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Attorney E-Newsletter

December 2011

How Online Annual Attorney Registration Works

Effective with the July 1, 2011 registration deadline, Active and Inactive attorneys, In-House Corporate Counsel and Foreign Legal Consultants had the option of securely submitting their annual registration forms and paying their annual fee to the Attorney Registration Office of the Disciplinary Board online. Payments were accepted using Visa, MasterCard and Discover, as well as ATM/Debit cards.

In order to access the features of the Attorney Registration system, it was necessary to create an account on the UJS Web Portal (http://ujsportal.pacourts.us). Attorneys could self-register or designate a proxy. A proxy is someone that receives permission from one or more attorneys to submit registrations and payments on their behalf. Upon confirmation of the attorney’s PA Bar Number and last 4 digits of their Social Security Number, the system was able to match information from the Attorney Registration records of the Disciplinary Board.

The Attorney Registration system automatically calculated all fees due depending on the status chosen. It also pre-populated data submitted in last year’s registration and allowed attorneys to manage their profile or required information, including office and residence address, telephone number, jurisdictions, financial data and to certify whether or not they are covered by Professional Liability Insurance.

The online registration process was open 24 hours a day so that attorneys could conveniently pay at all hours. This was especially helpful to attorneys registering before the late fee was imposed and also for those in different time zones or overseas.

Attorneys who pay by mail may have a delay in processing time, check cashing and issuance of license cards due to the volume of mail that must be collected from the post office, opened, reviewed, scanned and processed. All mail is entered by date received; however, online registration is much more efficient with less room for errors.

An additional downside of mailing the form and fee, is that if there is an error with the submission (ex: missing signature, incorrect amount, wrong payee or the form is incomplete), the form must be returned to the attorney for correction and the delay may increase the possibility of late fees or penalties.

The Disciplinary Board is very pleased that out of the nearly 74,000 registration forms mailed on May 15, 2011, approximately, 25% have paid online. We anticipate that this number will increase next year and eventually “snail mail” will become obsolete and this will be the only way registration fees will be accepted.

As we prepare for the upcoming year’s online registration, please keep in mind attorneys may elect not to receive future paper registration forms in the mail. Those who have already registered online will receive an email to remind them of their annual renewal. Attorneys may only register online once per registration year.

Pennsylvania Supreme Court: Privilege Challenges Heard Immediately

The Supreme Court of Pennsylvania has determined that under Pennsylvania law, challenges to orders rejecting claims of privilege and requiring disclosure may be challenged directly, even if the order would otherwise be un-appealable as interlocutory. In the case of Commonwealth v. Harris, No. 8 EAP 2009 (11/23/2011), the Supreme Court considered whether Rule 313(b) of the Pennsylvania Rules of Appellate Procedure permits a party to seek appellate review of an order rejecting a claim of privilege and ordering a party to reveal information claimed to be privileged. The Court held in Ben v. Schwartz, 729 A.2d 547 (Pa. 1999), that such appeals would be heard before final judgment. However, the United States Supreme Court reached a contrary result as to Federal law in Mohawk Industries, Inc. v. Carpenter, 130 S.Ct. 599 (U.S. 2009).

The Pennsylvania Court considered the logic of Mohawk Industries, and concluded that the remedies suggested in that decision for protection of privilege were inadequate in Pennsylvania. Writing for the Court, Justice McCaffery stated,

The free airing of concerns that privileges are intended to foster will be curtailed if parties are unable to speak without worrying that a confidant ordinarily subject to a privilege will one day be forced to repeat confidences. A rule requiring parties to wait until final judgment to appeal an order overruling a claim of privilege would both cause the privilege-holder’s fears to be realized and deprive the privilege-holder of any meaningful remedy. . . . Once putatively privileged material is in the open, the bell has been rung, and cannot be unrung by a later appeal.

The Court reaffirmed its ruling in Ben, and held that under Rule 313(b) appeals from orders requiring disclosure of information on which a privilege is claimed may be heard before final judgment.

A detailed discussion of the Pennsylvania court’s decision to chart a different path than the United States Supreme Court appears in the respected blog How Appealing.

Forms Follow Function

The Disciplinary Board has added a number of litigation forms for disciplinary and reinstatement proceedings, as well as compliance with various status changes. The links to forms are here.

Lawyer in Love: Do Lovers Make Better Lawyers?

Many lawyers have found themselves in disciplinary trouble after entering into romantic relationships with clients. A Connecticut lawyer facing disciplinary inquiry for a romantic entanglement with a client has raised a novel argument: the bar should not discipline lawyers who represent lovers, because a lawyer will provide better representation to one he or she loves. As Zenas Zelotes puts it, “You aggravate a client, maybe you lose their business. You aggravate a sweetheart; you’re sleeping on the couch.”

A two-member disciplinary panel recommended that Zelotes be disciplined for representing a woman with whom he had an intimate relationship, in her divorce and other matters. Zelotes contends that his personal interest in the case assures that he will represent the one he loves with exceptional competence and zeal. He adds that he knows this because he represented a previous lover and did so very effectively. He states, “There is not a conflict of interests. It’s a coincidence of interests.” A 21-member Statewide Grievance Committee will decide whether to refer the case to the court for discipline. Zelotes has indicated he will appeal the case to the United States Supreme Court, arguing in addition that he has a constitutional right to “intimate association” which prevents the state from taking action based on his personal relationship.

Zelotes has since moved to Butler, Pennsylvania “for love,” although he is not at press time admitted to the Pennsylvania Bar.

Rule 1.8(j) of the Pennsylvania Rules of Professional Conduct states that “A lawyer shall not have sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced.” No cases finding violations of this rule have been decided.

Lawyer Ostrich-sized? Judge Uses Images in Rebuke of Lawyer

The many scholarly opinions written by Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit have won him acclaim as one of the country’s best-known jurists, but a recent opinion has made waves in the legal community for a different reason.

In the consolidated cases of Gonzales-Servin v. Ford Motor Company and Kerman v. Baker Corporation, Judge Posner wrote an opinion dealing with a question which he found to have been definitively settled by a decision of the court. The defendants in the cases cited and heavily relied on this case, arguing it was identical to the cases at issue. The plaintiffs, however, did not reply to or even cite the analysis of the case in their briefs.

Criticizing the failure of the plaintiffs to address the precedent he found decisive, Judge Posner compared their advocacy to an ostrich hiding its head in the sand:

The ostrich is a noble animal, but not a proper model for an appellate advocate[1]. . . . The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.”

Not satisfied with rebuking the lawyers’ advocacy in word, Judge Posner chose to illustrate the tactic with a pair of images inserted into the body of the opinion – one of an ostrich hiding its head in the sand,[3] and the other of a brown-suited man emulating[4] the ostrich by, um, assuming the position.

Undaunted, the chastised lawyer stood his ground,[5] insisting in an email to the Wall Street Journal Law Blog that the case cited by Judge Posner was not controlling or even on point, as it dealt with a transfer to Argentina, while the cases before the court dealt with Mexico, in which courts have rejected such transfers. He added, “I can only wonder who really is the ostrich.”[6]

Our thanks to subscriber David G. Concannon for bringing this to our attention.

Holiday Cheer

In honor of the season, a Christmas case for your enjoyment.

For whatever holidays you celebrate, warm wishes.

Let Us Know

Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.

[1] As biologically conscientious as he is legally, in the ellipsis Judge Posner took judicial notice that ostriches do not actually hide their heads in the sand.[2]

[2] This would be what we call an urban myth, except that ostriches live in the savannahs of Africa, about as far from “urban” as it gets.

[3] As noted, of dubious authenticity.

[4] No emus were involved in the staging of this photo. Emus, natives of Australia, are order-level relatives of the ostrich; the emu is the world’s second-largest bird, after the ostrich.

[5] On it, not in it.

[6] Is there an element of mens rhea?[7]

[7] Just[8] kiwing.

[8] Please, no moa this! Time to ratite up, cassowary of this frivolity.