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Attorney E-Newsletter

October 2012

A Friend in Need is a Friend in Absentia

This month’s featured disciplinary case is that of John Francis Licari, who provided a textbook case of making a bad situation much worse.

Licari’s problems started in March 2010, when he was placed on administrative suspension. He resolved his problems and was restored to active status in October. In between, however, he had sewn the seeds of his own downfall.

Rather than ceasing the practice of law in the meantime, Licari 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.

Based on this deception, and other aggravating factors including his failure to appear in disciplinary proceedings or to express any remorse, the Disciplinary Board recommended that Licari be disbarred, to which the Supreme Court agreed.

Put Up Your Docs! Discovery of a Lawyer’s Computer

A lawyer’s computer may contain his or her entire professional life, including private and confidential documents. When a lawyer’s computer becomes the target of discovery, serious issues of privilege and confidentiality arise.

A New York trial court recently dealt with the issue of preserving confidentiality while allowing parties access to files on a lawyer’s computer. In the case of Tilimbo v. Posimato, 36 Misc.3d 1232 (N.Y. Sur. Ct. Aug. 22, 2012), the New York Surrogate Court considered a request from one of the parties for access to files on the computer of the lawyer who drafted a will at issue, who was neither a party nor representing either of the parties in the case. The attorney had testified in a deposition that he had lost the paper file on the case but may have some computer files. He was directed to search his computer, and produced five relevant documents, but the moving party was not satisfied with the disclosure.

The moving party proposed that a computer forensic expert be allowed to “clone” the attorney’s drive and search for all documents relevant to the party in question. After examining the law of the state pertaining to Electronically Stored Information (ESI), the court directed the parties to confer on establishing a time for cloning of the office’s computers with a minimum of disruption of the attorney’s practice. In order to protect the confidentiality of files, the court ordered the forensic consultant to review the computer only for documents that refer to the subject; forbade the consultant to examine files which would not likely lead to the discovery of evidence related to the case; and ordered the consultant to immediately cease examination of any irrelevant file inadvertently begun. The consultant was directed to forward only relevant files to both counsels, who would have 14 days to object to disclosure and seek in-camera review by the court.

There was no issue of confidentiality between the testatrix and the attorney, as the testatrix was one of the parties seeking disclosure, alleging undue influence and a conflict of interest on the part of the attorney.

Although the court went to considerable lengths to set up a procedure by which only relevant files would be examined and made available to the parties, the law blog bowtielaw.com points out that there are at least three different ways a forensic examiner could go about collecting the files. Each involves a different balance between protecting the target attorney’s interests in preserving confidentiality and minimizing disruption of office time and the moving party’s interest in locating all relevant data.

Ohio: Uninsured? You Must Disclose!

An Ohio lawyer has received a reprimand for failure to notify her clients that she did not carry professional liability insurance.

Only one state, Oregon, requires lawyers to carry professional liability insurance. Oregon lawyers are required to participate, as a duty of admission, in the Oregon Bar’s Professional Liability Fund. Non-practicing lawyers, government lawyers, and corporate house counsel are not required to pay premiums.

An ABA survey in August 2011 found that 24 states now require lawyers who do not carry insurance to disclose that fact to clients in some form. Rule 1.4(c) of the Pennsylvania Rules of Professional Conduct states:

(c) A lawyer in private practice shall inform a new client in writing if the lawyer does not have professional liability insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year, subject to commercially reasonable deductibles, retention or co-insurance, and shall inform existing clients in writing at any time the lawyer’s professional liability insurance drops below either of those amounts or the lawyer’s professional liability insurance is terminated. A lawyer shall maintain a record of these disclosures for six years after the termination of the representation of a client.

In addition, Rule 219(d)(1)(vi) of the Pennsylvania Rules of Disciplinary Enforcement requires Pennsylvania lawyers to state on their annual registration form whether they carry professional liability insurance as required by Rule 1.4(d), and each lawyer’s answer is set forth in his or her entry on the Disciplinary Board’s online attorney database.

Only seven of the states in the ABA survey require direct notification to clients as Pennsylvania does. Some, like Ohio, require a client’s written acknowledgement. See? It could be worse.

Rules of Professional Conduct: the Halloween Edition

For those who still want it on paper, the Disciplinary Board has released a new pamphlet edition of the Pennsylvania Rules of Professional Conduct. Festooned in seasonally appropriate orange[1] and black, this helpful guide is available for $2.50 per copy plus shipping.[2] An order form is here.

Curses! Trefoiled Again!

Judicial recusal motions have raised our eyebrows many a time, but one recently filed in Texas presents a new ground for relief. A lawyer’s motion for a do-si-do of judges is all about an allegation that the presiding judge is prejudiced against him due to his refusal to buy Girl Scout cookies being sold by the troop to which the judge's and court coordinator's daughters belong.

Good sports that we are, we generally tagalong with coworkers’ annual appeals to buy samoa these sugary delites.[3] But we had to shout out upon reading that the lawyer reports being expected to buy an entire case of the cookies.[4] That’s a whole new meaning to “case management conference.”

Meanwhile, don’t be surprised to see this on our door.

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] Orange you glad you have one?

[2] Shipping depends on how many you order -- the more the merrier. To see how merry you can get, see the price chart here.

[3] Even in the shortbread period just before payday.

[4] That’s 12 boxes, thanks-a-lot.