Loading

Attorney E-Newsletter

May 2013

The Clock Is Running

Registration forms for 2013-2014 have been mailed out, and all forms and annual fees are due July 1, 2013.

There are three ways Pennsylvania attorneys may complete their registration:

  • By filling out and mailing the paper form sent through the mail;
  • By downloading, filling out, and returning our fillable PDF form at the Board’s website, www.padb.us; and
  • By completing online registration at the Unified Judicial System web portal.[1]

Due to the volume of registration forms processed in the coming months, the Registration Office cannot answer individual inquiries by email or confirm receipt of forms.  Please do not send questions, corrections, changes, or other communications concerning registration by reply to this email or to the Comments address below.  All individual inquiries regarding registration should be made by mail or telephone to the Registration Office:

Attorney Registration Office
P.O. Box 62625
Harrisburg, PA 17106
Phone: 717-231-3380
Fax: 717-231-3381

The Hunters Become the Hunted

It’s been a month of mixed results for prosecutors under fire.

An incumbent district attorney in California faces a recommendation of disbarment for prosecutorial misconduct. The State Bar Court of California has recommended that Del Norte County District Attorney Jon Michael Alexander be disbarred, based on a variety of misconduct including meeting with a defendant without the knowledge or permission of her counsel; lying about this, at one point under oath; and failing to reveal exculpatory evidence.

Alexander also made a personal loan to a probation officer who worked on his cases and participated in a prosecution in which an attorney who had lent him money and represented him in one of his disciplinary cases was opposing counsel. The court found bad judgment, but no violation in these incidents.

Alexander had three prior incidents of discipline and was on probation for one of them at the time of the events in question. The court’s decision to recommend disbarment reflected Alexander’s staunch denial that he had done anything wrong, which disturbed the court in light of his prior discipline. The Supreme Court of California will decide the case.

A county attorney in Virginia has accepted a reprimand for sending a paralegal to opposing counsel’s office on false pretenses to gather information for use in a dispute with the attorney. Caroline County Attorney Anthony Spencer was engaged in a professional and personal spat with John LaFratta. LaFratta told jurors that while the state had vast resources, all the defense had was “just me, a couple of law books, a couple of brown binders jam-packed full of papers.” Spencer told the jury that LaFratta was misleading them as to his resources.

LaFratta filed an ethics complaint against Spencer for his comments to the jury about LaFratta’s level of support. Spencer decided to seek evidence that it was LaFratta who lied to the jury. He sent a paralegal employed in his office to LaFratta’s office, posing as a survey taker, to gather information about how many attorneys and staff LaFratta employed. On Spencer’s directions, she accurately stated she was a student in a paralegal studies program, but withheld the fact that she was also employed in Spencer’s office. Later Spencer reported the results of this survey to a court, but failed to mention the paralegal student who took the survey was also his employee.

Spencer agreed that his conduct violated Rule 5.3, regarding supervision of nonlegal employees, Rule 8.1 regarding failure to disclose facts necessary to avoid a false impression, and Rule 8.4(a) and (c), misconduct involving another and misrepresentation. LaFratta’s original complaint that sparked the inquiry was dismissed.

Finally, two Federal prosecutors suspended from their jobs by the U.S. Department of Justice (DOJ) for misconduct in the criminal case against the late former Senator Ted Stevens won an appeal of the suspensions. One, Joseph Bottini, was suspended for 40 days, and the other, James Goeke, was suspended for 15 days for withholding evidence from the defense team. A third prosecutor on the case committed suicide.

On April 5, an administrative judge for the Merit Systems Protection Board held that the DOJ violated its own procedures in imposing the suspensions. The procedures of the Professional Misconduct Review Unit require that a rank-and-file attorney in the unit make the determination whether misconduct occurred. The attorney who initially reviewed the case determined that the omissions did not rise to the level of professional misconduct, but that determination was reviewed and reversed by the head of the unit. Administrative Judge Benjamin Gutman determined that this second review was improper and upheld the original determination of no misconduct.

Minor Court Rules Committee Proposes Changes on Conflicts

The Minor Court Rules Committee published a series of recommended changes to Rules 13 and 14 of the Rules of Conduct for Magisterial District Judges, relating to activities in which attorneys who are magisterial district judges may practice law and serve as arbitrators or mediators. The proposed changes appeared in the Pennsylvania Bulletin on April 27, 2013 at 43 Pa.B. 2269. Since these provisions apply only to a limited number of attorneys, we will not summarize them here, but those interested may review the changes and submit comments through June 28, 2013.

ABA: Must Know Tech

How many times have you heard a lawyer – usually an older lawyer – say, “I don’t know much about computers”? According to the American Bar Association (ABA), that might not be an option if you want to stay active in the practice of law.

As this ABA Journal article notes, changes to the ABA Model Rules of Professional Conduct make it clear that a lawyer has a duty to learn and take account of advances in technology. A new addition to the comments to Model Rule 1.1, regarding competence, states that a lawyer’s duty of competence requires him or her to keep abreast of changes in the law and its practice, “including the benefits and risks associated with relevant technology.” A new provision of Rule Model 1.6 regarding confidentiality states that a lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, client information. A new comment to the rule states in part:

Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

Changes in the Model Rules only become mandatory when adopted by the Supreme Court of the state, but these changes certainly reflect changes in the nature of legal practice all practicing attorney will have to accommodate.

In other tech news, the ABA’s Standing Committee on Ethics and Professional Responsibility has issued a formal opinion addressing the use of electronic social media by judges and other judicial officers. The opinion concludes that the use of such media does not inherently conflict with a judge’s responsibilities, but discusses a number of issues and precautions of which a judicial officer should take account.

Professional Responsibility Pioneers Jeanne Gray and John Sutton Pass on Same Day

The professional responsibility community lost two of its giants in one day on April 19, 2013.

Jeanne P. Gray, who served for more than 30 years as director of the American Bar Association’s (ABA) Center for Professional Responsibility, died in Chicago. She was 65. Her obituary is here.

In her long tenure with the Center she oversaw many of the changes that have defined the ethical responsibilities of the legal profession, including the development of the Model Rules of Professional Conduct, the Model Rules for Lawyer and Judicial Disciplinary Enforcement, the Standards for Imposing Lawyer Sanctions, the Model Code of Judicial Conduct, Ethics 2000, Ethics 20/20, the Commission on Multijurisdictional Practice, and the Commission on Multidisciplinary Practices.

Prior to her service with the ABA she was Assistant Bar Counsel with the Board of Overseers of Massachusetts. After serving as director of the Center she became Associate Executive Director of the ABA’s Public Services Group. An announcement from Jack Rives, Executive Director of the ABA, is here.

She is survived by her husband Paul Gallagher, whom she met when they were both employed by the ABA, and three children.

John Sutton, a former dean of the University of Texas Law School and a principal drafter of the ABA Model Code of Professional Responsibility, died at the age of 95 in St. Angelo, Texas. His obituary is here.

Sutton had a long and varied career. He was a cattle rancher before attending law school and graduating in 1941. He served as a special agent with the Federal Bureau of Investigation and then in the Judge Adjutant General Corps during the Korean War. After seven years in private practice he joined the faculty of the University of Texas Law School, where he taught for 46 years, including five years as dean, before retiring at the age of 85. From 1965-1970, Sutton was one of the original drafters of the ABA's Model Code of Professional Responsibility, the first revision of the ethical standards of the profession in nearly 60 years. Later, Sutton consulted on the drafting of the association's Model Rules of Professional Conduct, which became the Rules of Professional Conduct in effect today.

Sutton was married for 72 years to his law school classmate, Nancy Ewing Sutton, who survives him, along with two children, four grandchildren and seven great-grandchildren.

Got a Tip?

Or a question, a comment, an idea you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.[2]

[1] Yes, there is still a $2.75 convenience fee. Yes, we know you don’t like it.

[2] This address is not authorized to receive communications about registration or licensure matters or complaints against attorneys.