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Attorney E-Newsletter

January 2008

Todd and McCaffery Join Supreme Court; Castille Takes the Gavel

The Supreme Court continues to go through a period of rapid personnel changes after a long era of stability. January sees the departure of former Chief Justice Ralph J. Cappy, and of Justices Cynthia A. Baldwin and James J. Fitzgerald III, who were completing terms vacated by prior Justices. Justice Ronald Castille ascended to the role of Chief Justice. Read Chief Justice Castille’s swearing-in speech, delivered January 14, 2008, here.

Justices Debra Todd and Seamus J. McCaffery, elected in November 2007, took their seats. Both were elevated from the Superior Court, where Justice Todd began service in 2000 and Justice McCaffery joined in 2004, after a decade of service on the Court of Common Pleas of Philadelphia County.

Justice Todd’s offices are located in Pittsburgh. Prior to joining the Superior Court, she was an in-house litigation attorney for the U.S. Steel Corporation and maintained a trial practice in the City of Pittsburgh, with an emphasis in complex civil litigation. From 1989 through 1999, she also served as a Court-Appointed Special Master for the Allegheny County Court of Common Pleas.

While serving on the Court of Common Pleas, Judge McCaffery won local and national acclaim for creating and volunteering his services for such innovative programs as Nuisance Night Court, Graffiti Court and “Eagles Court,” the National Football League’s first and only court, conducted during the Philadelphia Eagles’ home games. These accomplishments earned him the label of “Philadelphia’s Quality of Life Judge.”

In October 2001, the Pennsylvania Supreme Court appointed him the Administrative Judge of the Philadelphia Municipal Court, one of the largest courts in the country. He is a retired former Philadelphia police officer and an avid motorcycle enthusiast.

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Supreme Court Rules Consumer Protection Act Does Not Apply to Attorney Misconduct

The Supreme Court handed down a major decision in the case of Beyers v. Richmond et al. No. 38 EAP 2006, decided December 28, 2007. The case apparently does not have an Atlantic Reporter number at press time, but the opinions may be read at the AOPC Web site. Links are provided with the discussion of the opinions.

The issue was whether the Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 Pa.C.S. §§ 201-1- 209-6, applies to an attorney’s conduct in collecting and distributing settlement proceeds. An attorney within a firm had misappropriated settlement proceeds, and the client brought an action against the responsible attorney and his firm on counts of negligent supervision, negligence, conflict of interest and breach of fiduciary duty, violation of consumer protection laws (UTPCPL), assumpsit in the form of forfeiture of attorneys’ fees, and fraudulent misrepresentation. The trial court found in favor of the client on all counts, including treble damages under the UTPCPL. The Superior Court affirmed the judgment of the trial court, and adopted its reasoning, holding that appellants’ actions did not arise from the practice of law, and therefore appellants could not use their profession as a shield from the application of the UTPCPL.

The majority opinion, by Justice Fitzgerald, held that application of the UTPCPL under these circumstances would encroach upon this Court’s exclusive power to regulate the practice of law in this Commonwealth. The Court noted a statutory issue that led the Superior Court of Pennsylvania to hold that the UTPCPL does not apply to treatment provided by another category of professionals: physicians. Observing that the misappropriation of client funds is directly addressed by the Rules of Professional Conduct, the Court held on constitutional grounds that action under the RPC is the exclusive remedy for such conduct, and that the UTPCPL does not create a separate remedy for the same conduct.

Chief Justice Cappy wrote a concurring opinion, in which he noted, “Because the issue of the UTPCPL’s applicability is resolved on statutory grounds, any discussion of the constitutional grounds for the majority’s holding is unnecessary.” He thus concurred in the result and the opinion only to the extent it discussed the statutory applicability, but not to the extent it addressed constitutional issues. Justice Baer joined in the Chief Justice’s opinion.

Justice Eakin filed a dissenting opinion, joined by Justice Saylor, in which he argued, “The UTPCPL is not a law directed at regulating attorneys; rather, it is a law of

general applicability. Appellants should not be exempted from the reach of the UTPCPL simply because of their status as attorneys.” Justice Saylor filed a separate dissenting opinion in which he added that “core functions of legal representation were not implicated by Appellant’s ancillary activity regarding the handling of the settlement proceeds … [as] this conduct does not involve the exercise of legal judgment.”

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Suspended Animation

Every disciplinary case has a human story behind it. Some are tragic. Two reinstatement cases decided 2007 bring an end to remarkable stories.

Barry Tumpson first received a three-month suspension on November 24, 1975, based on cases filed during the earliest years of the Disciplinary Board after its founding in 1972. He was 33 years old and had practiced law for three years at the time. He applied for reinstatement twice, but his applications were denied. He moved to Florida, developed a long career managing several businesses, and underwent therapy for depression. He applied for reinstatement again in 2006, and on December 3, 2007, the Supreme Court granted his reinstatement. His suspension of 32 years is believed to be the longest from which a lawyer has ever been reinstated in Pennsylvania.

M. Abraham Ahmad, an immigrant from Iran, was an attorney in practice with another attorney in Maryland. In 1995, he was disbarred in Maryland based on accusations by his former partner that he had misappropriated client funds. He was disbarred on a reciprocal basis by Pennsylvania in 1999. During the period of his disbarment he made a living in his former profession as an engineer. He cooperated with Maryland bar authorities in investigating the circumstances of the misappropriations, and eventually it was discovered that the accusations had been falsified by his former partner, to deflect attention from himself. Ahmad was reinstated in Maryland in 2002, and returned to the practice of law. In 2006, he filed a petition for reinstatement in Pennsylvania, which was granted by an order dated October 11, 2007. He lost seven years of his legal career to a lie.

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Ascot’ta Be Me

Some stories are amusing.

A Milwaukee judge William Sosnay held up a sentencing proceeding for three hours and threatened contempt sanctions against a prosecutor, Warren Zier, whom he felt had violated a court rule, requiring male lawyers to wear ties, by appearing in an ascot tie. The outfit is described as a “red ascot - which matched the handkerchief in the breast pocket of Zier’s pinstriped gray suit.” Judge Sosnay proclaimed this is “an issue which I believe deals with the integrity of the court.1 " A haberdasher, in a dissenting opinion, declared "ascots aren't worn very much, but would be considered formal." The story and a picture of the offending ascot may be found here.

Rule 3.5(d) of the Pennsylvania Rules of Professional Conduct provide that a lawyer may not “engage in conduct intended to disrupt a tribunal,” and Rule 8.4(d) prohibits “conduct prejudicial to the administration of justice.” While both have been invoked to impose discipline on lawyers who violate rules of court, there is thankfully no instance in Pennsylvania of a lawyer being sanctioned for his or her choice of habiliment, and thus there are no caveats on cravats.

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1 An assertion not without precedent.