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Attorney E-Newsletter

April 2011

Registration Goes Online

It’s April in Pennsylvania, which means that spring is in the air, the tax returns are in the mail, the Phillies are in first place, and the shelves of stores are resplendent with marshmallow Peeps.®© It also means that around the offices of the Disciplinary Board, the annual registration forms are going out soon.

The difference this year is that online registration has come to Pennsylvania. Beginning Monday, May 2, 2011, lawyers will be able to register online at the Disciplinary Board website, www.padb.us using the court’s automated online system. The online process also will allow a firm to register all its attorneys at one time and more efficiently than the previous paper-only method. Fees can be paid with a debit or credit card for safe, convenient payment. The full announcement is here.

As always, registration forms, new style or old, will be due July 1. There are just fewer excuses this year.

As to the fees, there is good news and bad news. The good news is that the attorney registration fee for the Disciplinary Board will be $5 less this year than last. The bad news is that the assessment for the Pennsylvania Lawyers Fund for Client Security will be $5 more. So there is really no news, which, we are told, is good news.

Discipline By the Numbers

The Disciplinary Board has released its report on the discipline numbers for 2010, which can be found here.

There were 267 disciplinary dispositions in 2010, up a little from 2009’s 254 and slightly below the yearly average of 277 in the last decade. All categories of discipline were down except for disbarments, which at 45 set the Board’s all-time record. Twenty-six of those were on consent. Reinstatements were also at an all-time high with 106, the first time in the Board’s history there have been 100 cases in any category. Ninety-six of these were reinstatements after three years or more on inactive status; these alone were 36% of all dispositions.

Pro Bono – You’re Covered

After our February issue on pro bono work, one of our readers related that she was interested in doing pro bono work, but was concerned about whether her efforts would be covered by malpractice insurance. This concern was forwarded to David K. Trevaskis, Pro Bono Coordinator at the Pennsylvania Bar Association. He responded,

“All legal aid offices provide insurance for lawyers doing pro bono through the local offices. There are also pro bono opportunities like Wills for Heroes where you can do the work and then have an attorney with insurance sign off on the work.” He also added, “Attorneys can also always meet their pro bono aspirational goal by doing public education about the law, especially among poor schools, which does not require insurance at all.”

Our thanks to Mr. Trevaskis for his prompt response and the useful information he provides.

Tip of the Month: Get It in Writing! A Periodic Reminder

April 1, 2011, [1] marked the 23rd anniversary of the adoption of the Rules of Professional Conduct by the Supreme Court of Pennsylvania.[2] One of the most significant changes in the day to day life of practicing lawyers added by the Rules was the addition of Rule 1.5(b), which states: “When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.”

Despite being a part of our ethical canon for 23 years, the Office of Disciplinary Counsel still encounters, with rather alarming regularity, lawyers who are either unaware of or indifferent to their obligation to put fee agreements in writing. Over the years, the office has also heard from lawyers who adopted the practice of doing so in response to the rule, and found that it came in very handy in the event of a dispute over a fee with a client. As we like to say, it’s not just the law – it’s a good idea. [3]

Gee Whiz! Sun Tzu, Shakespeare, and E.E. Cummings Grace Copyright Opinion

Our favorite opinion of the month comes to us by way of Judge Dolly Gee of the United States District Court for the Central District of California, in the case of Kenneth M. Stern v. Does, et al.[4]

The facts of the case were that Stern posted a one-line request on a lawyers’ listserv, inquiring as to whether anyone had experienced problems of a certain type with a certain potential defendant. The post was copied and passed along, eventually reaching the very same potential defendant. Stern then obtained a certificate of registration for his listserv post from the United States Copyright Office, and sued the attorneys who had passed the post along for copyright infringement.

The defendants filed motions for summary judgment, which led Judge Gee to write an extraordinarily literate and detailed 30-page decision sustaining the motions. The decision is notable for its analysis of the issues of originality, creativity, fair use, the significance of terms of use, transformative use, non-commercial use, and liability for attorney fees. Judge Gee concluded,

In an age of blogs, listservs, and other online fora, a person’s short comment in cyberspace is frequently quoted in its entirety as others reply or forward it elsewhere. It would be strange, dangerous even, if every such quotation subjected the copier to liability and a federal lawsuit. Such heavy-handed tactics are akin to using a cannon to kill a mosquito; they carry the same attendant risk of collateral damage by chilling free speech. A free and vibrant democracy depends upon the unfettered exchange of ideas.

The opinion is also a fascinating read for its literary quality. She opened her analysis with a quotation from Sun Tzu’s The Art of War (in Chinese), which translates to “He will win who knows when to fight and when not to fight.” In the course of Judge Gee’s analysis, numerous figures make appearances, including Shakespeare (both Hamlet and Much Ado About Nothing), [5] E.E. Cummings,[6] Lewis Carroll, Dr. Seuss, Hustler, Jerry Falwell, and many others cited in passing.

In the end, Judge Gee granted the motions for summary judgment, and allowed the defendants to refile their requests for attorney fees with appropriate documentation, based on the plaintiff’s “patently meritless” argument. Stern has, not surprisingly, appealed.

Perhaps Judge Gee, in her own terminology, used a cannon to kill a mosquito, but we were entertained and educated by her erudite analysis.

We hope that come May 2, electronic registration will save you a little time to enjoy most these amazing days, the leaping greenly spirits of trees, a blue true dream of sky, and everything which is natural which is infinite which is yes.

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] The April Fools Day defense has never worked. Not once.

[2] On April 1, 1988, Ronald Reagan was president. Robert P. Casey (pere) was a year into his first term as governor. Chuck Noll was coach of the Steelers. Beetlejuice began a four-week reign as America’s top-grossing film. Haley Joel Osment was ten days away from being born. Michael Jackson’s “Man in the Mirror” had just supplanted Rick Astley’s “Never Gonna Give You Up” atop the Billboard Hot 100, Tracy Chapman’s debut album would be released in four days, and West Philadelphia hip-hop group DJ Jazzy Jeff & The Fresh Prince – consisting of Jeff Townes (DJ Jazzy Jeff), Will Smith (The Fresh Prince), and Clarence Holmes (Ready Rock C) – released the single “Parents Just Don’t Understand.” You get the idea.

[3] We tried to trace the origins of this '70s vintage slogan about speed limits with the aid of Mr. Google, only to find that the vast majority of references are to gravity or the speed of light. We are being overwhelmed by wiseguys.

[4] When Stern sued the Does, was he looking for the bucks?

[5] The Volokh Conspiracy has a comment thread with a hilarious collection of applicable Shakespearean and other literary observations.

[6] Judge Gee observes that contrary to popular belief Cummings, despite his preference for miniscule orthography in his poems, insisted his name should be capitalized in the customary manner, which we, Cummingsians that we are, did not know.