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Attorney E-Newsletter

May 2007

2007-2008 Registration Forms Go Out

Now, I been in jail when all my mail showed
That a man can't give his address out to bad company

Bob Dylan, “Absolutely Sweet Marie.” Copyright © 1966; renewed 1994 Dwarf Music

Once again it’s the lovely month of May, which means it’s Bob Dylan month, and also the time when each of us has that ritual opportunity to reaffirm our commitments to the long line of tradition that comprises the legal profession in Pennsylvania.

Yes, it’s time to pay your annual registration fee again.

Annual registration/fee forms were mailed out May 11, 2007, and should have reached your inbox by the time you read this (they are blue). Forms and payments are due July 1, 2007. Late fees will take effect once the Final Notices are sent to attorneys by certified mail. Late fees are $100.00, and $200.00 if not paid by the time the Board certifies the names of delinquent attorneys to the Supreme Court. Complete the form carefully; incomplete forms will be returned and late charges may be assessed if not returned in time. The number one reason for forms being returned is due to the attorney not completing Section B, which is the PA Financial Data. If an attorney is in-state, paying the fee to be active, and does not work for a Corporate Legal Department, Government Legal Department, D.A.'s Office or Public Defender's Office or other agency, Section B must be answered, either by checking the box “None/Not Applicable” or providing the trust account information. If a check is returned by an attorney's financial institution as unpaid, the fee is $50.00 per check. Information on late fees is published at 37 Pa.B. 1963.

This year's Annual Fee Form will provide space for three addresses: a Preferred Mailing Address, Primary Location Office/Residence Address, and Residence Address. This is a change from prior years, when post office boxes were not allowed. The Office and Residence Address must still have an actual street address or rural route box number, but the preferred mailing address may be a post office box number. The attorney must also indicate which of the addresses will be published on the Disciplinary Board's Web site, and available by written or oral request to the Board.

The 2007-2008 form will be available online approximately June 1, 2007.

The Disciplinary Board has also posted on its Web site the list of financial institutions approved by the Supreme Court for the maintenance of attorney Trust Accounts. Click here to view the list.

This year’s fee is $175 (if paid on time). This fee is dedicated to the funding of the disciplinary/registration system and the Pennsylvania Lawyers Fund for Client Security. It provides awards to clients who have lost money due to the misconduct of lawyers. Because these activities are funded entirely by Pennsylvania lawyers, with no use of public tax funds, the legal profession can truly claim it is self-regulating.

Third Circuit Clarifies Speech Standard

If you can't speak out against this kind of thing, a crime that's so unjust,
Your eyes are filled with dead men's dirt, your mind is filled with dust.

Bob Dylan, “The Death of Emmett Till.” Copyright © 1963; renewed 1991 Special Rider Music

The United States Court of Appeals for the Third Circuit has modified the standard under which Federal courts in the circuit may limit public comment or release of information by attorneys and parties on pending matters, requiring a more stringent standard to be met before such restrictions can be imposed.

The Court of Appeals took this action in the case of United States v. Wecht, No. 06‑3098 (April 12, 2007) [opinion].The decision arose from a criminal prosecution of Dr. Cyril Wecht, coroner of Allegheny County. The parties had entered into a pretrial order restricting public comment consistent with Local Rule 83.1 of the United States District Court for the Western District. That rule prohibited parties from making extrajudicial comments if “there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.” Subsequently, the government sought a protective order barring release of certain exhibits, which was granted by the District Court.

Dr. Wecht and several intervening parties from the media appealed the protective order to the Court of Appeals, and challenged the pretrial order barring disclosure as an unconstitutional prior restraint on speech.

The Third Circuit court, in an opinion by Circuit Judge Fuentes, declined to reach the constitutional challenge, but instead invoked its supervisory authority over Federal courts in the circuit to modify that application of Local Rule 83.1. The Court looked at the standard prescribed by the United States Supreme Court in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), and determined that restrictions on speech by litigants were limited to those that posed a “substantial” as opposed to a “reasonable” likelihood of prejudice. The Court noted that this more rigorous standard was also incorporated into the language of Rule 3.6 of the ABA Model Rules of Professional Conduct and the corresponding Rule 3.6 of the Pennsylvania rules. Accordingly, the Court directed that Local Rule 83.1 and comparable rules of other District Courts in Pennsylvania, including Local Rule of Criminal Procedure 53.1 in the Eastern District of Pennsylvania and Local Rule 83.2 in the Middle District of Pennsylvania, be applied only according to the “substantial likelihood” standard in place of the current language.

The opinion goes on to deal with other issues at great length. The significance for the legal community is that it shifts the balance between the protection of First Amendment rights of expression and the right to fair trial slightly toward the former. Still, public comment on pending cases is a matter counsel and parties should always approach with great caution.

Metadata Yet Again

You're invisible now, you got no secrets to conceal.

Bob Dylan, “Like a Rolling Stone.” Copyright © 1965; renewed 1993 Special Rider Music

In January, we addressed the issue of metadata, or hidden information loaded into computer-processed documents by software. We quoted ABA Formal Opinion 06-442 (August 5, 2006), which held that “The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer reviewing and using embedded information in electronic documents received from opposing counsel or adverse parties.”

We should note for the purpose of accuracy that the ABA view is not universally held. The State Bar of Alabama recently promulgated Formal Opinion 2007-2, which states that “just as a sending lawyer has an ethical obligation to reasonably protect the confidences of a client, the receiving lawyer also has an ethical obligation to refrain from mining an electronic document.” The opinion quotes N.Y. State Bar Opinion 749 (2001), in support of the principle that “the use of computer technology to access client confidences and secrets revealed in metadata constitutes an impermissible intrusion on the attorney-client relationship in violation of the Code."

So practitioners should be aware that ABA Formal Opinion 06-442 is not the definitive word on the issue, and until the Pennsylvania courts speak on the subject the use of metadata could remain very much at issue.

F.A.Q.: Frantically Asked Questions

Question: I received a call from the Office of Disciplinary Counsel, saying that a client has filed a complaint against me alleging that I have neglected his case and failed to communicate with him. I think it’s all a misunderstanding which I could take care of if I talk to the client. Am I allowed to contact the client to get things straightened out?

Answer: Nothing in the rules that govern disciplinary proceedings prevents a lawyer from contacting a client who has filed a complaint against him or her. In fact, particularly where the client-lawyer relationship is ongoing, many times the goal of Disciplinary Counsel is to call a problem to a lawyer’s attention in hope that it can be amicably resolved in the best interests of all concerned.

Though, be careful to control emotions and keep any contacts civil and professional. While respondent-attorneys are usually encouraged to communicate and try to resolve problems, communications which are perceived as hostile, threatening, or retaliatory are likely to make a respondent-attorney’s disciplinary problems worse.

Of course, it is often wise to seek advice of counsel, and to follow counsel’s recommendations in resolving issues with client.

TIP OF THE MONTH - Check Your Form

When somethin's not right it's wrong

Bob Dylan, “You’re Gonna Make Me Lonesome When You Go.” Copyright © 1974 Ram's Horn Music

Don’t just sign and send your Annual Fee Form. Check carefully to make sure all the information is correct and current, as this is your registration record. You have an affirmative professional duty to make sure everything is correct. Also, remember that if any of this information changes, you have an obligation under Rule 219(d)(3) of the Pennsylvania Rules of Disciplinary Enforcement to update the information with the Registration Office within 30 days. Forms for updating registration records are available at www.padb.us.

Gotta Tip?

If you have a helpful practice you have discovered, or something you have seen other lawyers do which suggests ethical problems to you, we welcome your suggestions as to possible Tips and article topics. If we use your idea, we will give you credit. Or, if there is some issue you would like to see this Newsletter address, or if you have constructive criticism or suggestions, please let us know. Write to comments@padisciplinaryboard.org. We would be glad to hear from you.