Attorney E-Newsletter

June 2007

Public Hearings Access/Confidentiality Policy Clarified: Unringing the Bell

On May 23, 2007, the Supreme Court of Pennsylvania issued an order amending Rule 402 of the Pennsylvania Rules of Disciplinary Enforcement, concerning access to disciplinary information and confidentiality, to clarify the circumstances under which disciplinary proceedings will be confidential. The rulemaking is published at 37 Pa.B. 2602 (June 6, 2007). The amendment makes two changes.

First, Section 402(c)(4), which provided that proceedings would be public when they are “based upon allegations that have become generally known to the public,” was deleted.

Second, a new Section 402(k) was added, which states,

If a formal proceeding results in the imposition of private discipline or dismissal of all the charges, the proceeding shall cease to be open to the public when the decision to impose private discipline or dismiss the charges becomes final, unless the respondent-attorney requests that the record of the proceeding remain open to the public.

Under this amendment, cases which would have never become public prior to the “opening the system” amendments of October 2005 will cease to be available upon entry of an order of dismissal or concluding the matter with private discipline. The comment to the rule acknowledges and explains this paradox:

Although subdivision (k) provides that a formal proceeding that becomes open to the public under subdivision (a) will subsequently be closed if it results in the imposition of private discipline or dismissal of all the charges, the closing of the proceeding cannot change the fact that the proceeding was open to the public for a period of time. Thus, subdivision (k) makes clear that the respondent-attorney may request that the record of the proceeding remain open to demonstrate that the charges were dismissed or only private discipline was imposed.

In cases where it is anticipated that the matter will be concluded with private discipline, a respondent-attorney can keep the matter from ever becoming public, if Disciplinary Counsel agrees, by consenting to discipline under Rule 215 of the Pennsylvania Rules of Disciplinary Enforcement.

It’s Criminal When It Ain’t Civil: The Pennsylvania Code of Civility

Pennsylvania is one of a small number of states which have formally adopted a Code of Civility for judges and lawyers. On December 7, 2000, the Supreme Court of Pennsylvania adopted the Pennsylvania Code of Civility, which is published at 204 Pa. Code Chapter 99. Two additional items were added to the list by an amendment ordered on April 21, 2005, published at 35 Pa.B. 2722. The Code is in three parts: a preamble which states its purposes and principles, and one part that is devoted to conduct of each judges and lawyers.

The Preamble states the purposes of the Code:

The following principles are designed to encourage judges and lawyers to meet their obligations toward each other and the judicial system in general. It is expected that judges and lawyers will make a voluntary and mutual commitment to adhere to these principles. These principles are not intended to supersede or alter existing disciplinary codes or standards of conduct, nor shall they be used as a basis for litigation, lawyer discipline or sanctions.

The Code of Civility is not part of the Pennsylvania Rules of Professional Conduct or the Pennsylvania Rules of Disciplinary Enforcement, and thus its provisions are not enforceable by the Disciplinary Board or any other agency. Nonetheless, the Code has persuasive force. Despite the admonition of the Preamble to the contrary, some federal courts, in unreported decision, have cited the Code and indicated they may look to it for purposes of establishing expectations when considering sanctions and other issues involving attorney conduct.

The only Pennsylvania state case citing the Code of Conduct, according to a Westlaw search, is Commonwealth v. Poplawski, 852 A.2d 323, 2004 PA Super 207 (Pa.Super., 2004), in which Judge Lally-Green wrote in a footnote,

We also note with disapproval that the prosecutor's cross-examination as a whole was marked by an unusually high number of argumentative, sarcastic, and irrelevant questions, loaded with unnecessary editorial commentary on the witness's answers [citation omitted]. While we recognize that trials are stressful and adversarial proceedings, we remind the prosecutor that our Code of Civility states that attorneys should “treat all participants in the legal process in a civil, professional, and courteous manner at all times.”

Part III of the Code sets forth 19 practices that lawyers are expected to observe. Many are general responsibilities relating to courtesy to parties, counsel, the court, and other participants in litigation. There are some specific expectations, such as:

  • advising clients and witnesses of the proper dress and conduct expected of them when appearing in court and preventing clients and witnesses from creating disorder and disruption in the courtroom [4];
  • avoiding racial, gender or other bias or prejudice [7];
  • make all remarks in court only to the judge and never to opposing counsel [12];
  • referring to opposing counsel by surname preceded by the preferred title (Mr., Mrs., Ms. or Miss) or the professional title of attorney or counselor in the courtroom [12]; and
  • attempting to verify the availability of necessary participants and witnesses before hearing and trial dates are set [15].

While the Code of Civility is not itself a part of the Rules of Professional Conduct, there are several rules which create mandatory duties regarding some of the same issues, including:

  • Rule 3.1, regarding meritorious claims and contentions;
  • Rule 3.2, creating a general duty to cooperate in expediting litigation;
  • Rule 3.3, which sets requirements for candor in communication with tribunals;
  • Rule 3.5, which prohibits “conduct intended to disrupt a tribunal” and various acts of communication; and
  • Rule 8.4(d), regarding conduct prejudicial to the administration of justice.

In summary, the Code of Civility is not a mandatory set of rules like the Rules of Professional Conduct, such that a lawyer risks discipline by failing to follow them. They are, however, a practical guide to the expectations of the Pennsylvania courts as to how lawyers before them will conduct litigation. The careful lawyer would probably benefit from periodically reviewing the list and considering whether she or he has faced any situations where these principles could be of guidance. While compliance with the Code of Civility does not assure the approval of courts and opposing counsel, the converse is most likely true.

[Our thanks to subscriber Robert H. Dickman for suggesting this topic.]

First Thing We Do, Let’s Kill That Cliché

The more I think about it, Old Billy was right
Let's kill all the lawyers, kill 'em tonight

The Eagles (Don Henley), “Get Over It.”

However sympathetic we may be to tales of litigation abuse, most of us who are lawyers have doubtless winced when some wag invoked Shakespeare with the witticism, “First thing we do, let’s kill all the lawyers.” The advice is usually offered tongue in cheek, but the malevolence of the sentiment is clear.

The quote is, in fact, genuine Shakespeare. It is found in Act IV, Scene 2 of Henry VI: Part 2. Indeed, the quotation is perhaps the obscure history’s greatest claim to immortality.

Lawyers had image problems in Shakespeare’s time as they do today, and doubtless the utterance of the line produced hearty laughter from the audiences at the Globe Theater. But those who quote the line as contemporary wisdom may be well advised to take a look at the context of the quotation.

Act IV, Scene 2 depicts a gathering of Jack Cade, a hooligan turned rebel commander seeking to overthrow the troubled reign of King Henry, and his band of followers. Cade is boasting of what he will do when he seizes power:

CADE: . . . there shall be no money;
all shall eat and drink on my score; and I will
apparel them all in one livery, that they may agree
like brothers and worship me their lord.

At that point Dick the Butcher, a coarse comic character who has been mocking Cade’s claims in irreverent asides, pipes in with his suggestion:

DICK: The first thing we do, let's kill all the lawyers.

This suggestion does not shock the company; indeed, Cade accepts it willingly, with a dose of personal experience:

CADE: Nay, that I mean to do. Is not this a lamentable
thing, that of the skin of an innocent lamb should
be made parchment? that parchment, being scribbled
o'er, should undo a man? Some say the bee stings:
but I say, 'tis the bee's wax; for I did but seal
once to a thing, and I was never mine own man since.

Cade and his band do not actually kill any lawyers in this scene. They do, however, capture, try, and execute a hapless clerk. His crime? He had a book in his pocket. He was literate.

CADE: . . . Dost thou use to write thy name? or
hast thou a mark to thyself, like an honest
plain-dealing man?

CLERK: Sir, I thank God, I have been so well brought up
that I can write my name.

ALL: He hath confessed: away with him! he's a villain
and a traitor.

CADE: Away with him, I say! hang him with his pen and
ink-horn about his neck.

Exit one with the Clerk.

Cade and his band later capture London and engage in a round of murders, looting, and burning, but eventually more intelligent and articulate men turn his mob against him, and he is killed.

It is clear from the context that the animosity of Cade and his men toward lawyers arises from the personal experience of their own turbulent lives, and their intention to impose a lawless and brutal regime upon the society. Lawyers represent to them the rule of law, the mastery of intelligence over “plain-dealing” men with little tolerance for legality and other accoutrements of order. In the end, though, their lawlessness and brutality is their undoing.

So perhaps those who throw out the quotation “first thing we do, let's kill all the lawyers” might wish to reflect that it is not the sentiments of the Bard they embrace, but of an ignorant and violent band of brigands.

All You Need Is Law

So you think we’re the only ones who debase the majesty of the law by linking serious legal matters to pop songs? Well, we’re not.

Tip of the Month

At the risk of making pests of ourselves (yes, we know, too late), we remind one and all that registration statements and payments are due July 1. While failure to file the form and pay the fee does not immediately result in transfer to inactive status on July 1, all lawyers should be diligent about keeping their registration status up to date. The Disciplinary Board has generally recommended suspension of attorneys who continue to practice after being transferred to inactive status, and has held that lawyers have an affirmative obligation to assure that their licensure is current. The Board has written, “It is not unreasonable to expect an attorney to be continuously aware of the status of his privilege to practice law.” In Re Anonymous No. 123 DB 96, 41 Pa. D.&C. 4th 290 (1998).

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