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Attorney E-Newsletter

April 2013

Disciplinary Board Proposes Major Package of Rule Revisions; Comments Due 5/16/13

In August 2012, the House of Delegates of the American Bar Association (ABA) approved changes to the Model Rules of Professional Conduct by adopting resolutions proposed by the ABA Commission on Ethics 20/20. The work of the ABA Commission reflected changes in 21st century technology, lawyer mobility, and the legal marketplace. The Legal Ethics and Professional Responsibility Committee studied ABA’s approved changes to the Model Rules and made a series of recommendations. On November 16, 2012, the Pennsylvania Bar Association (PBA) passed a series of resolutions adopting the Ethics Committee’s recommendations. The PBA Ethics 20/20 Resolutions are available online.

On April 13, 2013, the Disciplinary Board published a Notice of Proposed Rulemaking (NPR) in the Pennsylvania Bulletin at 43 Pa.B. 1997, setting forth a series of changes to the Pennsylvania Rules of Professional Conduct intended to implement many points of the PBA recommendations. The amendments focus on changes in detection of conflicts of interest, outsourcing, technology and client development, as well as technology and confidentiality. Comments on the proposed changes will be due May 16, 2013.

The NPR, running more than 12,000 words, is far too extensive to summarize in the scope of this newsletter. It is well worth the time of any practicing Pennsylvania attorney to look through the NPR and familiarize him or herself with the proposed changes, and to submit comments if appropriate.

The following is a very brief listing of the affected Rules:

  • Rule 1.0, Terminology: definition of “writing” expanded to all electronic communications; minor change in comments.
  • Rule 1.1, Competence: changes to comments, including two new sections.
  • Rule 1.4, Communication: comment changed to indicate duty to respond promptly applies to all client communications.
  • Rule 1.6, Confidentiality of Information: new language relating to detection and resolution of conflicts of interest, and efforts required to prevent the inadvertent or unauthorized disclosure or access to client information. Extensive changes to comments.
  • Rule 1.17, Sale of Law Practice: changes to comments regarding confidentiality in negotiations of sale.
  • Rule 1.18, Duties to Prospective Clients: changes in wording of Rule, significant changes in comments.
  • Rule 4.4, Respect for Rights of Third Persons: Rule clarified to apply to electronically stored information; extensive changes to comments.
  • Rule 5.3, Responsibilities Regarding Nonlawyer Assistance: extensive changes to comments.
  • Rule 5.5, Unauthorized Practice of Law; Multijurisdictional Practice Of Law: changes to comments.
  • Rule 7.1, Communications Concerning a Lawyer’s Service: change to comment regarding application of Rule to public, prospective clients.
  • Rule 7.2, Advertising: extensive changes to comments.
  • Rule 7.3, Solicitation of Clients: substantive changes in title and content of Rule; extensive changes in comments.

Chief Justice Addresses Bar on Pro Bono

Chief Justice Ronald D. Castille has written the following letter to all members of the Pennsylvania bar:

Dear Pennsylvania Attorney:

This year marks the 50th anniversary of the landmark Gideon v. Wainwright decision establishing the right to counsel for the indigent in criminal trial matters. It's a perfect time to contemplate the legal community's ethical obligations to the civil side of justice, where few such Gideon-type rights have been recognized.

The Pennsylvania Supreme Court has supported civil legal aid in a variety of ways, including providing new avenues for funding legal services and setting up a loan forgiveness program for legal services attorneys funded by pro hac vice filing fees. Of course, the Court cannot do this alone. In each of the past two years, every lawyer in Pennsylvania contributed $35 to civil legal aid through the Interest on Lawyer Trust Accounts (IOLTA) portion of our annual licensing fee. But it is volunteer efforts--whether in direct representation of clients or by further financial support-- beyond that required payment that still matter.

In my travels across Pennsylvania, I have seen innovative and enthusiastic local bar legal services programming in many counties. The Pennsylvania Legal Aid Network, in partnership with our regional legal aid providers and a network of specialty legal aid programs, helps provide the framework and structure for civil legal assistance for the poor. Pro bono volunteers, encouraged by the Pennsylvania Bar Association and local bar associations, provide meaningful time and financial contributions by representing clients who have critical needs, but cannot afford private counsel. Our law schools inculcate the values of pro bono service in the next generation of Pennsylvania lawyers through IOLTA-funded legal clinical programs.

Together with Tom Wilkinson, President of the Pennsylvania Bar Association, I call on each of Pennsylvania's nearly 70,000 registered attorneys to personally commit to provide pro bono service through direct representation and/or financial support of our legal aid programs. Please take a few moments to reflect on the meaning of the Gideon decision, by accessing palawhelp.org and registering with paprobono.net to see the range of opportunities there are for pro bono service. And for those of you who already do so much, thank you!

Ronald D. Castille

2013-2014 Registration: It’s Time

The merry month of May is upon us, and that means . . . yep, it’s annual registration time again.

Annual registration forms will be mailed on May 15. If you have registered online in the past or if your email is on file with the Attorney Registration Office, an email notice will also be sent to you. Remember, attorneys who check the box to not receive future paper registration forms in the mail, will not receive mailed registration packets the following year. The portal for online registration will open May 6. All registration forms and fees are due July 1, 2013.

A few points to note:

  • A new mailing address for registration purposes will be in use this year. Forms and checks should go to:

Attorney Registration
P.O. Box 3313
Lancaster, PA 17604-3313

  • Correspondence should be sent to:

Attorney Registration
601 Commonwealth Avenue, Suite 5600
PO Box 62625
Harrisburg, PA 17106-2625

  • Every attorney is responsible to submit his or her registration form and pay the fees on time, regardless of whether or not the attorney receives a form.
  • Late fees: $150 for failure to complete registration by July 31; another $150 on August 31. The staff are not permitted to waive either late fee; so don’t ask.
  • For those who maintain trust accounts, a list of the financial institution codes is here.
  • If you do not hold funds of clients or third persons subject to Pennsylvania Rule of Professional Conduct 1.15, check the “None/Not Applicable” box on the registration form.
  • Only check one box on the registration form as to whether or not you carry Professional Liability Insurance.
  • IOLTA, trust, escrow and other fiduciary account checks tendered in payment of the annual fee will not be accepted. Payment by such means will not protect you from late charges and will be referred to the Office of Disciplinary Counsel for investigation. DON’T DO IT!

Not Quite Errata But More Like Clarification Department

In the March issue we reported on the ascension of Stephanie Libhart to the position of Executive Director of the Pennsylvania Interest on Lawyer Trust Accounts (IOLTA) Board. Ms. Libhart requests that we clarify she holds a master’s degree in Studies in Law, not a law degree, and that she is not an attorney admitted to the Pennsylvania Bar. Since we were hardly masters of the study of law ourselves, we respect that.

2012 In Review

The Disciplinary Board has posted its Annual Report for 2012. A few highlights:

  • The number of active paid attorneys as of December 31, 2012 was 62,706, and there were 10,400 inactive paid attorneys. In the first year of the Board’s operation, 1972-1973, there were 13,057 active attorneys.
  • During the year 2012, 4,564 new complaints were received by the Office of Disciplinary Counsel. 4,495 complaints were disposed of during the year, 298[1] of which resulted in discipline. A table of disciplinary statistics over the years is here.
  • As of December 31, 2012, there were 63,024 subscribers to the monthly Attorney E-Newsletter, an increase of 5,497 over 2011.
  • In the fall of 2012, the Board launched a new mobile-friendly website. The new website is now more accessible on various devices, including PCs, smartphones, and tablets. The information and content is the same, but how the information appears will be different based on the device being used.
  • As of December 31, 2012, there are 150 Hearing Committee Members, consisting of 49 Senior members, 46 Experienced members and 55 New members appointed by the Disciplinary Board. They serve on a pro bono basis to conduct hearings and review staff recommendations.
  • On October 1, 2013, the Office of the Secretary of the Board began e-filing disciplinary and reinstatement cases with the Supreme Court using the Court’s PACFile system. Shortly thereafter, the Chief Disciplinary Counsel’s Office also began e-filing criminal convictions and reciprocal discipline matters.

Best of the Web for Lawyers

Every year the American Bar Association’s Techshow concludes with a presentation called “60 Sites in 60 Minutes,” in which presenters provide a rapid-fire survey of useful websites for lawyers. The ABA has published a “Top 10” of useful sites from this presentation here. We Dropbox geeks would doubtless benefit from Viivo and Sookasa. The Wirecutter and Cloudsurfing should be very helpful the next time we go tech shopping, and Meeting Wizard may be useful to victims of Frownfelter’s Law of Legal Meetings.[2] And Copypastecharacter should be bookmarked by any of us who haven’t mastered the “Insert Symbol” command for when we need a § or ¶.

All 60 of last year’s sites are posted here.[3]

But our favorite web page this month didn’t make the list: Wired’s article so eloquently described by its title: “Lawyers and Psychiatrists Answer the Tough Questions in The Walking Dead.” Inquiring minds really want to know the answers to such fundamental legal questions as:

  • Do the Undead Have Legal Responsibilities?
  • Are Mercy Killings Legal During the Zombie Apocalypse?
  • How Does the Zombie Apocalypse Affect Moral Reasoning?

So you think this is trivial and unworthy of mention in this august periodical? Well, come the zombie apocalypse, when the practitioner next door to you knows the answers, and you don’t, you may think differently. Your call.

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.[4]

[1] The number of cases resolved by discipline exceeds the number of disciplinary dispositions because some disciplinary dispositions involved multiple cases.

[2] “The number of telephone calls or emails necessary to set up a meeting of lawyers is the square of the number of lawyers involved.”

[3] Warning: do not click this link if you have anything you absolutely must get done today.

[4] Please do not send email regarding changes of address and other registration issues to this address. For changes of address and other registration information, please use the Board’s Online Address Change Form or download the Fillable Address Change Form.