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Attorney E-Newsletter

May 2011

Pennsylvania Supreme Court Draws Tough Line on Judicial Recusal

The Supreme Court of Pennsylvania issued two decisions in April in which it ordered the recusal of trial judges.

In the case of In Re: Adoption of L.J.B., the Court, in an opinion by Justice Baer, determined sua sponte that the trial judge should be recused from an adoption and custody case upon remand, after showing a pattern of conduct which the Court characterized as favoring the father. The Court also found that the only other judge in the judicial district, who had presided over some of the proceedings in the extended matter, had failed to consider the trial judge’s appearance of impropriety. The Court concluded,

Given what has to be a collaborative relationship and considering both of their involvements in this case, we believe justice, and, as importantly, the interests of L.J.B. [the child], who has suffered enough for a lifetime, would best be served by a fresh pair of eyes and a fresh perspective. Thus, we order that all additional proceedings involving these parties be entertained by a new jurist from a different judicial district, as coordinated by the Administrative Office of Pennsylvania Courts.

Justice Saylor filed a concurring opinion in which Chief Justice Castille concurred, expressing doubt that there was proof of actual bias, an assessment with which Justice Baer concurred in a footnote. Justices Eakin and Melvin filed dissenting opinions expressing the view that the judgment should be reversed and not remanded, with which Justice Todd concurred, while concurring with the opinion of the Court that the matter should be decided on remand by a judge from a different judicial district.

Commonwealth v. Dougherty was a criminal case in which the judge who heard the defendant’s PCRA called the defendant “vile” in the course of the hearing, then ordered that the remark be stricken from the transcript. In a per curiam order, the Court found that the PCRA adjudication provided an insufficient basis for review, and also that the judge erred in denying a motion for recusal, and so remanded the matter for rehearing before a new PCRA judge. In a concurring statement joined by Justices McCaffery and Melvin, Justice Baer said that the remark itself would not warrant recusal, but that the alteration of the transcript to remove the remark was, and that furthermore the judge’s subsequent attack on defense counsel for filing the recusal motion created an appearance of impropriety and reinforced the case for recusal. Justice Eakin filed a concurring and dissenting statement in which he concurred in much of Justice Baer’s statement and dissented as to other issues.

Disciplinary Board Proposes New Electronic Filing Rules

The Disciplinary Board has published a Notice of Proposed Rulemakingt at 41 Pa.B. 2517 (5/21/11).[1] The rulemaking sets forth extensive changes to Rules 218 and 219 of the Pennsylvania Rules of Disciplinary Enforcement to reflect the new procedures for electronic filing of annual attorney registration statements.

Additions to subdivisions (a), (c) and (d) of Rule 219 give an attorney the option of filing the annual fee form by electronic medium. The new rule codifies electronic filing, which was implemented by the Disciplinary Board with the assistance of the Administrative Office of Pennsylvania Courts for use by attorneys beginning with the 2011-2012 registration year.

A second major change to Rule 219 would eliminate the requirement of sending delinquency notices to attorneys who fail to timely register by July 1. It proposes two non-waivable late payment penalties, the first to be automatically assessed on July 15 (fifteen days after the due date) and the second to be automatically assessed on September 1 (48 days after the initial delinquency assessment). New subdivision (f) provides that after the assessment of the second late payment penalty, the Attorney Registration Office will refer the names of non-compliant attorneys to the Supreme Court for administrative suspension. Delinquency notices are unnecessary because Rule 219 provides adequate notice to attorneys to register on an annual basis and to do so by July 1. All attorneys are required to be familiar with the rules, and Rule 219 provides constructive notice to all Pennsylvania attorneys of their obligation to complete registration by July 1.

The third procedural change to Rule 219 is in subdivision (d)(1)(ii). An attorney may request through the Attorney Registration Office that the contact information provided by the attorney not be published on the Board’s website or otherwise disclosed. The request must be in writing and provide “good cause” for the grant of the request. The Board may still disclose information in compliance with a valid subpoena.

Another set of changes concerns lawyers who seek reinstatement after being inactive, retired, administratively suspended, or suspended for a term not exceeding one year.

  • The amendment would make it clear that a petition must be filed if there is an uninterrupted term of license inactivity that exceeds three years, even if that inactivity is not all due to the same status.
  • New Subsection (4) of subdivision (k) requires an attorney administratively suspended from inactive status who seeks to return to inactive status to pay an administrative processing fee of $100.00, to cover the time and cost of reviewing the attorney’s records, calculating the fees and penalties, and changing the records to reflect the new status. This has been agency practice but would be codified in the rule.
  • An attorney who has been administratively suspended from active status for failure to file the annual form and pay the annual fee must be reinstated to active status under subdivision (h) before becoming eligible to register as inactive or retired.
  • Finally, a one-year grace period for attorneys inactive by court order to request and achieve active status in order to avoid transfer to administrative suspension is eliminated because, hey, it’s been two years.

This is, believe it or not, an abbreviated summary of the rulemaking. If any of this sounds like something you should be concerned about and/or comment on, read the rulemaking. Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, fax 717-231-3382, on or before July 1, 2011.

While we are on the subject of electronic filing, we should mention something which some thought we should have mentioned before: there is a “convenience fee” of $2.75 for online payment.[2]

PA IOLTA Offers Online Donation Option

Speaking of online options, this month’s guest editorial is from Stephanie S. Libhart, Assistant Director of the PA IOLTA Board. She writes,

Recently, Chief Justice Ronald Castille encouraged every actively licensed Pennsylvania attorney to take on one pro bono case or to make a contribution to support legal aid or pro bono efforts. If every attorney took on a pro bono case, nearly 60,000 low income people would receive help with a critical civil legal problem, such as seeking a protective order against an abusing spouse, or legal help when confronting the loss of the family’s home. If every active attorney in Pennsylvania made a $50 contribution, $3 million would be raised to make certain that the poorest of our communities enjoy the same access to the courts as those who are able to pay for assistance. Making a contribution is easier than ever. Look for the solicitation letter on blue paper which was included in your annual registration packets. Or visit www.paiolta.org/donate/ today and make a donation.

They make it easy. So do it!

New Leadership of Disciplinary Board Chosen

The Supreme Court of Pennsylvania has appointed Sal Cognetti, Lackawanna County, Chair of the Disciplinary Board, and Stewart Cohen, Philadelphia County, as Vice Chair for 2011-2012.

Mr. Cognetti, a partner at Foley, Cognetti, Comerford, Cimini, & Cummins in Scranton, and a civil practitioner specializing in personal injury litigation, has served as a member of the Board since 2006. In 2000, former Governor Tom Ridge appointed Cognetti to serve as a judge of the Court of Judicial Conduct, and, in 2003, Cognetti was elected President Judge of the Court. With his recent appointment as Chair of the Disciplinary Board, Cognetti becomes the first lawyer to have led the two highest disciplinary bodies in Pennsylvania. Cognetti is the former owner, vice-president and general counsel of Jos. Notarianni & Co., Inc., and is also a former Chairman of the Board of First Family Bank in Clifton, N.J. Cognetti presently serves as a Trustee for Thomas Jefferson University, Philadelphia. He and his wife, Susan, are the parents of nine children.

Mr. Cohen has served as a member of the Board since April 2007. A private practice lawyer for clients across the nation, Cohen specializes in complex litigation, including individual and class action cases. He has represented plaintiffs in numerous groundbreaking cases, including a "Top 100 Jury Verdict" in the United States in 2005, and a "Top 20 Award" in New Jersey in 2009. Cohen and his wife, Karen, have raised three daughters and support a number of causes related to people with disabilities. Cohen is Emeritus member of the board of directors of the United Cerebral Palsy of Greater Philadelphia and Vicinity. On behalf of this organization, Cohen and his wife are co-chairing the 2011 UCP Motor Cars event. In addition, he served as the founding board member and is past president of the board of the Brain Injury Association of Pennsylvania.

Web of Deceit

This month’s jawdropper disciplinary case is the matter of Paul Wayne Shoup, Jr., who came up with a clever way to make a little extra cash on the Internet. While working for a tax firm, he discovered that the website for Montgomery County had a page which listed corporations to whom real estate tax refunds were due and uncollected. Over a period of approximately two and a half years, he requested and received 69 tax refund checks in the total amount of $503,122.01, all of which he deposited to personal accounts. He failed to pay these checks over to their rightful owners, or indeed even to let the rightful owners know he was collecting on their behalf. His undoing occurred when one corporation, who happened to be a client of his firm, checked their listing and contacted the firm to find out what happened to their check. It all fell apart pretty quickly after that. Mr. Shoup was convicted of felony theft and served 60 days jail time. He also neglected to notify the Disciplinary Board.[3] Shoup signed a Resignation under Rule 215, Pa. R.D.E., and he was disbarred by order of the Supreme Court dated April 28, 2011.

Somebody Said from Dylan He’d Quote[4]

By the time you read this, Bob Dylan will have just turned 70. We have been known to celebrate his birthday in Mays past, but a genuine news story affords us cause to do so again on this auspicious occasion. Maybe he “don’t want to judge nobody, don’t want to be judged,”[5] but judges seem eager to work him into their judgments. That’s the finding of a study by University of Tennessee professor Alex Long, who combed through legal databases for song references in legal filings and judicial opinions, and found Dylan invoked 186 times, far ahead of the rest of the top 10: the Beatles, 74; Bruce Springsteen, 69; Paul Simon, 59; Woody Guthrie, 43[6]; the Rolling Stones, 39; the Grateful Dead, 32; Simon & Garfunkel, 30; Joni Mitchell, 28; and R.E.M., 27. He found over half a dozen appellate opinions invoking a single line, “You don’t need to be a weatherman/To see which way the wind blows.”[7] It’s common enough that we’re sick of all this repetition[8].

The selection of artists may say much about the age of the country’s judicial class, and perhaps its socioeconomic nature as well. The phenomenon has even given rise to entire legal seminars devoted to a single artist, such as a two-day Dylan in the Law session at Fordham University in April, and a daylong symposium on Bruce Springsteen at Widener University in Harrisburg in 2005[9].

The phenomenon has even reached the Supreme Court, in which both Chief Justice John Roberts and Associate Justice Antonin Scalia have recently quoted the muse.

Perhaps the champion of legal Dylanization is New York University law professor Michael Perlin, a noted authority on mental health and disabilities law, who has written over 50 law review articles with Dylan lyrics in the titles.[10]

David Zornow, a partner at the New York office of Skadden, Arps, Slate, Meagher & Flom, notes that the respect judges show to Dylan isn’t always mutual. "This is a guy who doesn't have a lot good to say about judges," says Zornow. He found only two references to judges that cast them as caring and professional. Most refer to corruption and caprice. Many of Dylan’s legally oriented songs, such as “Percy’s Song[11], “The Lonesome Death of Hattie Carroll[12], and “Hurricane[13] are ballads of miscarriage of justice. Perhaps Mr. Dylan does not feel bound by his own observation that “I ain’t a judge, you don’t have to be nice to me.”[14]

In any event, we hope the distinguished Mr. Dylan enjoyed a rewarding 70th, and hope for many more. We’re glad he is still crazy after all these years.[15]

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] This announcement has nothing to do with reports that 5/21/11 is also the Judgment Day.

[2] How conveeeenient!

[3] Apparently the forgetful sort.

[4] “Man In the Long Black Coat”, Oh Mercy (paraphrased)

[5] “Do Right to Me, Baby,” Slow Train Coming.

[6] We confess to having concluded a brief in a lawyer discipline case with a line from “Pretty Boy Floyd”: “Some will rob you with a six-gun/And some with a fountain pen.”

[7] “Subterranean Homesick Blues,” Bringing It All Back Home.

[8] “Queen Jane Approximately,” Highway 61 Revisited.

[9] “Bruce Springsteen's Hope and the Lawyer as Poet Advocate,” 14 Widener L.J. 867 (2005). Yeah, we were there. Most memorable: Supreme Court Justice Michael Eakin’s setting of “Day in Court” to the rhythm of “Hungry Heart,” The River.

[10] We tip our hats to Professor Perlin, an online friend. While we read books and repeat quotations (“Love Minus Zero/No Limit,” Bringing It All Back Home), he writes them. We have reason to believe he draws conclusions on the wall (ibid.).

[11] Biograph.

[12] The Times They Are A-Changin’.

[13] Desire.

[14] “She's Your Lover Now,” The Bootleg Series Vols. 1-3.

[15] See #4 of the Top 10.