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Attorney E-Newsletter

July 2009

Pennsylvania Lawyer Freed after 14 Years for Contempt

A judge has released a suspended Pennsylvania attorney from prison, after he served 14 years for contempt of court, which some believe to be the longest time served for contempt in the United States.

H. Beatty Chadwick was jailed in April 1995, accused of hiding $2.5 million from his ex-wife in overseas bank accounts during divorce proceedings. Chadwick maintained he lost the money in bad investments. The case went on for years, twice reaching the United States Supreme Court. Finally, Chadwick's request was granted by Delaware County Judge Joseph Cronin, who determined his continued incarceration had lost its coercive effect and would not result in him turning over the money.

Chadwick was suspended from the practice of law for five years in 2005. His suspension was also based on his conviction on two counts of assault, arising from an incident when he was taken into custody at a dental appointment in April 1995.

IOLTA Board Amends Regs

The Pennsylvania IOLTA Board has published a set of amendments to its rules involving IOLTA-compliant trust accounts,[1] at 39 Pa.B. 3431 (July 11, 2009). We will review these amendments in the next issue. The amendments were effective upon publication. The publication includes a helpful Frequently Asked Questions section.

Last month we commented that a lawyer who does not maintain qualifying funds does not need to have an IOLTA. Reader Barbara Rosenberg, former Disciplinary Counsel, reminds us that RPC 1.15(n) and Section 81.108 of the IOLTA Regulations provide that a lawyer who does not maintain an IOLTA must obtain an exemption from the IOLTA Board, which will grant exemptions when:

  1. the nature of the lawyer’s practice does not require the routine maintenance of a trust account in Pennsylvania;
  2. compliance with this paragraph would work an undue hardship on the lawyer or would be extremely impractical, based either on the geographical distance between the lawyer’s principal office and the closest eligible institution or on other compelling and necessitous factors; or
  3. the lawyer’s historical annual trust account experience, based on information from the eligible institution in which the lawyer deposits funds, demonstrates that the service charges on the account would significantly and routinely exceed any income generated.

A Friend in Deed

So you think Facebook, MySpace, and Twitter are just for kids?[2] Think again – they are serious business, and the law is increasingly being called upon to deal with interactions in these new arenas.[3]

The Philadelphia Bar Association recently rendered an Ethics Opinion from an inquirant who wanted to know[4] whether it was ethical to ask someone to “friend” a witness favorable to an opposing party to see what could be learned from her Facebook and MySpace pages. The Committee concluded that “the Committee believes that the proposed course of conduct contemplated by the inquirer would violate Rule 8.4(c) because the planned communication by the third party with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness.”

Lest one think this conclusion off the wall,[5] such concerns may have disciplinary consequences as well. A North Carolina judge has been reprimanded for “friending” a lawyer in a pending case, posting and reading messages about the litigation, and accessing the website of the opposing party.

FAQ: State Line Anxiety

Q: For a Pennsylvania proceeding, I scheduled a deposition of a witness who lives in another state, where I’m not admitted to practice. As I was crossing the state line on my way to the deposition, I thought, Whoa! Am I practicing in a state where I’m not admitted? Should I have retained local counsel for the deposition?

A: Whether this is permitted depends on the state. Rule 5.5(c)(2) of the ABA Model Rules of Professional Conduct permits a lawyer to “provide legal services on a temporary basis in this jurisdiction that . . . are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized.” Comment 10 to the rule explains,

Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, a lawyer admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects to be authorized to appear, including taking depositions in this jurisdiction.

Pennsylvania carries this language over in Pa. R.P.C. 5.5(c)(2), Not all states have incorporated this language into their version of Rule 5.5, however. Ohio, Maryland, and Delaware have; New York, New Jersey, and West Virginia have not.

New Jersey, for instance, requires that a lawyer performing discovery in New Jersey for an out-of-state proceeding register as a multi-jurisdictional practitioner, and pay an annual fee. New Jersey Rules of Professional Conduct 5.5(b)(3)(iii). See New Jersey’s FAQ on multijurisdictional practice.

Before performing such services in another state, it is best to check that state’s version of Rule 5.5, and if it does not incorporate (c)(2), check to ensure that its rule allows such incidental services.

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.

[1] The prevailing terminology seems to be “IOLTA Accounts.” However, since IOLTA stands for Interest on Lawyer Trust Accounts, wouldn’t “IOLTA account” be “Interest on Lawyer Trust Accounts Account?”

[2] Or for playing Mafia Wars?

[3] A search of the ABA Journal for “Facebook” yields 110 entries – probably more by the time you read this.

[4] We suspect the inquirant probably knew but thought there was no harm in asking.

[5] Or on it, as the case may be.