Board Adopts Amendments on Temporary Suspension, Public Access
 
By an Order published at 52 Pa.B. 6841 (11/5/2022), the Disciplinary Board adopted amendments to its Rules of Organization and Procedure (Disciplinary Board Rules) regarding temporary suspensions and public access to disciplinary proceedings.
 
Temporary Suspension:
 
The Board amended § 91.151, Emergency temporary suspension orders and related relief to provide for situations where a respondent-attorney has been on temporary suspension for two years, and evidence appears of noncompliance with the terms of the suspension. The amendment allows Disciplinary Counsel to petition the Supreme Court for the issuance of a rule to show cause why an order of disbarment should not be entered when one of six circumstances occurs:

1. the respondent-attorney has not complied with conditions imposed in the order of temporary suspension or with the requirements of Enforcement Rule 217;

2. the order of temporary suspension was based, in whole or in part, on the respondent-attorney's failure to provide information or records, and the respondent-attorney has not provided the information or records or otherwise cured the deficiency;

3. the respondent-attorney has engaged in post-suspension conduct, by act or omission, that materially delays or obstructs Disciplinary Counsel's ability to investigate allegations of misconduct;

4. the respondent-attorney's whereabouts are unknown, and Disciplinary Counsel has not been able to contact or locate the respondent-attorney at the address provided by the respondent-attorney;

5. a conservatorship of the affairs of the respondent-attorney has been appointed; or

6. the respondent-attorney has not participated in proceedings before the Pennsylvania Lawyers Fund for Client Security in which an adjudicated claim has resulted in an award.
 
The amended rule notes that Enforcement Rule 208(f)(9) provides that if a rule to show cause has been issued, and the period for response has passed without a response having been filed or after consideration of any responses, the Court may enter an order disbarring the respondent-attorney from the practice of law, discharging the rule to show cause or directing such other action as the Court deems appropriate.
 
Public Access:
 
In August, we noted that the Supreme Court of Pennsylvania adopted amendments to Rules 205 and 402 of the Pennsylvania Rules of Disciplinary Enforcement, addressing circumstances under which disciplinary proceedings may use electronic technology in lieu of in-person appearances. The Board adopted a set of amendments to its own rules reflecting the changes implemented by that rulemaking.
 
§ 93.23(a), Powers and duties is amended to add a new Paragraph (17) noting that Pa. R.D.E. 205(c)(17) allows the use of electronic means to conduct prehearing conferences and post-hearing proceedings before a hearing committee, special master, or the Board. All adjudicatory proceedings shall be conducted in person unless warranted by extraordinary circumstances. Witness testimony may be presented via ACT upon motion for cause shown.
 
§ 93.107, Broadcasting and other recording of proceedings is amended to add two new paragraphs relating to public access to public proceedings. Paragraph (B) notes that Pa.R.D.E. 402(j)(2) provides that public access shall consist of or be supplemented by livestream technology which ceases upon conclusion of the proceeding. Paragraph (C) observes that Pa.R.D.E. 402(j)(3) requires that requests for in-person access to proceedings by persons other than the parties, their attorneys, and staff must be made thirty days in advance of the scheduled proceeding.
 
These amendments took effect December 5, 2022.
 

Written Comments on CLE Board's New Proposed Rule Due January 5^th

ABA Opinion: “Reply All” Represents Consent to Client Receipt of Counsel Communications
 
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has issued its Formal Opinion 503 which contains cautionary advice for lawyers who copy their clients on email communications.
 
The Committee notes that Rule 4.2 of the ABA Model Rules of Professional Conduct states that a lawyer may not communicate about the subject of the representation with a represented person absent the consent of that person’s lawyer. The Committee raises the concern that if a client is copied on an email communication to opposing counsel, and opposing counsel replies using “reply all,” the client will receive opposing counsel’s response in violation of Rule 4.2. The opinion addresses the question of whether sending lawyers, by copying their clients on electronic communications to receiving counsel, impliedly consent to their clients receiving the receiving counsel’s “reply all” response.
 
The Committee states, “We conclude that given the nature of the lawyer-initiated group electronic communication, a sending lawyer impliedly consents to receiving counsel’s ‘reply all’ response that includes the sending lawyer’s client, subject to certain exceptions discussed below.” It argues that the sending lawyer has chosen to give receiving counsel the impression that replying to all copied on the email or text is permissible and perhaps even encouraged. In this situation receiving counsel is not overreaching or attempting to pry into confidential lawyer-client communications, the prevention of which are the primary purposes behind Model Rule 4.2.
 
This consent covers only the specific content of the initial email; the receiving counsel cannot reasonably infer that such email opens the door to copying the sending lawyer’s client on other emails and topics.
 
The Committee raised an additional concern that by copying their clients on emails and texts to receiving counsel, sending lawyers risk an imprudent “reply all” from their clients. Email and text messaging replies are often generated quickly, and the client may reply hastily with sensitive or compromising information. The Committee expressed the view that a better practice is to forward the email or to text separately to the client, avoiding any risk from a direct response.
 
The Committee declared that the presumption of implied consent is not absolute. First, an express oral or written notice to receiving counsel that the sending lawyer does not consent to a “reply all” communication would override the presumption of implied consent. Such a notice should be prominent and not part of a long list of boilerplate notices.
 
Second, the presumption applies only to emails or similar group electronic communications, such as text messaging, that the lawyer initiates. It does not apply to other forms of communication, such as a traditional letter printed on paper and mailed. A lawyer receiving a letter or such communication which the sending lawyer has copied to the client should not presume that direct contact with the client is authorized and should not copy the opposing client on any response to such a communication.
 

Court Finds Attorney Violated Confidentiality by Revealing Client’s Threat Against Prosecutor

A three-judge panel of the District of Columbia Court of Appeals handed down an important decision addressing the nature of attorney-client privilege at length. The Court struck down a defendant’s conviction, finding that his former court-appointed counsel was improperly permitted to testify as to threats he made against the prosecuting attorney.
 
Brian E. Moore was convicted and sentenced to eight years in federal prison for threatening a public official and obstructing justice. The convictions were based on statements Moore made to his court-appointed attorney, John Harvey, expressing frustration over positions the prosecuting attorney had taken in his case.
 
On one occasion, Moore remarked to Harvey, “I’ll shoot that b****,” referring to the prosecutor. Harvey warned Moore he may have to withdraw as his attorney and left to contact Bar Counsel for advice as to whether he was required to reveal the threats. He was advised that decision was within his discretion. Harvey decided to file a motion to withdraw from representing Moore without revealing his reasons, but that motion was denied. Harvey told Mr. Moore that he would continue to represent him but instructed him, “You will never, ever use this kind of language with me about anybody because, from this point forward, I’m going to believe you. So if you decide you want to go shoot somebody, you need to keep that to yourself and don’t make me a part of it.” Moore responded that he understood and that he was “just b***s***ing”.
 
Two months later, Moore again became agitated at the prosecution’s positions in his case. In a hallway conversation, he told Harvey, “I’m going to bust a cap in this b****” while making a hand gesture simulating a gun. After Moore’s second threat, Harvey immediately returned to the courtroom and renewed his motion to withdraw. This time, he offered to reveal what Moore had said. After hearing Harvey’s account of the comments, the court immediately ordered Moore to be detained and subsequently granted Mr. Harvey’s withdrawal motion.
 
Based on Harvey’s testimony before a grand jury, Moore was indicted and convicted on all counts of threatening a public official and obstructing justice.
 
On appeal, Moore’s counsel argued that the testimony of Harvey was improperly admitted in violation of the attorney-client privilege. In a long, scholarly opinion, the Court of Appeals agreed and reversed the conviction. The Court found that the trial court erred in ruling that Harvey’s conversations with Moore were not privileged and thus his testimony about these conversations was admissible against Mr. Moore at trial. Further, the Court found that this error was not harmless, and accordingly vacated Moore’s convictions. The majority found that the communications were for a legal purpose, as the relationship between Harvey and Moore had no nonlegal purpose, and therefore that the statements fell within the coverage of the attorney-client privilege. The Court noted that, in real life, defendants under criminal charges will often make inappropriate statements arising from their emotional state and that such statements are still protected due to the need to encourage clients to express themselves freely with the counsel upon whom they rely. The Court expressed the view that the importance of such protections is elevated in situations of court-appointed defense counsel so that defendants do not come to see their appointed counsel as an extension of the system that is prosecuting them.
 
One judge dissented from the ruling, arguing that Harvey’s actions complied with the exception to confidentiality that allow an attorney to reveal possible future criminal conduct by the client. She noted that Moore’s prior conduct and Harvey’s warning not to make such statements removed any expectations Moore might have held that such comments were appropriate and protected within the bounds of the attorney-client relationship. She also disagreed with the majority’s argument that the standard of protection is any different for appointed counsel than other attorneys.
 
The decision is still subject to en banc review by the Court as a whole. The opinion is a thorough and informative analysis of the nature of the attorney-client privilege. Professor Mike Frisch notes on the Legal Profession blog, “Whether you agree with the majority or not, the opinion in my view is an impressive blending of first-rate scholarship with an understanding of the real world experience of representing indigent clients.”
 

Court: Lawyer Can See Billy Joel, but not Knicks, at Madison Square Garden

A judge of the New York Supreme Court  ̶  which, one might remember, is a trial level court  ̶  has ruled that Madison Square Garden (MSG) can revoke a lawyer’s season ticket to New York Knicks games in retaliation for his suing them. But they cannot deny him admission to events sold through third-party vendors such as concerts.
 
Judge Lyle E. Frank issued the ruling in a suit brought by attorney Larry Hutcher who incurred the wrath of the storied arena by representing a class of ticket resellers in a lawsuit against MSG. The company responded by banning Hutcher and sixty lawyers in his firm from attendance at events in MSG or three venues owned by the same company. Hutcher’s suit relied on a New York statute that requires venues to allow entry to nonsporting events to anyone age twenty-one or older who is behaving appropriately. Judge Frank found that sporting events at MSG are outside the coverage of the law. He also found that the venue is within its rights to refuse to sell tickets to the plaintiffs, and it can revoke tickets to the plaintiffs up until the time that they present the tickets for entry at the covered events and locations. He held, however, that if the tickets are purchased through legitimate means such as third-party sellers, the venues must admit the patrons when they present the tickets at the time of the event.
 
Although he didn’t get his Knicks tickets back, Hutcher proclaimed the decision a huge win, noting that at least 75% of event tickets are acquired through third-party sources. “This is the first time that there’s been any limitation imposed on Madison Square Garden in terms of who they are required to admit,” he said.