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Attorney E-Newsletter

November 2011

Bar Admission Rules Regarding Accredited Schools, Military Service Amended

On the recommendation of the Board of Law Examiners, the Supreme Court of Pennsylvania has adopted two changes to the Pennsylvania Bar Admission Rules, effective November 14, 2011.

Bar Admission Rules 203(a)(2)(i) and 204(1), regarding graduation from accredited law schools, were amended to clarify that the law school must be accredited at the time the applicant matriculated or graduated, not at the time of application.

Bar Admission Rules 203(a)(2)(ii)(B)(iii) and 204(8)(vii), providing for admission of candidates who served in the military under some circumstances, are amended to provide that an applicant qualifies who “engaged primarily in the performance of legal functions while serving on active duty in the United States military service.” The definitions previously referred only to “service.”

The amendment is published at 41 Pa.B. 5742 (October 29, 2011).

Partly Cloudy

Much has been written of late about the increasingly common use of “cloud computing” – data storage in remote online servers. Backup and storage offsite in the cloud is an attractive alternative to hard disk failures and security procedures such as moving drives offsite, but many attorneys worry about whether such storage is secure, both for confidentiality purposes and for malpractice exposure.

The ABA Journal published an article this month on the state of cloud storage. Takeaways include checking one’s malpractice coverage to determine how data breach and loss risks are covered, and encrypting data stored offsite with a cloud provider, even if the provider promises encrypted storage.

Rule 1.15 (c)(3) of the Rules of Professional Conduct provides that if records required by Rule 1.15 are kept only in electronic form, they must be backed up at least monthly on a separate electronic storage device. The question of whether an online storage site qualifies as a “separate electronic storage device” has not been answered, but all attorneys should be aware that maintaining some form of backup is mandatory for some records, and certainly recommended for all.

How to Handle a Hot Copy

In September, we commented on two formal opinions published by the ABA Standing Committee on Ethics and Professional Responsibility. On the same day, the Committee also published another opinion which may be of general interest to the bar. Formal Opinion 11-460 addresses the duties of a lawyer who receives a copy of an email from a represented party to that party’s counsel. The hypothetical situation the Committee considered is one in which the lawyer represents an employer, who retrieves an employee’s privileged communication to the employee’s counsel from a work computer and provides it to the lawyer.

The opinion concludes that the requirement of Rule 4.4(b) to disclose receipt of the communication to opposing counsel does not apply, because the e-mails between an employee and his or her counsel are not “inadvertently sent” by either of them. A document is not “inadvertently sent” when it is retrieved by a third person from a public or private place where it is stored or left.

The opinion notes that the fact that the employer-client has obtained copies of the employee’s e-mails is “information relating to the representation of [the] client” that must be kept confidential under Rule 1.6(a) unless there is an applicable exception to the confidentiality obligation or the client gives “informed consent” to disclosure. The opinion examines ABA Model Rule 1.6(b)(6), which allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent he or she reasonably believes it is necessary to do so to comply with the relevant law. It should be noted that subsection (b)(6) as discussed by the Committee does not appear in Pennsylvania’s version of Rule 1.6. The opinion recommends that the lawyer consider potential adverse consequences of the unintended access to the communications, such as the possibility of disqualification or other sanctions if the court determines that use of the information violated attorney-client privilege, and consult with the employer-client about these risks, consistent with Rule 1.4(b). It may even be advisable to seek a judicial ruling on the admissibility of the information before even reviewing the correspondence.

Discipline Roundup

In the continuing story of the Luzerne County judicial scandal, former judge Michael Conahan was disbarred on consent on November 10, 2011. On November 15, Conahan was transferred to a low-security Federal prison in Coleman, Florida to begin serving the 17½-year sentence imposed on him in September. His former judicial colleague and co-defendant, Mark Ciavarella, is serving his 28-year sentence in a medium-security facility in Pekin, Illinois.

Of the adjudicated cases, perhaps the most remarkable is that of Daniel Scott Perrine, who was disbarred after an extensive series of criminal and disciplinary violations, including trying to smuggle a vial of cocaine into a prison and, after being confined to home arrest with electronic monitoring, cutting off his electronic monitoring bracelet and fleeing to Washington, D.C.

Search Me? Now You Can

The Disciplinary Board has added a Google Search capability to its website, www.padb.us. The search window, located at the top of the Attorney Information, Consumer Information, and Look Up an Attorney pages (and most pages under those portals), allows a simple search on a name, term, number, or a multiword term, and has some Boolean search capability. The search will locate results on most pages such as the Recent Discipline, Disciplinary Reporter, Frequently Asked Questions, and news items. The Google search feature will retrieve some but not all results from the Attorney Registration database. To assure that users find all available information in the Attorney Registration database, we recommend using the flexible search feature built into the Look Up Attorney page in addition to or instead of the Google search.

Not Your Grandfather’s Code of Ethics

A Tennessee lawyer’s contempt conviction was upheld in spite of a novel defense. Charged with contempt due to an argumentative outburst in court, he argued that the Rules of Professional Conduct did not apply to him, due to the fact that he was licensed before the adoption of the Rules when the Code of Professional Responsibility was in effect, and therefore that he was “grandfathered” under the prior provision regarding zealous representation. In what might be termed the Methuselah hypothetical, the court stated, “Even a lawyer licensed in the days when Andrew Jackson served on this state’s supreme court would still be subject to the Rules of Professional Conduct for that attorney’s actions occurring on or after March 1, 2003.”

The exchange that led to the contempt citation is a classic example of an attorney letting his impatience get out of hand. When the court informed him he was in contempt of court, he snapped back, “You’re in contempt of the law.” Didn’t he see the movie?

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.