Loading

Attorney E-Newsletter

January 2009

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

The Envelope Please: Top Five Disciplinary Cases of 2008

And now, the First Annual Edition of our Top Five Disciplinary Decisions[1] for 2008. The published decisions from 2008 were reviewed, and five finalists were chosen. The criteria were novelty of issues presented; significance for guidance to the bar; and new developments in disciplinary procedure.[2] In the final and unappealable[3] judgment of the Editor, the following have been selected as the Top Five[4] of 2008:

Fourth Runner-up: (tie) Budzak, 92 DB 2006, and Mimnaugh, 185 DB 2006. These cases are an interesting juxtaposition as to when mitigation due to physical, mental, or substance problems, known as the Braun[5] defense, was accepted and rejected. In Budzak, the Board found that the Respondent-attorney’s misconduct, consisting of lies and fabrications in response to pressure from a difficult client, were subject to mitigation due to a psychiatric condition, although the diagnosing psychiatrist only saw the attorney after the misconduct occurred, because the physician positively identified the misconduct as related to impulsivity and procrastination relating to his condition. In Mimnaugh, the defense was rejected because the attorney’s physician testified that he used cocaine for relief from pain caused by a medical condition, but was not treating the attorney at the time of his misconduct and only testified as to the condition’s causation on a hypothetical basis.

Honorable mention[6] in the mitigation category: Mizner, 46 DB 2007, a lawyer with Obsessive Compulsive Disorder[7] who filed false travel claims in order to fund his compulsion with landscaping and relandscaping his home.

Third Runner-up: Feingold, No. 93 DB 2003-ctp. This attorney was disbarred after the Board found that he committed contempt by continuing to practice during a period of suspension, under the nominal supervision of his wife/former partner (who was also suspended in a separate case). The case is notable in part because the Board addressed the limits on what a suspended attorney can do in the course of employment with a law office and the Respondent’s failure to comply with the terms of his suspensions under Rule 217 of the Rules of Disciplinary Enforcement. The case also brought to a conclusion a long running conflict between the Respondent and the disciplinary process, in which the Respondent was suspended twice before he was disbarred. The Board commented on his arrogant attitude, lack of remorse, and lack of effort to comply with the terms of his suspension.

Second Runner-up: Silver, No. 22 DB 2007. This case is remarkable because the Respondent received a six-month suspension for conviction of vehicle-related offenses. They included an accident involving damage to an attended vehicle, driving within a single lane, and driving under a suspended driver’s license – for the tenth time. The suspension was based in part on the fact that one of the offenses was defined as a “serious crime” for purposes of Rule 203(b)(1), Pa.R.D.E., but also on a finding that Respondent had violated Rule 8.4(b) of the Rules of Professional Conduct – criminal conduct adversely reflecting on fitness as a lawyer – although his conduct was unrelated to the practice of law and was not a crime of dishonesty. The Board found that his repeated acts of violation of the law, although unrelated to his practice, were aggravating factors warranting suspension. The decision is a reminder that a lawyer’s obligations to respect and observe the law do not expire when he is “off duty” from his practice.

First Runner-up: In re Anonymous No. 125 DB 2006. This case presented a complex situation in which a lawyer who represented an individual and an organizational client was notified that he was implicated in a criminal investigation of possible illegal activity by the individual and organizational clients, or both. Caught in a complicated three-way struggle between the two clients, whose interests diverged, and criminal investigators, the Respondent recorded potentially privileged conversations with the individual client. He agreed to allow U.S. attorneys on a “taint team,” who were not a part of the prosecutorial team, to listen to the tapes, in order to exonerate Respondent. The Disciplinary Board dismissed the charges and found no violations, concluding that the Respondent’s allowing the “taint team” to hear the tapes was justifiable under RPC 1.6(c)(2), under which a lawyer is permitted to reveal information to the extent he reasonably believes is necessary “to prevent or to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services are being or had been used,” and 1.6(c)(3), “to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved.” While it is unlikely that the convoluted facts of this decision will have application in many ordinary situations, the case is notable for the novelty of the issues and its application of a seldom-invoked exception to the rule of confidentiality.[8]

The Winner: Mazza, No. 95 DB 2000. While it lacks the Grishamite intrigue and law school exam-question complexity of No. 125 DB 2006, this decision wins our top honors because, more than any other decision this year, it represents a genuinely new direction taken by the disciplinary system. The fact situation is of interest in itself, as it explores the limits of what “law-related activities” a suspended or disbarred attorney may do in a law office under the terms of Rule 217(j), Pa. R.D.E. The Respondent, who had been placed on temporary suspension and later disbarred, continued to draft pleadings and perform other “legal work of a preparatory nature,” including contacts with clients, for his employer and other attorneys as an independent contractor. This conduct was found to violate Rule 217(j), and Respondent was found in contempt. The unique aspect of the decision is the sanction determined by the Board. On the recommendation of the Hearing Committee, the Board determined that the appropriate sanction was that the Respondent be fined $1,000, and that he be declared ineligible to apply for reinstatement until August 2008, an extension of his period of disbarment by more than three (3) years. Both the fine and the extension of ineligibility are new approaches by the disciplinary system to situations of contempt by a disbarred former attorney, and these new approaches earn this decision top honors for 2008.

We had a lot of cases of practice while on disbarred/suspended/inactive status this year. Honorable mention: Krain, No. 96 DB 2007, for seven years of practice in 339 cases while on inactive status.

Stories of Steel[9]

While we’re on the subject of annual Top Something lists, Professor John Steel of the UC Berkeley and Santa Clara Schools of Law, on the Legal Ethics Forum, has compiled his Fifth Annual Top 10 Legal Ethics Stories. You can read the list here.

Supreme Court: We’ll Report Negligent Defense Counsel

On January 13, 2009, the Prothonotary of the Supreme Court issued a Notice to Appointed Counsel, stating,

The Supreme Court is receiving petitions from criminal defendants alleging that appointed counsel failed to pursue available avenues of appellate review. Effective immediately, in reviewing such petitions, the Court will advise the attorney of the allegation and request a response. If the court concludes that counsel abandoned the client in violation of the rules and case law, the matter will automatically be referred to the Disciplinary Board of the Supreme Court for consideration. See Pa.Crim.P. 122(C)(3)[10] and 904(E) and comments thereto. [emphasis in the original]

Defense counsel who receive such notices will certainly be well advised to respond quickly and thoroughly.

A copy of the notice is posted here.[11]

FAQ: Complaints against Prosecutors and Criminal Defense Attorneys

Q: I am considering accepting a position with the Public Defender’s Office. I have heard that defendants who are convicted often file complaints against their attorneys. Will I constantly be defending disciplinary complaints if I work in criminal defense?

A: Not necessarily. It is true that many complaints are filed by convicted individuals against attorneys who prosecuted or represented them. The Disciplinary Board has a policy that complaints by individuals who have been convicted of crimes, alleging prosecutorial misconduct by prosecutors or ineffective assistance of counsel by defense counsel, are generally not considered as disciplinary matters unless or until there is a court adjudication, at trial, on appeal, or in a post-conviction proceeding, determining that the attorney committed some sort of misconduct. The adjudication is not binding on the Disciplinary Board; it serves as a prima facie indication that there may be a disciplinary issue which should be investigated. Referrals from the Supreme Court pursuant to the policy announced above, for instance, may be considered to have passed through this screening process.

On the other hand, if Disciplinary Counsel has information that an attorney in a criminal case, either a prosecutor or defense attorney, may have committed misconduct, or if there appears to be a pattern of misconduct, the absence of an adjudication does not preclude Disciplinary Counsel from undertaking an appropriate investigation.

Attorneys working in the criminal field may, however, be confident that Disciplinary Counsel will not require them to answer to disciplinary inquiry merely because a convicted client is dissatisfied with the outcome of his case.

Got a Tip?

Or a question, a comment, an idea you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.6

[1] Our thanks to our friend, colleague, and erstwhile adversary Robert H. Davis, Jr., Esq., for suggesting the topic.

[2] Okay, some points were given for tabloid-quality salaciousness.

[3] Some have said “unappealing.”

[4] Actually eight.

[5] After Office of Disciplinary Counsel v. Braun, 553 A.2nd 894 (Pa. 1989), in which the standard was articulated.

[6] Or is that dishonorable?

[7] We have recently had to explain that the initialism for the Office of Disciplinary Counsel is ODC, while OCD stands for Obsessive Compulsive Disorder. They are not the same, we insist.

[8] The Respondent was represented by Robert H. Davis, Jr., Esq. See Footnote 1, above. Strictly coincidence, of course.

[9] Of course, the top Steel story of the coming week will be the Steelers’ unprecedented sixth Super Bowl championship, unless it isn’t, in which case the Editor will be too despondent to acknowledge such an unforeseeable error.

[10] It has been pointed out that Rule 122(c), Pa.Crim.P. has no subsection (3). The notice may refer to Rule 122(b)(2), unless the Prothonotary knows something we don’t know.

[11] Sorry about the quality. If anyone has a better copy, we’d appreciate it if you would send it to us.