Attorney E-Newsletter

May 2008

This newsletter is intended to inform and educate members of the legal profession regarding activities and initiatives of the Disciplinary Board of the Supreme Court of Pennsylvania. Content will be pertinent to the conduct of lawyers and the legal profession in the Commonwealth. Article focus will be on changes in the Rules of Professional Conduct, activities of the Disciplinary Board, Ethics Education, and advice from members of the staff of the Disciplinary Board.

Again, comments and suggestions from the readership are encouraged!

The editors

Annual Report 2007

The Disciplinary Board has issued its Annual Report for 2007-2008. It is posted at here. A few highlights:

  • As of December 31, 2007, there were 59,453 attorneys on active status in Pennsylvania.
  • 25 cases were brought to conclusion using the Discipline on Consent process in 2007. 4 joint petitions for discipline on consent were denied.
  • Three rule changes were adopted by the Supreme Court:
    • Pa.R.D.E. 219(d) was amended by Order dated April 10, 2007, effective April 28, 2007 to require that attorneys provide their current residence and office addresses on their attorney annual fee forms; however, they may also provide a preferred mailing address different from those addresses. Attorneys are also required to select one of the three addresses for public access through the Board's website or upon written or oral request.
    • Pa.R.D.E. 402 was amended by Order dated May 23, 2007, effective June 9, 2007, to repeal Rule 402(c)(4) and to add new Rule 402(k) which would provide that a formal proceeding that becomes open to the public will subsequently be closed if it results in the imposition of private discipline or dismissal.
    • Pa.R.D.E.102 was amended by Order dated June 26, 2007, effective July 14, 2007 to lower the criteria by which an experienced hearing committee member would be eligible for promotion to a senior hearing committee member.
  • The circulation of this newsletter increased by nearly 10,000 in 2007.

Disciplinary Board Modifies Organizational Rules

The Disciplinary Board has published a set of modifications to the Rules of Organization and Procedure of The Disciplinary Board, the organizational rules that govern much of the operations of the Disciplinary Board. The changes were published at 38 Pa.B. 1812 (April 19, 2008). Most of these changes are not new, but bring the organizational rules into conformity with various changes to the Rules of Disciplinary Enforcement which have been adopted over the past few years.

The changes include:

  • Updates to the definitions of different types of Hearing Committee members;
  • The new address of the District 4 (Pittsburgh) office;
  • Changes to the rules regarding employment of inactive, suspended, or disbarred former attorneys;
  • Revisions to the rules regarding access to information on disciplinary proceedings and restoration of confidentiality; and
  • Amendments relating to information on the annual registration statement.

These amendments took effect upon publication.

Linked Licenses

By now we hope everyone understands that it is very serious business to practice law while one's license is suspended, but a York County attorney found out that the same principle applies to his other license as well. Stanley Silver was convicted of driving while his driver's license was suspended.1 Although a hearing committee recommended he receive public censure, the Disciplinary Board disagreed and recommended a six-month suspension, which is what the Supreme Court did. In driving, as in law, suspended means suspended.2

New New Hampshire Lawyer's Plan to Clip Salons is Foiled

Newly admitted New Hampshire lawyer Daniel Hynes had an idea gel for starting his legal career with a bang. Sensing a blowout, he burned a lot of toner writing a crop of letters to hair salons all around the state - 19 of them, in fact - complaining under color of civil rights laws of his dis-tress that the salons were practicing discriminatory pricing practices by charging women more than men, rather than locking prices in to the amount of time required for the cut.3 Glossing over the fact that he as a man benefited from these practices, he threatened litigation, but conditioned that the matter could be straightened out on his part by payment, to him, of $1000.00.

Little did he know he had stirred up a beehive of trouble. One salon, after taking time to mullet over, called his bluff by extension of a trimmed-back settlement of $500.00, but when Hynes appeared at the salon owner's husband's office to pick up the check, the fuzz were layers in wait, and arrested him for theft by extortion for his crime ringlet.

In March, a jury which heard the highlights of the tale convicted Hynes. He plans to appeal, asserting a First Amendment right to petition the courts, but for now Hynes faces penalties up to a year in jail and a fine of $2,000.00. In addition, Hynes may be subject to disciplinary action for the conviction, which could cut short his legal career. He can only hope it isn't permanent. The Concord Monitor has the story here.

Threatening Criminal Prosecution

On the subject of overzealous demand letters, subscriber Steve Leventhal recalls being taught in law school that it is unethical to threaten criminal prosecution in order to gain an advantage in a civil case, and inquires whether this provision still applies.

Those of us who went to law school and practiced in the 1980's and earlier may recall this prohibition. It was contained in Disciplinary Rule 7-105(A) of the Code of Professional Responsibility, which was superseded by the Rules of Professional Conduct in 1988. DR 7-105(A) read, "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.:"

Prosecutions under DR 7-105(A) were very rare. Only one Disciplinary Board report ever cited it -- In Re Anonymous No. 65 D.B. 85, 44 Pa. D.& C.3d 177 (1987), in which it was one of many violations cited in the disbarment of a particularly obdurate and vexatious lawyer. Violations were seldom charged because it was difficult to prove that the threat was "solely" for purposes of advantage in a civil case. In addition, the rule was not charged if the threat of criminal prosecution had any possible merit.

For these reasons, the drafters of the ABA Model Code of Professional Responsibility chose not to carry any comparable provision over into the new Code, and when Pennsylvania adopted a version of the Model Code effective April 1, 1988, the prohibition disappeared from Pennsylvania law as well.

This is not to say that an unfounded threat of criminal prosecution is ethically justifiable. Commentators have noted that such conduct is still addressed by current Rules Professional Conduct, including RPC 3.1, which prohibits the assertion of frivolous claims, RPC 4.1, which prohibits false statements to third parties, and RPC 4.4(a), which forbids a lawyer representing a client to use "means that have no substantial purpose other than to embarrass, delay, or burden a third person."

Request In Strictest Confidence For Urgent Business Relationship Totally Legitimate But Very Confidential.

The Disciplinary Board has been notified that attorneys in Georgia and New Jersey have been targeted by an apparent attempted 4-1-9 (Nigerian) scam. Some attorneys have received an email claiming to be from a person who is out of the country and is seeking representation from an attorney. The attorneys receive a check from Canada via UPS in an amount from $150,000 to $298,000. They are instructed to wire funds to China, Korea, Taiwan or Japan for the amount of the item minus an attorney's retainer fee. The astute may reasonably doubt the probability that the check forwarded will be good. Be warned and beware.

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1 Ten times, actually.

2 The editorial staff has been threatened with suspension of our artistic license. That is different . . we think.

3The things you learn doing this. We learned that in finance, a "haircut" is "a valuation formula used by broker-dealers in computing net capital positions. A dealer's haircut is an estimate of potential losses, taking into account credit risk, market risk, time to maturity, and other factors. In lending, difference between the amount advanced by a lender and the market value of collateral securing the loan. For example, if a lender makes a loan equal to 90% of the dollar value of marketable securities, the difference (10%) is the haircut. Also called haircut financing."4

4 The Car Talk guys also have an alternate definition of "haircut," which is better not specified here.