Unified Judicial System of Pennsylvania Coronavirus Information
The Pennsylvania Judiciary has provided updatesregarding local court operations and proceedings. The Court continues to monitor developments regarding the spread of the coronavirus (COVID-19) and its impact on court operations.
By Order of the Supreme Court of Pennsylvania, the general statewide judicial emergency declared and maintained in previous Court Orders of March 16, March 18, March 24, April 1, and April 28 ceased as of June 1, 2020. Any previous Orders in this line shall expire according to their own terms.
The Court communicates regularly with the Governor’s Office and the state Department of Health for guidance on measures to continue protecting the health and safety of court users and court employees.
In this Newsletter I address the profession for the last time as Chair of the Disciplinary Board. It has truly been an honor and a privilege. I wish to thank the Court for allowing me to serve on the Board these past six years. With my fellow Board Members, we have striven to maintain the quality and integrity of the profession in Pennsylvania.
We have seen many developments and improvements over the past six years. These could never have been implemented without the dedication and hard work of Vice Chair, John Cordisco; Chief Disciplinary Counsel, Tom Farrell; Executive Director, Jesse Hereda; Prothonotary, Marcee Sloan; Counsel to the Board, Laura Mohney; and Special Counsel, Kimberly Henderson. They are the foundation which supports all of the Board’s efforts.
The system of self-regulation in Pennsylvania is exemplary. I leave the Board in the capable hands of incoming Chair, Jack Goodrich and Vice Chair, Jerry Lehocky as well as new Board Members Bob Mongeluzzi and Shohin Vance. The quality of Board Members, past and present, is unsurpassed. It has truly been a privilege to serve with them and an honor to consider them friends. The profession remains in good hands.
Note: The above-listed reinstatements reflect only those granted by Supreme Court Order. An attorney listed above whose current license status does not reflect reinstatement has yet to submit the fees necessary to finalize reinstatement.
Upcoming Public Proceedings
We encourage you to observe our public disciplinary and reinstatement hearings, oral arguments, and public reprimands on the Board’s YouTube channel. View “Upcoming Public Proceedings” at the bottom of the Board’s home page, www.padisciplinaryboard.org.
March 23 - Jon Ari Lefkowitz - Reinstatement Hearing
March 24 - William D. Hobson - Disciplinary Hearing
April 5 at 2pm - Richard S. Ross - Oral Argument
April 8 at 10am - John J. O'Brien, III - Oral Argument
April 9 - Richard S. Ross - Disciplinary Hearing
May 3 - Clarence E. Allen - Disciplinary Hearing
May 18 - William P. Fedullo - Disciplinary Hearing
May 19 - William P. Fedullo - Disciplinary Hearing
TBD - Paul Christopher Dougherty - Public Reprimand
Proceedings are scheduled to begin at 9:30am unless otherwise noted.
Board Proposes Rule Changes on Advertising, Communications About Services
In a Notice of Proposed Rulemaking published in the Pennsylvania Bulletin on February 20, 2021 (51 Pa.B. 891), the Disciplinary Board proposed extensive amendments to Rules 7.1, 7.2, 7.3, 7.4, 7.5 and 7.7 of the Pennsylvania Rules of Professional Conduct, addressing communications about legal services, advertising, solicitation, fields of practice, firm names, and other matters. The Board is seeking public comment which must be submitted by May 21, 2021.
The proposed changes are designed to bring the Pennsylvania rules into conformity with the ABA Model Rules of Professional Conduct, and seek to streamline and update the requirements to adapt to changes that have taken place in the profession during the digital age. Spanning 14 pages in the Pennsylvania Bulletin, the new language is too extensive to set forth in full in this newsletter.
The Disciplinary Board of the Supreme Court of Pennsylvania
601 Commonwealth Avenue, Suite 5600
PO Box 62625
Harrisburg, PA 17106-2625
Fax: (717) 231-3381
Board Proposes Amendments to Rules on Access to Disciplinary Information and Confidentiality
In a Notice of Proposed Rulemaking published in the Pennsylvania Bulletin on March 6, 2021 (51 Pa.B. 1128), the Disciplinary Board proposed a series of amendments to the Rules of Disciplinary Enforcement regarding confidentiality and access to documents in disciplinary matters. Comments on the proposed rule may be submitted on or before April 5, 2021.
The amendments would expand the ability of certified legal interns to appear before the Supreme, Superior or Commonwealth Courts, including for oral argument. The requirement of personal presence by the intern’s supervising attorney would be eliminated. Instead, the responsibilities of the supervising attorney would be expanded to assure that the intern is fully prepared and appropriately supervised. The supervising attorney must also assure that a licensed attorney employed by his or her office is personally present during any appearance by the intern.
Comments may be submitted until April 13, 2021 to:
Pennsylvania Board of Law Examiners
Attn: Counsel to the Board
601 Commonwealth Avenue, Suite 3600
P.O. Box 62535
Harrisburg, PA 17106-2535
Disciplinary Board News
Goodrich, Lehocky Appointed Disciplinary Board Chair, Vice-Chair
By Order dated March 16, 2021, Pittsburgh attorney John (Jack) P. Goodrich was appointed Board Chair and Philadelphia attorney Jerry M. Lehocky was appointed Board Vice-Chair. The appointments are effective April 1, 2021.
Jack Goodrich was first appointed as a member of the Disciplinary Board in April 2016. Goodrich is a principal of the law firm Goodrich & Associates in Pittsburgh, where his practice focuses on personal injury with a concentration on head trauma and vehicular accidents including wrongful death and complex civil personal injury litigation.
He has served on a variety of committees and boards at Duquesne University School of Law and for six years was appointed as a Hearing Officer for the Disciplinary Board. Mr. Goodrich is currently a board member and fundraising chairman for the Pittsburgh St. Patrick’s Day parade committee and a past president of the Western Pennsylvania Trial Lawyers Association. Read More...
Jerry Lehocky was first appointed as a member of the Disciplinary Board in February 2018. Lehocky is a founding partner at Pond Lehocky based in Philadelphia. He has been a litigator of workers’ compensation and Social Security since being admitted to practice in 1985.
For 12 consecutive years, Lehocky was chairman of the Pennsylvania Trial Lawyers Workers’ Compensation Section. He has served as a consultant to several Pennsylvania governors as well as numerous state senators and representatives on workers’ compensation issues. He also co-authored House Bill 2738, which created the Uninsured Employers Guaranty Fund – the first piece of workers’ compensation legislation in favor of injured workers to become law in over 30 years. Read More... Philadelphia Attorney Dion G. Rassias Reappointed Board Member
Philadelphia trial lawyer Dion G. Rassias has been reappointed by the Supreme Court of Pennsylvania to serve as a member of the Disciplinary Board. First appointed to the Board in April 2018, Rassias’ reappointment means he will serve on the Disciplinary Board until April 2024. Rassias is a trial lawyer with the Philadelphia law firm, The Beasley Firm LLC. He has extensive trial and appellate experience in state and federal courts and regulatory agencies. Read More... Two Disciplinary Board Member Appointments Issued
By Order dated February 17, 2021, the Supreme Court of Pennsylvania appointed Shohin H. Vance to the Disciplinary Board for a term of six years, commencing April 1, 2021. Vance is an associate at Kleinbard LLC in Philadelphia where his practice primarily focuses on litigation involving state governmental entities and officials, state constitutional matters, appellate litigation, complex election issues, and grand jury investigations. Read More...
By Order dated February 17, 2021, the Supreme Court of Pennsylvania appointed Robert J. Mongeluzzi to the Disciplinary Board for a term of seven years, commencing April 1, 2021. As president and a founding partner of Saltz Mongeluzzi & Bendesky, Mongeluzzi’s practice focuses on catastrophic personal and wrongful death matters. He has extensive experience in construction accidents, product liability cases, and transportation disasters, and his firm has been called the top construction accident attorneys in the country. Read More... Chief Disciplinary Counsel Thomas J. Farrell Admitted to American College of Trial Lawyers
Thomas J. Farrell, Chief Disciplinary Counsel for the Disciplinary Board, has been named a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America. The induction ceremony took place online during the recent spring meeting of the college.
An alumnus of Yale University and New York University School of Law, Farrell has been practicing law for 35 years. In his early career, he clerked for the Honorable Gustave Diamond of the U.S. District Court in the Western District of Pennsylvania and worked as a public defender in New York and as an Assistant United States Attorney in Pittsburgh. Following his government service, Farrell led his own civil and criminal trial and appellate practice in Pittsburgh for 20 years. Read More...
Rule 1.15, Part Two
Last month’s article outlined the recordkeeping requirements of Rule 1.15. This month, we discuss two equally important topics - what alerts the Lawyers Fund for Client Security (PALFCS) or Office of Disciplinary Counsel (ODC) to a problem, and what to do and what not to do when PALFCS or ODC comes knocking. The lawyer’s response can improve the lawyer’s situation or have devastating consequences.
Pennsylvania rules do not authorize random audits of attorney trust accounts. Thus, Rule 1.15 cases come to us primarily from two sources. First, when the IOLTA account becomes overdrawn or the lawyer bounces an IOLTA check, the bank notifies PALFCS. PALFCS promptly contacts the lawyer and demands an explanation and trust account records. Most times, the lawyer answers, explains the error, and provides corroboration, which concludes the matter. But if the attorney does not cooperate or misleads, or PALFCS detects evidence of serious misconduct, such as misappropriation of client funds, PALFCS refers the matter to ODC.
Aside from the overdraft and the record-keeping deficiencies, the first major misstep is to fail to cooperate with PALFCS. The non-cooperative lawyer has earned himself a disciplinary investigation, and starts out marked as someone who lacks respect for the attorney regulatory system and might have something to hide.
A second source of RPC 1.15 violations is a client complaint, but the allegations are often about things unrelated to account mismanagement, such as: a lack of diligence (RPC 1.3) from the failure to distribute a settlement, settle an estate, or do work to earn a retainer deposited with the lawyer; or a lack of communication (RPC 1.4) due to the lawyer’s failure to respond to the client’s inquiries or to keep the client reasonably informed.
A second major misstep is the respondent-attorney’s not cooperating with ODC. We issue a DB-7 Letter or obtain a subpoena that demands IOLTA records, and the attorney does not respond, makes an incomplete disclosure, or misses deadlines - a second black mark, for sure, but one that starts us down the road to an interim sanction with devastating consequences, starting with an emergency temporary suspension petition under Pa.R.D.E. 208(f), either because the evidence suggests an ongoing risk of misappropriation (Pa.R.D.E. 208(f)(1)), or simply because the attorney hindered our investigation by not producing trust account records (Pa.R.D.E. 208(f)(5)).
Monthly reconciliations of the trust account are indispensable to avoid or catch the mistakes that lead to a PALFCS inquiry, but it is rarely the only record-keeping deficiency. We find: failure to provide fee agreements, issue distribution statements, and maintain individual client ledgers; rampant commingling; and even “borrowing” from trust accounts. Absent rampant commingling and borrowing, many of these investigations result in private discipline if the respondent-attorney is a first offender who did not cause clients to lose money, cooperates with the investigation, and tries to put his financial house in order. But with the failure to maintain or reconcile records, the IOLTA account eventually falls out of trust. Many attorneys respond by replenishing the IOLTA with their own funds, which is prohibited by RPC 1.15(h) and amounts to a cover up of the violations.
One final caveat: any “borrowing” of fiduciary funds is a crime, whether or not the funds are restored. ODC refers matters for criminal investigation where there is evidence of intentional misappropriation of significant amounts of funds. Prosecutors and sentencing judges generally are harsh to attorneys who intentionally betrayed their clients’ trust and then attempted to lie their way through the disciplinary process.
And one final word of advice - consulting with or retaining counsel is always a good idea.
Thomas J. Farrell
Chief Disciplinary Counsel
Articles of Interest
Pennsylvania Bar Association (PBA) Joint Task Force for the Continuity of Delivery of Legal Services Issues Report
The COVID-19 pandemic disrupted many of the operations of society, including legal services. In the summer of 2020, in response to problems created by the pandemic and the measures taken to control it, PBA President David E. Schwager convened a task force to address how the profession could assure that citizens have access to justice for the duration of the pandemic and future emergencies.
Schwager appointed Judge Thomas I. Vanaskie (retired, U.S. Third Circuit Court of Appeals) to chair the 33-member Task Force, entitled the PBA Joint Task Force for the Continuity of Delivery of Legal Services. Participants in the Task Force included the PBA, Pennsylvania Association for Justice, Pennsylvania Defense Institute, Pennsylvania District Attorneys Association, Pennsylvania Association of Criminal Defense Lawyers, Public Defender Association of Pennsylvania, Pennsylvania State Conference of Trial Lawyers, Superior Court of Pennsylvania, Commonwealth Court of Pennsylvania, and Pennsylvania Legal Aid Network. Vanaskie created three other subcommittees: civil practice to study the suspension of jury trials and how to overcome that problem; criminal practice to examine problems and obstacles encountered in conducting proceedings remotely; and omnibus matters to examine how to keep the legal system moving.
The Task Force has issued its report. The Executive Summary of the report contains ten recommendations:
1. Any declaration of emergency that suspends all but essential services must recognize that legal services are indeed “essential.”
2. There must be meaningful statewide leadership and accountability to enforce health and safety standards uniformly and consistently on a statewide basis.
3. A joint task force involving the Legislature, the courts, the organized bar, and the general public should be formed to find a way to establish a uniform electronic case filing system for Pennsylvania.
4. Funding and training must be provided so that the courts and the bar are able to leverage the tools of technology to maintain operations.
5. Courts and administrative agencies should consider using advanced communication technologies to conduct proceedings when appropriate and practical, consistent with constitutional and statutory requirements.
6. To attack the backlog in civil cases, enhanced use of arbitration, mediation, judges pro tem, special masters and other judicial adjuncts should be encouraged.
7. Courts and county bar associations should explore options for making space and technology resources available to pro se litigants.
8. Administrative agencies and county row offices should adopt policies and procedures to enable remote proceedings and electronic processing of documents.
9. Problems encountered in the family law system concerning custody and child support must be addressed so that these matters of personal significance do not languish.
10. The PBA in conjunction with its CLE arm should offer programs on wellness and training on advanced communication technologies and other electronic resources to enable the members of the bar to adjust to the practice of law remotely.
The full report contains many more specific recommendations. The report is being shared with stakeholders including the Administrative Office of Pennsylvania Courts, judges at all levels of the Pennsylvania judicial system, legislators, and the executive branch. Pennsylvania Courts System Launches Subscriber Service
Alerts about new opinions, orders, and filings in Pennsylvania appellate courts (Commonwealth, Superior, Supreme);
Monthly infographics and other public court data; and
Educational outreach and videos.
The signup page allows users to choose which items they wish to receive notice of – newsletters, court resources, or appellate opinions by court – simply by supplying an email address.
"Well-Being Week in Law" is May 3-7
The goal of Well-Being Week in Law (WWIL) is to raise awareness about mental health and encourage action and innovation across the profession to improve well-being. In 2021, the event’s name was changed from “Lawyer Well-Being Week” to WWIL to be more explicitly inclusive of all of the important contributors to the legal profession who are not lawyers.
WWIL is an event of the Institute for Well-Being in Law (formerly named the National Task Force on Lawyer Well-Being). Organizations that participate in WWIL include the American Bar Association (ABA) Law Practice Division and its Attorney Well-Being Committee and the ABA Commission on Lawyer Assistance Program’s (CoLAP) Well-Being Committee. Read More...
Lawyers Struggle with New Handicap: Digital Addiction
Are we becoming addicted to our devices? Some experts express concern that we are. A recent study found that people are averaging 26.5 to 36.5 hours watching television, 19.6 to 28 hours looking at smart phones, and 25 or more hours working on computers in a week, for a total of 71 to 89.5 hours per week staring at screens, averaging out to 10-13 hours per day.1 On average, professionals receive about 120 emails per day and have 200 or more in their inboxes. The World Health Organization (WHO) recently announced that “gaming disorder” (also known as “digital-gaming” or “video-gaming”) will be included as a disorder in the International Classification of Diseases in the 11th version, scheduled for publication later this summer. William F. Haning, III, MD, a member of the board of directors of the American Society of Addiction Medicine and is the editor-in-chief of its publication ASAM Weekly, states that “process addictions” not arising from substance abuse, such as obsessive gaming, should be considered as addictions.
The State Bar of Texas has published an hour-long video on Lawyer Boundaries for Technology and Mental Health during Quarantine. The presenters were Chris Ritter, Director of the Texas Lawyers Assistance Project, and Diana Reinhart, a psychotherapist who practiced law before pursuing her therapeutic career. They argue that lawyers are as prone as anyone to digital addiction, especially under the work conditions imposed by the pandemic. They point to the huge volume of emails, online filings, and other electronic communications that inundate lawyers already under stress in information and constant demands for response and tasks from several devices. They outline a number of solutions and approaches lawyers can take to limit the control of electronic devices over their lives, including:
Checking emails only three times per day (before lunch, about 3:00 pm, and before leaving;
Setting expectations that response to emails and text messages will not be immediate;
Limiting social media use to 10 minutes per day per platform;
Monitoring use, such as setting phones to track screen time;
Move every email out of your inbox the first time you read it;
Turn off notifications;
Don’t keep or charge your phone by your bed;
Don’t take the phone with you during meals, exercise, or social activities;
Read books and magazines rather than phones or devices;
Get away from the computer regularly, and don’t take laptops or tablets along on weekends and vacations;
Delete Facebook, Instagram, and Twitter from phones to limit usage;
Unfollow disturbing or disruptive people;
Don’t follow news on phones;
Choose mindful or uplifting people and apps to follow rather than those that feed stress; and
Schedule self-care and parasympathetic nervous system activities, and use tech tools to remind you to disconnect the tech and reconnect with activities that sustain you.
1The study does not allow for people who do two of these things at a time, such as looking at their phone while watching TV. That never happens in our house. Nope, never.2 2The producers of the Amazon Prime series The Expanse have commented that people often don’t understand what happens in a scene, because there is nonverbal action that sets up the scene before the characters start speaking. They say that people are often looking at their phones until the dialogue begins, and thus miss the nonverbal setup.
Lawyers Concerned for Lawyers (LCL) is a confidential and safe resource for Pennsylvania attorneys and their family members who may be struggling with their mental health or substance use. An astounding one in three legal professionals will face these issues at some point in their career. Over the past 32 years, LCL has confidentially assisted and supported thousands of individuals who have faced a myriad of challenges (including grief, stress, anxiety, depression, eating disorders, gambling problems, problematic alcohol or prescription drug use, etc.), helping them navigate through dark and difficult times. Members of our profession are dying because they are afraid or unable to ask for help. If you or someone you know is struggling, please call us. You may save a life. There is help and there is hope.
Lawyers-only support meetings
Peer and staff support & resource coordination
LCL resources are free, voluntary, & confidential
Free CLE, resources, and information at www.lclpa.org
Assessment by a healthcare professional to determine a customized treatment plan, if indicated
Around the Court
Pennsylvania Supreme Court Chief Justice Announces Retirement Transition Plan
Pennsylvania Supreme Court Chief Justice Thomas G. Saylor has announced his intention to transition from the role of chief justice, in anticipation of his upcoming retirement in Dec. 2021.
Under the state Constitution, a Justice of the Supreme Court must retire at the end of the calendar year in which they reach the age of seventy-five. To ensure an orderly transition, Chief Justice Saylor will transfer the position of chief justice to Justice Max Baer, as of April 1, 2021, while remaining a Justice for the balance of his tenure.
“I am grateful to have led a productive Court, composed of collegial and dedicated jurists, and I appreciate the support I have received from the other justices and court system personnel throughout my tenure,” Saylor said.
Saylor has served in his present leadership role since Jan. 2015. Two decades ago, he came to the Supreme Court with a strong focus on producing high-quality judicial opinions. In his twenty-three years of service with the Court, Chief Justice Saylor has authored approximately 400 main opinions. Collectively, with his responsive opinions, he has penned more than 1000, covering the gamut of Pennsylvania law, throughout the civil, criminal and administrative arenas. Read More... PA Board of Law Examiners to Administer July 2021 Bar Exam Remotely
Because of the COVID pandemic and the safety issues related to gathering large groups indoors, the Pennsylvania Board of Law Examiners (PABLE) will administer the July 2021 bar exam remotely. This will be the third time that PABLE has given a remote exam since the pandemic began. Examinees will take the closed-book exam on their own computer from a location of their choice in a series of mostly ninety-minute test sessions.
For these remote administrations, examinees download the exam materials before the testing dates. On the testing days, the Board and its vendor provide passwords at the beginning of each session of the exam, and examinees can then gain access to the files they downloaded earlier. After the applicant enters the password to begin the test session, the software counts down the time remaining in the session and will automatically end the test session at the expiration of time. The examinees upload the answer files to the vendor’s site after the test session. In this sense, the remote exam is quite different than an online exam because, in the latter setting, examinees must be connected to the internet throughout the exam. The remote administration removes the risk of connection issues causing a problem when the applicant is answering the exam questions.
PABLE uses a “record and review” approach to monitor the exam. Each examinee must have a working camera and microphone that the exam software utilizes to record the examinee while testing. The examinee uploads the video file with the exam answer file. Initially, the video files go through an artificial intelligence program. This program identifies issues for the Board staff to review such as suspicious objects, test-taker leaving camera, test-taker speaking, etc. PABLE staff assesses the issues flagged by the program for review and determines if any warrant further investigation. An examinee suffers no penalty simply as a result of a video file’s being flagged; PABLE would have to make a finding of wrongdoing before there would be a consequence.
PABLE must confirm the identity of the person sitting for the exam. In a remote administration, this occurs in two ways; first by PABLE staff and later by computer software in each test session. Examinees upload a photo to the software company during a practice exam in advance of the bar examination. This becomes their baseline photo. Applicants also submit an image of their government-issued photo identification directly to PABLE. PABLE staff compare these images with the baseline photo in the software program to confirm identity. Additionally, the software takes a photo of the person sitting for the exam at the start of each test session. After each test session, the software company uses a facial recognition program to compare the photo of the person sitting with the baseline photo. This program does not compare the photo with any databases or sources other than the pre-exam photo uploaded by the applicant. The company alerts PABLE if it does not confirm an identity match and then staff undertake a review. The company destroys both the photos and the video recordings at the direction of PABLE after exam results are announced. Additionally, the software vendor does not have any access to the applicant’s government-issued ID or other personal information.
With each remote administration, PABLE staff have learned more and improved the process and the experience for examinees.
From the Pennsylvania Bar Association
Resources for Records/Account Management
The practice of law involves a lot of recordkeeping from client files to client funds to practice-related funds. Management of these records are regulated to one degree or another by the disciplinary rules. The Pennsylvania Bar Association (PBA) offers many resources to help attorneys navigate the various rules and obtain practical advice. For example, the PBA Committee on Legal Ethics and Professional Responsibility issues formal and informal ethics opinions, which are advisory only and not binding on the Disciplinary Board of the Supreme Court of Pennsylvania. In 2016, the committee issued Formal Opinion 2016-100, “Financial Data Questions on Pennsylvania Disciplinary Board’s Attorney Annual Registration Form” in response to numerous inquiries from attorneys seeking to understand what financial information they are required to disclose on the annual registration form. The committee also issues informal opinions as a member benefit to PBA members who have questions concerning the impact of the Pennsylvania Rules of Professional Conduct upon that member’s prospective conduct. In addition to PBA members having the benefit of obtaining individualized ethical advice, they can search the database of all informal and formal opinions. PBA members also have free access to advice from Ellen Freedman, Law Practice Management Coordinator, and a plethora of articles and other resources. For example, see these resources on the Best Practices for Trust Accounting and Implementing a Records Management Policy. PBA’s many sections and committees provide further support and guidance through newsletters and listservs.
Please note that the Disciplinary Board of the Supreme Court of Pennsylvania and the Pennsylvania Bar Association (PBA) are separate organizations. For more information about PBA, visit their website.
We Want To Hear From You...
We are always on the lookout for stories of interest relating to legal ethics, new issues in the practice of law, lawyer wellness, and funny or just plain weird stories about the legal profession. If you come across something you think might be enlightening, educational, or entertaining to our readers or social media followers, pass it along. If you’re our original source, there may be a hat tip in it for you.