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Attorney E-Newsletter

August 2007

Everything slows down during the dog days1 of August, and there is not much to report.

Ethics Opinions: Everybody’s Got an Opinion

While not much else has been happening, there have been some interesting ethics opinions.

Ghost Writers in Disguise: You Can Come Out Now

No, we’re not talking about Stephen King, but about the ABA Standing Committee on Ethics and Professional Responsibility, which issued Formal Opinion No. 07-446 on May 5, 2007 regarding the practice of “ghost writing,” or writing legal pleadings and papers to be filed or used by clients proceeding pro se. The Committee concludes,

A lawyer may provide legal assistance to litigants appearing before tribunals "pro se" and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.

The Committee noted that such assistance is a common form of “unbundled” legal services.

The Committee devotes some time to discussing the question of whether the lawyer’s participation in the drafting of such documents must be disclosed to the court. The Committee notes that there is a divergence of state opinions on the subject, as well as an inconsistent view expressed in ABA Informal Opinion 1414 (1978), which was based on the prior Code of Professional Responsibility. The Committee concludes, however, that disclosure is not required unless, under the circumstances of the case, the lawyer’s involvement would be a material factor such that failure to disclose would violate Rule 1.2(d) [assisting a client in fraudulent conduct], 3.3(b) [candor toward tribunals], 4.1(b) [avoiding fraud by client], or 8.4(c) [dishonesty, fraud, deceit, or misrepresentation]. The Committee stresses that this would only be an issue if the facts of the case made the origin of the document material; it does not find that the drafting of the documents or counseling the pro se litigant inherently violates any of these rules.

PBA and Philadelphia Bar: Breaking Up is Hard to Do

Meanwhile, the Pennsylvania Bar Association’s Committee on Legal Ethics and Professional Responsibility, and the Philadelphia Bar Association’s Professional Guidance Committee have issued Joint Opinion 2007-300 (June 2007), advising lawyers who are contemplating leaving their firms not to solicit the firm’s clients.

The opinion notes that both the departing lawyer and the firm should notify firm clients whom the lawyer has represented of the lawyer’s pending departure, preferably jointly, and preferably in writing. The departing lawyer may provide the client with factual information about the intended departure, its timing, the lawyer’s new address or association, and the lawyer’s willingness or ability to continue the representation. The client, however, should be advised that the client has the sole right to determine whether the client will continue with the firm, form a new relationship with the lawyer in the lawyer’s new setting, or seek another representation altogether. Neither the departing lawyer nor the firm should disparage the other or seek to influence the client’s decision as to this choice.

The opinion further notes that both the firm and the lawyer have a duty to cooperate in implementation of the decision the client makes. The opinion notes that the lawyer should communicate this to all clients, and resist the temptation to “leave difficult clients behind.”

This extensive opinion deals with several more issues and duties relating to the lawyer’s departure from the firm, and both lawyers who are considering changing their associations and firm managers should consult the opinion carefully.

The Rules of Disciplinary Enforcement: Not Just for Discipline Geeks

Rules, rules. We got rules.

The Rules of Professional Conduct you know about (we hope). A good part of this newsletter’s reason for being is to see to that.

However, there are other sets of rules that impact the practice of law. One of these is the Pennsylvania Rules of Disciplinary Enforcement. These are the organizational rules that govern the registration and disciplinary systems in Pennsylvania.

We know that most lawyers have very little contact with the disciplinary system other than filing the annual registration form and paying the annual fee. Unscientific surveys indicate that approximately 99% of lawyers would prefer to keep it that way.

For such lawyers, a close familiarity with the Rules of Disciplinary Enforcement is not a working necessity. A few of the Rules of Disciplinary Enforcement do, however, affect most lawyers in some ways, and it might behoove lawyers to look at these rules every now and then. The following are a few of the rules which may have an impact on any practicing attorney:

  • Rule 219. Periodic assessment of attorneys; voluntary inactive status. This is the rule that governs all lawyers’ responsibilities for registration and maintaining current contact information. Most of the requirements imposed by the rule are described on the annual registration form and in other materials contained in the thick packet all lawyers receive in the spring. Lawyers should realize, however, that compliance with the registration requirements is expected even from lawyers who do not receive the packet or whose issues are not addressed. Lawyers should also be aware that Rule 219(d)(3) also requires that a lawyer notify the Registration office of any changes in the information on the registration form – addresses, telephone numbers, firm associations, etc., within 30 days of the change. The rule also has provisions for what lawyers should do if they decide to retire or go on inactive status.
  • Rule 221. Funds of clients and third persons. Mandatory overdraft notification. We don’t make it easy to handle client funds in Pennsylvania. Nor is it easy to find all the information you need in one place. We have operational language in the substantive rule – Rule 1.15(j) of the Pennsylvania Rules of Professional Conduct contains the enabling legislation for the Pennsylvania Interest On Lawyers Trust Account Board – and substantive requirements in our operational rules, Rule 221 of the Rules of Disciplinary Enforcement. Rule 221 includes mandatory procedures for establishing a lawyer trust account for client funds, and specifies in detail the records which must be kept on such accounts. It also establishes a mandatory overdraft notice procedure with which financial institutions eligible to hold lawyer trust accounts must comply.

There are other rules in the Rules of Disciplinary Enforcement which address situations touching more directly on the licensing and disciplinary processes. For example, Rule 217(j) contains extensive guidelines for the circumstances under which a lawyer or firm may employ a former lawyer who is on inactive status, suspended, disbarred, or otherwise ineligible to practice. Rule 301 provides procedures for situations where a lawyer is no longer able to practice due to disability. But even lawyers who intend to avoid any involvement with the disciplinary process should be familiar with the rules above.

Quizlet

You are representing Client Chris in litigation against opposing party Olive, who is represented by Attorney Ashley. Both clients would like to get the case settled with a minimum amount of legal fees. Which of the following contacts are proper under the Rules of Professional Conduct?

  1. You may ask Attorney Ashley for permission to contact Olive directly.
  2. You may counsel Chris on how she can negotiate a solution with Olive directly.
  3. Both of the above.
  4. Neither of the above.

Answer:

C. Rule 4.2 of the Rules of Professional Conduct forbids a lawyer to contact a represented party without the opposing counsel’s consent, but it does not prohibit the lawyer from requesting consent to do so, or the opposing counsel from granting such permission. Also, Rule 4.2 does not prohibit a lawyer’s client from contacting the opposing client who is represented. See Comment 4 to Rule 4.2: “Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.” However, the comment does stress that Rule 8.4(a) forbids a lawyer to communicate with a represented party through the acts of another, so this principle may not apply if the client is merely a channel for communications from the lawyer.

Gotta Tip?

Or a comment, a question, a request, a suggestion? Let us know at comments@padisciplinaryboard.org.

1 Who decided to call August the “dog days?”2 Certainly not the Editor’s dog.

2 Actually, the Editor, being an astronomy buff, knows the answer to this. August is called the “Dog Days” because during this time, Sirius, the Dog Star in Canis Major (“the Big Dog”), rises at the same time as the Sun. Burnham’s Celestial Handbook advises that some of the ancients believed the torrid temperatures of the month were due in part to Sirius’s contribution to the heat of the Sun, including Vergil, who wrote in the Aeneid, “Dog Star, that burning constellation, when he brings drought and diseases on sickly mortals, rises and saddens the sky with inauspicious light,” and Dante, who wrote of “the great scourge of days canicular.”3

3 Here’s a trivia question to stump and amuse your friends. After what animal are the Canary Islands named? Not the birds; they’re named after the islands. The Romans named the largest island “Insula Canaria,” or “Island of the Dogs,” after the large and fierce native dogs they found there. These dogs are ancestors of breeds such as the Presa Canario, which is a dog named after an island named after a dog.4

4 The Editor’s dog is not a Presa Canario, but a Shetland Sheepdog, also a dog named after an island, but much cuter.