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Attorney E-Newsletter

June 2014

Complete Your Annual Attorney Registration by July 1

For those who have NOT completed their 2014 – 2015 Annual Attorney Registration, it is due July 1, 2014.

A non-waivable late payment penalty of $150.00 will be assessed if the form and payment are not received on July 31, 2014.

Using the online registration?

Complete your registration online at http://ujsportal.pacourts.us. Please check the Web Portal for updates. If using the online registration, here are a few helpful resources:

  • If you have forgotten your password or PIN, click on login, and then click on “Forgot my password” or “Forgot my PIN” to reset.
  • For questions regarding the online registration process, click on this link to view the WebEx (tutorial) or call the Disciplinary Board at (717) 231-3380 and ask for Attorney Registration.[1]
  • If you're a first-time user and cannot access the website while working or living in a foreign country, including U.S. territories, contact the Help Desk at ccpaopc@pacourts.us or 1-877-227-2672. It's likely that your IP address is being blocked.
  • Need technical support? Contact the Help Desk at ccpaopc@pacourts.us or 1‑877-227-2672.
  • Questions regarding your status? Visit www.padisciplinaryboard.org/attorneys or call the Disciplinary Board directly at (717) 231-3380 and ask for Attorney Registration.
  • Other questions? Visit the FAQ section of the Disciplinary Board's website at www.padisciplinaryboard.org/attorneys/faqs or call the Disciplinary Board directly at (717) 231-3380.

Using the paper form to register?

If you register via the paper form, please make corrections and provide missing information directly on the form. Mail the completed and signed form, together with proper payment, to the address listed below. Checks and money orders must be drawn on a U.S. bank, in U.S. dollars. International Postal Orders are acceptable if they are drawn on a U.S. bank. Make checks and money orders payable to the “Attorney Registration” office and mail to:

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

Disciplinary Board Defers Paper Registration Fee

In March we reported on the Disciplinary Board’s proposal to charge a “paper processing fee” for those who renew their registration by paper forms, beginning in 2015-2016. After further consideration, the Disciplinary Board has decided that the paper processing fee will not be assessed in 2015-2016.

States May Inquire about Conduct, But Not Mental Health Status, Feds Say

The U.S. Department of Justice, Civil Rights Division (CRD), has taken the position that attorney licensing agencies may not ask applicants whether they have been diagnosed or treated for any mental health disorders. In a letter dated February 5, 2014, Jocelyn Samuels, Acting Assistant Attorney General, informed the Supreme Court of Louisiana, its Committee on Bar Admissions, and the Louisiana Chief Disciplinary Counsel that four questions on its character and fitness application relating to diagnosis of mental health or substance abuse issues violate the Americans with Disabilities Act, 42 U.S.C. 12132 et seq. The questions are based on the Standard Character and Fitness Application[2] published by the National Council of Bar Examiners. The CRD noted that 25 states use the NCBE questions. Pennsylvania is not one of those states.

The CRD found that the applications process violates the law by using “eligibility criteria that screen out or tend to screen out individuals with disabilities based on stereotypes and assumptions about the disabilities and are not necessary to assess applicants’ fitness to practice.” The CRD identified six issues created by the process:

  1. discriminatory inquiries regarding bar applicants’ mental health diagnoses and treatment;
  2. bar applicants subject to burdensome supplemental investigations triggered by their mental health status or treatment;
  3. discriminatory admissions recommendations based on stereotypes of persons with disabilities;
  4. additional financial burdens on people with disabilities;
  5. inadequate confidentiality protections during the admissions process; and
  6. adverse conditions on admission based on individuals’ mental health diagnoses or treatment.

The CRD recommended several steps, including changing or eliminating the questions, amending admission rules to consider only conduct and not mental diagnosis or treatment, ending conditions attached to the admission to current members who do not have conduct-related issues, expunging documents and records related to such cases, and monetary damages to individuals who were subjected to discrimination during the bar admissions process.

The letter does not represent a final or enforceable decision, but rather is a step in a process of negotiation and remediation by which the parties hope to resolve the issue.

In another action on somewhat related issues, the Law School Admission Council (LSAC) entered into a consent decree with the U.S. Department of Justice, agreeing to end its practice of “flagging,” or identifying LSAT score reports for test takers who receive extended time as an accommodation for disabilities. The California Department of Fair Employment and Housing brought suit in 2012 on behalf of 17 individuals with disabilities who alleged they were subjected to cumbersome and unreasonable requirements to document their disabilities after requesting LSAT accommodations, including an LSAC request for information about any medications they might be taking. The Department of Justice intervened in support of the plaintiffs. The LSAC did not admit wrongdoing or liability, but decided to settle the matter in the best interests of participating law schools and prospective students.

Ethics Opinions Address E-Discovery Competence, Firm Titles

As the complexities of litigation change with advancing technology, a lawyer’s ethical duties change as well. One particular challenge is keeping up with the advances in electronic discovery. A new opinion proposed by the California State Bar’s Standing Committee on Professional Responsibility and Conduct concludes that the ethical duty of competence for a lawyer engaged in litigation in which e‑discovery is sought requires the lawyer to recognize the limits of his or her competence at e‑discovery, and take appropriate action. If the e‑discovery challenges presented exceed the lawyer’s current command of e‑discovery issues, the lawyer must take one of three courses:

  • Take steps to acquire the necessary skills;
  • Retain technical consultants to provide the required skill set; or
  • Decline the representation.

The opinion is based on a hypothetical in which a lawyer’s insufficient familiarity with e‑discovery results not only in the disclosure of information that should have been protected, but also a failure to communicate the lawyer’s compliance accurately to the court and suppression of evidence due to failure to arrange a litigation hold as part of the client’s document disposal procedure.

In another potentially controversial ethics opinion, the Professional Ethics Committee for the State Bar of Texas has published Opinion 642, addressing the question of whether a law firm may use the terms “officers” or “principals” to describe the roles of nonlawyers within the firm. The opinion first notes that Texas Rule 5.04(d)(2) prohibits lawyers from practicing law with an organization if “a nonlawyer is a corporate director or officer thereof,” and that Rule 5.04(d)(3) prohibits a lawyer from practicing law in the form of a for-profit professional corporation or association if “a nonlawyer has the right to direct or control the professional judgment of a lawyer.” These provisions are substantially the same as those of Rule 5.4(d) of the Model Rules of Professional Conduct and the Pennsylvania Rules of Professional Conduct. Such titles are often used for nonlawyers serving law firms in positions such as executive management, marketing, advertising, IT services, and search-engine optimization. Under the hypothetical posed, the firm proposes to bestow such titles on its chief executive officer and chief technology officer, and identify them as “principals” in the firm. The firm also proposes to pay bonuses to such individuals depending on the firm’s financial success.

The Texas Committee concludes that such practices are improper. The opinion notes that if the nonlawyers identified as principals control the conduct of lawyers, such an arrangement would violate Rule 5.04(b), while if they do not do so, describing them as principals would violate Rule 7.02(a) by making a “false or misleading communication about the qualifications or the services of any lawyer or firm.”

The Committee also addressed the question of whether the payment of bonuses to nonlawyers violates Rule 5.04(a), which prohibits a lawyer from sharing fees with a nonlawyer. The Committee concluded that Rule 5.04(a) does not bar the payment of bonuses to nonlawyers as a reward for performance, and that the firm’s profitability is an acceptable consideration in determining bonuses to be paid. The Committee stated, however, that tying a nonlawyer’s bonus to a particular financial target would be sharing fees with a nonlawyer, and thus would be prohibited under Rule 5.04(a).

The opinion is expected to be controversial, as it is the practice of many large firms to confer titles such as “director” or “officer” on nonlawyer employees such as administrators, executives, marketing and technology professionals, and other nonlegal skill positions.

Attorney Suspended for Decades-old Misconduct

Attorney Willis W. Berry, Jr., has been suspended by the Supreme Court for one year and one day as a result of misconduct which occurred in 1995, when Berry was practicing law in Philadelphia. From 1996 until 2012, he served as a judge of the Court of Common Pleas.

The Disciplinary Board found that Berry represented a client in a slip and fall matter arising on a property adjacent to his office. Berry did not inform the client that he was attempting to acquire the dilapidated property for $1500. At one point he arranged for the property to be transferred to his client in settlement of her case, without her knowledge. He had her sign a deed transferring the property to him, and wrote her a check for $1500, saying her case had settled for that amount. The client only found out about the transactions in 2007, and brought a fraud action against Berry. That case resulted in a 2010 jury verdict finding that Berry had committed fraud. That verdict was subject to post verdict motions and appeals until 2012.

The Disciplinary Board concluded that under Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 47 (Pa.2005), the Office of Disciplinary Counsel could offer the fraud verdict in proof of the violation, and that Berry was bound by that finding by the doctrine of offensive collateral estoppel. The Board recommended that Berry be suspended for one year and one day,[3] a recommendation the Supreme Court accepted.

Normally disciplinary cases are not pursued based on conduct occurring more than four years prior to the complaint under the “stale matters” provision of Rule 85.10 of the Rules of the Disciplinary Board. Two exceptions to the rule apply to situations such as this. First, the stale matters rule does not apply where there has been a “knowing act of concealment.” Second, the stale matters rule is tolled by litigation that results in a finding that the subject acts or omissions involved civil fraud.

Berry’s real estate dealings also caused him problems in his judicial career. In 2009, the Court of Judicial Discipline suspended Berry for four months without pay for operating a real estate business out of his judicial chambers, using a taxpayer-funded staff person to run the day to day operations and advertising his judicial address and telephone number as contacts for the business.

Judges May Coach, Model

Speaking of judges with sidelines, the law on what judges may or may not do in their spare time continues to evolve. According to recent ethics opinions, judges may serve as a high school or American Legion baseball coach or as a fashion model[4] at a charity event.

But still not as a standup comedian, no matter how much of a stand-up guy he may be.

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] Please try the tutorial first. Please.

[2] The current version was revised after the letter was issued.

[3] Suspensions for one year and one day are fairly common in the Pennsylvania disciplinary system. Rule 218(a)(1) of the Pennsylvania Rules of Disciplinary Enforcement provides that an attorney suspended for more than one year may only be reinstated by order of the Supreme Court after a reinstatement petition and hearing. One year and one day is the shortest suspension which still requires a suspended attorney to seek an order reinstating him or her, and thus to show that he or she has met the qualifications for reinstatement.

[4] According to the Model Code of Judicial Conduct?