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Attorney E-Newsletter

August 2012

ABA Adopts Changes to Model Rules of Professional Conduct

The House of Delegates of the American Bar Association approved a series of changes to the Model Rules of Professional Responsibility. The recommended changes address four areas – confidentiality when using technology, use of technology in marketing, outsourcing, and changes relating to the need for lawyers to change jobs and relocate to new jurisdictions.

Regarding confidentiality issues raised by new technology such as “cloud” computing, tablets, and smartphones, the ABA adopted the following changes:

  • Add to the comment on Rule 1.1, Competency, that a lawyer’s duty of competence includes keeping abreast of changes in benefits and risks associated with new technology.
  • Add to the comment to Rule 1.4, Communication that a lawyer has a duty to respond promptly to all “client communications,” not just “telephone calls.”
  • Add to Rule 1.6, Confidentiality, a new subparagraph (c) requiring a lawyer to make reasonable efforts to protect client confidences from inadvertent or unauthorized access or disclosure.
  • Add to Rule 4.4, Rights of Third Persons, language clarifying that the obligation to notify the sender of the receipt of inadvertently sent documents applies also to electronic information.

As to issues regarding technology in client development, the new provisions include:

  • Extensive additions to the comments on Rule 1.18, Prospective Clients, offer guidance to lawyers on how to use new forms of Internet-based marketing, such as pay-per-click ads and social networking sites, without inadvertently creating a prospective client-lawyer relationship.
  • Amend Comment 5 to Rule 7.2, Advertising, to clarify how the prohibition against paying others for “recommendation” applies to online lead generation services.
  • Clarify the language of Rule 7.3, Solicitation, that the rule’s prohibitions apply to anyone, not just “prospective clients,” and amend Comment 1 of that rule to define solicitation as “a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services,” as opposed to communications with the general public.

On the subject of outsourcing, the following changes took place:

  • New Comments 6 and 7 to Rule 1.1, Competence, discuss circumstances under which a lawyer may retain or contract with other lawyers outside the lawyer’s own firm in the provision of legal services to a client. The lawyer should ordinarily obtain informed consent from the client, must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client, and should consult with the client and with each other about the scope of their respective services.
  • Changes to Comment 1 of Rule 5.3, Nonlawyer Assistants, require reasonable efforts to ensure that the services of nonlawyers outside the firm are provided in a manner that is compatible with the lawyer’s professional obligations. New comments 3 and 4 deal at length with such obligations. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information.
  • A sentence is added to Comment 1 to Rule 5.5, Unauthorized Practice of Law, reminding lawyers that they must not assist anyone in the unauthorized practice of law.

Noting the need for lawyers to have mobility in changing jobs and relocating to new jurisdictions, the ABA approved changes to:

  • Propose new model rules on practice pending admission and admission by motion (reciprocal admission).
  • Amend Rule 1.6(b) to add a new Subparagraph 7, allowing lawyers to reveal information to detect and resolve conflicts of interest between lawyers in different firms arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. New comments 13 and 14 to the rule discuss the disclosure of information for detection of conflicts at length.

The Model Rules are advisory, and the changes do not alter the enforceable standard of conduct for lawyers in the states unless and until they are adopted and incorporated into state Rules of Professional Conduct by the Supreme Court of each state.

Supreme Court Hands Down Disciplinary Opinion on Sanctions

The Pennsylvania Supreme Court handed down a full opinion in the disciplinary case of Office of Disciplinary Counsel v. Cappuccio, No. 1493 Disciplinary Docket No. 3 (7/17/2012). Most disciplinary cases are decided by per curiam order, but the Supreme Court determined that the issues in Cappuccio were important enough to warrant a full opinion.

Cappuccio served as the Chief Deputy District Attorney for Bucks County. He did volunteer work as a “Youth Fellowship Group Leader” for a church group. While serving as a chaperon for youths attending a rock concert, he provided them with alcohol and smoked marijuana with them. He also entered into a sustained sexual relationship with another youth. His behavior was discovered and he was arrested, upon which he resigned his position. He pleaded guilty to three counts of endangering the welfare of children, 18 Pa.C.S. § 4303(a)(1), one count of criminal use of a communication facility, 18 Pa.C.S. § 7512(a), three counts of corruption of minors, 18 Pa.C.S. § 6301(a)(1), and three counts of furnishing liquor or malt or brewed beverages to minors, 18 Pa.C.S. § 6310.1(a). He served jail time and was placed on probation until 2017.

In the disciplinary proceeding, he presented evidence of psychological issues, but failed to meet his burden of proof under ODC v. Braun, 553 A.2d 894 (Pa. 1989). The Hearing Committee found four aggravating circumstances and eight mitigating circumstances. The four aggravating circumstances noted were that Respondent held a public office at the time of the misconduct, the public notoriety surrounding the misconduct, his inappropriate post-crime conduct, and the nature and duration of the crime. The eight mitigating circumstances considered were Respondent’s lack of disciplinary history, his positive academic history, the positive character witnesses, his cooperation in the disciplinary proceedings, his remorse for the misconduct, his continued psychological treatment, the payment of complete restitution, and the low risk of recidivism. The Hearing Committee recommended disbarment.

The Disciplinary Board noted cases in which five-year suspensions had been imposed for similar misconduct, and recommended that sanction.

On review, the Supreme Court examined whether Cappuccio’s position as a public official was legitimately considered as an aggravating factor, and concluded that it was:

This aggravation arising from public status is strong where the public position is that of prosecutor and the misconduct involves criminal actions, and it is particularly strong where, as here, the conduct involved crimes against individuals (minors, in this case). We realize that many attorneys hold positions of trust with respect to individual clients. But, that trust is not the same as the broader public trust reposed in judges, prosecutors and the like. Indeed, the facts of this case bear out the consequences that may arise when a position of public trust is involved.

The Court compared the facts to those in ODC v. Christie, 639 A.2d 782 (Pa. 1994), which led to a five-year suspension for sexual misconduct toward minors. The Court held that the facts that Cappuccio failed to meet the Braun standard and that he committed his crimes while serving in a position of public trust warranted more severe discipline. Considering In Re Pazuhanich, 858 A.2d 231 (Pa. 2004), in which a judge was disbarred for conviction of sexual offenses toward a minor, the Court concluded that differences between the cases did not warrant a distinction. While acknowledging that there were mitigating circumstances, the Court disbarred Cappuccio.

Disciplinary Board Amends Board Rules

The Disciplinary Board has adopted changes to the Rules of the Disciplinary Board, conforming them to recent changes in the Rules of Disciplinary Enforcement.[1] The changes are published at 42 Pa.B. 5156 (8/11/12).

Changes include:

The Board Rules and Procedures, which are posted on the Board’s website, have been updated with these changes.

Jane Gowen Penny Appointed, Douglas W. Leonard Reappointed to Disciplinary Board

By order dated August 16, 2012, the Supreme Court appointed Jane Gowen Penny, Dauphin County, to a term on the Disciplinary Board through August 8, 2015.

Ms. Penny is managing attorney of Penny Legal Group, Harrisburg. A 1977 graduate of Dickinson School of Law, she is a defense attorney with over 30 years of experience in private practice. She concentrates her practice in defending clients during federal and state grand jury proceedings and white collar criminal matters involving false statements to government agents, Atomic Energy Act violations, mail fraud, environmental law, and public corruption.

By order dated August 7, 2012, the Supreme Court reappointed Douglas W. Leonard, Butler County, to a three-year term as a nonlawyer member of the Disciplinary Board.

I’m Askin’ You Real Nice

We often feature stories about lawyers behaving badly, but this month’s viral[2] law practice story is of a different nature. It involves an email letter by Christy Susman, a senior trademarks attorney for Jack Daniel’s – yes, the whiskey giant. She wrote what is being described as “the most polite, encouraging and empathetic cease-and-desist letter ever to be sent in the history of lawyers and humanity.”

The email, addressed to Patrick Wensick, author of a publish-on-demand novel, Broken Piano for President,[3]concerned the design of the book cover, which bore more than a passing resemblance to the contours and typeface of the well-known label of Jack Daniel’s esteemed classic Old No. 7. After noting the similarities, Susman wrote,

We are certainly flattered by your affection for the brand, but while we can appreciate the pop culture appeal of Jack Daniel’s, we also have to be diligent to ensure that the Jack Daniel’s trademarks are used correctly. Given the brand’s popularity, it will probably come as no surprise that we come across designs like this on a regular basis. What may not be so apparent, however, is that if we allow uses like this one, we run the very real risk that our trademark will be weakened. As a fan of the brand, I’m sure that is not something you intended or would want to see happen.

Susman then requests that the design be changed in future reprintings, or sooner if possible with the digital version. In a right neighborly way, she even offers to assist with the cost of doing so, and concludes by wishing Wensick well in his writing career.

Apparently, a soft answer turneth away copyright violations, as Jack Daniel’s chief trademarks counsel David Gooder told the ABA Journal that the design would be changed in future printings. "This has been positive for him and his book," he says, "and it’s been positive sort of all the way around."[4]

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] The Rules of Professional Conduct, adopted by the Supreme Court, prescribe conduct standards for lawyers. The Rules of Disciplinary Enforcement, adopted by the Supreme Court, provide generally for the structure of the disciplinary system and the conduct of disciplinary proceedings. The Rules of the Disciplinary Board, adopted by the Disciplinary Board (duh), provide more specific guidance for proceedings. That’s a lot of rules.

[2] By viral, we mean a story that has “gone viral” and attracted wide attention. No pathological infestation is implied.

[3] No endorsement of any pianos or presidential candidates is implied by this reference.

[4] Indeed. How else would you have heard of a publish-on-demand book called Broken Piano for President?