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Attorney E-Newsletter

July 2011

Expanding Immunity: Supreme Court Extends Protection of Disciplinary Participants

By order dated June 14, 2011, the Supreme Court of Pennsylvania removed a restriction on the immunity afforded by Rule 209 of the Pennsylvania Rules of Disciplinary Enforcement. The rule provides for immunity from suit for complainants, witnesses, and other participants in the disciplinary process by providing, in part:

All communications to the Board, a hearing committee, special master, or Disciplinary Counsel relating to misconduct by a respondent-attorney and all testimony given in a proceeding conducted pursuant to these rules shall be absolutely privileged and the person making the communication or giving the testimony shall be immune from civil suit based upon such communication or testimony, except that such immunity shall not extend to any action that violates Rule 402.

The amendment removes the underscored language, so that the immunity of complainants is not conditioned upon compliance with Rule 402 of the Rules of Disciplinary Enforcement, which provides that certain disciplinary matters are confidential prior to the filing of formal proceedings.

A sentence of the Official Note relating to the limitation on immunity is also removed.

The change became effective July 14, 2011. It was published at 41 Pa.B. 3526

You Can’t (Always) Go Home Any More

Lawyers seeking reinstatement from disbarment or suspension generally have a good chance of succeeding. In 2010, 10 applications for reinstatement from disbarment, suspension, or disability status were granted, and only one denied.

However, reinstatement is not guaranteed, as one former Pennsylvania attorney found out. Frederick C. Sturm III had been disbarred since 1982, as a result of his conviction for mail fraud in an arson scheme, for making false statements in a passport application, and for tax violations. After serving a jail term, he worked for more than twenty years as a paralegal in his wife’s law firm.

He filed a petition for reinstatement. The Disciplinary Board found that the crimes he had committed were so severe that he could not meet his burden of proof under the test in Office of Disciplinary Counsel v. Keller, 506 A.2d 872 (Pa., 1986), even after the passage of nearly thirty years. Also, the Board found that he had not expressed remorse for his actions, and that his answers on certain questions were evasive and not credible. The Board recommended that the petition for reinstatement be denied, and the Supreme Court did so by order dated July 6, 2011.

A lawyer seeking reinstatement has the burden of proof under Rule 218(c) of the Pennsylvania Rules of Disciplinary Enforcement to show that he or she has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth and that the resumption of the practice of law within the Commonwealth by such person will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.

Discipline Roundup

The Recent Discipline docket at the Disciplinary Board reports the following cases:

  • Robert Louis Frey agreed to a suspension for three years upon consent, after receiving a large advanced payment of fees from a client and using the money for other purposes without having performed services to earn the fees paid in advance.
  • Marvin Galfand and Myrna Galfand, husband and wife, were formerly partners in a firm. After Mr. Galfand was suspended in 2006, he continued to work in the law firm in violation of Rule 217(j), Pa.R.D.E., handled cases as though he were an attorney, and appeared as an attorney in an arbitration proceeding with Ms. Galfand’s knowledge and cooperation. Marvin Galfand was disbarred and Myrna Galfand was suspended for one year and one day.
  • Robert Turnbull Hall agreed to a suspension for two years, after admitting a pattern of omitting or mischaracterizing several incidents from a rather colorful past in applications to law schools and to the New Jersey and Pennsylvania bars.
  • Jeffry Steven Pearson was suspended for twenty months, after the Disciplinary Board found that he had agreed to take over cases for two disbarred lawyers, but allowed those lawyers to sign his name to documents and continue to practice under his name.
  • Marc Alan Weinberg accepted public censure after repeatedly cancelling depositions due to other commitments, even after the court directed him to obtain court approval for any future cancellation.

Dude! Change the Channel!

Our favorite among the goofy lawsuits we came across this month comes from the Third Circuit, in the case of Goodson v. Kardashian, No. 10-3976 (1/6/2011). This was a complaint by a Federal prisoner against the Kardashian sisters of reality TV fame. The complaint alleged a federal claim under 42 U.S.C. § 1983 and state law claims of intentional and negligent infliction of emotional distress, stating that the defendants’ antics on their reality television programs caused the plaintiff intense emotional and psychological strain. After finding that the Section 1983 claim failed because the defendants were not state actors,[1] the Court dismissed the state claims on the ground that liability for intentional or negligent infliction of mental distress lies “only where the conduct at issue has been atrocious and utterly intolerable in a civilized community." The decision could thus be interpreted as an adjudication that Keeping Up with the Kardashians is not atrocious and utterly intolerable in a civilized community.[2] The plaintiff did not help his case by requesting in his complaint the following apology: "D.J., we are sorry for emotionally stressing you out & we love you!"[3] We are pleased to note that no lawyer had anything to do with the filing of this lawsuit.

It’s been a good year for the Sisters K,[4] legally speaking. In June, a judge dismissed a $75 million suit against them based on their withdrawal of an endorsement for a prepaid debit card. The Court noted the “apparently universal condemnation of the product's profit making features.” Be careful the company

Let Us Know

Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.

[1] The Court did not make findings on whether they were any other kind of actors.

[2] This opinion is not shared universally by critics. Fortunately, the Court labeled it “non precedential.”

[3] Dream on, D.J.

[4] On a different track, the Editor warmly recommends The Brothers K by David James Duncan, a hilarious, moving, and profound depiction of a dysfunctional family (in contrast to . . .well, never mind), and one of our favorite books featuring baseball.