Attorney E-Newsletter

September 2007

This month is Bruce Springsteen Month, at the request of Disciplinary Board’s Executive Director Joe Farrell.1

Chief Justice Cappy Steps Down

And the judge put it all to rest. “The River” © Bruce Springsteen (ASCAP)

The Honorable Ralph Cappy, Chief Justice of the Supreme Court of Pennsylvania, has announced he will retire from the bench effective December 31, 2007.

Justice Cappy has served on the Supreme Court since 1990, and has been Chief Justice since 2003. Prior to joining the Supreme Court, he served on the Court of Common Pleas of Allegheny County for eleven years, and was Administrative Judge of the Civil Division from 1986-1990.

Upon Chief Justice Cappy’s retirement, Justice Ronald Castille will assume the role of Chief Justice. He has served on the Court since 1993.

Deputy Chief Counsel Burgoyne Named to National Board

Alliances have been made in alleyways/All across the nation . . .Zero and Blind Terry.” © Bruce Springsteen (ASCAP)

Paul J. Burgoyne, Deputy Chief Counsel of the Office of Disciplinary Counsel, has been named to the Board of Directors of the National Organization of Bar Counsel (NOBC).

The NOBC is composed of representatives of lawyer disciplinary boards from all 50 states, Canada, and various administrative tribunals. It provides a forum where disciplinary counsel from all over the country can share information, cases, ideas, suggestions, criticisms, and support with their peers, contributing to the development of professionalism and effectiveness of disciplinary systems. It also provides information to the public and the bar, such as referral to state agencies.

Mr. Burgoyne serves as second in command of the Office of Disciplinary Counsel, behind Chief Disciplinary Counsel Paul J. Killion. He is heavily involved in providing case oversight and leadership to Disciplinary Counsel on a daily basis. He has been Deputy Chief Counsel since 1992, and began his service with the Office of Disciplinary Counsel in 1981. He has been active in the NOBC for twenty-five years.

Decisions, Decisions -- Possession of Information Issues

They made their choices and they'll never know, What it means to steal, to cheat, to lie … “Prove It All Night.” © Bruce Springsteen (ASCAP)

There have been a few court decisions of late in Pennsylvania and elsewhere which have cast light on familiar and novel issues about access to information in the practice of law.

In Carbis Walker, LLP, v. Hill, Barth And King, LLC, __ A. 2nd ____, 2007 PA Super 221, 2007 WL 2080599 (Pa.Super.7/23/2007), the Superior Court dealt with every lawyer’s nightmare: the confidential document mistakenly faxed to the opposing party.

In this case, defense counsel’s office faxed a confidential document intended for a principal in its client to opposing counsel. As required by Rule 4.4(b), plaintiff’s counsel notified defense counsel he had the document, and upon a belated request, returned it to the defense. However, plaintiff used the knowledge gained by the unintended disclosure to request production of the document in discovery. A significant issue before the Superior Court was whether the inadvertent disclosure represented a waiver of attorney-client privilege.

The Superior Court found no controlling authority on this issue in Pennsylvania law, so it applied a five-part inquiry used in Fidelity & Deposit Co. v. McCulloch, 168 F.R.D. 516 (E.D.Pa.1996). This decision set forth five factors to be considered to determine whether an inadvertent disclosure amounts to waiver of the privilege:

  1. the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production;
  2. the number of inadvertent disclosures;
  3. the extent of the disclosure;
  4. any delay and measures taken to rectify the disclosure; and
  5. whether the overriding interests of justice would or would not be served by relieving the party of its errors.

Applying these factors, the Superior Court concluded that the disclosure did represent a waiver of privilege, and discovery of the document was allowed.

The United States District Court for the Eastern District dealt with the implications of an even more advanced technological issue in Healthcare Advocates, Inc., v. Harding, Earley, Follmer & Frailey, ___ F.Supp.2d ___, 2007 WL 2085358 (E.D.Pa., 7/20/2007). In this case, staff of counsel for the defendant used the Wayback Machine, an Internet archive search tool designed to store and display web pages which are no longer posted, to ascertain information from the plaintiff’s Web site which had been blocked from public access. The plaintiff sued defense counsel for “hacking” in violation of the Digital Millennium Copyright Act (DMCA), the Computer Fraud and Abuse Act (CFAA), copyright law, and common law trespass and conversion. However, Judge Kelly of the Eastern District found that through no fault of counsel for the defendants, a protective measure which would have prevented their access to the materials was not functioning, and thus their capture of the information was “fair use” which defeated the DMCA and CFAA counts alleged in the complaint. Judge Kelly noted that the defendant’s counsel was lucky that the protective measures were not working at the time they performed the search, but since the material was not obtained by misconduct, their possession and use of the information was not unlawful.

Another unreported but interesting case from the Fourth Circuit Court of Appeals, arising out of West Virginia, is described in the ABA/BNA Lawyers Manual on Professional Conduct. In the case of Thomas v. Shatz, 23 ABA/BNA Lawyers Manual on Professional Conduct 426 (No. 06-1175, 4th Cir., 8/7/2007), the lawyers in question had tried a case which had proceeded to a verdict. After the jury read its verdict, was discharged, and left the building, the Court Administrator asked the lawyers to help clean up the jury room. While doing so, the lawyers noted a flip chart on which the jury had written notes and impressions in the course of its deliberations. One of the lawyers copied down the information set forth on the flip charts. The Court Administrator observed this conduct and reported it to the judge. The judge charged the lawyers with misconduct, found that they had improperly contacted the jury by reading its private impressions from the flip chart, and entered an order reprimanding them and ordering them to pay costs and attorney fees as a sanction. On appeal, the Fourth Circuit Court of Appeals noted that no actual communication with the jurors had taken place, and that the lawyers had not challenged the jury’s verdict, but only retained the notes for their own education and professional development. Under the circumstances, the Court concluded that this was not an improper contact with the jurors, and reversed the order imposing sanctions.

Rule 3.5(c): Contact with Jurors

Contacts made, they vanished unseen. “Jungleland.” © Bruce Springsteen (ASCAP)

The Thomas case calls attention to the application of new Rule 3.5(c), which was added in the Ethics 2000 amendments. Section 3.5(c) establishes limits on what contact a lawyer may have with jurors after discharge of the jury. A lawyer may not communicate with a juror after discharge if:

  1. The communication is prohibited by law or by court order;
  2. The juror has made known to the lawyer a desire not to communicate; or
  3. The communication involves misrepresentation, coercion, duress, or harassment.

The Thomas case illustrates a common and permissible form of postdischarge contact with jurors, in which the lawyer seeks information about the decision-making process for the lawyer’s own education and understanding for purposes of future cases. However, lawyers communicating with jurors for this purpose must be very careful to assure that their communications are not argumentative, threatening, or vindictive, as such a tone may be interpreted by jurors a duress or harassment. The Thomas case also serves as a reminder that judges tend to be very protective of the integrity and peace of mind of jurors, so such postverdict communications should be conducted with great care and tact.

F.A.Q.: Frantically Asked Questions

There is nothing to stop a disgruntled client from filing a complaint. Will I be subject to discipline and my career ruined by a groundless complaint? What checks are in place to screen out frivolous complaints?

The Office of Disciplinary Counsel has an extensive screening process for complaints, and each Disciplinary Counsel spends much of her or his time reviewing complaints which will never even be brought to the lawyer’s attention because they lack merit. Some complain of conduct, which does not violate the Rules of Professional Conduct. Some merely express frustration with the way the case turned out or the way the relationship with the lawyer unfolded. Some are subject to policies which exclude certain categories of complaints or set prerequisites for disciplinary inquiry. Every complaint undergoes an objective and professional evaluation by an attorney, and each determination, whether to dismiss or to go forward, is also reviewed by a second counsel. The vast majority of complaints are dismissed, many without even contacting the lawyer. In 2006, for instance, 4,908 complaints were dismissed, and only 305 resulted in discipline.

Sometimes Disciplinary Counsel will contact the lawyer to try to get a problem resolved, such as by getting channels of communication reopened or a file returned. This is not discipline which will be reflected on the lawyer’s record. If it appears that there may be possible violation of the Rules of Professional Conduct, Disciplinary Counsel must send a formal Request for Statement of Position (DB-7) letter, which sets forth the facts alleged or discovered and the rules possibly violated in great specificity, and which also contains many paragraphs of cautions, warnings, and advice about the process. Each DB-7 letter must also be reviewed by a second counsel, and no disciplinary action can be taken until the attorney has had an opportunity to respond. No lawyer should ever ignore or take lightly a formal DB-7 letter, but even this step does not mean a decision has been made to impose discipline; many complaints are dismissed after the lawyer provides an explanation of the events alleged. No disciplinary action which will appear on the lawyer’s record may occur without this formal step being taken, or waived by the lawyer.

So the Office of Disciplinary Counsel does have a rigorous and highly effective screening system for unjustified complaints. Reasonable people may differ as to whether or not a particular complaint has possible merit or not. However, the Disciplinary Board is sensitive to the impact of meritless complaints on lawyers, and effective measures to control them are in place.

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1 And since he’s the boss,2 if he requests it, it happens.

2 But not The Boss.