Attorney E-Newsletter

September 2011

Board Proposes Amendments to Criminal Conviction Procedure

The Disciplinary Board has published a series of amendments to Rule 214 of the Pennsylvania Rules of Disciplinary Enforcement, which provides for disciplinary procedures when an attorney is convicted of a crime. The proposal was published September 10, 2011 at 41 Pa.B. 4845.

Some of the significant changes the Board proposes include:

  • Under Rule 214(a), all criminal convictions must be reported, not just those of a “serious crime” as defined in current Rule 214(i), which will be rescinded under the proposal.
  • The convicted attorney and the clerk of the court where the conviction occurs are both directed to report the conviction to the Office of Disciplinary Counsel, not the Secretary of the Board. Disciplinary Counsel files a certificate of conviction with the Supreme Court.
  • After filing a certificate of conviction, Disciplinary Counsel may commence either an informal or formal proceeding under Enforcement Rule 208. Disciplinary Counsel may file a petition for discipline before a hearing committee or special master with the Board without seeking approval for the prosecution of formal charges by a hearing committee member.

As before, the Supreme Court may temporarily suspend the attorney while proceedings are ongoing, and the hearing on the petition is deferred until sentencing and all direct appeals from the conviction have been concluded. The sole issue at the hearing is the extent of the discipline to be imposed.

The Board’s commentary notes that the distinction under which attorneys were only required to report convictions of serious crimes resulted in some inequities due to differences in sentencing laws and the fact that some courts and prosecutors do not report convictions. The Board comments, “Abolishing the distinction between 'serious' and non-'serious' crimes, and expanding the self-reporting requirement to require attorneys to report when convicted of any crime, will enhance Rule 214's effectiveness, make the Rule more evenhanded in its application, and eliminate reporting anomalies that result from legislative action. The practical effect of the proposed Rule is that attorneys would be obligated to report to Disciplinary Counsel those crimes that Disciplinary Counsel is obligated to report to the Court."

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, Facsimile number (717-231-3382) on or before October 12, 2011.

ABA Addresses Cross-Border Practice, New Firm Conflicts, Clients Using Work Computers, Fee Agreements

Committees of the American Bar Association have issued a number of documents suggesting new directions and analyzing current ethical issues.

The ABA’s Commission on Ethics 20/20 has issued four proposals for comment, three of them affecting cross-border practice. The proposals include:

  • Amending the Model Rule for Admission by Motion to allow lawyers in one U.S. jurisdiction to seek admission by motion in another jurisdiction if they have been engaged in the active practice of law in the first jurisdiction for three of the prior seven years, rather than five of the last seven as the rule currently requires.
  • Amending Rule 5.5 of the Model Rules of Professional Conduct to clarify "systematic and continuous presence" of a legal office such as would allow a lawyer admitted in another jurisdiction to practice in a state; and
  • Adding a comment to Model Rule 1.7 which would provide for agreements between lawyer and client as to which law would be applied in a cross-border situation.

The Commission is also proposing an amendment to Model Rule 1.6(b) which would allow limited disclosure of confidential information by a lawyer who has changed firms where necessary to prevent conflicts of interest from arising.

The Committee is seeking comments by November 30, 2011. Even if adopted by the ABA, the amendments would not affect the Rules of Professional Conduct in effect in Pennsylvania and other states unless adopted by the Supreme Courts of those states.

The ABA Standing Committee on Ethics and Professional Responsibility issued two ethics opinions on August 4 which may have widespread applicability.

Formal Opinion 11-459 addresses the responsibilities of a lawyer communicating with a client who uses a workplace email address or other employment-related technology to communicate. The opinion examines cases and other authorities which have determined whether the client has a justifiable expectation of privacy, and concludes that lawyers communicating with clients through these means have a duty to warn clients of the risk that the security of their communications may be compromised. The opinion notes, “In contexts such as these, clients may be unaware of the possibility that a third party may gain access to their personal correspondence and may fail to take necessary precautions."

Formal Opinion 11-458 deals with the propriety of changing fee agreements in the course of representation. The opinion concludes,

Periodic, incremental increases in a lawyer’s regular hourly billing rates are generally permissible if such practice is communicated clearly to and accepted by the client at the commencement of the client-lawyer relationship and any periodic increases are reasonable under the circumstances. Modifications sought by a lawyer that change the basic nature of a fee arrangement or significantly increase the lawyer’s compensation absent an unanticipated change in circumstances ordinarily will be unreasonable.

The opinion expresses concern about the coercive effect of changes proposed after representation is underway, and notes criticism of practices such as adding a “success fee” to an existing agreement or threatening withdrawal on the eve of trial. The opinion also notes that changes in fee arrangements that involve a lawyer acquiring an interest in the client’s business, real estate, or other nonmonetary property will ordinarily require compliance with Rule 1.8(a), which requires written disclosure and informed consent of the client in writing.

“Model of Transparency”

We are delighted that Pennsylvania was named as a “model of transparency” for the level of information on the disciplinary process made available to the public in an “honor roll” named by the Legal Profession Blog. Other states on the list include Illinois, Indiana, Louisiana, and Massachusetts, with New Jersey also cited as making significant progress. Our thanks to Georgetown Law Center Ethics Counsel Michael Frisch for the recognition.

The Kids Aren’t Alright: Disciplinary Case of the Month

This month’s most interesting Pennsylvania disciplinary decision might be that of David Gilliland. Gilliland represented the Hunter Christian Memorial Trust in the preparation of various mortgage documents and notes. On 10 occasions he prepared the documents, but failed to record them or return them to the Trust. He testified that he had given the documents to high-school aged “kids” in his neighborhood to record, but he did not check up on whether they had been recorded. Although it characterized his neglect of the Hunter Trust matters “gross,” the Board noted that Gilliland works full-time as a staff attorney with the Allegheny County Bar Foundation Juvenile Court Project. Those who work with him on that project found his work to be conscientious and professional. Based on this and other mitigating factors, the Board determined that a three-year suspension stayed in full by probation was appropriate. In an order dated September 8, 2011, the Supreme Court accepted the Board’s recommendation and imposed this discipline on Gilliland.

Blame It on the Chablis

The most interesting disciplinary case this month is the decision of the Review Board of the Illinois[1] Attorney Registration and Disciplinary Commission in the matter of Kelly Maureen Murawski.

Ms. Murawski’s problems arose out of her decision to represent a married man by the name of Matthew, with whom she had formerly had an intimate relationship. It seems Matthew also had an affair with one Chablis, whom he met on His profile failed to disclose that he was married to Sally. A year later, Chablis found out Matthew was married, threatened to tell his wife, and began a pattern of appearing at and telephoning his home.

On a recommendation from a police officer that he obtain a protective order, Matthew contacted Respondent, who agreed to represent him “as a friend.”[2] Matthew neglected to advise Respondent of the precise nature of his relationship with Chablis. Respondent filed papers for an ex parte protection order, which was scheduled for a hearing. Respondent appeared at the hearing with Matthew, at which Chablis appeared with 59 pages of emails and texts from Matthew professing his love and twice proposing marriage. Respondent asked to see the documentation and sat down on a bench with Chablis to read it.[3] The sight of his former inamoratas sharing notes on their experience was too much for Matthew, who became enraged and discharged Respondent as his attorney. She went back into the courtroom and withdrew as his attorney, and after an ensuing scuffle over possession of the documentation, Respondent filed a battery charge against Matthew, who was arrested and jailed. The protection order was dismissed.

Later that day, Respondent telephoned Sally and informed her that Matthew was in jail, and also of his relationships with Respondent and Chablis.[4] Ostensibly, this was to arrange a time for service of a protective order. It turned out Sally already knew about Chablis. Nonetheless much unpleasantness ensued, and Matthew and Sally divorced.

Despite the bad judgment evident in Respondent’s handling of the matter, all disciplinary charges were dismissed. Murawski was found not to have violated a requirement of Rule 1.16(d) to deliver documents to her client upon withdrawal because Matthew never had a right to the documents. The documents remained Chablis’s property unless introduced in the proceeding, which never happened. She did not betray a client’s confidence in violation of Rule 1.6(a) by her call to Sally because Sally already knew about Chablis. She did not use information adverse to a former client in violation of Rule 1.9(a)(2) because Matthew’s relationship with Chablis was known not only to Sally, but also to those in the public courtroom.

Although Ms. Murawski was not disciplined, a few lessons appear from the case:

  1. Representing a married former paramour “as a friend” is probably a bad idea.
  2. Representing a married former paramour in a domestic dispute with another former paramour “as a friend” is definitely a bad idea.
  3. Representing a married former paramour with anger issues in a domestic dispute with another former paramour named Chablis he met while trolling as a single man is absolutely a bad idea.
  4. Not asking your married former paramour with anger issues why he wants you to file a protective order against a woman named Chablis is a very bad idea.
  5. Calling your married former paramour’s wife to explain that her husband is in jail and that you are filing a protective order against him because of his behavior in a protective order case you filed against another former paramour named Chablis he met on cannot possibly have seemed like a good idea at the time.

Let Us Know

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[1] Thanks to that ole transparency.

[2] Mistake No. 1.

[3] Mistake No. 2. At least.

[4] Definitely Mistake No. 3.