Attorney E-Newsletter

August 2008

Disciplinary Board Proposes Conservator Rule Changes

The Disciplinary Board has proposed a series of changes to Rules 321 through 328 of the Rules of Disciplinary Enforcement, regarding conservators for absent attorneys. The changes are published at 38 Pa.B. 4504 (August 16, 2008). Comments are being accepted through September 8, 2008.

Some of the proposed changes are:

  1. A conservator may be appointed if an attorney abandons a practice, even if the attorney has not disappeared or died;
  2. An official note would state that "Nothing in the Rules of Professional Conduct relating to conflict of interest, confidentiality, or any other provision, shall prevent the Office of Disciplinary Counsel from serving as conservator, and from subsequently pursuing an investigation, and disciplinary prosecution of the absent attorney, based upon information gathered during the course of disciplinary counsel's service as a conservator";
  3. The filing of an application for the appointment of a conservator would operate as an automatic stay of all pending legal or administrative proceedings in this Commonwealth where the absent attorney is counsel of record, until certain contingencies occur;
  4. Procedures for notifying clients and disposing of files would be changed;
  5. If ownership of funds in the attorney’s possession could not be determined, the conservator could apply to the appointing court for permission to pay available funds to the Disciplinary Board for expenses of the conservatorship or to Pennsylvania Lawyers Fund for Client Security for payment of claims by the absent attorney’s clients;
  6. 6) Payment of the conservator at an hourly rate identical to that received by court-appointed counsel at the non-court appearance rate in the judicial district would be the usual rather than an exceptional procedure, and provision is also made for payment of accountants and other staff. The absent attorney is liable for such costs and may be required to pay them as a condition of reinstatement to practice or as costs in a disciplinary proceeding.

David Nasatir Appointed to Disciplinary Board

David A. Nasatir, a partner in the law firm of Obermayer Rebmann Maxwell & Hippell, L.L.P. has been appointed to the Disciplinary Board of the Supreme Court of Pennsylvania for a term running through April 2011. Mr. Nasatir, who concentrates his practice in the areas of municipal law, business, real estate, bank finance and consumer lending, represents numerous Philadelphia area financial institutions and businesses.

Sanctions on Lawyer for Obstreperous Client Upheld

In March we reported on the story of a client who responded to a deposition with a torrent of abusive and profane language, leading a Philadelphia federal judge to levy a sanctions order on both the client and his counsel.

U.S. District Judge Eduardo C. Robreno has refused to reconsider sanctions imposed on attorney Joseph R. Ziccardi of Chicago, whose client, Aaron Wider, committed alleged misconduct including dropping 73 "F bombs" during his 2 1/2 day deposition.

Judge Robreno rejected contentions by Ziccardi that he had discharged his duties to the court by engaging in off-the-record attempts to get his client to comply with the deposition, and that the court had unfairly imposed a duty on Ziccardi to terminate the deposition.

Ziccardi’s counsel stated that an appeal was under consideration.

Pro Hac Vice Admission Restored to Georgia Lawyer

A three-judge panel of the Court of Common Pleas of Philadelphia County restored the pro hac vice admission of a lawyer from Atlanta, Georgia, which had been revoked by a judge who accused him of pandering to the jury on racial grounds and injecting facts not of record into his closing argument. On March 21, 2006, in the case of ACE American Insurance Co. v. Underwriters at Lloyds and Companies, Judge Howland W. Abramson revoked the pro hac vice admission of Atlanta attorney J. Randolph Evans, accusing him of racially pandering to the predominantly black jury. One comment cited was Evans’ urging that jurors "look around the room" and realize why Evans’ client, an African-American like a majority of the jury, had been singled out for blame in the matter. Abramson also criticized Evans for injecting material off the record into his argument, such as by introducing his son who was in the courtroom, and by tying a date in the case to when Michael Jordan won a championship.

Evans appealed the revocation, and in December 2007 the Superior Court reversed and remanded the revocation order, holding that Evans was entitled to more notice and opportunity to be heard before his pro hac vice admission was revoked. Although the rule was not in effect at the time of the conduct and the revocation, the Superior Court pointed to the spirit of the recently adopted Pennsylvania Rule of Civil Procedure 1012.1(f), which provides that a lawyer admitted pro hac vice must have "a hearing or other meaningful opportunity to respond" before the court may revoke such a status.

On remand, a three-judge panel of the Court of Common Pleas, after a contentious hearing, issued a decision stating that since Evans had acknowledged that he would not use such tactics again in the future, there was no need for further action, and the revocation which had been vacated by the Superior Court would not be reimposed.

Yet Another Erratum

We have learned that some editions of the last newsletter contained a paragraph stating that it was being remailed because of an error. It wasn’t; that paragraph was carried over, buried in code, from a prior edition.

So we apologize for our error in apologizing for an error we hadn’t made.

We’re not quite at this point yet.

Don’t Call Us, We’ll Call You

The Disciplinary Board and this newsletter have been receiving many calls and emails requesting confirmation of receipt of registration forms and checks due July 1, 2008. Please understand that the Registration Office processes over 50,000 forms and checks during the summer months; we cannot provide individual confirmation.

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