure on their employees who are notaries to notarize documents not signed in their presence, or otherwise inconsistently with their duties as notaries.

Ms. Carosella notes, and we agree, that this is an unacceptable practice. An attorney who directs or encourages an employee-notary to notarize documents not signed in the notary’s presence commits serious misconduct and could face discipline. Rule 8.4 of the Rules of Professional Conduct states that it is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, do so, or do so through the acts of another . . . ;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice . . .

Being a party to an improper notarization violates all of these rules. In addition, the lawyer who files or uses a document knowing it was improperly notarized may “offer evidence that the lawyer knows to be false,” in violation of Rule 3.3(a)(3).

Not Just My Space Anymore

Can a lawyer ethically get access to an opposing party’s Facebook page? We previously reported on a Philadelphia Bar Association opinion concluding that a lawyer may not, personally or through an agent, seek to “friend” an opposing party or witness without revealing.

But is there another way? A Pennsylvania Court of Common Pleas has held that a party may be compelled through the discovery process to provide an opponent with access to his Facebook and MySpace accounts. In a decision in the case of McMillen v. Hummingbird Speedway, Inc., handed down September 9, 2010, President Judge John Henry Foradora of the Court of Common Pleas of Jefferson County held that access to one’s social networking sites is not protected by any privilege, and that the plaintiff in a personal injury action could be compelled to reveal the usernames and passwords of his Facebook and MySpace accounts to counsel for the defendants (but not to the defendants themselves). The court looked closely at the privacy and disclosure policies of the sites in question, and concluded that users are on notice that information posted on them may be revealed to persons who have access to such information by process of law.

A New York trial court decision reached the same result by a very similar analysis.

It becomes increasingly obvious that lawyers should be counseling their clients on the use of Internet social media. More than ever, there are few secrets on the Internet.

Debt Collection Firm Sets Up Phony Court

We have all heard stories of unlicensed persons engaging in the unauthorized practice of law. But a complaint filed by the Consumer Protection Bureau of the Attorney General of Pennsylvania points to what may be a first – the unauthorized practice of jurisprudence.

According to the Attorney General’s office, an Erie debt collection company allegedly set up a section of its office decorated as a courtroom, with furniture and decorations similar to those used in actual court offices, including a raised "bench" area; tables and chairs in front of the "bench" for attorneys and defendants; a simulated witness stand; seating for spectators; and, legal books on bookshelves. An individual dressed in black reportedly sat behind the “bench.” Attorney General[1] Tom Corbett stated that “Consumers also allegedly received dubious 'hearing notices' and letters – often hand-delivered by individuals who appear to be Sheriff Deputies – which implied they would be taken into custody by the Sheriff if they failed to appear at the phony court for 'hearings' or 'depositions'." This technique was used to intimidate debtors into making payments, signing agreements, and turning over assets such as vehicle titles.

The company agreed to dismantle the setup in a hearing before Erie County Judge Michael E. Dunlavey.[2] The Attorney General’s suit seeking penalties and a permanent injunction remains pending.

Something to Say?

Do you have question, a comment, or a topic you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.

[1] And Governor-Elect.

[2] In a real courtroom.