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Attorney E-Newsletter

February 2008

Discipline Stats for 2007

The final figures on attorney discipline imposed in 2007 are in:

Discipline

2006

2007

 

Informal Admonition

77

85

 

Private Reprimand

22

16

 

Probation

11

6

 

Public Censure

4

3

 

Suspension

65

48

Includes 16 suspensions on consent (Rule 215 Pa.R.D.E.) but does not include 8 temporary suspensions (Rule 214 Pa.R.D.E.) and 8 temporary suspensions (Rule 208(f) Pa.R.D.E.)

Disbarment

39

25

Includes 13 disbarments on consent (Rule 215 Pa.R.D.E.)

Reinstatement Granted

93

64

Includes 47 reinstatements to active status after being inactive for three or more years, 12 reinstatements after having been suspended, and 5 reinstatements after having been disbarred.

Reinstatement Denied

1

2

Includes 1 reinstatement denied after having been suspended and 1 reinstatement denied after having been disbarred.

Total

312

249

 

It appears discipline was down in comparison to 2004 (313 total dispositions), 2005 (322 dispositions), and 2006 (312 dispositions). This may be due to unusually high numbers of dispositions in those years following the institution of discipline on consent in July 2005. Dispositions in the years 2000-2003 averaged 212.

Or it may be that there is less misconduct since nearly 36,0001 lawyers are receiving this newsletter. Yeah, that’s the ticket. It’s us.

If, out of occupational need, concern for the integrity of the profession, or plain old schadenfreude, you want to see whether anyone in your county has been disciplined recently, check out our newly designed Recent Discipline table at www.padb.us. Listings can now be sorted by name, ID number, county, date, or action taken.

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The Heaviest Secret: Two Confidentiality Stories

Two remarkable stories emerged in the press recently about lawyers who carried the heaviest secrets – information told to them in confidence, which they knew might clear a victim of unjust conviction.

From Virginia comes the story of Leslie P. Smith. Smith was representing a client charged with a co-defendant in a robbery-killing. During an interview session, a prosecutor switched off the tape recorder and coached his client to get his testimony to match the physical evidence. On the basis of this coached testimony, his client’s co-defendant was found to be the triggerman and was sentenced to death. Only a Supreme Court decision based on the defendant’s mental retardation saved him from execution during this time.

For ten years Mr. Smith kept his secret. He inquired of bar counsel whether he could reveal it and was told he could not. But ten years later, when his client’s case was over, he inquired again, and he said that this time he was told he could reveal the story. He did, and as a result, a judge recently commuted the defendant’s sentence to life imprisonment.

Another remarkable case out of North Carolina, began in 1984 when public defender Staples Hughes represented Steven Cashwell, who was charged with two co-defendants in a pair of slayings. Cashwell confessed to Hughes that he had acted alone. However, Hughes kept this information secret for 20 years out of obedience to the attorney-client privilege, even as Lee Wayne Hunt, one of Cashwell’s co-defendants was convicted and sentenced to two life terms.

Cashwell died in prison in 2002. In 2004, Hughes could remain silent no more. He contacted an attorney representing unjustly convicted individuals and told him of Cashwell’s confession. Based on this information, the attorney filed a petition seeking to vacate Hunt’s conviction. The judge who heard the petition refused to reopen the case, finding Hughes’s statement to be inadmissible hearsay. He also reported Hughes to the state bar.

In February 2008, the North Carolina State Bar dismissed the disciplinary charges against Hughes. The Supreme Court of North Carolina dismissed Hunt’s appeal, but his attorneys have stated that they will file an appeal in federal court and ask the state’s Innocence Inquiry Commission to consider the case.

Rule 1.6(d) of the Rules of Professional Conduct states, “The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated.” However, Comment 8 to Rule 1.9 states, “Where human life is threatened, the client is or has been engaged in criminal or fraudulent conduct, or the integrity of the lawyer's own conduct is involved, the principle of confidentiality may have to yield, depending on the lawyer's knowledge about and relationship to the conduct in question.” Whether such revelations can be made after the death of the former client is an unsettled question. In the case of Swidler & Berlin v. United States, 524 U.S. 399, 118 S.Ct. 2081, 141 L.Ed. 2nd 379 (1998), the Supreme Court held by a 6-3 margin that the Office of Independent Counsel could note subpoena notes of communications between the late Vincent Foster and his counsel, reasoning that open communication between client and attorney could be inhibited by the knowledge that such communications could be revealed after death. However, a footnote in the opinion notes, “Petitioners, while opposing wholesale abrogation of the privilege in criminal cases, concede that exceptional circumstances implicating a criminal defendant's constitutional rights might warrant breaching the privilege. We do not, however, need to reach this issue, since such exceptional circumstances clearly are not presented here.”

The recent cases indicate that particularly where a major injustice is at stake, the question is still open.

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Got Ascot?

Last month’s note on the controversy over a lawyer’s wearing an ascot2 tie in court drew a comment from subscriber Bart Levy of New York. He wrote, “An Ascot is not a tie; it is more akin to a scarf. As such it will only be disruptive of the trial process if the exposure of the neck, chest and all the ascot or scarf fails to cover, or its very absence is judged disruptive.” Having seen pictures of the attorney in question, we find this a risk assessment which must be taken seriously.

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FAQ (Forlornly Asked Questions)

Q: I saw in your discipline listings that an attorney in my county had been suspended. However, there is no link to an opinion. Where can I find the opinion that will tell me what happened in the case?

A: For most fully adjudicated disciplinary cases, there will be a report of the Disciplinary Board and a per curiam order of the Supreme Court, which are promptly posted online. A few cases each year may be decided in a published opinion by the Supreme Court of Pennsylvania. Some cases, however, will not result in any written adjudication:

  • Many of these will be reciprocal discipline cases based on discipline in another state, which are normally resolved by a simple order imposing the same discipline as was levied by the other state.
  • Some will be disbarments on consent. Under the terms of Rule 215(c), Pa. Rules of Disciplinary Enforcement (Pa.R.D.E.), only the order of disbarment is public; the agreement and statement leading to the order remain sealed, unless the case is at the public stage of proceedings. In contrast, when an attorney enters into discipline on consent involving suspension or lesser public discipline, the order, Board panel report, and agreement will all be posted.
  • Transfers to inactive status on the basis of disability are not accompanied by a public report and are not posted.
  • Automatic reinstatements after short suspensions and from inactive status are accomplished by a simple statement or order and do not require written reports. If the attorney received a short suspension, there will probably be a Board report posted separately, unless it was reciprocal. However, reinstatement after disbarment or a suspension of more than one year require a full Board report and are generally reported.
  • Temporary suspensions do not result in published reports. These may be emergency temporary suspensions under Rule 208(f), Pa.R.D.E. or suspensions for failure to comply with a subpoena or other violation of the Pa. Rules of Disciplinary Enforcement under Rule 208(f)(5). They may also result from criminal convictions which are referred to the Board for a hearing to determine the final discipline (which will be reported with a published opinion).
  • Transfers to inactive status for failure to file registration statements, pay annual fees, or comply with Continuing Legal Education requirements do not lead to published reports and are not listed on the Recent Discipline table. They do, however, render the lawyer unauthorized to practice law until the condition is remedied and the lawyer is transferred back to active status.

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Page Plug: Global Practice

Lawyers interested in multijurisdictional and global practice may find the collection of links and resources posted by Professor Laurel S. Terry, Penn State Dickinson School of Law useful: http://www.personal.psu.edu/faculty/l/s/lst3/globalprac.htm

We take particular satisfaction in publicizing this resource, as it was Professor Terry who, in response to the launch of the Disciplinary Board’s website, www.padb.us, in the summer of 2005, first suggested that it might be useful for the Disciplinary Board to publish an email newsletter. That idea led first to the distribution of an episodic “Disciplinary Hotline” to a few hundred subscribers, and then to this letter received by nearly half the Pennsylvania bar (did we mention there are 36,000 of you? We did? Well, there are).

Our thanks to Professor Terry for her fine work and one bright idea that went further than any of us imagined at the time.

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Gotta Tip?

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

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1 An amazing number to think about. Actually, we try not to think about it, as it gets a lot harder to write this newsletter when we do.

2 The term “ascot” is derived from the Ascot Racecourse in Berkshire, England, where the jaunty scarves were customary wear in Victorian times. It is not to be confused with ASCOB, a variety of Cocker Spaniel, which derives from the acronym for Any Solid Color Other than Black.3

3 You can tell the Westminster Kennel Club Show was on this month.