Loading

Attorney E-Newsletter

June 2011

Philadelphia Judge Allows Former Counsel to Sue School District

In a case that may shed light on a lawyer’s duties to former clients, a Philadelphia Common Pleas judge has ruled that a former assistant general counsel in the Special Education Unit at the School District of Philadelphia can represent parents of special needs students in litigating special education issues against the District.

The District filed a complaint seeking an injunction against representation of the parents by Kenneth Cooper, who worked for the District from January 2002 until May 2010. The District argued that Cooper’s position gave him insight into the District’s confidential practices which might be used against the District on behalf of Cooper’s clients.

However, in a decision dated June 7, 2011, Common Pleas Court Judge Albert W. Sheppard, Jr. denied the injunction and ruled that Cooper may represent the parents. Judge Sheppard found that Cooper had no contact or connection with any of the students or parents he now represents. The judge held that “A government lawyer is only disqualified from particular matters in which the lawyer participated personally and substantially. Disqualification does not extend to all substantive issues on which the lawyer worked.” The judge also noted the fact-intensive nature of most special education cases, and that parents have access to much of the information the District identified as confidential.

Representation of private clients by former government attorneys is addressed by Rule 1.11(a) of the Rules of Professional Conduct, which states in part:

Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government . . . shall not otherwise represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent to the representation.

Supreme Court Adopts Rule Requiring Response to Disciplinary Inquiry

On May 26, 2011, the Supreme Court of Pennsylvania adopted an amendment to Rule 203 of the Pennsylvania Rules of Disciplinary Enforcement, adding an additional ground for discipline. New Rule 203(b)(7) provides that a lawyer is subject to discipline for:

Failure by a respondent-attorney without good cause to respond to Disciplinary Counsel's request or supplemental request under Disciplinary Board Rules, § 87.7(b) for a statement of the respondent-attorney's position.

The new rule is published at 41 Pa. Bulletin 2932 (June 11, 2011). The proposed rule was published at 40 Pa.B. 6775 (November 27, 2010). The change is effective June 27, 2011.

The notices to which the rule applies, as described in Section 87.7 of the Rules of the Disciplinary Board, are identified as the DB-7 Request for Statement of Respondent’s Position, and the supplemental DB-7A, which is issued to follow up on a previous DB-7 letter. Under the new rule, this is a “request” which the lawyer ignores at his or her peril.

Supreme Court Reappoints Lawrence, Bevilacqua, and Nasatir to Disciplinary Board

The Supreme Court of Pennsylvania has reappointed Gerald Lawrence, Jr., Gabriel L.I. Bevilacqua, and David A. Nasatir to second three-year terms on the Disciplinary Board.

Lawrence is a shareholder and head of the Pennsylvania office of the law firm of Lowey Dannenberg Cohen & Hart, P.C., in West Conshohocken, Montgomery County. He represents institutions and individuals in a range of securities, corporate governance and antitrust litigation. He often represents third-party payers, including major health insurers and HMOs, employers, and health and pharmacy benefits plans, and recovers on their behalf from providers who overcharge for prescription drugs, medical devices or services. He also serves as Commissioner of Voter Registration of Delaware County, Pennsylvania.

Bevilacqua is a partner in the Philadelphia law firm of Saul Ewing, LLP. He concentrates his practice in the representation of medical specialty boards, and was, in 2004, the 77th Chancellor of the Philadelphia Bar Association. Previously appointed to the Supreme Court of Pennsylvania's Appellate Rules Advisory Committee, he has lectured on the Court's "Bridge the Gap" program, which addresses the transition for new attorneys from law school to legal practice. Mr. Bevilacqua is General Counsel for the American Board of Surgery, Inc., a position he has held since 2010. Prior to joining Saul Ewing, LLP in 1984, Mr. Bevilacqua served in the City of Philadelphia's Law Department, where he held positions including Chief Deputy City Solicitor, Chief of Major Trials, and Chairman of the Litigation Department. Additionally, he has served as an arbitrator for both federal and state courts, and as Judge Pro Tem in the Philadelphia Court of Common Pleas.

As head of Thorp Reed & Armstrong’s Business and Finance team in Philadelphia, Nasatir concentrates his practice in the areas of creditors’ rights, lender liability, finance, municipal law, business law and real estate development. Nasatir also currently serves on the Pennsylvania Industrial Development Authority (PIDA) Board of Directors. He is a frequent lecturer and member of the American, Pennsylvania, Philadelphia, and District of Columbia Bar Associations.

You Don’t Need a Weatherman to Know Where Scranton Is

Believe it or not, we at the Email Newsletter take a good deal of pride in our product and go to great lengths to make sure everything comes out right. But despite our obsessive tendencies[1] and multiple overlays of proofreading, sometimes we get something wrong. Sometimes we get something big wrong. Sometimes, only on extremely rare occasions, we get two big things wrong in the same newsletter. Unfortunately this once in a blue moon[2] event[3] occurred in May.[4]

Our first real embarrassment occurred in the headline of our article about the appointment of Sal Cognetti as Chair of the Disciplinary Board, in which we identified the Scranton-based Mr. Cognetti as being from Luzerne County. Of course we know perfectly well that Scranton is in Lackawanna County, and are as mystified as anyone how the error occurred, much less got through the aforesaid layers of proofreading. Only one sharp-eyed reader, Sean Duesler, called this error to our attention.

Our other mistake, on the other hand, was immediately spotted by several of you, of whom Michael C. Boland was the first. He pointed out that we misquoted the lyric of Bob Dylan’s “Subterranean Homesick Blues,” which should read, “You don’t need a weatherman to know which way the wind blows.” We know this, too; we’ve seen the video.[5] Mr. Boland also makes the very good point that “the quote is generally made in jurisprudence to indicate that expert testimony is unnecessary on a particular subject or set of facts.”

Thanks to all our readers for catching us when we slip, and for all your very kind comments, as well.

Quote of the Month

“The law frowns on an attorney's neglect to comply with a clear rule. However, it positively glowers at another attorney's exploitation of such neglect as an excuse to break his word.” Ron Burns Const. Co., Inc. v. Moore, 184 Cal.App.4th 1406, 1410, 109 Cal.Rptr.3d 417 (Cal. Ct. App. 2010).

This quote came to our attention through the Westlaw Headnote of the Day, a delightful free service which endeavors, as do we, to bring a little levity into the busy practicing attorney’s day.

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] We are formerly of the ODC, not formerly OCD.

[2] A blue moon is the third full moon in a season with four full moons. Actually this occurs every second or third year.

[3] Unlike the “month with five Fridays, Saturdays, and Sundays” of email legend, which occurs rather often instead of once every 800 years as half a dozen chain emails have claimed.

[4] Unlike the end of the world. But you know that already.

[5] By the way, did you notice that where the lyric says “eleven dollar bills,” Dylan holds up a sign saying “20 dollar bills”? Did Dylan misquote his own lyrics? Just sayin’. But he’s Dylan, so he can do what he wants.