Attorney E-Newsletter

June 2012

Supreme Court Adopts New Form of Discipline: Public Reprimand

In August of last year, we reported on a published proposal to provide for a new form of professional discipline: public reprimand. By order dated June 4, 2012, the Supreme Court of Pennsylvania amended the Pennsylvania Rules of Disciplinary Enforcement to accept the proposal and empower the Disciplinary Board to issue public reprimands. The full text of the new rule changes is published here.

The new sanction is similar to the existing private reprimand, except that under the terms of Rule 402 it is considered public discipline available to the public. Public reprimand differs from the existing sanction of public censure because it can be imposed by the Disciplinary Board without the filing of a Petition for Discipline, the completion of a hearing process, and order of the Supreme Court. It is the first form of public discipline which does not require approval by the Supreme Court.

As with forms of private discipline currently within the Disciplinary Board’s powers, an attorney who is unwilling to accept public reprimand has the right to review the Disciplinary Board’s decision. If the Disciplinary Board imposes public reprimand through summary proceedings, without the filing of a petition for discipline and a hearing process, the attorney may demand formal charges leading to a hearing, and need not appear for reprimand pending completion of the hearing and decision process. If the Disciplinary Board imposes public reprimand after a hearing, the attorney may file a notice of appeal with the Supreme Court, which will consider the matter de novo. The Supreme Court may impose a sanction greater or less than that recommended by the Board.

The addition of the public reprimand to the Disciplinary Board’s range of options is part of a process of making the disciplinary system more transparent and open to public view.

Wait in the Lobby, Please: Supreme Court Revises Lobbying Rules

By order dated May 17, 2012, the Supreme Court extended Rule 1.19 of the Rules of Professional Conduct, which deals with lawyers acting as lobbyists, to lobbying governed by ordinances or regulations of units of local government.

The substance of Rule 1.19 may not be familiar to all lawyers. The ABA Model Rules of Professional Conduct do not contain a corresponding provision. It requires lawyers acting as lobbyists before the Legislature, the Executive Branch, state agencies, and now units of local government to comply with all statutes, regulations, disclosure requirements, or other standards enacted by such bodies, to the extent they are consistent with the Rules of Professional Conduct. The Rule does not impose substantive requirements itself, but it does mean that violation of any applicable law can be grounds for discipline, even if it is not a criminal conviction subject to Rule 214, Pa.R.D.E., or a violation of any of the provisions of Rule 8.4., Pa.R.P.C.

Section (b) of Rule 1.19 provides that any disclosure required by such laws is a disclosure explicitly authorized to carry out the representation, not prohibited by the confidentiality provisions of Rule 1.6, Pa.R.P.C.

Next Year (2013 - 2014): Late Fees Kick In Automatically

By order dated June 4, 2012, the Supreme Court also adopted rule changes relating to the annual registration and assessment process. The changes are posted here.

Perhaps the most significant change, from the practicing attorney's point of view, has to do with late fees for registration. Beginning in 2013-2014, the assessment of late fees will be automatic. If an attorney does not complete the registration process and pay the fee by July 31 and August 31, non-waivable late fees will automatically be assessed. Through the current year, late fees accrued when notices of nonpayment were sent out.

The rule is also amended to state, “Failure to receive the annual fee form by mail or electronically shall not excuse payment of the fee.”

The rule now provides that attorneys may elect to receive their annual registration information electronically rather than by mail.

Attorneys are required to identify an address to be published on the Board’s website, as in the past. The rule is amended to provide that an attorney may request address information not be published “for good cause shown.”

The rule states, “IOLTA, trust, escrow and other fiduciary account checks tendered in payment of the annual fee will not be accepted.” This has long been the practice of the Disciplinary Board. In addition, payment of fees from accounts which should contain client funds is reported to the Office of Disciplinary Counsel for disciplinary investigation.

Registration: This Year

As we have noted repeatedly, registration statements and fees for 2012-2013 are due July 1, 2012, which should be just a couple of days from when you receive this. If you are a Pennsylvania attorney and you have not completed your registration for 2012-2013, it would be a very good idea to do so. Now! Online registration is available 24 hours a day here.

Wilkes-Barre Attorney David Schwager Joins Board

The Supreme Court has appointed David E. Schwager of Wilkes-Barre, Luzerne County, to a three-year term on the Disciplinary Board beginning April 1, 2012.

Mr. Schwager is a partner in the Wilkes-Barre firm of Chariton, Schwager & Malak, with a practice focusing on real estate, title insurance, real estate taxation, business law, commercial litigation, municipal law, and creditors’ rights. He is Chairman of the Kingston Borough Zoning Hearing Board, Solicitor for the Luzerne County Council, Luzerne County Board of Tax Assessment Appeals, and the Shickshinny Sanitary Sewer Authority. He is a past Assistant District Attorney of Luzerne County. He is a member of the Advisory Committee on Real Property Law of the Joint State Government Commission of the Pennsylvania General Assembly, a member of the Pennsylvania Bar Association (PBA) Board of Governors and a life fellow of the Pennsylvania Bar Foundation. He is Past Chair of the Real Property, Probate and Trust Law Section of the PBA. He received his J.D. from The Dickinson School of Law of Pennsylvania State University and his A.B. from Lafayette College.

You and Me and Barratry

A Texas attorney has surrendered his law license in a plea bargain arising out of criminal charges for the crime of barratry. Benito Garza of Corpus Christi also agreed to pay a fine of $6,000 and serve ten years of probation under a tough new Texas statute that provides criminal and civil penalties for barratry. According to documents filed in the case, Garza and his case runner Timothy "Sugar Bear"[1] Trevino unlawfully solicited legal employment from the family members of a man who was killed in an auto accident, by calling on the man’s mother to pitch their legal services at 1:00 am the night he died.

According to the Dallas Bar Association, barratry is defined as “the solicitation of employment to prosecute or defend a claim with intent to obtain a personal benefit.” This seems to be an aggravated version of what is generally known as solicitation. In addition to the barratry statute, Rule 7.03 of the Texas Rules of Professional Conduct regarding solicitation is more extensive than the corresponding Pennsylvania or ABA versions of Rule 7.3, R.P.C.

Barratry” is a term with multiple meanings in the law. At common law, it has referred to “stirring up disputes and quarrels, generally for the benefit of the lawyer who sees fees in the matter.” It usually applied only when the suits stirred up were groundless and initiated for purposes of harassment. The offense has been abolished in English law but lives on in the statutes of several states. Under the Rules of Professional Conduct, such concerns are generally addressed under the provisions regarding frivolous matters under Rule 3.1, R.P.C.

Barratry is often associated with two other concepts, champerty and maintenance. Champerty is the process whereby one person bargains with a party to a lawsuit to obtain a share in the proceeds of the suit. Maintenance is the support or promotion of another person's suit initiated by intermeddling for personal gain. In modern times the use of contingent fees, once considered a form of champerty, has become acceptable. Rule 1.8 of the Rules of Professional Conduct sets limits on the extent to which a lawyer may fund and acquire interests in clients’ litigation.

Barratry has other meanings, as well. In admiralty law it refers to acts of mariners which are contrary to the interests of the owner of a vessel, including mutiny. The United States Supreme Court held, in the case of Patapsco Insurance Company v. Coulter, 28 U.S. 222 (1830), that a crew’s failure to extinguish a fire that destroyed a ship was not an act of barratry, which would have been excluded from insurance coverage.

Finally, the term barratry has also been used to refer to the purchase or sale of ecclesiastical or state offices. It is the secular version of simony, which is the sale or purchase of ecclesiastical offices. “Simony” draws its name from Simon Magus,[2] a Samaritan sorcerer who, according to Acts 8:9-24, offered the Apostles money for the gift of healing.

Let Us Know

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[1] Would “Sugar Bear” be guilty of bearattry?

[2] Not to be confused with either Apostle Simon. Or either Paul Simon.