Attorney E-Newsletter

February 2009

Luzerne Judges Removed from Duty After Corruption Pleas

The Supreme Court of Pennsylvania has removed one judge of the Luzerne County Court of Common Pleas from judicial duties and revoked the senior judge status of another after being notified that the judges would plead guilty to corruption charges.

Former President Judge Mark Ciavarella, Jr. and Senior Judge Michael Conahan pleaded guilty to charges of accepting $2.6 million in kickbacks from the owners of a juvenile detention facility.

On January 28, 2009, the Supreme Court entered an order stating, “In view of the compelling and immediate need to protect and preserve the integrity of the Unified Judicial System and the administration of justice for the citizens of Luzerne County, Judge Mark A. Ciavarella, Jr. is hereby relieved of any and all judicial and administrative responsibilities as a judge of the Court of Common Pleas of Luzerne County and ordered not to take any further administrative or judicial action whatsoever in any case or proceeding now or hereinafter pending until further order of this Court.”

The same day, the Supreme Court revoked Conahan’s certification as a Senior Judge and rescinded all of his cases.

After entry of the guilty pleas on February 12, 2009, the Supreme Court followed with an order terminating Ciavarella’s salary and benefits.

The scandal over the kickbacks continues to expand. A former Luzerne County Court Administrator has also pleaded guilty to embezzlement charges. The Supreme Court and Luzerne County Court of Common Pleas have undertaken review of decisions by Ciavarella and Conahan over the last several years, and the Pennsylvania legislature is discussing possible compensation to juveniles sent to the facilities in question under the kickback scheme.

Kansas County Attorney Suspended for Misuse of Prosecutorial Materials

The Supreme Court of Kansas suspended a county prosecutor from the practice of law for six months for misuse of photographs he acquired in the course of his duties.

Frederick Campbell, County Attorney for Anderson County, Kansas, received a complaint from a female high school student that she had been sexually assaulted at a party after drinking several beers. As part of the investigation, Campbell received photographs depicting the parties engaged in sexual intercourse. After investigating the matter, Campbell declined to bring charges on the basis that the sex might have been consensual.

Campbell then told a newspaper reporter that he planned to show the photographs to parents of the minors at the party as a warning about the dangers of teen drinking. The minor’s mother contacted Campbell and told him she would not give permission for such use of the photos, but Campbell asserted he did not need her permission. He then showed the photographs to the parents of five teens. The teen who brought the complaint was humiliated by the exposure of the photographs and suffered from depression.

The Supreme Court of Kansas, in an opinion issued January 16, 2009, suspended Campbell for six months. The Court found that although Campbell’s motives were to accomplish a positive result, he demonstrated little understanding of how his method was troubling. The Court noted that Campbell showed no understanding of how devastating his actions were to the victim in the case, of how logically unrelated his action was to the goal he sought to accomplish, or how his actions might discourage other victims from bringing complaints. It concluded that he had violated the Kansas version of Rule 4.4, which like Pennsylvania’s version, prohibits a lawyer from using “means that have no substantial purpose other than to embarrass, delay, or burden a third person.” In addition, the Court found that Campbell had violated provisions of Rule 8.4 which prohibit a lawyer from engaging in conduct that is prejudicial to the administration of justice and which adversely reflected on his fitness to practice law. Unlike Pennsylvania’s Rule 8.4(b), Kansas’s Rule 8.4(g) regarding conduct adversely reflecting on fitness to practice is not limited to criminal actions.

The Kansas court reviewed an extensive list of mitigating and aggravating factors. Campbell suggested that his conduct arose from Asperger Syndrome, a high-functioning form of autism which inhibits an individual’s ability to empathize with others, but the court found little evidence in the record that this had been shown as a mitigating factor.

The case is of interest as it illustrates an application of Rule 4.4, a rule which is not often invoked, but which may have far-reaching effects. Like Pennsylvania’s version, the Kansas rule is limited to actions taken “in representing a client,” but the case suggests that the protection it offers to third parties may extend further than that. The practice of law often gives lawyers access to information that is potentially harmful to others. The Campbell case suggests that the lawyer has a duty to use that information responsibly, even beyond the boundaries of representation of a client.

New Board Members Appointed

The Supreme Court has appointed three new members to the Disciplinary Board.

R. Burke McLemore, Jr. of Thomas, Thomas & Hafer, L.L.P. in Harrisburg, Dauphin County, and Albert Momjian of Schnader Harrison Segal & Lewis, L.L.P. in Philadelphia have been appointed to three-year terms commencing January 29, 2009.

By a separate order, Stephan K. Todd of Cranberry Township, Butler County, was appointed to a three-year term, also commencing January 29, 2009.

The Numbers Are Out

The Disciplinary Board has published final disciplinary statistics for 2008. The following are the numbers of each kind of discipline compared to the figures for 2007:

Discipline 2008 2007 Change
Informal Admonitions: 90 85 +5%
Private Reprimands: 25 16 +56%
Probation: 15 6 +250%
Public Censure: 5 3 +67%
Suspensions: 45 48 -6%
Disbarments: 38 25 +52%
Reinstatements Granted (by order): 82 64 +28%
Reinstatements Denied: 1 2 -50%
Total Disciplinary Determinations 301 249 +21%

Generally the numbers are up, except they are down slightly for suspensions, and reinstatements denied went from two to one.[1] This does not reflect any change in the conduct of attorneys, only the rate at which the cases reached the Supreme Court and it was able to decide them.

The version posted at the website has footnotes that explain what is included in the totals, for statistics wonks among us.

Our Eagle-eyed Readers Strike Again

We continue to be amazed at the ability of our subscribers to analyze, extend, enlighten, and even, when the occasion demands, correct our articles. Our thanks to Richard F. Flickinger, who points out the difference between the Disciplinary Board recommendation and the Supreme Court decision in the Mazza case cited in January.

Our thanks and apologies to Professor John Steele, who was most gracious about our reference to his “Ten Top Legal Ethics Stories” at the Legal Ethics Forum, even though we misspelled his name.[2]

This month’s award for optometric excellence goes to Peter Goldberger of Ardmore, who, in response to a December article about a notice issued by the Prothonotary of the Supreme Court regarding disciplinary referral of cases involving court-appointed defense counsel, points out that not only is this not a new development, but that we documented a similar notice as long ago as July 2005. It is startling some can summon up what we have written so long ago, even when we have forgotten. Our thanks to Mr. Goldberger for the perspective.

But Seriously . . .

As readers of this newsletter know, we often use humor and an irreverent approach in an effort to make what can be a very dry subject more appealing. Sometimes concerns arise as to whether such levity is appropriate in reference to cases which have a significant impact on the respondent attorney, the legal profession, and how our legal system is viewed by the public. We remain mindful of the very serious consequences of these events on the lives of the people who experience them, and it is never our intention to minimize the gravity of these proceedings and the deliberation that goes into them. Our primary purpose is not to entertain but to educate and assist our fellow attorneys in meeting their ethical obligations in one of life’s most demanding professions.

Got a Tip?

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[1] Although certainly not insignificant for the person involved.

[2] Let the record reflect, however, that we did not err in predicting the record sixth Super Bowl win for the Pittsburgh Steelers, though they had us worried for a moment there.