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Attorney E-Newsletter

January 2013

Top Ethics Stories of 2012 – Steele Edition

Last month we published our selection of the top Pennsylvania disciplinary cases for 2012. This month we highlight the annual list prepared by John Steele at the Legal Ethics Forum, identifying the top legal ethics stories of 2012 nationwide. Steele’s top stories:

  1. The Supreme Court of the United States (SCOTUS) expanded its application of constitutional standards in the context of critical pre-trial processes in criminal matters, such as plea bargaining and discovery.
  2. The ABA’s 20/20 Commission proposed several amendments to the Model Rules and related policies in August, and the House of Delegates approved all of them.
  3. The outside ownership of law firms took a big step forward in the UK but stalled in the USA.
  4. Politics continued to swirl on the issue of recusal by SCOTUS justices.
  5. Our legal education system saw even more turmoil this year as it adjusts to the new normal.
  6. Ethics issues kept arising in the criminal prosecution of George Zimmerman.
  7. In about 300 jurisdictions, debt collectors used the local District Attorney’s stationery to send out legal warnings and demand payments.
  8. There was continued fallout from the implosion of the Dewey law firm.
  9. Prosecutorial misconduct was in the headlines.
  10. Congress cited the Attorney General, Eric Holder, for contempt after the assertion of privilege as to documents related to the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) “Fast and Furious” operation.

See Mr. Steele’s article for his comments and links on these stories, as well as more than a dozen “honorable mentions.”

Goin’ Mobile[1]

Subscribers who use their phones to check our website, www.padb.us, may notice a new look. The Disciplinary Board has updated its site to be mobile friendly, which should allow for easier navigation on the small screens of internet-capable smartphones. The new website is now more accessible on various devices, including PCs, smartphones, tablets, and more.

The information and content has not changed, but how the information appears is different based on the device in use. Since the “Look Up PA Attorney” section is one of the most frequently used sections of the website, it has been upgraded to include a “Show/Hide Column” option, that allows the user to choose which specific details to see or not see regarding a listed attorney. This is especially helpful when trying to access the information on a smaller device.

Thanks for your patience with any issues, and we hope the new design of the site will make it more useful.

Non-waivable Means Don’t Ask

Every year the Registration Office at the Disciplinary Board receives many requests for waiver of late registration fees from attorneys who say they did not receive the forms or for some other reason failed to file their registration on time.

Although the time to register is still months away,[2] it is not too soon to remind all attorneys that there is a change in the provisions for late fees this year.  The Disciplinary Board also just approved an increase in the amount of the late fees. Any attorney who fails to complete registration by July 31 will owe a $150.00 non-waivable late payment penalty. A second, non-waivable late payment penalty of $150.00 will automatically be added to the delinquent account of any attorney who has failed to complete registration by August 31, at which time the continued failure to comply with this rule shall be deemed a request to be administratively suspended.

If the form and payment are incomplete or if a check in payment of the annual fee has been returned to the Board unpaid, the annual fee shall not be deemed to have been paid until a collection fee, and one or both of the late payment penalties, shall also have been paid.[3]

The Registration Office staff will not have the authority to waive late fees, so please don’t ask.

Bear in mind that every attorney is responsible for filing the form and paying the fee by July 1, whether or not he or she receives the form in the mail.[4] You might want to put a note on your electronic calendar to make sure this is done by July 1, and make it annually recurring. Just a thought.

“Bona Fide Office,” Jersey Style

In the last issue we reported about New Jersey unauthorized practice opinion clarifying New Jersey Rule 5.5, detailing the circumstances under which attorneys may engage in multijurisdictional practice in New Jersey.

In discussing the requirement of a “bona fide office,” we mistakenly stated that the bona fide office must be in New Jersey. In fact, Rule 5.5 states that a lawyer admitted in another state must maintain a bona fide office “in conformance with R. 1:21-1(a).” Rule 1:21-1(a) states,

For the purpose of this section, a bona fide office is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney's behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time. For the purpose of this section, a bona fide office may be located in this or any other state . . . An attorney who is not domiciled in this State and does not have a bona fide office in this State, but who meets all the qualifications for the practice of law set forth herein must designate the Clerk of the Supreme Court as agent upon whom service of process may be made for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto, in the event that service cannot otherwise be effectuated pursuant to the appropriate Rules of Court. The designation of the Clerk as agent shall be made on a form approved by the Supreme Court.

So, the rule specifically allows a nonresident attorney to maintain a bona fide office out of state, but requires the completion of a form designating the Clerk of the Supreme Court as a process agent. We hope this allays any anxiety created by our discussion last month.

Our thanks to readers Jason R. Ohliger and Peter Gulia for bringing this to our attention.

The Numbers Are In

The Disciplinary Board has published a table of discipline numbers for 2012. In all, discipline was ordered in 272 cases, down about 10 percent from last year’s 300, but right at the average for the last seven years. Public reprimand, a new form of discipline last year, was ordered in nine cases. Other forms of public discipline, including probation, public censure, suspension, and disbarment, were within the ranges of recent years. Private discipline, including informal admonition and private reprimand, were down by about a quarter. Reinstatements were back to typical level, after a two-year surge following the adoption of new rules on administrative suspension.

Statistical junkies can see the numbers here.

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] Surely you didn’t think we could resist the temptation.

[2] We wanted to get an early start on our nagging this year.

[3] The Board also increased the collection fee to $100.00 when checks are returned as unpaid.

[4] It’s what we call an “incident of licensure.” Of course no one really wants an incident.