Attorney E-Newsletter

December 2012

Most Significant Disciplinary Cases of 2012

At this time of year we do a review of the five most significant cases decided in the Pennsylvania disciplinary system during the year. We chose the cases by criteria that include:

  • Unusual or extraordinary fact situations;
  • Decisions which address legal issues that often arise in disciplinary cases;
  • Decisions which discuss the meaning of one of the Rules of Professional Conduct or Rules of Disciplinary Enforcement;
  • Decisions which present reviews of prior cases on a subject;
  • Decisions regarding situations which may arise regularly in the practice of law.

This year, we found the following cases of particular interest:

  1. Anthony C. Cappuccio, No. 79 DB 2009, 48 A.3d 1231 (Pa. 2012)

    In July, the Supreme Court of Pennsylvania delivered an important opinion in this disciplinary case. Cappuccio was the chief Deputy District Attorney in the Bucks County District Attorney’s office. He became involved with some teens through a role as a youth fellowship group leader in his church. Over a period of two years he socialized with some of the youth, including smoking marijuana with them, providing them with alcohol, and entering into a sexual relationship with one of the teens. In 2008, he was arrested after being caught in a compromising position in a car with one of the teens. He resigned from the District Attorney’s office, and in 2009 pleaded guilty to endangering the welfare of children, 18 Pa.C.S. § 4303(a)(1), criminal use of a communication facility, 18 Pa.C.S. § 7512(a), corruption of minors, 18 Pa.C.S. § 6301(a)(1), and furnishing liquor or malt or brewed beverages to minors, 18 Pa.C.S. § 6310.1(a).

    Cappuccio stipulated to the facts, but the question was whether he would be disbarred or suspended for a period of five years. Cappuccio offered psychiatric testimony in mitigation, but the Hearing Committee concluded it did not meet the standard set out in 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.

    As a result, the Supreme Court disbarred Cappuccio.

    The opinion is significant for the extensive discussion of mitigating and aggravating factors at the most serious end of the disciplinary spectrum. Particularly since it reflects the views of the Supreme Court, this is our most significant disciplinary case of 2012.

  2. David M. Gilliland, 17 DB 2010.

    Gilliland makes his second appearance on our annual list in the same case, since his original case also appeared on our 2011 list. In that case, Gilliland was placed on a stayed suspension with probation under the oversight of a practice monitor, due in part to his service with the Allegheny County Bar Foundation Juvenile Court Project.

    Unfortunately, he failed to take advantage of his second chance. He was laid off from his position with the juvenile court project, and failed to make contact with attorneys he suggested might be willing to serve as his practice monitor. He made no effort to secure employment or practice, stating that doing so might adversely affect his unemployment compensation checks. He failed to pay the costs of his disciplinary proceeding up until the date of a probation violation hearing. He did not pick up his mail and lived in transition, rarely appearing at his apartment address.

    The Office of Disciplinary Counsel brought a probation violation proceeding. The designated Disciplinary Board member expressed sympathy for Gilliland’s situation and his depression, but found he had done little or nothing to comply with the terms of his probation, and therefore recommended the stay be lifted and the suspension in the original order be imposed. Gilliland filed no response to a rule from the Supreme Court as to why this recommendation should not be accepted, and the suspension was imposed.

    Probation violation proceedings are relatively rare in the disciplinary system, so this resolution warrants inclusion as one of our most significant cases.

  3. In Re Anonymous No. 212 DB 2010

    This is a private discipline case arising from the Respondent’s conviction of two counts of driving under the influence (DUI) of alcohol or controlled substance, his second time before the Board on a DUI conviction. The parties jointly requested that Respondent receive a private reprimand with probation, conditioned upon his compliance with a program of Cognitive Behavioral Therapy (CBT).

    Traditionally probation in most substance-related disciplinary cases has usually been based upon the respondent-attorney’s participation in Alcoholics Anonymous (AA) or one of its related entities. In this case, however, the Disciplinary Board accepted the recommendation that the Respondent be allowed to continue with his program of CBT, indicating that the Board is open to alternative approaches for rehabilitation of attorneys with substance abuse problems.

  4. Ronald Kaplan, 217 DB 2010, and John Francis Licari, 111 DB 2011

    These two cases are remarkable for the similarity of the fact situations, although they did not produce the same results.

    Both attorneys attempted to practice while on suspended status, and both used a false name in doing so.

    Kaplan was serving a disciplinary suspension at the time, and working in the law office of another attorney as a clerk and secretary. He appeared at a support hearing on behalf of a longtime client from his former practice, entering an appearance with his employer’s name and registration number, and giving a fictitious name saying he was an attorney in his employer’s office. The support master recognized Kaplan and questioned him about his identity, but he persisted in claiming the false name. When Disciplinary Counsel sent his employer an inquiry letter, he intercepted it temporarily and only later confessed. Based on the fact that his misconduct was limited to a single incident and he did not charge the client a fee, the Disciplinary Board recommended that he be suspended for an additional five years. The Supreme Court accepted this recommendation, although there were two votes for disbarment at both the Supreme Court and the Disciplinary Board.

    Licari was on administrative rather than disciplinary suspension, but he continued to represent clients and appeared in court on three occasions. To avoid challenge of his status, he used the name and registration number of another lawyer, a classmate from law school and longtime friend. He did so without asking the lawyer, who did not practice criminal law and had no knowledge his name was being used. Unlike Kaplan, Licari also charged the clients fees. He also failed to appear in the disciplinary proceedings or to acknowledge his wrongdoing. As a result, Licari was disbarred.

  5. Francis T. Colleran, No. 196 DB 2011

    Colleran was one of the first attorneys to receive a public reprimand, a new form of discipline just adopted this year.

    The discipline against Colleran arose from his alteration of an expert report. He had received a report marked “Draft Report,” which was incomplete because the defendant had not been deposed and his interpretations had not been incorporated into the expert’s report. Colleran whited out the words “Draft Report” and sent an altered copy to counsel for the defendant without revealing that the report was preliminary. This resulted in the filing of a complaint against the expert with the American Academy of Orthopaedic Surgeons, and the expert’s suspension from that body for unprofessional conduct in the performance of expert witness testimony. The expert also sued Colleran.

    The Disciplinary Board found that Colleran had violated Rules 3.4(a), 8.4(a), and 8.4(c) of the Pennsylvania Rules of Professional Conduct, and delivered a public reprimand to him.

New Jersey Clarifies Unauthorized Practice Rule

New Jersey’s Committee on the Unauthorized Practice of Law, an entity appointed by the Supreme Court of New Jersey, has published an ethics opinion addressing the scope of multijurisdictional or cross-border practice. Since many Pennsylvania lawyers are often drawn into matters with parties in New Jersey, this opinion should provide valuable guidance, especially in light of 2004 amendments to New Jersey Rule of Professional Conduct 5.5(b) expanding the circumstances in which an out-of-state lawyer may practice in New Jersey. The amendments allow out-of-state lawyers not admitted in New Jersey to engage in limited practice in the state, including:

  • Negotiating transactions on behalf of out-of-state clients, where the transaction originates in or is related to the jurisdiction where the lawyer is admitted;
  • Representing parties in alternative dispute resolution proceedings where pro hac vice admission is not required;
  • Investigating, engaging in discovery, or interviewing or deposing witnesses in New Jersey for a proceeding pending or anticipated in the lawyer’s home jurisdiction;
  • Occasionally entering into association with a New Jersey lawyer who takes responsibility for the out-of-state lawyer’s conduct; and
  • Occasional representation of a client whom the lawyer is already representing in the home jurisdiction, undertaken only when the lawyer’s disengagement would result in substantial inefficiency, impracticality or detriment to the client.

In each of these cases, New Jersey RPC 5.5(c)(5) provides that the out-of-state lawyer must still maintain a “bona fide office” in New Jersey, unless admitted pro hac vice, and they also must register with the Clerk of the Supreme Court, submit annual registration statements, and pay annual assessment fees.

The Opinion provides additional information on the limits of “occasional” practice.

  • “Occasional” means “occurring infrequently or from time to time,” and does not allow recurring or regular and systematic practice.
  • Under no circumstances does the rule allow out-of-state lawyers to appear in New Jersey courts.
  • Lawyers with offices and practices in a neighboring state may not qualify for ongoing practice through “association” by bringing a New Jersey-admitted lawyer into the firm.
  • In response to an inquiry as to whether an out-of-state firm may represent a real estate developer in transactions regarding real estate in New Jersey, the Committee opined that such representation was allowed where the developer is an “existing” client in the lawyer’s jurisdiction and is located in the same state as the firm, and the New Jersey transaction relates to the developer’s out-of-state business. However, the Committee stated that the outside firm’s involvement would be limited to negotiating the terms of the transaction, but not to preparation of a contract of sale or other legal documents.

The Opinion and the rule it interprets should be necessary reading for any Pennsylvania lawyer thinking of expanding his or her practice into New Jersey. While many questions remain unanswered, the Opinion provides guidelines and cautions for such multijurisdictional practice.

The Internet: Not So Anonymous After All

The longest-serving United States Attorney in the country has resigned, after a scandal arising from anonymous posts by his top assistants on an Internet comments site. U.S. Attorney Jim Letten of New Orleans, who has served in the post since 2001, announced his resignation December 6.

The scandal arose after former first assistant Jan Mann and former assistant Sal Perricone admitted that they used screen names to post comments on the website of the New Orleans Times-Picayune newspaper, which were highly critical of Fred Heebe, the owner of a local landfill that was under federal investigation. Perricone resigned, and Mann was demoted.

The postings were exposed when Heebe hired forensic linguist James Fitzgerald, who also worked on solving the Unabomber case. Fitzgerald discovered language patterns in the Internet posts similar to one occurring in legal documents filed by Mann and Perricone, including extraneous spaces prior to punctuation marks, alliteration, the choice of antiquated words, and colloquial terms one of the assistants had been known to use. Also, the postings reflected a detailed knowledge of the case that suggested the writers had inside information. Fitzgerald’s findings found expression in a defamation lawsuit Heebe filed against Mann.

Lesson learned: if you think what you write on the Internet is anonymous, think again.

Fugitive software magnate John McAfee also learned that lesson the hard way. McAfee went on the run from the law after being named a person of interest in the murder of a neighbor in Belize, where he had taken up residence. McAfee successfully eluded capture until journalists posted online a photograph of him taken on a smartphone. A hacker going by the name of Simply Nomad took the elementary step of examining the metadata of the image posted online, where he found the exact latitude and longitude at which the picture was taken. This pinpointed the location in a village in Guatemala. He tweeted this information, and interest in McAfee’s whereabouts went viral on the Internet. A few days later McAfee turned himself in to authorities in Guatemala requesting asylum, only to be arrested for entering the country illegally. Subsequently he was returned to the United States, after admittedly faking a heart attack to avoid extradition to Belize.

The case provoked comment from privacy advocates, who noted that most people have no idea how much information about their lives is recorded without their knowledge on the Internet. Be careful out there.

Season’s Greeting from Manatt

You definitely want to be on the holiday ecard list for Manatt, Phelps, and Phillips, LLP. Last year we noted their now legendary disclaimer card.

The creative folks at Manatt strike again with this year’s holiday card, a reinterpretation of the venerable “Carol of the Bells,” which may never be the same again.

Happy holidays to you and yours, too.

Let Us Know

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