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Attorney E-Newsletter

March 2014

Pa. Supreme Court: Attorney-Client Privilege Does Not Protect State Agency from Grand Jury Subpoena

On February 18, 2014, the Pennsylvania Supreme Court handed down a decision with a significant impact on the attorney-client privilege for communications between Commonwealth agencies and their counsel.

The case of In Re: Thirty Third Statewide Investigating Grand Jury arose from an appeal by the Pennsylvania Turnpike Commission from an order denying a protective order against subpoenas from the Office of the Attorney General (OAG) seeking records of communications between the Commission and its inside and outside counsel. The records were sought in connection with a grand jury investigating possible criminal actions committed by state agencies or agents.

The majority opinion, authored by Chief Justice Ronald Castille, held that the OAG, as the entity empowered to enforce the laws of the Commonwealth, had the power to review all record of communications between state agencies and attorneys hired or retained to advise the agencies and their officials. The Court looked to the “books and records” provision of the Commonwealth Attorneys Act, 71 P.S. 732-208, and concluded that attorney-client privilege was not stated as an exception to the broad access that law provided to the OAG in carrying out its duties. The Court noted that Rule 1.13 of the Rules of Professional Conduct provides that the attorney-client privilege must be analyzed differently in the government context than in the private sector. The Court cited several Federal cases which have held that the privilege is narrower in governmental relationships than for others. It found that the attorney-client privilege of government attorneys runs to the Commonwealth itself, rather than to the particular persons or agency with whom the attorney communicates. Thus, in the context of an investigation for enforcement of the laws of the Commonwealth, the OAG has access to the communications as the Commonwealth’s chief law enforcement office. The Court also rejected the argument that the work-product privilege provided a separate basis for the agency or its attorneys to resist compliance with the subpoenas.

Justice Saylor filed a concurring opinion in which he reiterated the view of an opinion he filed dissenting from the grant of the Commission’s petition for review, arguing that the case should only be heard on an appeal from an adjudication of contempt, as would be the case with a private party. However, he concurred in the majority’s reasoning.

Justice Baer filed a concurring opinion, joined by Justice Todd, in which he stressed that the Court’s opinion is limited to the narrow set of facts before it, and should not be construed as a broad rejection of the assertion of the privilege by state officers in other contexts.

Supreme Court Rule: Contempt Is Conviction

By an order dated March 4, 2014, the Supreme Court of Pennsylvania has adopted an amendment to Rule 214 of the Pennsylvania Rules of Disciplinary Enforcement, relating to attorneys convicted of crimes. The new amendment makes it clear that criminal contempt, whether direct or indirect, is considered a crime which must be reported to the Disciplinary Board. The Supreme Court determined that in the interests of justice, the rule would be adopted effective in 30 days without advance publication in the Pennsylvania Bulletin pursuant to Pa.R.J.A. No. 103(a)(3). The rule takes effect April 3, 2014. The order and the text of the amendment are available here.

Florida Denies Admission to Aliens Without Lawful Status

In January, we reported the case of Sergio Garcia, an alien without lawful status, who was admitted to the California bar following a change in the California statute exempting law licenses from the prohibition in 8 U.S.C. 1621 on public benefits to unlawful aliens.

The Supreme Court of Florida has considered the question and reached the opposite conclusion. On March 6, 2014, the Supreme Court issued an opinion in response to a request from the Florida Bar for an advisory opinion as to whether an unlawful alien who had qualified for admission to the bar in all other respects was eligible for admission. The United States Department of Justice opposed the application, as it did in California, arguing that 8 U.S.C. 1621 prohibits any who are not “qualified aliens” from obtaining any “public benefit,” including any professional license provided through state funds.

The Court found that no Florida statute exempted professional licenses from the application of 8 U.S.C. 1621, as was the case in California. The Court examined and rejected arguments that various executive actions created the necessary exemption. Accordingly, it held that “applicants are required to demonstrate that they are legally present in the United States,” and thus that unlawful aliens are ineligible for admission.

Justice Jorge Labarga wrote a long concurring opinion in which he stressed the merits of the applicant’s credentials in all other respects. He noted that his and the applicant’s stories were almost identical, except that he was the son of Cuban immigrants, who received an expedited path to citizenship because of political sympathy, while the applicant is the son of Mexican immigrants escaping poverty. He urged the Florida legislature to enact a statute similar to that in California, extending bar admission to those such as the applicant.

Annual Registration Time Coming Again

Spring is coming again, and as soon as you’ve filed your tax return, bought your baseball tickets, and swapped the snowblower for the lawnmower, you know that other harbinger of spring is on the way. It will soon be Attorney Registration time again.

An email notice will be sent to attorneys when the Unified Judicial System (UJS) Portal will be open to complete the Annual Form and securely pay the annual fee by July 1. The notices will come from Disciplinary Board and UJS email addresses at news@padisciplinaryboard.org and administrator@pacourts.us. Please add both email addresses to your safe sender list or make sure it can be received by your email server. This notice will only be sent to attorneys who have provided an email address and/or have registered online. If you have registered online in the past and have forgotten your PIN number or Password, go to ujsportal.pacourts.us, click on login, then click on Forgot my PIN or Forgot my Password to have them reset.[1]

For those who still prefer to go the paper route, annual registration forms for 2014-2015 will be going out May 15. The mailing address for paper forms and payment processing is: Attorney Registration, P.O. Box 3313, Lancaster, PA 17601-3313. Your signature is required on paper registration forms.

Timely compliance is of the essence. Any attorney who fails to complete registration by July 31 shall be automatically assessed a $150.00 non-waivable late payment penalty. A second late payment penalty of $150.00 shall be automatically added to the delinquent account of any attorney who has failed to complete registration by August 31, at which time the continued failure to comply with this rule shall be deemed a request to be administratively suspended. The staff does not have authority to waive these fees; please don’t ask.

If the form and payment are incomplete or if a check in payment of the annual fee has been returned to the Board unpaid, the annual fee shall not be deemed to have been paid until a collection fee, and one or both of the late payment penalties, shall also have been paid.

This should go without saying, but IOLTA, trust, escrow and other fiduciary account checks tendered in payment of the annual fee will not be accepted. And the drawer will hear from the Office of Disciplinary Counsel. There, we said it anyway.

Board Proposes “Paper Processing Fee” for Registration Beginning 2015

The Disciplinary Board is publishing a Notice of Proposed Rulemaking, proposing that beginning with the 2015-2016 registration year, attorneys who file their annual registration by paper forms instead of online will be required to pay a “paper processing fee” of $25.

The paper processing fee is intended to offset significant additional costs the Attorney Registration Office incurs in handling paper registrations, including materials, labor, handling, and postage, as well as the costs of scanning filed forms, negotiating checks and money orders, and reviewing and rejecting forms that are incomplete or ineligible for processing.

Electronic filing significantly reduces the costs associated with attorney registration. When electronic filing first became available during the 2011-2012 assessment year, slightly more than 20% of registrants filed electronically. During the two subsequent registration periods, that number increased to roughly 28% and 31%.

The Board also proposes to adopt different terminology to distinguish the fees paid by active and inactive attorneys.

The full text of the proposed amendment and the Board’s explanation are published here. Comments will be accepted until May 12, 2014.

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] You can set up user accounts and update information anytime during the year.