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Attorney E-Newsletter

July 2014

Three Lawyers and Philadelphia Physician Appointed to Disciplinary Board

In an Order dated April 11, 2014, the Supreme Court of Pennsylvania has appointed Stefanie Porges, M.D., to serve in one of the two non-lawyer positions on the Disciplinary Board for a term running until December 29, 2017.

Dr. Porges earned her undergraduate degree from Emory University in Atlanta in 1984 and her medical degree from Hahnemann University School of Medicine in Philadelphia in 1988. She also completed her internship and residency at Hahnemann and a fellowship at the Hospital of the University of Pennsylvania. She currently serves as Attending Physician in Emergency Medicine; Medical Command Physician for PENNSTAR Flight Program; and Director of Physician Scheduling, Emergency Medicine, for the Hospital of the University of Pennsylvania. Dr. Porges is a Clinical Associate Professor of Emergency Medicine at the University of Pennsylvania School of Medicine.

In an order dated April 30, 2014, the Court appointed P. Brennan Hart (Allegheny County) and Andrew J. Trevelise (Philadelphia) to terms on the Board expiring April 1, 2017.

Mr. Hart is a partner at Pietragallo Gordon Alfano Bosick & Raspanti, LLP, and serves as Co-Chair of the Professional Liability Practice Group and Co-Chair of the Litigation Practice Group. His practice currently focuses on professional liability and D&O liability issues such as representation of accountants, architects and engineers, attorneys, life insurance brokers and agents, real estate brokers and agents, financial advisors and stock brokers in FINRA matters. He has served as statewide and regional counsel for a number of clients. His experience includes the handling of a number of high-profile cases and cases that involve either catastrophic or mass injuries. He also evaluates cases for excess insurance carriers. He has served as a hearing committee member for the Disciplinary Board of the Supreme Court of Pennsylvania.

Mr. Trevelise is a partner at Reed Smith in Philadelphia. He is a former head of the Litigation Group in the Philadelphia office, and currently serves as the Deputy Practice leader in charge of Reed Smith's product liability practice and as a member of the Life Sciences Health Industry Group, practicing in the area of product liability litigation. He has a general civil litigation background and his areas of concentration are the defense of complex multi-party litigation particularly in the product liability area as well as general commercial and intellectual property litigation. He served as a Disciplinary Board hearing committee member from 2003-2009 and 2012-2014.

By order dated May 13, 2014, the Supreme Court appointed David Alan Fitzsimons (Cumberland County) to a term of three years commencing May 17, 2014. Mr. Fitzsimons is a shareholder with the Martson Law Offices in Carlisle. His practice touches all aspects of dispute resolution, representing individuals and companies in contract and business disputes, with emphasis on construction, business operation/succession, employment, land use and estate-related litigation. During the past ten years, he has served as a court-appointed and privately retained mediator for the successful resolution of numerous disputes in the areas of commercial contract, construction, employment law, business succession and personal injury. Mr. Fitzsimons also serves as an arbitrator, both on court-appointed panels and as a privately retained neutral. Since 1994, he has served as an advocacy adjunct instructor at The Dickinson School of Law and as an advisor to several moot court teams. He frequently lectures on topics pertaining to construction, municipal law and legal ethics at the Pennsylvania Bar Institute and local county bar associations. He has served as a presenter on behalf of the Pennsylvania Bar Institute for "Bridge the Gap," a Supreme Court-mandated program for incoming Pennsylvania lawyers. Fitzsimons also was recently named Chair of the Pennsylvania Bar Association’s Legal Ethics & Professional Responsibility Committee.

Pinning Your Hopes

We won’t remind you about annual registration being due again this month, because it was already due July 1. But unless your registration is received by July 31, a NON-WAIVABLE late penalty of $150.00 will be added. For further motivation, another $150.00 will attach on September 1. So if you haven’t finished it yet, right now would be a very good time to do so. Log on to http://ujsportal.pacourts.us and click “Attorney Services,” then “Login” under the Attorney Registration heading. If you have not registered online in the past, click “Create an Account.” If you need help, click here for a tutorial.

After July 31, the late fee will be charged, even if you were unable to complete your registration online for any reason. The staff does not have discretion to waive or forgive the fee.

Your password and PIN do not change from year to year, so by all means record them and keep the record for future years. If you do not know and cannot find your password or PIN, email the Help Desk at ccpaopc@pacourts.us. It would not be wise to wait until the last day or two to register, especially if you do not know your password and PIN.

Board Publishes Conviction Rule Change

On June 28, 2014, at 44 Pa.B. 3927, the Disciplinary Board published an amendment to Rule 91.37 of the Rules of the Disciplinary Board, providing that the term ''crime'' for purposes of discipline for criminal convictions shall include criminal contempt, whether direct or indirect, and without regard to the sentence that may be imposed or that is actually imposed. The amendment follows a similar amendment to the terms of Rule 214(h) of the Pennsylvania Rules of Disciplinary Enforcement, published March 22, 2104 at 44 Pa.B. 1749. That provision has been effective since April 3, 2014.

Lawyer’s Misappropriation Not a Defense to Fee Arbitration Award

The fact that a lawyer stole money from clients and his firm does not bar an award of referral fees, a panel of the Superior Court has ruled.

Attorney Scott Sigman agreed to a suspension for 30 months in 2013, acknowledging that he had misappropriated funds from clients and his firm while working as an associate with the firm of Bochetto and Lentz.

Earlier, Sigman and Bochetto and Lentz entered into a termination agreement which provided that unresolved matters would be submitted to arbitration. Sigman filed a breach of contract action against Bochetto and Lentz, claiming the firm still owed him referral fees. Pursuant to the agreement, the matter was referred to arbitration. The arbitrator found that Bochetto and Lentz would have owed Sigman fees of $277,350 but for his misconduct, and taking that into account, made a finding that Sigman was entitled to $123,942.92.

Bochetto and Lentz filed a motion with the Court of Common Pleas to vacate the arbitration award. The firm argued that the award of fees violated public policy because of Sigman’s misconduct, and that the court should conduct a de novo review of the matter and conclude that Sigman had forfeited any claim to fees by that misconduct. The motion was denied, and Bochetto and Lentz appealed.

On June 19, 2014, a panel of the Superior Court entered a decision affirming the denial of the motion and upholding the arbitrator’s award. The court found that the arbitration process was one of common law arbitration, and that an award in such cases will be set aside only when the public policy in question is “well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Moreover, the court held that the public policy interest with Sigman’s misconduct had been addressed by the disciplinary process that led to his suspension. As to the forfeiture argument, the court declined to conduct a de novo review, noting that the standard of review in common law arbitration matters affords great deference to the arbitrator, and does not permit parties to relitigate issues the arbitrator resolves against them. Accordingly, the lower court’s denial of the motion to vacate the arbitration award was upheld. The firm has filed an application for reargument.

New Jersey Censures Attorney Disbarred in Pennsylvania

The Supreme Court of New Jersey has censured an attorney who consented to disbarment in Pennsylvania.

In December 2009, Attorney Debbie Carlitz consented to disbarment in Pennsylvania, retroactive to January 1, 2009. Carlitz’s disbarment brought to a conclusion a remarkable story in which her paralegal, Bonnie Sweeten, retained an attorney for Carlitz and consented to Carlitz’s suspension without her knowledge. That suspension was vacated, but eventually Carlitz consented to disbarment based on a pattern of misconduct, some of it committed by Sweeten.

The New Jersey Office of Attorney Ethics brought a proceeding seeking reciprocal discipline, but only requested suspension for six months, with reinstatement conditioned on Carlitz’s reinstatement in Pennsylvania. Carlitz did not appear in the proceeding. In a decision dated December 3, 2013, the Disciplinary Review Board of New Jersey found Carlitz guilty only of practicing while on inactive status and failing to supervise her staff, and recommended she be censured. By order dated July 1, 2014, the Supreme Court of New Jersey accepted this recommendation and imposed censure.

Delaware Suspends Pennsylvania Attorney for Pre-Litigation Practice

By order dated June 18, 2014, the Supreme Court of Delaware suspended an attorney admitted in Pennsylvania from practicing in Delaware for one year, and barred him from pro hac vice admission for three years, for representing Delaware clients in pursuing insurance claims before they went to litigation.

Leonard B. Edelstein is admitted in Pennsylvania, but not in Delaware. His firm has a Delaware office staffed by a Delaware-admitted attorney. Edelstein acknowledged that he took numerous clients who were residents of Delaware, had accidents in Delaware, and owned insurance policies issued in Delaware. A Delaware doctor referred many of the clients to him. Edelstein met with the clients at the doctor’s office or his firm’s Delaware office, but did not consult with the Delaware-admitted attorney. He represented the clients in making claims and negotiating settlements with insurance companies. If the case did not settle and had to go to litigation, Edelstein referred the matter to a Delaware attorney.

A panel of the Delaware Board on Professional Responsibility found that by representing Delaware clients in prelitigation matters and meeting with them at locations in Delaware, Edelstein had engaged in unauthorized practice in Delaware in violation of Rules 5.5(b)(1) and 5.5(B)(2) of the Delaware Rules of Professional Conduct, which are substantially similar to the corresponding Pennsylvania rules. Rule 5.5(b)(1) forbids a lawyer admitted in another jurisdiction to “establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.” The panel found that the recent case of In Re Nadel, 82 A.3d 716 (Del.2013), controls, and that under its terms Edelstein maintained a continuous presence for practicing law in Delaware. Rule 5.5(b)(2) prohibits such a lawyer to “hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.” The panel determined that by meeting with Delaware clients in Delaware locations, and not affirmatively disclosing he was not admitted to the state bar, Edelstein held himself out as admitted to practice in Delaware. The panel did not find a violation of Rule 5.5(b)(2) as to certain advertisements the firm aired in media markets which included parts of Delaware.

The panel recommended that Edelstein be suspended from the practice of law in Delaware for one year,[1] and barred from pro hac vice admission in the Delaware courts for three years. The Supreme Court of Delaware accepted the disciplinary panel’s report and imposed the discipline it recommended.

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] It is not entirely clear to us how one can be suspended from the practice of law in a jurisdiction to which one is not admitted.