Loading

Attorney E-Newsletter

October 2013

Supreme Court Approves Revisions to Rules of Professional Conduct

By order dated October 22, 2013, the Supreme Court adopted a series of changes to the Pennsylvania Rules of Professional Conduct. The amendments follow the recommendations of the American Bar Association Commission on Ethics 20/20, intended to respond to changes in 21st century technology, lawyer mobility, and the legal marketplace.

The full text of the amendments was published on April 13, 2013, at 43 Pa.B. 1997. Although the changes are too extensive to set forth in full here, the following are some of the major differences:

  • Rule 1.0, Terminology: definition of “writing” expanded to all electronic communications; minor change in comments.
  • Rule 1.1, Competence: changes to comments, including two new sections.
  • Rule 1.4, Communication: comment changed to indicate duty to respond promptly applies to all client communications.
  • Rule 1.6, Confidentiality of Information: new language relating to detection and resolution of conflicts of interest, and efforts required to prevent the inadvertent or unauthorized disclosure or access to client information. Extensive changes to comments.
  • Rule 1.17, Sale of Law Practice: changes to comments regarding confidentiality in negotiations of sale.
  • Rule 1.18, Duties to Prospective Clients: changes in wording of Rule, significant changes in comments.
  • Rule 4.4, Respect for Rights of Third Persons: Rule clarified to apply to electronically stored information; extensive changes to comments.
  • Rule 5.3, Responsibilities Regarding Nonlawyer Assistance: extensive changes to comments.
  • Rule 5.5, Unauthorized Practice of Law; Multijurisdictional Practice Of Law: changes to comments.
  • Rule 7.1, Communications Concerning a Lawyer’s Service: change to comment regarding application of Rule to public, prospective clients.
  • Rule 7.2, Advertising: extensive changes to comments.
  • Rule 7.3, Solicitation of Clients: substantive changes in title and content of Rule; extensive changes in comments.

The amendments take effect November 21, 2013. All Pennsylvania attorneys would be wise to review the amendments and familiarize themselves with the new requirements of the Rules of Professional Conduct.

Former Congressman, Auditor General Suspended

By order dated October 2, 2013, the Supreme Court of Pennsylvania suspended attorney Donald A. Bailey, of Harrisburg, Dauphin County, from the practice of law for five years. Bailey served as state auditor general from 1985 to 1989, and as a United States congressman from Westmoreland County from 1979 until 1983.

The charges were based on a motion Bailey filed in the Third Circuit Court of Appeals, in which he alleged that several judges of the U.S. District Court for the Middle District of Pennsylvania committed various improper acts, and displayed prejudice against Bailey and his clients. Throughout the appeal and disciplinary hearings, Bailey did not withdraw or back away from his accusations, but continued to make the charges and attempt to prove them. The Disciplinary Board first made a finding that the accusations were false, then imposed a shifted burden of proof on Bailey to show that following a reasonably diligent inquiry, he had an objective basis to believe they were true. The Board found that Bailey lacked any objective evidence of the charges he made, but had personalized adverse decisions into a theory of prejudice against himself and his clients.

The Board noted several mitigating factors, including Bailey’s service as a combat veteran, Auditor General, and Congressman, as well as the respect for his abilities expressed by several witnesses. An aggravating factor was that Bailey had previously received a private reprimand for conduct which included unjustified criticism of a judge.

The Board cited the previous cases of Office of Disciplinary Counsel v. Price, 732 A.2d 559 (Pa. 1999) and Office of Disciplinary Counsel v. Surrick, 749 A.2d 441 (Pa. 2000), in both of which attorneys were suspended for five years following patterns of unjustified criticism of judicial officers.

In comments to the Harrisburg Patriot-News, Bailey remained defiant, reiterating his belief in the existence of judicial corruption in the Federal and state judiciary.

No Laughing Matter: New Jersey Judge Chooses Standup Over Seat

A judge walks into a bar, and walks out a comedian . . .

We have reported before on the saga of Vincenzo August Sicari, a part-time New Jersey municipal judge probably better known for his other career – as standup comedian Vince August. His career in humor brought him into conflict with the New Jersey Advisory Committee on Extra-Judicial Activities, which in 2010 upheld an ethics opinion that August/Sicari’s entertainment career conflicted with his duties as a judge. On September 19, 2013, the Supreme Court of New Jersey upheld the ethics opinion, ruling that the two roles were incompatible, and that Sicari would have to choose which occupation he would pursue. Noting that as Vince August he had used ethnic and racial humor while playing a role on a reality TV show, the Court stated:

Most people who watch a complete episode of “What Would You Do?” would appreciate that these are actors following a script. The same cannot be said about a person who starts to watch an episode and then changes the channel. Others might realize the episode is a staged encounter but are outraged that the topic of racial or sexual discrimination is presented as entertainment. The Court cannot discount the possibility that a person who has attended a comedy club in New York City will find himself or herself before Judge Sicari in South Hackensack. In the course of his routines, Sicari has demeaned certain people based on national origin and religion and has revealed his political leanings. The Court cannot ignore the distinct possibility that a person who has heard a routine founded on humor disparaging certain ethnic groups and religions will not be able to readily accept that the judge before whom he or she appears can maintain the objectivity and impartiality that must govern all municipal court proceedings.

Faced with a choice, Sicari opted to continue with his comedy career and resigned his judicial seat. He will continue to practice as a lawyer while moonlighting in comedy.

Lawyers Cleared of Ghostwriting Charges

The United States Court of Appeals for the 11th Circuit overturned a decision by a Federal bankruptcy judge to impose sanctions on two Florida lawyers for “ghostwriting,” after a paralegal at their firm helped a client fill in a bankruptcy form. The bankruptcy judge ruled that the lawyers violated 11 U.S.C. 527 and 528(a)(1), and Florida Rules of Professional Conduct 4-3.3(a)(1) and 4-8.4(c) by failing to disclose the firm’s aid to the client in filing a petition to stall a foreclosure proceeding.

The Court of Appeals agreed that under the Florida version of Rule 1.2 of the Rules of Professional Conduct, a lawyer who assists a client in the drafting of documents to be filed pro se must indicate on those documents that they were prepared with the assistance of counsel, to avoid misleading a court.[1] However, the court concluded that by merely recording the client’s answers in a standard fill-in-the-blanks form, designed for the convenience of pro se litigants, the law firm did not engage in “drafting” within the ordinary meaning of the term, and therefore it did not violate the Florida rule.

So the lawyers are no longer haunted by the specter of sanctions. They need not be spooked about the shadow of ghostwriting, as long as they comply with the spirit of the rule and remain a shade careful.

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. Please do not reply to this email. Instead, send any comments or questions to comments@padisciplinaryboard.org.

[1] The comments to the Florida rule, unlike the ABA or Pennsylvania rule, specifically state this requirement.