Celebrating Pro Bono Service
Pro bono legal work affords greater access to justice for all Pennsylvanians. Each October, pro bono endeavors across the United States are celebrated. Many within the legal profession volunteer free services to individuals with low income and limited access to legal assistance. Every year, thousands of PA attorneys find joy in meaningful service to their local communities and fellow Pennsylvanians.
In 2018, the Supreme Court of Pennsylvania created
emeritus status for retired PA attorneys to contribute their expertise and time to legal aid organizations. Emeritus attorneys fulfill valuable roles by bolstering legal aid and other nonprofit programs to help close the gap between the need for and the availability of free legal assistance.
This summer, the Disciplinary Board launched its
“Pro Bono” webpage to connect PA attorneys with available resources to perform pro bono legal work. Here, users can learn more about emeritus status and explore pro bono opportunities sponsored by the PA IOLTA Board, the PA CLE Board, and other statewide organizations. Visitors can also view recent pro bono news from the Board as well as
Chief Justice Baer’s 2021 letter to the Bar imploring all PA attorneys to consider contributing time and financial support to legal aid providers.
The availability of free, high-quality legal services has the power to improve the trajectory of communities. The Disciplinary Board extends its sincere gratitude to all PA attorneys who have answered the call to action and encourage those not yet performing pro bono legal work to actively seek opportunities to serve in the coming year.
Pennsylvania Lawyer Reprimanded for Behavior in Deposition, Failure to Obey Orders
A Philadelphia lawyer received a reprimand based on her conduct during a deposition and for failing to comply with orders entered in sanctions proceedings.
Julie Chovanes represented a pharmaceutical company in a case in a California Federal court, admitted on a pro hac vice basis. During a deposition of the company’s founder, she adopted an aggressive approach, lodging numerous objections, instructing her client not to answer questions 39 times, arguing with plaintiff’s counsel, coaching her witness through suggestive objections, and leaving the room at one point. Opposing counsel filed a motion for sanctions. The Magistrate Judge granted the motion for sanctions, finding that her conduct disrupted the deposition and that her demeanor in teleconferences as “flippant, overly aggressive, truculent, and quick to confrontation.” The Magistrate Judge ordered her to pay $28,502.03 in sanctions, self-report the findings to the Office of Disciplinary Counsel, and file a declaration of compliance. She failed to comply with the order, but filed an untimely objection to the order. A District Judge denied the objection due to untimeliness, leaving the sanctions order in effect. Chovanes did not appeal either order, but still failed to comply with the order. The Court then referred the matter to the Office of Disciplinary Counsel.
Chovanes and the Office of Disciplinary Counsel entered into a Joint Petition for Discipline calling for a public reprimand. Chovanes agreed that her conduct violated
Rule 3.1(a)(1) of the California Rules of Professional Conduct (Cal.R.P.C.), asserting a position without probable cause for the purpose of harassment;
Cal.R.P.C. 3.2, use of means with no purpose other than to delay or prolong the proceeding;
Cal.R.P.C. 3.4(f), knowingly disobeying and obligation to a tribunal;
Cal.R.P.C. 8.4(d), conduct prejudicial to the administration of justice; and
Rule 203(b)(7) of the Pennsylvania Rules of Disciplinary Enforcement, failure to respond to a letter of inquiry.
The Joint Petition noted cases in which lawyers were disciplined for disruptive conduct in litigation, and stipulated that Chovanes’ conduct was less serious than those cases. It also cited her lack of prior discipline, admission of wrongdoing, expression of remorse, and cooperation with Disciplinary Counsel as mitigating factors.
A three-member panel of the Disciplinary Board approved the Joint Petition. By order of the Chair of the Disciplinary Board, the public reprimand was administered on October 7, 2021.
California Appeals Court Finds Agreement Allowing Lawyers to Settle Case Invalid
A California appeals court has
ruled that a provision in a contingent fee agreement that gave personal injury lawyers the “sole discretion” to settle a client’s case was void and a violation of the client’s right to approve any settlement.
Lawyers from Jolly Berry Law, a firm located in Mission Viejo, California, entered into a contingent fee agreement with Sayedeh Sahba Amjadi, a client in an auto accident case. A provision in the agreement gave the law firm the authority to accept settlement offers for client, as long as the lawyers thought in good faith that the settlement offer was reasonable and in the client’s best interest.
The case proceeded to the eve of trial, but the relationship between Amjadi and her counsel soured. On the morning of trial, plaintiff’s attorneys sought to be relieved as counsel for plaintiff based upon a conflict of interest, but the trial court denied their motion. Then, Amjadi’s counsel approached defense counsel about a potential settlement for $150,000, an amount she had previously rejected. The defense agreed, and counsel accepted the settlement in reliance on the clause in the contingent fee agreement. Due to the settlement, the trial judge dismissed the complaint.
Amjadi found the settlement inadequate, and hired new counsel who filed a motion to vacate the judgment. When the motion was denied, she appealed. The Fourth Appellate District in the California Courts of Appeal
reversed the judgment of dismissal. The Court found that
Rule 1.2 of the California Rules of Professional Conduct (Cal.R.P.C.), which states that “a lawyer shall abide by a client’s decision whether to settle a matter,” governs the result and renders the language in the law firm’s contingent fee agreement null and void. As a result, it found that the settlement was entered without authority and was voidable by Amjadi.
The Court further noted possible violations of
Cal.R.P.C. 1.6 (confidential communications),
1.7 (conflicts of interest), and
1.9 (duties to former clients). Accordingly, it referred the lawyers involved in acceptance of the settlement to the State Bar of California for disciplinary investigation.
Pennsylvania Supreme Court Approves Comfort Dogs for Witnesses
In a
unanimous decision handed down September 22, 2021, the Supreme Court of Pennsylvania found that a trial court did not err by allowing use of a trained comfort dog for a witness.
An important witness to a murder was 14 years old and has autism. She expressed a fear that testifying would lead to retaliation by a gang. Prosecutors submitted a motion that she be allowed to testify in the presence of a trained emotional support dog, who would be concealed behind the witness stand out of the jury’s view. The trial court allowed the use of the comfort dog, and the witness testified. The defendant was convicted of multiple charges including third-degree murder.
On appeal, the defendant argued that the use of the comfort dog was prejudicial, because the dog’s presence generated sympathy for the witness within the jury, and that the Commonwealth failed to establish the necessity for the use of the dog. The appellant noted that many states that have addressed this issue have employed a test balancing the ability to gain truthful testimony from a witness by reducing his or her trauma against the potential prejudice to the defendant. The appellant argued that the trial court failed to get on record the required evidence that the use of the dog was necessary to enable the witness to testify.
The
majority opinion, authored by Chief Justice Baer, noted that the issue is one of first impression in Pennsylvania, and examined cases on the issue from other jurisdictions. It adopted a rule found in a Connecticut case and declared:
The trial court should consider the particular facts and circumstances for the request to have a dog accompany the particular witness, the extent to which the dog’s presence will permit the witness to testify truthfully, completely and reliably, and the extent to which the dog’s presence will obviate the need for more drastic measures to secure the witness’ testimony... The trial court should balance these factors against the potential prejudice to the defendant and the availability of measures to mitigate any prejudice, such as limiting instructions and procedures to limit the jury’s view of the dog.
The majority opinion then examined the trial judge’s disposition of the motion, and noted that he held a hearing on the motion, referred to the dog as a “service animal,” required that it enter and exit the courtroom out of the jury’s sight and be hidden from the jury during the testimony, and twice instructed the jury not to take the presence of the dog into consideration in evaluating the witness’s credibility. The Court concluded that these precautions were sufficient to allay prejudice to the defendant, and affirmed the conviction.
In a
concurring opinion, Justice Donohue expressed the view that the prosecution offered no evidence that the presence of this comfort dog would alleviate the witness’s safety concerns and enable more reliable and complete testimony as required by the Connecticut test. However, she noted that defense counsel did not object to the lack of evidence demonstrating that the comfort dog would aid the witness in testifying truthfully and reliably, and that the issue was therefore waived on appeal, and so she concurred in the judgment of affirmation.
According to a
survey by the Animal Legal and Historical Center at Michigan State University, sixteen states have laws allowing the use of facility/courthouse dogs in some legal proceedings.
Facebook Follies: October Edition
It seems that every month we find stories related in some way to that ubiquitous presence in our lives – Facebook.
A New Jersey lawyer
escaped ethics charges because he didn’t understand Facebook privacy settings. The Supreme Court of New Jersey dismissed ethics charges against John Robertelli based on his use of Facebook postings to show that a litigant who was claiming a disabling injury was wrestling. The material had been downloaded by his paralegal, who sent the litigant flattering messages and gained access to the litigant’s account when he accepted her friend request. The Office of Attorney Ethics filed a complaint alleging Robertelli violated an ethics rule that bars lawyers from communicating with a represented party without the consent of the party’s lawyer.
The Court’s opinion noted that both sending a “friend” request and enticing or cajoling the represented client to send one are prohibited forms of conduct under RPC 4.2. However, it noted that when the conduct occurred in 2008, Facebook was in its infancy, and that Robertelli, who had just acquired a computer a few years before the incident and was safely described as not computer savvy, may well have had a good faith misunderstanding of Facebook privacy settings, and probably did not realize that his paralegal had gained access to the images only by direct contact with the opposing party. The Court dismissed the ethics charges, but its decision may be a ticket good for one ride only, as it opined, “Lawyers must educate themselves about commonly used forms of social media to avoid the scenario that arose in this case. The defense of ignorance will not be a safe haven.” It referred the matter to the Advisory Committee on Professional Ethics for consideration of whether any additional social media guidelines or amendments are needed.
A California judge was
publicly admonished after joining a Facebook group calling for the recall of the district attorney whose office prosecuted cases before him, and for tweets, retweets, and comments that suggested bias.
Judge Michael J. O’Gara posted comments criticizing Los Angeles District Attorney George Gascón for failing to seek sentencing enhancements, and commented, “Some of the judges are fighting Gascón’s directives and we need them to stay. They are heroes.” He also clicked the "like" icon for a comment that said, “Please let me know what I can do to help with [an opponent’s] run. I work in court. The morale is extremely low.” The admonishment noted that O’Gara also liked tweets appearing to reflect strong political points of view, conveying bias against victims of sexual assault and disdain for women, opposing immigrants, supporting capital punishment, and seeming critical of those exercising their First Amendment rights to protest.
O’Gara withdrew from the Facebook group within a month and later deleted his Twitter app and deactivated his account. He expressed contrition for his social media activity and accepted that his actions were inappropriate. The Commission voted to impose a public rather than a private admonishment by a 6-4 margin.
The Queen’s Countergambit: Georgian Chess Champion Sues Netflix
A trailblazing Georgian female chess champion is
suing Netflix over her portrayal in the miniseries The Queen’s Gambit. Chess legend Nona Gaprindashvili made history as the world's first female grandmaster and was the female world chess champion from 1961 to 1978, and the over-65 women’s champion as recently as 2019.
What enraged Gaprindashvili was a single line in the miniseries, in which a commentator on protagonist Beth Harmon’s match against a Russian male chess champion states that Gaprindashvili never faced men, while the camera dwelled on a female actor presumed to represent her. She had competed against at least 59 male chess players by the date set in the miniseries, including 28 of them simultaneously in one game.
Gaprindashvili filed a
complaint against Netflix in the Central District of California, Western Division, alleging that the representation that she never faced men was false and defamatory, and constituted false light invasion of privacy and defamation per se.
1 She seeks $5 million in damages.
The complaint notes that the
novel by Walter Tevis on which the series was based accurately reported that Gaprindashvili had competed against men, but Netflix changed the line for dramatic effect. Netflix refused Gaprindashvili’s demand for a public statement acknowledging the falsity of the statement, an apology, and a retraction.
Gaprindashvili’s counsel commented, "This whole program,
The Queen's Gambit, is aimed to show that women can succeed, and how their heroine overcame prejudice. But in doing so, they trashed the real person who had really been the trailblazer." Netflix said in a written statement, "Netflix has only the utmost respect for Ms. Gaprindashvili and her illustrious career, but we believe this claim has no merit and will vigorously defend the case."
1She also complains of being described as Russian, when she was born and resides in the Republic of Georgia.
I want to take this opportunity to remind readers that lawyers have an ethical responsibility to stay apprised of recent appellate decisions. As a dog owner, I know first hand how much comfort a furry friend can provide, and I read with interest the recent 
Former Senator John C. Rafferty, Jr. has been 
