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Attorney E-Newsletter

Feburary 2012

Chief Justice Addresses Bar on Pro Bono

Chief Justice Ronald Castille has written a letter to the Pennsylvania Bar, thanking members who have contributed pro bono service and reminding the bar of the need for a continued commitment.

Chief Justice Castille notes that Pennsylvania lawyers contributed more than 114,000 hours of time, the equivalent of 61 fulltime attorneys. However, he notes,

Now is not the time to rest on our laurels. As funding for legal aid programming faces continued cuts in these hard economic times and the number of persons needing such service grows, the work of pro bono attorneys is even more necessary to ensure access to justice for many who otherwise would be without legal representation.

A news release by the Administrative Office of the Pennsylvania Courts notes that even with this level of pro bono support, more than half of all eligible clients are turned away due to lack of resources. Chief Justice Castille reminds the bar that each lawyer has an ethical obligation under Pa. RPC 6.1 to render public interest service, which may be accomplished by pro bono service, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.

PBA and Philadelphia Bar Association Opine on Limited Scope Arrangements

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Professional Guidance Committee of the Philadelphia Bar Association have collaborated to produce Joint Formal Opinion 2011-100, regarding limited scope arrangements.

The Committees define “limited scope arrangements” to include two kinds of activities – unbundled legal services, in which a lawyer is engaged only to perform particular activities rather than undertake comprehensive representation of the client, and undisclosed representation, commonly referred to as “ghostwriting,” in which a lawyer prepares legal material for the client’s use but does not undertake direct representation of the client with a court or opposing party.

The opinion notes that limited scope arrangements are generally permissible under the Rules of Professional Conduct, and indeed are specifically contemplated in many of the rules.[1]

The opinion notes that the comment to RPC 1.2 states that a limitation on representation must be reasonable under the circumstances. The fact that the representation is limited does not relieve the lawyer of the normal duty of competence and preparation under RPC 1.1. Second, the lawyer must be sure that the client has exercised informed consent to the limitation on representation. Informed consent is defined in RPC 1.0(e) as “consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” From the Restatement of the Law Governing Lawyers, the Committees drew five safeguards:

  • a client must be informed of any significant problems a limitation might entail, and the client must consent;
  • any contract limiting the representation is construed from the standpoint of a reasonable client;
  • the fee charged by the lawyer must remain reasonable;
  • any change made, an unreasonably long time after the representation begins must meet the more stringent test for post inception contracts or modifications; and
  • the terms of the limitation must be reasonable under the circumstances.

The Committees provide a list of Rules of Professional Conduct which the lawyer entering into a limited scope engagement should consider:

Finally, after an extensive examination of rules, court decisions, and ethics opinions nationwide, the Committees conclude that the lawyer engaged in limited scope representation is not under an obligation to disclose his or her role to either opposing parties or to a tribunal. The Committees note that there is quite a bit of divergent thought on these issues.

This short summary is no substitute for reading the 31-page analysis through which the Committees reach their conclusion, and the lawyer considering such employment would be wise to study the opinion firsthand.

Luzerne Special Master Finishes Work; Control of Juvenile System Returned to Court

Another chapter in the long saga of the Luzerne County juvenile courts scandal drew to a close in January. Nearly three years after his appointment, Senior Judge Arthur E. Grim completed his mission to review juvenile court adjudications under former judge Mark A. Ciavarella. As a result of Judge Grim’s review, records on 2,251 juveniles were expunged, and $65,000 in restitution was paid to 110 victims. On January 5, 2012, the Supreme Court entered an order returning control of the juvenile system to the Luzerne County Court of Common Pleas. The Supreme Court commended Special Master Grim for his exemplary service.

Judge Grim comments on his experience as Special Master and some of the changes which have taken place in this story.

You Go Back, Jack, Do It Again

The Supreme Court has reappointed three members of the Disciplinary Board – R. Burke McLemore, Jr. (Dauphin County), Albert Momjian (Philadelphia), and Stephan K. Todd (Butler County) – to three-year terms on the Board, through January 29, 2015.

Discipline by the Numbers

The Disciplinary Board has published its annual chart showing the disciplinary statistics for 2011.

The overall dispositions entered were 300,[2] which is up over the last two years and nearly identical to the 2008 total. The totals for two forms of discipline – probation and suspension – were the third highest since the Board's founding in 1972. The total disbarments entered were 32, and half of them were on consent. Second only to last year's 106, 105 reinstatements were granted. Of these, 91 were reinstatements of lawyers who had been inactive for more than three years, 13 were from suspension or disbarment, and one was from disability inactive status. Two reinstatements were denied.

Disciplinary statistics are generally not meaningful indicators of short-term trends, as some disciplinary cases can be in process for a considerable length of time. Nonetheless, the chart shows that the disciplinary system has been resolving cases at a high sustained rate, exceeded only by a three-year period from 2004-2006.

Your Chance to Sound Off

Every month we close this newsletter by inviting your input, but we’re particularly inquisitive this month.

The Disciplinary Board of the Supreme Court of Pennsylvania's goals are to protect the public, maintain the integrity of the legal profession and to safeguard the reputation of the courts. To continue to meet these goals and better serve you, we would like your thoughts on the Disciplinary Board's electronic communications and attorney registration.

Please take a few minutes to complete a survey at this link: http://www.zoomerang.com/Survey/WEB22ESUDJCGZ4

We ask that you submit your responses by March 9. Thank you for your cooperation.

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] Including RPC 6.1, regarding pro bono. The Committees note, “A frequent reason for a client to choose a lawyer’s limited service rather than full representation is the client’s limited means. A person who cannot afford a lawyer to represent him or her for all aspects of a proceeding or engagement surely benefits from having some help rather than none. Thus, a lawyer who provides a service without a fee or for a reduced fee renders a public service.”

[2] First time ever for an even hundred.