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Attorney E-Newsletter

August 2014

Third Circuit Strikes Down New Jersey Prohibition on Advertising Judicial Praise

The United States Court of Appeals for the Third Circuit has struck down a New Jersey guideline prohibiting lawyers from advertising segments of judicial opinions praising the lawyer’s services in the case of Andrew Dwyer v. Cynthia A. Capell, et al., No. 13-3235 (8/11/14). Andrew Dwyer featured on his website quotations from judicial opinions praising his services. One of the judges quoted complained, and after a long inquiry the Supreme Court of New Jersey issued Guideline 3, which stated:

An attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.

The Circuit Court reviewed the law of regulation of attorney speech in light of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). The Court concluded that even if Guideline 3 is considered a disclosure requirement, as opposed to a prohibition on speech, it did not require disclosing anything that could reasonably remedy any consumer deception stemming from Dwyer’s advertisement, as there was no reason to believe reading the full opinions from which the quotations came would dispel any confusion as to whether the quotations constituted an endorsement. The court further held that requiring disclosure of a full judicial opinion would be unduly burdensome. The Court noted that consumer confusion could better be avoided by a brief and more effective disclaimer such as “This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities.” It therefore held that Guideline 3 did not meet the constitutional standards set in Zauderer.

Pennsylvania does not have a provision comparable to Guideline 3, so the decision does not directly affect Pennsylvania lawyers. The Third Circuit’s opinion is a useful refresher on First Amendment issues relating to lawyer advertising, however.

Shadow Office, Estate Planning Issues Trip PA Lawyers

Two Pennsylvania lawyers lost their licenses in the last month over issues regarding the structure of their practice.

F. Paul Barakat (also known as Fred Barakat) of Chester County received a two-year suspension, based upon a similar suspension imposed upon him by the Supreme Court of Delaware. Delaware requires a lawyer admitted in that state to maintain a bona fide office for the practice of law within the state. Barakat listed a street address as his Delaware office, but the Court found that he had an arrangement by which employees at the listed address collected his mail and communicated with his clients, but he had no space or staff designated as his own. He rented conference rooms and used staff and office resources for additional fees. The landlord’s billing records indicated that Barakat’s presence in the office was “sporadic and unscheduled,” and limited to a few days a month. Barakat informed the Internal Revenue Service that most of his practice was conducted from his Pennsylvania home, but overstated the extent of his presence in the Delaware office to the Delaware Office of Disciplinary Counsel. For these transgressions, together with issues involving handling funds and bookkeeping, the Delaware Supreme Court suspended Barakat for two years, basing its conclusion on the American Bar Association Standards for Imposing Lawyer Discipline. In an Order dated August 14, 2014, the Supreme Court of Pennsylvania imposed the same sanction as reciprocal discipline.

The discipline against Brett B. Weinstein of Montgomery County arose from his activities as the Pennsylvania plan attorney for a group of estate planning companies including ALMS, American Family, and Heritage Marketing and Insurance, which sold “living trust” packages to senior citizens. These companies sent nonlawyer estate planners into the homes of seniors, where they pitched and sold plan packages based on representations the consumers could save their estates money by avoiding probate. The packages included brochures published under the name of Weinstein’s law office. The packages sold were run through Weinstein’s office, but Weinstein gave each one little or no attention. Weinstein had signed an Assurance of Voluntary Compliance and a consent agreement with the Office of the Attorney General of Pennsylvania, agreeing to refrain from such conduct, but the Disciplinary Board found that he continued to engage in the conduct unabated.

The Disciplinary Board determined that Weinstein violated numerous Rules of Professional Conduct, and concluded that he “engaged in false and misleading conduct, failed to consult with his clients concerning their objectives and placed his own interests above his responsibilities to his clients.” The Board reviewed case law in Pennsylvania and other jurisdictions, and found that the sale of living trusts through nonlawyer estate planners constitutes aiding the unauthorized practice of law. Concluding that “an attorney who chooses the financial bottom line over professional integrity cannot be allowed to practice in the Commonwealth,” the Disciplinary Board recommended disbarment. By order dated July 28, 2014, the Supreme Court accepted the Board’s recommendation and disbarred Weinstein.

Canadian Bar Endorses Broad Reforms, Including Nonlawyer Ownership of Law Firms, Fee Sharing

As part of its Legal Futures Initiative, the Canadian Bar Association has published a report entitled Futures: Transforming The Delivery Of Legal Services In Canada, recommending 22 far-reaching changes in the organization of the legal profession in Canada.

The most notable may be Recommendation #1:

Lawyers should be allowed to practise in business structures that permit fee-sharing, multidisciplinary practice, and ownership, management, and investment by persons other than lawyers or other regulated legal professionals.

The report argues that nonlawyers participating in ownership of law firms, such as joint accounting and legal practices and the offering of legal services by retail chains, may expand the availability of legal assistance and meet clients’ needs more efficiently. The report still urges that Alternate Business Structures (ABS) should be subject to ethics regulation, and that legal services should still be performed only by lawyers and legal assistants under the supervision and control of lawyers.

If these changes are adopted, Canada would not be the first of the English common law nations to open the profession to nonlawyer ownership. The Australian state of New South Wales, opened up its profession in 2001, and the Law Society of England and Wales followed suit in 2007.

Other recommendations set forth in the report aim to expand and modernize legal services by updating legal education and adding technological components, and by offering debt forgiveness to graduates who provide legal services to unserved populations.

Deputy Chief Counsel Becomes President-Elect of National Association

Paul J. Burgoyne, Deputy Chief Disciplinary Counsel for the Office of Disciplinary Counsel, has been elected to serve as President-Elect of the National Organization of Bar Counsel (NOBC). In this role, he will serve as the Chair of the Program Planning Committee, as well as serve in the absence of NOBC President, Tracy Kepler. In August 2015, he will become President of NOBC. Previously, Burgoyne served as Treasurer (2013-2014) and Secretary of the NOBC (2012-2013) and served two terms as a Director-at-Large (2007-2009, 2010-2012).

The NOBC is a non-profit organization of legal professionals whose members enforce ethics rules that regulate the professional conduct of lawyers who practice law in the United States, Canada, Australia and Great Britain. Composed of representatives from more than 75 state, local and federal lawyer regulatory agencies, the NOBC seeks to advance the goals of attorney regulation by making contributions through the American Bar Association and state bars, influencing rule making and speaking out on issues involving lawyer regulation and professionalism. NOBC is also deeply involved in the evolving area of regulating the bar as lawyers’ practices cross international boundaries.

For more than 32 years, Burgoyne has worked in the Office of Disciplinary Counsel (ODC) in Pennsylvania and has served as Deputy Chief Disciplinary Counsel since 1993.

Accessing the Disciplinary Board Just Got Easier

In an effort to give you even easier access to the most commonly used resources on its website, the Disciplinary Board recently launched new mobile offerings. The new microsite/mobile web app gives users direct access to top news stories, attorney look up functions, rules, Supreme Court actions and the address change form.

How to Get It

Users can access the new design by visiting www.mobile.padisciplinaryboard.org via their smartphones. From there, we’ve included directions below for iPhone and Android users to save it to their home screens. Please be aware that directions may vary slightly per device.

Directions for iPhone users:

  • Open Safari on your iPhone and navigate to this address: mobile.padisciplinaryboard.org. 
  • At the bottom of your phone screen, you'll see an icon depicting an arrow emerging from a square. Tap this button.
  • Several options will appear. Select the option that says “Add to Home Screen.” Tap this button.
  • You'll be asked to choose a name for the home screen icon.
  • Select a name that you will easily associate with the Disciplinary Board. Our suggestions include: DBoard or DBoardPA
  • Click “Add” in the top right-hand corner.
  • The home screen icon will now appear.
  • To rearrange the icons on your home screen, press and hold the icon to drag it to a new location.

Directions for Android users:

  • Open Internet Browser and navigate to this address: mobile.padisciplinaryboard.org.
  • Save as a bookmark.
  • Select a name that you will easily associate with the Disciplinary Board. Our suggestions include: DBoard or DBoardPA.
  • Go to Home Page & select Add, then Shortcuts, then Bookmark and click on the bookmark you just made.
  • The Commonwealth Seal will appear as the image for the icon.
  • To rearrange the icons on your home screen, press and hold the icon to drag it to a new location.

A Gallery of Epic Retorts

The French have a marvelous phrase, l'esprit de l'escalier [literally, “the wit of the staircase”]. It refers to the witty and devastating comeback to another’s affront one thinks of in the stairwell – after it is too late to use it.

Few things in life are as satisfying as a witty retort to an annoying statement. When business is done by correspondence or email, one has more time to think of a suitable response (and, more often than not, to think better of it)[1]. Since provocative statements are common in law, we have many examples of ingenious responses to obtuse challenges. Lisa Needham at lawyerist.com has assembled a first-rate gallery of 9 Epic Responses to Legal Threats (or more accurately, 8 epic responses and one cease-and-desist so irresistibly civil it would be churlish to respond any way but in kind). Our favorite? Has to be Groucho Marx on why A Night in Casablanca does not infringe the copyright of Casablanca.

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] If you have difficulty scrolling the slideshow, type a number 1 through 10 for each page at the end of the URL in your browser’s navigation pane and hit “enter.”