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Attorney E-Newsletter

May 2010

Disciplinary Board Proposes New Rule for Prosecutors: Question False Convictions

The Disciplinary Board has proposed an amendment to Rule 3.8 of the Pennsylvania Rules of Professional Conduct to add new language as recommended in the Model Rules of Professional Conduct of the American Bar Association. The report of the ABA Criminal Justice Section, setting forth the background of the amendment, is available for download here. The Board describes the goals as follows:

The Report develops, from a legal and ethical perspective, the underlying premise that prosecutors have professional duties upon learning that a wrongful conviction may have occurred. The Report also recognizes that one of the most fundamental professional obligations of a criminal prosecutor is to rectify the conviction of an innocent person.

The proposed provisions rectify the omission of this fundamental obligation from the current version of the Rule and provide guidance to prosecutors concerning their minimum disciplinary responsibilities. Guidance is achieved by identifying three prosecutorial duties (disclosure, investigation, and remedial action) and defining the triggering point for each of those duties.

The new language would require prosecutors who become aware of "new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted,” to disclose that information to the court and the defendant, and to undertake further investigation to determine whether the defendant was unjustly convicted. If clear and convincing evidence establishes the defendant’s innocence, the prosecutor is to "seek to remedy the conviction.”

The comments to the rule expand on the duties the prosecutor would have under this rule.  They specify: 

  • what the prosecutor is to do if the conviction took place in another jurisdiction;
  • what steps may be included in "seeking to remedy the conviction”  and,
  • the significance of the prosecutor’s exercise of good faith judgment.

The proposed rule is published at 40 Pa.B. 2516 (5/15/2010). Comments will be accepted until July 2, 2010, and should be addressed to the 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.

If It’s May, It Must Be Registration Time

Annual fee forms for 2010-2011 have been mailed. All attorneys must file an annual fee form by July 1, 2010, regardless of whether the attorney receives the form in the mail. The form is also available to download on the Board’s Web site.

A late payment penalty of $100 will be charged if the fee is not paid by the time the Board transmits final notices by certified mail to attorneys who have failed to timely file an annual registration form and pay the fee. Thirty days later, the names of attorneys who have failed to respond to the notice will be certified to the Supreme Court, at which time the late payment penalty will increase to $200. Returned checks will be subject to a charge of $50. These charges were published by the Board at 40 Pa.B. 2258 (5/1/2010).

A listing of banks approved as depositories for fiduciary accounts, with their codes for registration purposes, will be enclosed with the registration packet. It has also been published by the Board at 40 Pa.B. 2258 (5/1/2010).

Beneath Contempt

Last October, we reported on the case of Missouri attorney Carl Smith, who was convicted by a jury of criminal contempt of court and sentenced to 120 days in jail for critical statements he made about local judges and other officials in a court filing. On May 11, 2010, the Supreme Court of Missouri overturned Smith’s conviction, and ordered him discharged. According to the Court’s unofficial, but published summary,

To satisfy current constitutional protections for lawyer speech, where an attorney is prosecuted for indirect criminal contempt of court, the state must prove that the attorney’s statements were false, that the attorney knew the statements were false or acted with reckless disregard for the truth or falsity of the statements, and that the effect of the statements constituted an actual or imminent impediment or threat to the administration of justice. Here, the jury was not asked to make such findings, there was a lack of evidence as to these essential elements, and neither the trial court’s judgment nor its order of commitment contained any findings of fact as to these essential elements.

O Brother, Who Art Thou?

Florida attorney Jimmy Thomas found himself in an unusual dilemma: exactly who was the man he was representing, and should he tell the court?

Thomas was counsel for Matthew Mauceri in defending criminal fraud charges.[1] When he questioned the client who appeared for trial, the man did not seem to know anything about the case. Granted, most criminal defense attorneys have probably had that experience at times, but Thomas had a special reason for suspicion. He knew Mauceri had a twin brother, Marcus Mauceri, whom he had also represented in the past.[2] He questioned his client, but the man maintained that he was Matthew.

Thomas spoke to some other lawyers about his concerns. Word reached the judge, who questioned the man in open court. He insisted he was Matthew. The judge requested he take a fingerprint examination, which demonstrated that the man before the court was in fact Marcus. Marcus admitted he was standing in for his brother, who was late flying in from out of state. Marcus was sentenced to six months in jail for direct contempt.[3] Matthew, who arrived later, received a later trial date. Thomas still plans to represent him. At least this time, if his client isn’t incarcerated, he will know it isn’t Marcus. St. Petersburg Times story here.

Pennsylvania has disciplined attorneys for misrepresenting the identity of the person they were representing, In Re Anonymous No. 41 DB 1980,[4]26 Pa. D. & C. 3rd 511 (1983), and for remaining silent when the client misrepresented his identity, In Re Anonymous No. 86 DB 1992, 32 Pa. D. & C. 4th 35 (1995). Thomas’s experience indicates the safe approach for the attorney to be candid with the court about the identity of the client.

Request and Ye Shall Be Fed

For those who absolutely can’t wait to get the latest and hottest news about professional licensing in Pennsylvania, the Disciplinary Board now offers RSS feeds.

RSS (Rich Site Summary) is a format for delivering regularly changing Web content. Many news-related sites, weblogs and other online publishers offer their content as an RSS Feed to anyone who subscribes. You can sign up to receive updates as email messages, or you can retrieve the information through a personal feeder,[5] which you choose and set up on your computer to receive messages from our Web site or any other to which you may subscribe. Some popular feed readers include Amphetadesk (Windows, Linux, Mac), FeedReader (Windows), and NewsGator (Windows - integrates with Outlook). Also, there are a number of web-based feed readers available, such as My Yahoo, Bloglines, and Google Reader.

Once you choose and install a Feed Reader, you can subscribe to any sites that syndicate content and add their RSS feed to the list of feeds your Feed Reader checks. Many sites display a small icon with the acronyms RSS, XML, or RDF to let you know a feed is available. For more information, see http://www.whatisrss.com/.

Better Late than Never

Finally, let us acknowledge a new admission to the bar of Pennsylvania: George B. Vashon. By special order dated May 4, 2010, the Supreme Court found,

This Court recognizes that George B. Vashon possessed the necessary credentials, competency, and good character to practice law in Pennsylvania in 1847 based upon his bachelor and masters degrees from Oberlin College, his mentorship with the Honorable Walter Forward of the Allegheny County Court of Common Pleas, and his subsequent admissions to practice law in the State of New York and before the U.S. Supreme Court. This Court further acknowledges that Article V, Section 10 of the existing Pennsylvania Constitution gives the Pennsylvania Supreme Court the exclusive authority to prescribe the general rules governing admission to the Pennsylvania Bar and to regulate the practice of law.

This Court further recognizes that Mr. Vashon applied for admission to practice before the Allegheny County Bar in 1847 (which appears to have been a prerequisite to practice before this Court), but the examining committee refused to consider his application solely on the basis that he was African-American and therefore could not vote, noting that the revision to the Pennsylvania Constitution of 1838 only extended voting rights to "every white freeman.” Such discrimination, of course, would be intolerable today.

In acknowledgement of Mr. Vashon’s credentials and achievements, this Court hereby admits George B. Vashon to the practice of law in the Courts of this Commonwealth posthumously.

The court further directed that an induction ceremony be held in the presence of Mr. Vashon’s descendents.

More about the remarkable life of George B. Vashon, the first black lawyer admitted to the New York Bar, is here.

Our thanks to subscriber Norma Chase for calling this story to our attention.

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] What could possibly go wrong?

[2] The record is unclear as to which, if either, was the evil twin.

[3] A clear example of double jeopardy.

[4] Veterans of the disciplinary system will remember the In Re Anonymous format without fondness.

[5] Not to be confused with a celebrity chef.