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Attorney E-Newsletter

April 2010

Annual Form Time – Insurance Disclosure Required

Annual fee forms for 2010-2011 will be mailed in about a month. Each attorney admitted to the Pennsylvania Bar is required to complete the form and pay the appropriate fee by July 1, 2010.

This year’s form will contain a new requirement. By order dated March 25, 2010 [order/attachment], the Supreme Court directed that the annual form for each year shall contain a question requiring each attorney to declare whether he or she is covered by professional liability insurance on the date of registration in the minimum amounts required by Rule of Professional Conduct 1.4(c).

Rule 1.4(c) requires lawyers in private practice to inform new clients if they do not have professional liability insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year, subject to commercially reasonable deductibles, retention or co-insurance. It also requires lawyers to inform clients if at any point the lawyer ceases to be covered at these levels. This rule exempts attorneys who do not have any private clients, such as attorneys in full-time government practice or employed as in-house corporate counsel.

The Disciplinary Board will make information as to compliance with the insurance requirements available to the public on request and on its Web site. The note to the rulemaking further notes that, like any information required on the annual statement, attorneys must notify the Attorney Registration Office in writing within 30 days of any change to this information.

The rule is published at 40 Pa.Bulletin 1892 (April 10, 2010).

New Board Appointments for 2010-2011

The Supreme Court has appointed new leadership for the Disciplinary Board in 2010-2011. Carl D. Buchholz, III of Philadelphia County has been appointed Chair, and Sal Cognetti, Jr., of Lackawanna County, has been appointed Vice-Chair, both effective April 1, 2010.

Mr. Buchholz is a partner at Rawle & Henderson LLP. He serves as head of Rawle & Henderson's Appellate and Maritime Departments. His practice also includes litigating insurance coverage and indemnity disputes related to commercial contracts and insurance policies. He previously served on the Pennsylvania Lawyer’s Fund for Client Security as both Board member and Chairman. He was Vice-Chair of the Board in 2009-2010. Mr. Buchholz received his law degree from Villanova Law School in 1970, where he was a member of the Villanova Law Review and graduated with honors. He is a Proctor in Admiralty, and a member of the bars of the Commonwealth of Pennsylvania, the United States District for the Eastern District of Pennsylvania, the United States Court of Appeals for Third Circuit, and the United States Supreme Court.

A resident and native of Scranton, Mr. Cognetti is a partner at the law firm, Foley, Cognetti, Comerford, Cimini & Cummins, specializing in civil and criminal litigation. He previously served as judge and president judge of the Court of Judicial Discipline for the Commonwealth of Pennsylvania. After graduating from Georgetown University of Law in 1973, he became an Assistant United States attorney for the Middle District of Pennsylvania and participated in both civil and criminal litigation. In 1979 he switched to private practice, concentrating in civil and criminal litigation. During his time in private practice, he remained active in governmental service, working part-time as a Special Assistant for the Department of Justice. He is a member of the American Bar Association, Pennsylvania Bar Association, American Board of Trial Advocates, various U.S. Courts of Appeals, District Courts, the Supreme Court of Pennsylvania, and the Supreme Court of the United States.

The Court also reappointed Stewart L. Cohen of Philadelphia County to a second three-year term as a member of the Board, and appointed Howell K. Rosenberg of Philadelphia County to a three-year term.

Disciplinary Board Publishes 2009 Annual Report

The Disciplinary Board has published its 2009 Annual Report here.

Some facts and figures from the Annual Report:

  • The number of active paid attorneys for the 1972-1973 Fiscal Year was 13,057 as compared to 59,353 active and 10,547 inactive paid attorneys as of December 2009.
  • During the year 2009, 4,755 new complaints were received by the Office of Disciplinary Counsel. 4,695 complaints were disposed of during the year, 218 of which resulted in discipline.
  • In 2009, the Supreme Court ordered the disbarment of 29 attorneys and suspension of 40 attorneys for periods ranging up to five years. This does not include 24 attorneys who received interim temporary suspensions. A tabulation of the disciplinary actions taken since the beginning of the Board's operations in 1972 is here.
  • During the 2009 year, 34 Joint Petitions in Support of Discipline on Consent were filed with the Board. Nine of those joint petitions were filed prior to scheduled disciplinary hearings; 27 joint petitions were approved; and, 7 were denied. Of those approved, 15 resulted in private discipline and 12 resulted in public discipline.
  • As of December 31, 2009, there were 44,194 subscribers to the monthly Attorney E-Newsletter.
  • From August through December 2009, 66,615 unique visitors accessed the Board’s Web site, www.padb.us. An average of 1,285 visitors accessed the site daily. The top pages visited were: Look up An Attorney, Attorney Home Page and Recent Supreme Court Actions.

In the Annual Report, pages 3 - 5 contain a useful summary of rule changes which were adopted in 2009. A review of this list is a good way for readers to assure they are aware of recent rule changes.

No Fool Like an April Fool

April Fool’s Day came and went on April 1, and one prank pulled that day stimulated a controversy involving a point of legal ethics.

New York lawyer Eric Turkewitz, who writes a law blog (blawg) usually devoted to New York personal injury law, has a tradition of inserting April Fool stories into his blawg on April 1 of each year. This year, he posted a mock-serious announcement that he had been hired as the Obama Administration’s official law blogger. Turkewitz’s ploy was convincing enough that many commentators, including the New York State Trial Lawyers Association, a law columnist for the New York Times, and the respected Volokh Conspiracy, took the bait and commented on the story seriously. As April Fool jokes go, Turkewitz caught a lot of smart people.

Not everyone appreciated the joke. Jack Marshall of the blawg Ethics Alarms, who writes about legal ethics issues, published a post arguing that Turkewitz’s claim violated Rule 8.4 of the Rules of Professional Conduct, regarding honesty and candor, noting that the rule “contains no April Fool’s Day exception.” This led to a flurry of discussion in the legal blogs as to whether the requirements of Rule 8.4 apply to all situations in which a lawyer might make statements. Subsequently Turkewitz and Marshall mended fences and Marshall removed the critical article from his Web site.

Is an April Fool’s Day joke a violation of the lawyer’s duty of candor? Of course, context is everything. We can say with some certainty that the Disciplinary Board of Pennsylvania has never been called upon to adjudicate an April Fool’s defense to a misrepresentation charge. We must note, however, that the Supreme Court of Pennsylvania originally adopted the Pennsylvania Rules of Professional Conduct effective April 1, 1988. We should be very clear on this point: they weren’t kidding.

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.