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Attorney E-Newsletter

January 2012

Most Significant Disciplinary Cases of 2011

Each January, we look back and identify the most significant Pennsylvania disciplinary cases of the past year.

In selecting the cases, we look at several factors, including (in no particular order):

  • Unusual or extraordinary fact situations;
  • Decisions which address legal issues that often come up 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 addressing new issues, especially involving technology;
  • Decisions regarding situations which may arise regularly in the practice of law.

For 2011, we found the following cases of particular interest:

  1. The case of David L. Bargeron explored the issue of whether a suspended attorney may engage in advocacy of a type which is permitted to nonlawyers. Bargeron was suspended in 2005. He undertook employment representing claimants and employers before the Pennsylvania Unemployment Compensation Board of Review, a tribunal which allows nonlawyer representation. Disciplinary counsel brought a petition charging Bargeron with contempt, alleging that in representing clients he violated Rule 217(j), which prohibits a suspended lawyer from law-related activities including “appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body.” Bargeron cited Harkness v. Unemployment Comp. Bd., 920 A.2d 162 (Pa. 2007), in which the Supreme Court held that a nonlawyer who represented claimants before the UCBR was not practicing law. The case thus posed the question of whether Rule 217(j) prohibits a suspended lawyer from engaging in activities permitted for a person who was never a lawyer. On July 27, 2011, the Supreme Court determined that it does, and it ordered Bargeron to cease and desist from representing clients before the UCBR.
  2. Matthew J. Eshelman, No. 167 DB 2009 (8/17/2011), was a case involving 17 counts of misconduct summarized in an 87-page opinion. Eshelman testified that his conduct was the result of his tendency to lose himself in computer video games, even when he was employed in law firms. Eshelman offered no expert testimony, but described his involvement with video games as an “addiction.” Without citing Braun, the Disciplinary Board alluded to the issue in recommending a three-year suspension, which the Supreme Court imposed.
  3. James D. Hayward, Jr., No. 123 DB 2009 (1/19/2011), was a case in which the attorney had committed several different kinds of misconduct in a bankruptcy case, including failure to place a deposit for a filing fee in escrow and filing a false statement in court, under an electronic signature, regarding his client’s ability to pay the fee. The case was of interest for a procedural issue. Hayward, unrepresented by counsel, filed an answer to the Petition for Discipline in which he admitted all the allegations of the Petition. At the time of the hearing, then represented by counsel, he was allowed to testify contrary to the admissions in his answer, claiming that he prepared the answer without counsel and under stress. A motion in limine by Disciplinary Counsel seeking to foreclose him from doing so was denied. Ultimately, the Board concluded that the Hearing Committee did not err in allowing Hayward’s testimony, observing that he had hurt his own case by changing his story, undermining his credibility.
  4. Jarett R. Smith, No. 4 DB 2011 (5/9/2011), and Marc Alan Weinberg, No. 30 DB 2011 (7/12/2011), were both cases decided on joint petitions for discipline based on findings that the attorney had committed contempt of court. Smith was cited for contempt in four incidents with the Court of Common Pleas of Potter, McKean, and Bradford Counties, but also with the Peacemaker’s Court of the Allegany Territory of the Seneca Nation, a court of nonlawyers. The citations included incidents of failure to appear, failure to prepare clients, and continuing to argue an issue after being told by the court it would not be considered. He agreed disposition for a year and a day suspension, stayed in its entirely with the imposition of three years probation with conditions. The Smith joint petition contains summaries of several cases in which lawyers had been disciplined for contempt of court. Weinberg was disciplined based on a single case in which he canceled or failed to appear several times for depositions and hearings in Fulton County. On one occasion, he was scheduled for trial in Philadelphia County and a criminal hearing in New Jersey on the same day as a hearing, but failed to inform the court and opposing party of his schedule conflicts until the day of the hearing. He also explained his failure to comply with a court order by saying he had not read the order. By agreement, he received a Public Censure.
  5. The case of David M. Gilliland, 17 DB 2010 (9/8/2011), is of interest for the way the Disciplinary Board approached the determination of the appropriate discipline. Gilliland represented a trust and committed various forms of misconduct, which the Board characterized as “gross neglect” and other conduct which put the trust’s assets at risk. He also had a prior informal admonition for similar conduct. The Board concluded that the pattern of conduct warranted an extended suspension. However, the Disciplinary Board noted Gilliland’s work as a full-time attorney for the Allegheny County Bar Foundation Juvenile Court Project. The Board concluded that the appropriate sanction would allow Gilliland to continue his juvenile court work. Accordingly, the Board recommended a three-year suspension stayed in full with three years of probation under the supervision of a practice monitor. The Supreme Court accepted this recommendation.

These cases merit attention because the Supreme Court and the Disciplinary Board addressed notable substantive or procedural issues in each. There were also a few cases with novel or remarkable fact patterns. Two of these stand out. In the case of Paul Wayne Shoup, 96 DB 2008 (4/28/2011), the attorney discovered that the website for Montgomery County had a page which listed corporations to whom real estate tax refunds were due and uncollected. He filed 69 claims on these refunds and collected in excess of half a million dollars, all without informing the corporations entitled to the refunds. He consented to disbarment. Also disbarred was Daniel Scott Perrine, Nos. 15 and 177 DB 2009 (11/2/2011), whose many misadventures included trying to smuggle a vial of crack cocaine into a correctional facility, cutting off a home arrest electronic monitoring bracelet and fleeing to Washington, D.C., and writing “strange and disturbing correspondence” accusing the Central Intelligence Agency of causing him to commit illegal acts by controlling his thoughts.

Steele’s Stories: Top Ethics Stories of 2011

On the national front, John Steele of the Legal Ethics Forum has identified its Top Ten Ethics Stories from 2011. He identified the following top stories:

  1. A trend in Federal courts to uphold sophisticated agreements to resolve conflicts by contract.
  2. The case of Turner v. Rogers, in which the United States Supreme Court set limits on the right of indigents to counsel in child support cases.
  3. Allegations of fraud by law schools in the publication of employment statistics.
  4. The holding of the U.S. Supreme Court in Connick v. Thomas that a single violation of Brady requirements does not give rise to a cause of action for damages.
  5. The holding of the Second Circuit in Johnson v. Nextel Communications that the system set up by a law firm in aggregate, nonclass litigation had deprived individual plaintiffs of individualized representation.
  6. The contributions of the ABA’s 20/20 Commission in the areas of multi-jurisdictional practice, rules revisions, outside ownership of law firms, admission by motion, choice of conflicts law, and other cutting edge issues.
  7. Issues over judicial recusal in political hot-button issues such as health care and same sex marriage.
  8. The withdrawal of the firm of King and Spaulding from its defense of DOMA, the federal Defense of Marriage Act.
  9. The Therasense decision from the Federal Circuit, regarding the standard of proof for inequitable conduct by a patent prosecutor.
  10. The failure of the prosecution of Glaxo-Smith-Klein in-house lawyer, Laura Stevens.

We have not expanded on or provided links to these stories, as it would be better for readers to navigate directly to Mr. Steele’s article and read his explanations of the significance of the cases.

I’ve Looked at Clouds from Both Sides Now: PBA Formal Opinion 2011-200

In November, we reported on the subject of the ethics of cloud computing. By coincidence, synchronicity, or the great minds think alike thing, also in November the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility had their heads in the clouds, producing a detailed 20-page ethics opinion on the subject. Formal Opinion 2011-200, “Ethical Obligations For Attorneys Using Cloud Computing/Software As A Service While Fulfilling The Duties Of Confidentiality And Preservation Of Client Property,” goes into great detail to examine the state of the law on the use of cloud computing for storage of potentially sensitive documents and data.

The opinion quotes with approval a definition of “cloud computing” as “a fancy way of saying stuff’s not on your computer.[1]” Forms of cloud computing considered by the Committee include web-based email, online data storage, software-as-a-service (“SaaS”), platform-as-a-service (“PaaS”), infrastructure-as-a-service (“IaaS”), Amazon Elastic Cloud Compute (“Amazon EC2”), and Google Docs.[2]

The opinion sets forth an extensive discussion of both the benefits and risks of off-site data storage and access both from computers and portable devices such as smart phones. It includes examination of ethics opinions and other resources both from Pennsylvania and national sources discussing this and related issues. Those looking for practical advice should pay particular attention to pages 8 through 10, in which the Committee provides a long list of specific precautions and questions to ask in the development of an office’s data storage practices. The Committee also discusses the risks and precautions necessary in the use of web-based email services.

The Committee states:

[T]his Committee concludes that, under the Pennsylvania Rules of Professional Conduct an attorney may store confidential material in “the cloud.” Because the need to maintain confidentiality is crucial to the attorney-client relationship, attorneys using “cloud” software or services must take appropriate measures to protect confidential electronic communications and information. In addition, attorneys may use email but must, under appropriate circumstances, take additional precautions to assure client confidentiality.

It is obvious that a short summary cannot do justice to the wealth of information and advice this detailed, heavily researched opinion sets forth. Lawyers using cloud storage or considering so would be well advised to obtain and carefully study the opinion for themselves.

Hearing Committee Members Get Benched

Much of the hard work of the disciplinary system is done by volunteer Hearing Committee members, who put in long hours conducting hearings, writing reports, and reviewing disciplinary recommendations. Recently, three Hearing Committee members had their talents recognized by elevation to the judiciary. We are proud to salute:

  • Richard P. Haaz of Norristown, Montgomery County, sworn in as a judge of the Court of Common Pleas of Montgomery County;
  • Michael T. Hudock of Mifflinburg, Union County, sworn in as a judge of the Court of Common Pleas of Union and Snyder Counties; and
  • Cynthia Reed Eddy of Pittsburgh, Allegheny County, who was appointed as a Magistrate Judge for the U.S. District Court, Western District of Pennsylvania.

Justice Eakin Re-Verses a Judgment

After we reported in December on an opinion citing a lawyer’s closing argument in verse, a reader pointed out to us Justice Eakin’s recent opinion in Commonwealth v. Goodson states the majority opinion in verse -- specifically, in tightly composed sestets generally composed of iambic heptameter. The opinion examines whether a person who presents to a bank a forged check that appears to be from an insurance company has committed the offense of insurance fraud, 18 Pa.C.S. § 4117(a)(2). Justice Eakin’s conclusion even parlays “three strikes” and the prospect that a defendant will “walk” into a dandy baseball metaphor:

Because he made no insurance claim, nor a proffer to an insurer, he didn’t commit insurance fraud, and neither judge nor juror can to the contrary rightly find, even if they’d like to. Two crimes are strikes, but not the third — the count is but strike two, and while those strikes are such that he’s not going to walk, on this last pitch we have no choice but to call a figurative balk.

Justice Baer joined in the opinion, and Justices Todd and McCaffery concurred in the result. Justice Saylor, joined by Chief Justice Castille, filed a dissenting opinion, in prose.

Justice Eakin is well known for writing opinions in verse,[3] a practice he has described as “poetic justice.”

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] Demonstrating an openness to the informal that not surprisingly, we find refreshing.

[2] And we thought we were ahead of the curve for having a Dropbox account.

[3] In Liddle v. Scholze, 768 A.2d 1183 (Pa. Super. Ct. 2001), he even addresses the emu, providing another recursion to our December issue.