Attorney E-Newsletter

June 2010

Interbranch Panel Files its Report

On May 27, 2010, the Interbranch Commission on Juvenile Justice issued its final report on its inquiry arising out of highly publicized failures in the juvenile justice system of Luzerne County. The Interbranch Commission was established in August 2009 by representatives of all three branches of government in Pennsylvania to consider ways to strengthen and improve the justice system statewide. The Commission’s Final Report is available online here. A summary of its recommendations is available here.

The Commission addressed, among other topics, ways to improve the disciplinary systems for judges and lawyers, enhance services to victims of juvenile crimes, provide better training for lawyers and judges who work in juvenile courts, and establish statewide ethical standards for juvenile probation officers.

While much of the focus of the report was on failings within the court system, the Commission did express concern about the role of some lawyers in the scandal. The Commission noted:

The Commission is concerned at the possibility, if not the probability, that no lawyer practicing in Judge Ciavarella’s courtroom ever filed a complaint to the Disciplinary Board against a fellow lawyer alleging a violation of the Rules of Professional Conduct. In addition, while attorneys witnessing unethical behavior by judges are bound to report the judge’s behavior to the Judicial Conduct Board, the Judicial Conduct Board reported that no such complaints were filed by any attorneys present at the juvenile proceedings which have been the subject of the commission’s investigation. Report, Page 45

As to the lawyer disciplinary system, the Commission recommended that:

  1. The Disciplinary Board create appropriate educational materials for the general public and for attorneys. This will assure that both the bar and the community at large understand what constitutes a violation of the Rules of Professional Conduct and how to file a complaint.
  2. The Web site of the Disciplinary Board be redesigned so that it offers a clear and simple mechanism to file complaints electronically.
  3. The Pennsylvania Continuing Legal Education Board Regulations be amended to provide that of the 12 continuing legal education credit hours a Pennsylvania attorney is required to earn each year; the minimum number of ethics credits should be increased from one hour to two hours per year; and, an attorney should be required to attend at least one hour of continuing legal education every five years on the topic of the duty to report misconduct by judges and other attorneys.
  4. Courses which are offered to satisfy the ethics continuing legal education requirement provide meaningful and inspirational programming. Report, Pages 45-46

The leadership of the Disciplinary Board and the Pennsylvania Continuing Legal Education Board are examining the report and the recommendations to determine action steps to achieve the goals set by the Interbranch Commission.

Registration Forms Pouring In; 30-day Extension for Attorneys Facing Administrative Suspension

Annual fee/registration forms have been mailed out and are due July 1, 2010.

Attorneys who were transferred to inactive status for failure to pay the annual fee, for failure to comply with Continuing Legal Education requirements, or other grounds set forth in Rule 219(k), Pa. Rules of Disciplinary Enforcement, have until August 1, 2010 to request reinstatement to active status. Rule 219(k) states that "Failure to achieve active status before the expiration of the grace period shall be deemed a request to be administratively suspended" [emphasis added]. The deadline has been extended from the original July 1 date until August 1, 2010. Attorneys who have been on inactive status under Rule 219(k) must submit their requests for reinstatement by August 1.

As of May 17, 2010, the following numbers of registration forms had been returned as noncompliant for the following reasons:

  • 1,543 failed to complete the professional liability insurance questions;
  • 91 failed to sign their forms;
  • 24 submitted unsigned checks; and
  • 218 addressed their checks to the wrong payee.

Don’t miss your registration deadline for one of these reasons.

ABA, Lawyers Jostle with the Feds

It seems the tumultuous events in national politics are affecting the legal profession with some regularity.

The American Bar Association and numerous state bars have expressed concerns about provisions in two bills currently in a House-Senate conference committee, H.R. 4173, the Wall Street Reform and Consumer Protection Act of 2009, and Senate bill S. 3217, the Restoring American Financial Stability Act of 2010. Both bills would establish regulations dealing with anyone involved in offering a “consumer financial product or service.”

The House version has an exemption for lawyers engaged in the practice of law, as well as employees directly supervised by them, or in matters incidental to the practice and within the scope of attorney-client relationship; however, the Senate version does not.

In a letter to the conferees dated June 11, 2010, ABA President Carolyn Lamm expresses three concerns about the application of the bill:

  • These provisions will allow the agency or bureau to regulate and interfere with core aspects of the confidential lawyer-client relationship, including the attorney-client privilege and the confidential legal advice and other important legal services that lawyers routinely provide to their consumer and other clients.
  • These provisions will undermine traditional state court regulation of lawyers and will result in new federal rules that are inconsistent with the state courts’ longstanding ethical rules and standards governing lawyers.
  • Allowing the new entity to regulate lawyers as if they were financial institutions will discourage many lawyers from providing the legal services consumer clients often desperately need to save their homes from foreclosure, resolve their debt problems, or avoid bankruptcy.

The ABA has a fact sheet on the legislation here.

In another matter, the ABA has also protested a series of Announcements (2010-09, 2010-7 I.R.B. 408, 2010-17, 2010-13 I.R.B. 515, and 2010-30, 2010-19 I.R.B. 668) by the Internal Revenue Service. These would require disclosure of uncertain tax positions through the required filing of Schedule UTP by certain business taxpayers.

In a letter dated May 28, 2010, Thomas M. Susman, Director of Governmental Affairs for the ABA, stated,

We are concerned that the disclosure proposals set forth in the Announcements, requiring identification of specific uncertain tax positions and elaboration of the taxpayer’s views and assessments of those positions, will undermine the protections afforded by the attorney-client privilege and attorney work product doctrine, as well as the related 26 U.S.C. section 7525 tax practitioner’s privilege. . . .

Not only would the disclosure proposals in the Announcements require taxpayers to share this protected information with the Service, a potential adversary, but they could expose taxpayers to total loss of the protections through broader subject-matter waiver as a result of such disclosure.

Because of these concerns, the ABA recommends that the IRS withdraw the Announcements.

Readers will recall that this newsletter has previously reported on the controversy over the FTC Red Flags Rule. The status of this matter is that the United States District Court ruled in favor of the ABA’s challenge to the proposal on December 1, 2009. The FTC has appealed, and delayed enforcement of the rule until January 1, 2011. The ABA’s status update page on the Red Flags Rule is here.

Wedding Bell Blues

June is the traditional month for weddings, but the bridal path can be a rocky one where the law is involved.

G. Darin Russell Jr., a Baltimore (Maryland) County District Court Judge, found that out when he performed his judicial roles of officiating over court cases and marriages in rather uncomfortable proximity. Russell was presiding over a domestic abuse case when he received an unusual request: the victim wished to marry the defendant, in order that she could invoke spousal privilege and not be compelled to testify against him. Russell not only recessed the trial to allow the ceremony, he performed it in chambers. He didn’t help himself any when, after dismissing the charges against the defendant, he told him in open court, "Mr. Wood, I found you not guilty, so I can’t sentence you as a defendant in any crimes ... but earlier today, I sentenced you to life married to her."[1]

A quite predictable furor followed, with outrage expressed by law enforcement authorities and advocates for victims of domestic abuse. Russell was removed from hearing cases and assigned administrative duty, and a judicial ethics case is apparently pending.

Judge Russell subsequently explained that he had not read the case file and did not realize the seriousness of the allegations. He stated that the alleged victim denied the allegations of abuse.

In other wedding-related news, a Chicago United States District Court judge allowed a defendant on home confinement permission to attend the wedding of his daughter, but with an unusual stipulation: he was barred from talking to the groom’s father. Casey Szaflarski, accused of running a video gambling business, was permitted to attend his daughter’s wedding to the son of Frank "Toots" Caruso, a reputed leader in Chicago organized crime.[2] However, Szaflarski was prohibited from speaking with Caruso, after the United States attorney objected that the event would give Szaflarski and Caruso an opportunity to discuss mob business. U.S. District Judge Ronald Guzman warned Szaflarski that if he violated the order, his home confinement would be revoked and he would be sent to prison immediately.

Finally, an Ohio lawyer was suspended for six months for having too much of a good thing – that is, of marriage. Lawyer Dennis DiMartino fully expected his divorce to be finalized when he made plans to travel to North Carolina to remarry, but negotiations hit a snag and the entry of a decree was delayed. Rather than put off his second marriage, DiMartino went through with it, and signed a marriage license application stating that it was his first marriage. He also failed to mention the fact to his new bride. DiMartino’s soon-to-be-ex-wife notified law enforcement authorities in North Carolina, and filed a disciplinary grievance with the Ohio disciplinary board. By order dated February 3, 2010, the Supreme Court of Ohio suspended DiMartino for six months for violation of Rule 8.4(c) of the Ohio Rules of Professional Conduct. Worse yet, DiMartino was already under a one-year suspension which had been stayed at the time of the decision. The court lifted the stay and ordered DiMartino to serve the two suspensions concurrently.[3]

There was a silver lining for DiMartino, though. After his great error in judgment was revealed, his divorce was granted, and he and the "wife that wasn’t" were able to marry legally.

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[1] Old joke: “The shortest sentence in the English language is ’I do.’ Also the longest.” [It is a joke. It’s only a joke!]

[2] Evidently a “family” affair.

[3] At least they didn’t sentence him “to be married to her.”