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Attorney E-Newsletter

February 2010

Rule Changes: Change of Convictions

The Disciplinary Board is proposing changes in Rule 214 of the Pennsylvania Rules of Disciplinary Enforcement, relating to attorneys convicted of crimes.

Rule 214, as it currently stands, requires an attorney who is convicted of a serious crime to report the conviction within 20 days after sentencing.

Under the proposed amendment, “conviction” would be defined as “any guilty verdict, whether after trial by judge or jury, or finding of guilt, and any plea of guilty or nolo contendere that has been accepted by the court, whether or not sentence has been imposed.” Thus, the attorney would be required to report the conviction within 20 days after a guilty verdict or other finding of criminal guilt, regardless of the status of sentencing.

The Disciplinary Board states in its Notice of Proposed Rulemaking,

The Board has determined that there is no legal reason to wait until the criminal court imposes sentence before initiating an attorney disciplinary proceeding. . . . At the point at which a defendant-attorney is found guilty after trial by judge or jury, the criminal court has already afforded the defendant-attorney his due process right to a hearing in the form of a trial at which the government’s burden of proof is beyond a reasonable doubt. The defendant-attorney has also had an opportunity to present a defense to the criminal charges.

The rulemaking does not change the definition of what is considered a “serious crime,” defined as “a crime that is punishable by imprisonment for one year or upward in this or any other jurisdiction,” nor does it otherwise alter the procedures for cases based on criminal convictions.

This proposal has been published in the Pennsylvania Bulletin at 40 Pa.Bull. 1066 (February 27, 2010). Comments will be accepted through April 1, 2010, and should be addressed to:

Office of the Secretary
The Disciplinary Board of the Supreme Court of Pennsylvania
601 Commonwealth Avenue, Suite 5600
P.O. Box 62625
Harrisburg, PA 17106-2625

A Leaner Disciplinary Board

In an Order adopted January 6, 2010, the Supreme Court amended Rule 205 of the Pennsylvania Rules of Disciplinary Enforcement to provide that the Disciplinary Board shall consist of eleven members of the Bar of the Commonwealth and two non-lawyer electors. Previously, twelve lawyers served on the Disciplinary Board.

Members of the Disciplinary Board serve three-year terms as volunteers, and may be appointed for a second term. The current membership of the Disciplinary Board is listed here.

More on Paralegals Gone Bad

Last month in our report on the five most notable disciplinary cases of 2009, we led off with the case of Debbie Carlitz, a Bucks County attorney who was suspended on consent without her knowledge due to documents executed by her paralegal. A number of readers, beginning with Evan Meyer of Philadelphia, were quick to point out that the paralegal in question, Bonnie Sweeten, gathered quite a bit of attention from the news media in her own right. She was convicted of making a false police report that she and her daughter had been kidnapped, before fleeing with her daughter to Disney World using a co-worker’s identification. She was sentenced to 9 to 23 months prison time for filing a false report and identity theft. The whole remarkable story is here and here.[1]

In other paralegal misconduct news, a Connecticut paralegal was sentenced to 46 months in prison after stealing $1.7 million from the law firm for which she worked and its clients. Patricia Baddeley[2] Meehan handled real estate closings for Berman & Russo, and reportedly wrote 77 checks to herself from a client funds account, which she used to pay personal credit card charges arising from her gambling and lavish lifestyle.

The ABA Journal article reports, “Such cases are surprisingly common, as indicated in previous ABAJournal.com posts,” and cites two newly reported cases of paralegal theft along with links to four previous stories.

Lawyers should bear in mind that under the terms of Rule 5.3(c) of the Rules of Professional Conduct, a lawyer may be held responsible for the misconduct of nonlawyer employees if:

  1. the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
  2. the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and in either case knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Capital Offense: Advice from a Judge

A set of instructions for the preparation of orders published by a Minnesota bankruptcy judge has been getting a lot of attention in the legal blogsphere, perhaps because it contains some advice for writing that all lawyers could keep in mind. Judge Robert Kressel published his guidelines on December 8, 2009, stating a goal “to use regular grammatical English as much as possible.” Among the guidelines Judge Kressel suggests:

Guideline No. 6 – Capitalization

Lawyers apparently love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names. For example, do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized.

Guideline No. 7 – Use of articles

Lawyers apparently disfavor articles, both definite and indefinite. Use the articles “the,” “a,” and “an” as appropriate. Write the way you would speak. So, “the debtor,” not “debtor,” “the trustee,” not “trustee.”

Guideline No. 8 – And/Or

Never use “and/or.”[3]

Guideline No. 9 – Superfluous Words and Phrases

Eliminate superfluous words. They serve no purpose other than to make the document sound more legal, which is exactly the opposite of the goal that I am trying to accomplish. Examples of such words are: “hereby,” “herein,” “in and for,” “subject,” “that certain,” “now,” “that,” “undersigned,” “immediately,” “heretofore entered in this case,” “be, and hereby is”–the list goes on and on. Compare the meaning of “Now, therefore, it may be and is hereby ordered that:” with “It is ordered:”

Guideline No. 12 – Undersigned.

Never use the word “undersigned.”[4]

Good advice. We often wonder why anyone would write things like “I am in receipt of your letter.” How is that imaginably better than “I received your letter”?

We also wonder what Judge Kressel would think of our use of the “editorial we.” [5] Wikipedia informs us[6] that such an affectation is a “nosism,” defined as “The use of 'we' in referring to oneself.” There are several kinds of nosism in addition to the royal and editorial “we’s,” including the “author’s we” (“We are thus led also to a definition of "time" in physics.” — Albert Einstein), the “inclusive we” (“we are all in this together”), the “exclusive we” (“we are going to clean your clocks”), and a personal favorite, the “patronizing we” (“well, aren’t we clever today?”).

At least we’ve never referred to ourselves as “the undersigned.”

We Got Props

While we are on this train of omphaloskeptic self-examination, it is gratifying to note when our meager efforts draw some attention. In our monthly search for items of interest, we came across this comment in the Legal Profession Blog on our January item listing the top disciplinary cases of the year. The author, Ethics Counsel Michael Frisch of the Georgetown Law Center, comments, “I applaud the effort to highlight professional responsibility issues in a manner that goes beyond what Pennsylvania already does, which is provide prompt and easy access to its decisions. Many bar web pages don't even do that.” Our pleasure, Professor.

At this point it might be a good idea to acknowledge the origin of the annual survey, which grew from a suggestion by Harrisburg attorney Robert H. Davis, Jr., a former Acting Chief Disciplinary Counsel who is also Adjunct Professor of Professional Responsibility at Widener University School of Law, Harrisburg. We are continually grateful for the interaction and suggestions we receive from readers, which has done much to make this newsletter a better and more useful feature.

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] There has to be a movie in this story. Or a reality show.

[2] “Baddeley” – must resist, must resist . . .

[3] It’s worth noting that Judge Kressel is giving directions for writing orders, which will be in his words and will not involve disputed issues. In other contexts, such as pleadings, “and/or” may be necessary to reserve options. But when writing in “regular grammatical English,” Judge Kressel is right. It never sounds like plain English.

[4] Repeated, but worth repeating.

[5] Also known as the “royal we” or “majestic plural (pluralis maiestatis).” There is certainly nothing royal or majestic about us.

[6] Oops, there we go again. Oops, we mean . . . never mind.