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Attorney E-Newsletter

September 2009

New York and Maine Go Model; California Sole Holdout

The state of Maine has adopted a new set of rules of conduct rules based on the ABA Model Rules of Professional Conduct, effective August 1, 2009. Since New York also converted its rules to a version of the Model Rules effective April 1, 2009, this leaves California as the only state which has a set of rules not based on the ABA model[1] rules.

The ABA Model Rules are the “third generation” of ethics standards the ABA has endorsed. The ABA first adopted the Canons of Professional Ethics in 1913. These were based principally on the Code of Ethics adopted by the Alabama Bar Association in 1887, which in turn had been borrowed largely from the lectures of Judge George Sharswood, published in 1854 as Professional Ethics, and from the fifty resolutions included in David Hoffman's A Course of Legal Study (2d ed. 1836).

In 1964, President (and later Justice of the Supreme Court) Lewis F. Powell Jr. and the House of Delegates created a Special Committee on Evaluation of Ethical Standards (the "Wright Committee") to assess whether changes should be made in the then-current Canons of Professional Ethics. The Model Code of Professional Responsibility was endorsed by the ABA in 1969, and was adopted by most jurisdictions including Pennsylvania.

In 1977, the American Bar Association created the Commission on Evaluation of Professional Standards to undertake a comprehensive review of the ethical premises and problems of the legal profession. This review led to the drafting of the Model Rules of Professional Conduct, which was endorsed by the ABA in 1983. Pennsylvania adopted the Model Rules effective April 1, 1988[2]. The Model Rules underwent a major revision as a result of the Ethics 2000 review, which was adopted by the ABA in 2002. Pennsylvania adopted many of these changes effective January 1, 2005.

Although there are sometimes significant variations between the content of the Model Rules and the state versions adopted[3], the recent moves of New York and Maine to a Model Rules format makes it easier for lawyers in multijurisdictional practice to quickly locate and learn the applicable standards governing conduct in other jurisdictions.

We’ve Moved!

After 17 years in Lemoyne, Pennsylvania[4], the offices of the Disciplinary Board, the Chief Disciplinary Counsel, and District III of the Office of Disciplinary Counsel have moved. The Board offices and Chief Disciplinary Counsel are now located in the Judicial Center on Commonwealth Avenue in Harrisburg. Effective now, the new address and contact numbers for the Board offices are:

Disciplinary Board Executive Office
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 5600
P.O. Box 62625
Harrisburg, PA 17106-2625
Telephone: (717) 231-3380
Fax: (717) 231-3381

The Chief Disciplinary Counsel has a separate office at the Judicial Center:

Office of Chief Disciplinary Counsel
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 2700
P.O. Box 62485
Harrisburg, PA 17106-2485
Telephone: (717) 783-0990
Fax: (717) 783-4963

The District III office, with jurisdiction over 32 counties[5], is now located at:

Disciplinary Board District III Office
100 Pine Street, Suite 400
Harrisburg, PA 17101
Telephone: (717) 772-8572
Fax: (717) 772-7463

More Net Losses: Bloggeras and Posters Beware

One of the many remarkable things about the Internet is the tendency people develop to assume that information they think is anonymous will remain that way, and that what they say in the context of the Internet will not have effects on other parts of their lives. A number of lawyers have learned this the hard way.

This article in the ABA Journal details a number of lawyers who have faced adverse consequences for their Internet postings on blogs and social sites, including:

  • A Texas lawyer has filed a defamation suit against in-house counsel for an opposing corporation for postings made anonymously to the in-house counsel’s blog;
  • An Illinois assistant public defender was fired from her job and faces an ethics inquiry for posting entries on her blog which contained confidential client information, although in anonymous form;
  • A Florida lawyer was reprimanded after intemperate criticism of a judge in his blog;
  • A Texas judge using Facebook caught lawyers giving false excuses for continuances, including one who pleaded the death of her father, but posted about her drinking and partying adventures;
  • A California lawyer was suspended for 45 days and the conviction he participated in as a juror was reversed, after he posted entries about his experiences as a juror on his blog. Although he acknowledged being warned not to discuss the case, orally or in writing, he reasoned that the instructions didn’t say anything about blog posting.

All of these incidents illustrate that the prudent lawyer should probably not post anything on a blog or social site that he or she would not want to see in a newspaper, in a folder on an opponent’s table, or stated in open court. [6]

The Continuing Saga: Missing Trousers and Serial Salon Suer Followup

In the past month or so, two stories of lawyers behaving badly that we have reported in the past have resurfaced.

His cleaner may have lost his pants, but former administrative law judge Roy Pearson Jr. keeps losing the rest of his suit. We have reported repeatedly on the misadventures Mr. Pearson experienced in the aftermath of his infamous $63 million suit against his dry cleaners for losing a pair of pants. He lost his job when a commission recommended he not be reappointed to his administrative law position. Not surprisingly, Pearson filed suit, and in July a Federal district judge issued a 37-page opinion upholding the dismissal. Also not surprisingly, the pants lawsuit was not the only issue involved. Bringing up the rear of the list of not-surprises, Pearson has appealed the dismissal. We have taken up a position on the edges of our seats waiting for that outcome.

We also reported on the ill-fated plan of newly admitted New Hampshire lawyer Daniel Hynes to make some quick cash by threatening salons with lawsuits for discriminatory pricing against women. He was convicted of extortion, and in August the Supreme Court of New Hampshire upheld his conviction, with one dissenting vote. Hynes was placed on temporary suspension based on his extortion conviction on July 1, 2008, but he was permitted to resume practice after one year of suspension. Disciplinary Counsel commented that Hynes’s actions were "not an act of intentional deceit as much as an act of utter and total ineptitude." The damage to his career was not, dare we say, permanent.

New Vice-Chair Appointed to Disciplinary Board

Effective September 19, 2009 the Supreme Court appointed Carl D. Buchholz, III, Esquire of Rawle & Henderson LLP, as the new Vice-Chair of the Disciplinary Board.

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] Apparently California is more influenced by actors than by models.

[2] The “April Fool’s Day” defense has never worked in disciplinary cases.

[3] There are dramatic differences, for instance, between the Model Code’s version of Rule 1.15, regarding handling property, and Pennsylvania’s implementation of that rule.

[4] Leading to the frequently asked question: where the heck is Lemoyne?

[5] Adams, Bradford, Cameron, Carbon, Centre, Clinton, Columbia, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lackawanna, Lebanon, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northumberland, Perry, Pike, Potter, Snyder, Sullivan, Susquehanna, Tioga, Union, Wayne, Wyoming and York.

[6] Of course, lawyers aren’t the only professionals who have gotten in trouble with the Internet.