Attorney E-Newsletter

August 2011

Judges Judged: Ciavarella Gets 28 Years

It’s been a busy month for judges in trouble.

On August 11, former Luzerne County Judge Mark Ciavarella, removed from office and convicted on charges related to the “kids for cash” bribery scandal, was sentenced to 28 years in prison and ordered to pay $965,000 in restitution by United States District Judge Edwin Kosik. In February, Ciavarella was convicted on 12 of 39 counts, including racketeering, mail fraud, money laundering, conspiracy, and filing false tax returns. His counsel indicated that the sentence would be appealed. His co-defendant, former Judge Michael Conahan, pleaded guilty last year, but has not yet been sentenced.

The Pennsylvania Court of Judicial Discipline also ordered that another former Luzerne County Judge, Michael T. Toole, be removed from the bench and barred from ever holding judicial office. In an opinion dated June 24, 2011, the Court noted that in October 2010, Toole pleaded guilty to charges of Corrupt Receipt of Reward for Official Action Concerning Programs Receiving Federal Funds in violation of 18 U.S.C. §666(a)(1)(B), and had been sentenced to imprisonment for 30 months.

On the same day, the Court of Judicial Discipline also removed Michael Thomas Joyce from office as Judge of the Superior Court of Pennsylvania, and barred him from judicial office. In its opinion, the Court pointed to Joyce’s 2008 conviction on eight counts of mail fraud and engaging in monetary transactions in property derived from specified unlawful conduct, which was subsequently upheld on appeal. Joyce’s term on the Superior Court expired on January 6, 2008.

One judicial official’s case had a happier ending before the Court of Judicial Discipline, though. In an opinion filed August 17, 2011, the Court dismissed charges against Lancaster County District Judge Isaac H. Stoltzfus for handing hollowed-out acorns stuffed with condoms to two female state employees while attending a conference in Harrisburg.[1] Without endorsing the conduct,[2] the Court looked to the case of In re Cicchetti, 697 A.2d 297 (Pa.Ct.Jud.Disc. 1997), upheld 743 A.2d 431 (Pa., 2000), to determine whether the conduct violated Canon 2A of the Rules Governing Standards of Conduct of Magisterial District Judges, which states:

Magisterial district judges shall respect and comply with the law and shall conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

The Court concluded that since the conduct did not occur in the course of his judicial duties,[3] and did not violate the law, it was not a violation of Canon 2.

Although the context of the decision is odd and in some (but not all) eyes humorous,[4] the Court’s decision is a substantial discussion of the application of ethical rules to conduct outside one’s official role, a serious issue with which both the judicial and attorney discipline systems have often struggled.

Not Fun and Games: Lawyer with Video Game Addiction Suspended

This month’s most interesting disciplinary decision is the case of Office of Disciplinary Counsel v. Matthew J. Eshelman. By order dated August 17, 2011, Eshelman was suspended for three years by the Supreme Court, after the Disciplinary Board found that he had committed misconduct, much of it in the nature of neglect and failure to discharge various ethical duties, in seventeen cases. The Respondent testified that he had for more than ten years sought refuge from professional and personal stress in computer games, to the point where he left or lost employment with three law firms. He then entered solo practice, where he retreated even more deeply into the games. He acknowledged that he could not practice law until he overcame his claimed addiction to electronic recreation. Finally he sought assistance from Lawyers Concerned for Lawyers and took nonlegal employment.

Since Eshelman offered no expert testimony, the Board did not find mitigating factors under Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989), but determined that a three-year suspension, consistent with prior cases involving similar misconduct, would allow Respondent to deal with the problem and restore his prior competence before returning to the practice of law.

Lawyers Concerned for Lawyers of Pennsylvania is a confidential, volunteer-driven organization which has been helping distressed and impaired lawyers and judges to regain their good health and professional competency since 1988. Lawyers Concerned for Lawyers of Pennsylvania is not affiliated with or controlled by the Supreme Court, the Disciplinary Board, the Judicial Conduct Board, the Board of Law Examiners, or the Pennsylvania Bar Association, and does not disclose information about lawyers it helps to those entities. Its confidential helpline, open 24 hours a day every day, may be reached at 888-999-1941.

Disciplinary Board Proposes New Sanction, Public Reprimand, and Revises Board Rules

The Disciplinary Board has proposed amending the Pennsylvania Rules of Disciplinary Enforcement to provide for a new form of discipline, Public Reprimand, with or without probation.

The proposed rule, published at 41 Pa. Bull. 4200 (8/6/2011), provides that public reprimand could be imposed by the Disciplinary Board through summary procedure, which would not require the institution of formal proceedings, although the respondent-attorney would have the right, as with all summary discipline, to request that formal charges be filed prior to the imposition of discipline.

While noting that the proper applications of the new sanction will be defined in cases, the Board gives a few examples of situations where public reprimand may be applied:

  • The misconduct does not harm or prejudice a client, but causes significant prejudice to a court or the administration of justice;
  • Where public discipline short of suspension or disbarment has been imposed in another jurisdiction;
  • Criminal conviction of a relatively minor offense that receives public notoriety and demeans the legal profession;
  • An administrative body has found that the respondent-attorney violated a provision of an ethics act or code of conduct applicable to public officials and employees.

The Board explains misconduct in such cases may have already been exposed to public scrutiny, and the new provision will provide for a public sanction to satisfy the primary purposes of professional discipline while allowing the respondent-attorney to continue to practice law. The public reprimand may be subject to conditions and may be imposed in combination with probation.

Comments should be sent by mail or facsimile 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, facsimile number (717-231-3382) on or before September 30, 2011.

On the same day, the Disciplinary Board also issued a rulemaking modifying several of the Rules of the Disciplinary Board. These amendments, published at 41 Pa.B. 4202, carry into the Board Rules changes made in the Rules of Disciplinary Enforcement over the past several months. One substantive change in the new Board rules is that the time set forth in Section 87.7(b)(2) for responding to a Request for Statement of Respondent’s Position (DB-7 letter) is enlarged from 20 to 30 days. It should be mentioned that under the amendments to Rule 203(b)(7) of the Rules of Disciplinary Enforcement, failure to respond to a Request for Statement of Respondent’s Position is now a separate ground for discipline. The amendments took effect upon publication.

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For those who desire up-to-date information on rule changes, ethical issues, registration information, and other events relating to the practice of law in Pennsylvania, the Disciplinary Board offers, through FeedBurner, an RSS[5] feed by which the latest news is sent to subscribers. For more information and to signup, click here.

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[1] We are certain that the following finding of fact is unprecedented in the annals of judicial discipline: “Respondent has collected, hollowed out, and placed unwrapped condoms inside thousands of acorns during his tenure as a Magisterial District Judge. Occasionally, Respondent utilized some condom-filled acorns in his courtroom to raise awareness of the efficacy of condom use against unplanned pregnancy and disease. However, Respondent did not hand condom-filled acorns out in his courtroom.” Finding No. 22, Page 5.

[2]The Court states at Page 7, “We must say that Respondent’s purpose here and his preoccupation with acorns is mystifying to the Court. It is not funny and we strongly disapprove of this conduct. Although it does not rise to a violation, it certainly lacks good judgment and must not be repeated.”

[3] “There wouldn’t be a violation of Canon 2 unless the conduct took place in the decision-making process, which it didn’t. Which it obviously didn’t.” Footnote 4, Page 8.

[4] In deference to the gravity of the matter, we have resisted the temptation to exploit the humorous potential of this story. And you thought we couldn’t.

[5] Rich Site Summary. A/k/a Really Simple Syndication. Really.