Upcoming Registration Cycle Information
 
Online registration is NOT currently available but will open in early May. As always, email reminders will begin to be sent once registration is available on the UJS Portal. Please ensure that your contact information is up-to-date with the Board.
 
As you may recall, there were significant changes to the appearance of the UJS Portal and registration form last year. Minimal changes have been made this year, but please see the information below so that you may prepare as necessary for the upcoming registration deadline.
 
Financial Data Section Change
 
This area of the form will still be presented in three sections – (1) PA IOLTA & PA IOLTA Exempt, (2) Out-of-State IOLTA & Out-of-State IOLTA Exempt, and (3) Interest for Clients, Other Authorized Accounts, or Business/Operating.
 
The change to this section this year is in regards the “Holds Client/Third-Party Funds?” field. Previously, this particular information was designated on the form by simply choosing “yes” or “no”. In an effort to further promote the self-correction of errors that may have previously been submitted, these designations have been broken down to be more specific.
 
Because of this change, any accounts that are currently on file with a designation of a simple “yes” in this field will populate on the registration form as a blank entry for that field only. Users will need to select the appropriate response from the new options that will appear on the form as shown below.

• Yes, Holds PA Client/Third-Party Funds
• Yes, Holds Out-Of-State Client/Third-Party Funds
• No, Does Not Hold Client/Third-Party Funds

Voucher Processing Reminder
 
The Board continues to encourage users to “Pay Online” with a credit card for immediate confirmation of a completed registration once a credit card confirmation number is received. However, for those users who choose to “Pay by Mail” when submitting your online form, please remember that the unique voucher that is created must be submitted to the Attorney Registration Office directly. Please ensure that your records reflect that voucher payments should be sent to:

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

 

Application Instructions

Scheduled proceedings begin at 9:30 am unless otherwise noted.

Lawyer Suspended for Prioritizing Fee Over Client’s Interest
 
By Order dated March 8, 2023, the Supreme Court of Pennsylvania suspended a Bucks County lawyer from the practice of law for misleading his client as to his entitlement to fees under their fee agreement and delaying settlement of her case in his efforts to extract more fees than the agreement allowed him.
 
Alan Kane of Warminster entered into a fee agreement with a client seeking to sue her former employer after her termination. The fee agreement provided that Kane would receive the greater of: 1) a $3000 fee paid in advance; 2) 33 1/3% contingent fee on the total recovered, or 3) any attorney fee awarded by verdict or settlement. Over the course of the negotiation and litigation of the case, Kane received several settlement offers but led the client to believe that she would owe him attorney fees calculated on an hourly basis from (or over and beyond) the amount received in settlement. The client rejected several offers out of concern that Kane’s attorney fees would eat up or exceed the amount recovered. Eventually Kane did accept a settlement offer, but the dispute over his fees held up distribution for several months, eventually resulting in the proceeds being paid into an account under the court. He filed suit seeking fees far in excess of the amount allowed in the fee agreement on a quantum meruit basis and revealed confidential information in his complaint that was not relevant to the fee dispute. The client had to expend $40,000 in attorney fees defending the suit and for other complications of his insistence on fees.
 
The Disciplinary Board found that Kane was only entitled to fees in the amount of one third of the settlement and that he acted in his own interest of renegotiating the fee agreement and seeking more money than the original agreement allowed. The Board concluded that his conduct violated ten Rules of Professional Conduct, including rules involving abiding by a client’s decisions, explaining a matter in a way that allows the client to make informed decisions, revealing confidences, conflicts of interest, frivolous claims, dishonest statements, and clearly excessive fees.
 
The Disciplinary Board recommended that Kane be suspended for one year and one day which will require him to file a petition for reinstatement and prove his current fitness to practice law to resume practice. The Supreme Court accepted this recommendation and suspended Kane for one year and one day.
 

---

Lawyer Suspended for Trading on Confidential Information
 
A Montgomery County attorney agreed to a suspension of his license for one year after admitting that he traded stocks based on confidential information he learned in the course of his practice.
 
William E. Gericke of Bala Cynwyd entered into a Joint Petition for Discipline on Consent with the Disciplinary Board. While employed by Cozen O’Connor, he served as a founder of and conflicts counsel in the Conflicts Department and as a founder and member of the Legal Profession Services Group. In this role, he was often asked to review whether the acceptance of potential clients would cause any conflict of interest. He acknowledged that he owed a fiduciary duty to firm clients to exercise the highest degree of honesty and good faith in his dealings with firm clients and in handling information related to firm clients.
 
A partner in the firm asked Gericke to run a conflicts check on a firm with which a securities client was considering a merger. The prospect of the merger was highly confidential information that could significantly affect the stock value of both firms. On the same day as he sent the conflicts check report to the requesting partner, he purchased one thousand shares of the client company. At no point did he speak to anyone in the company about the stock acquisition.
 
When the merger was announced, the price of the stock went up, and Gericke sold the shares for a profit of about $10,000. Subsequently, the Financial Industry Regulatory Authority, a government-authorized not-for-profit organization that oversees U.S. broker-dealers, conducted an investigation of possible insider trading arising from the merger. Gericke’s name appeared on a list FINRA compiled of individuals who had engaged in trades. In communication with the counsel representing the company, he denied any knowledge other than what the conflicts check had covered.
 
Later, Gericke received a subpoena from the Securities and Exchange Commission (SEC) which was investigating the matter. The firm placed him on administrative leave, and he resigned three weeks later.
 
Gericke entered into a settlement agreement with the SEC under which he admitted he had engaged in insider trading in violation of SEC rules. He was barred from appearing as an attorney before the SEC and paid a civil penalty of $20,000. 
 
In the Joint Petition filed with the Board, Gericke acknowledged that he violated Rules of Professional Conduct 1.4(a)(1) [failure to obtain informed consent], 1.8(b) [use of information relating to representation without informed consent], 4.1(a) [false statement of fact or law], and 8.4(c) [conduct involving dishonesty, fraud, deceit, or misrepresentation]. He agreed that his license would be suspended for one year. The Supreme Court accepted the Joint Petition and suspended Gericke for one year.
 
The SEC reported the settlement on its website.
 

---

U.S. Supreme Court Dismisses Attorney-Client Privilege Case
 
By Order dated January 23, 2023, the Supreme Court of the United States dismissed an appeal of a case raising questions of attorney-client privilege as improvidently granted.
 
The case of In Re Grand Jury involved an unnamed law firm that resisted a subpoena issued by a grand jury. The case examined the privilege status of dual-purpose documents that contain both legal and nonlegal advice.
 
The Ninth Circuit Court of Appeals affirmed the decision of a trial court who held the law firm in contempt for refusing to produce the documents. The Ninth Circuit found that the test for dual-purpose documents was whether the “primary purpose” of the documents was to render legal advice. The law firm argued on appeal that the test should be whether the delivery of legal advice was a “significant purpose” of the communications.
 
The matter went to oral argument before the Supreme Court in January. Members of the Court seemed skeptical as to whether the proposed distinction was as significant as the parties presented it to be. “What is the disagreement?” Justice Neil Gorsuch asked. Noting that the “primary purpose” standard had been in use for years, Justice Elena Kagan invoked the adage, “If it ain’t broke, don’t fix it.”
 
The American Bar Association, the U.S. Chamber of Commerce, and eleven other organizations file amicus briefs in support of the law firm, but the justices were unconvinced.
 
Stephen Gillers at SCOTUS Blog explains that a DIG (dismissal as improvidently granted) might be based on a conclusion that the case was not the right vehicle to decide an important issue, that the secrecy of the record prevented a full analysis in a public decision, or that the Court decided to preserve the issue for decision in a case where the distinction of arguments is more pronounced. But the fact that the Court granted certiorari in the first place suggests it considers the issue one worthy of examination.
 

---

ABA Opinion Provides Guidance on Choice of Professional Conduct Law
 
The Standing Committee on Ethics and Professional Responsibility of the American Bar Association has issued an ethics opinion that assists lawyers in determining what jurisdiction’s version of the Rules of Professional Conduct applies in interstate representation situations.
 
Issued March 1, 2023, Formal Opinion 504 examines several hypothetical situations in which a lawyer has an office in one state but undertakes representation in another state that has adopted a different version of the Rules of Professional Conduct.
 
One hypothetical that the committee examined is a situation in which a lawyer located in State X is retained by a resident of the same state to pursue litigation in State Y. The committee concluded that matters such as the execution of a fee agreement would be subject to the requirements of State X. The committee notes that Model Rule 8.5(b)(2) states, “A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.” The lawyer’s conduct in the litigation would likely be governed by the requirements of State Y if the “predominant effect” of that conduct would take place in State Y.
 
In another hypothetical, the opinion examines a situation in which a lawyer practicing in State A has nonlawyer partners in the firm which is permitted under that state’s version of the Rules. If the lawyer accepts a role as pro hac vice counsel in State B that does not allow the lawyer to share fees with a nonlawyer, can the lawyer share fees from that representation with a nonlawyer partner? By undertaking pro hac vice representation, the lawyer submits to the ethical standards of the jurisdiction where the litigation takes place for “conduct in connection with a matter pending before a tribunal”. The committee concludes that the structure of the partnership is not “conduct in connection with” that matter and that the prohibition of State B on fee sharing with nonlawyers does not control the lawyer’s business structure in State A.
 
Other scenarios considered by the Committee concern reporting professional misconduct, confidentiality of reporting client threats, and screening requirements for multistate firms.
 
In conclusion, the Committee states, “When a lawyer’s conduct is in connection with a matter pending before a tribunal, the lawyer must comply with the ethics rules of the jurisdiction in which the tribunal sits, unless otherwise provided. For all other conduct, including conduct in anticipation of litigation not yet filed and conduct not involving litigation, a lawyer must comply with the ethics rules of the jurisdiction where the lawyer’s conduct occurs or, if different, where the predominant effect of the lawyer’s conduct occurs.” The Committee further notes that the lawyer’s reasonable belief as to the location of the conduct’s predominant effect provides something of a safe harbor. All of these situations are very fact-sensitive.
 

---

U.S. Supreme Court Chews on Dog Toy Case: Bad Spaniels Case Argued Before Court

Back in October 2020, we wrote of the dispute between whiskey distillery Jack Daniel’s and VIP Products over the latter’s summoning the former’s legendary brew in its line of liquor-themed dog chew toys by marketing its “Bad Spaniels” product in a knockoff of Jack Daniel’s’ famous “black and white” bottle.
 
We noted at the time that Jack Daniel’s was seeking a writ of certiorari to the Supreme Court of the United States after an adverse ruling in the Ninth Circuit Court of Appeals. After a few more years of litigation, the matter has finally reached the attention of the high court, and despite the chuckle factor of the fact situation, some fairly serious legal issues are at stake. The Supreme Court granted certiorari, and at least twenty-three amicus curiae briefs were filed.
 
The Supreme Court’s website states that the issues presented are:

• Whether humorous use of another's trademark as one's own on a commercial product is subject to the Lanham Act's traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims
• Whether humorous use of another's mark as one's own on a commercial product is "noncommercial" under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act

The case was argued before the Supreme Court on March 20, 2023. Despite the serious issues at stake, the argument presented moments of levity. Justice Elena Kagan pointed out that other toys in the product line included “Doggie Walker,” “Dos Perros,” “Smella Arpaw,” “Canine Cola,” and “Mountain Drool” at which Justice Clarence Thomas was unable to suppress his laughter. The dog toy’s label took off on Jack Daniel’s’ famous “Old No. 7” with the parody “Old No. 2” and other references to canine byproducts which led to some rather scatological moments in the argument. A Jack Daniel’s lawyer arguing on the likelihood of confusion recovered from a slight misstatement by commenting, “Well, just showing how confused I was suggests that I would be your perfect consumer.”
 
Despite the giggles in the argument, the justices noted serious concerns about the application of Lanham Act principles to creative parody expression. Justices Sonya Sotomayor, Joseph Alito, and Ketanji Brown Jackson all expressed concerns over the First Amendment implications of the suit.
 
Whatever decision the Court makes will doubtless be widely read, not only for the entertainment factor, but for the major implications it presents for the boundaries between protection of trademarks and the right to parody under the First Amendment.
 

The Supreme Court of Pennsylvania Honors Autism Acceptance Month and Announces Community Education Tour

In honor of Autism Acceptance Month, the Supreme Court of Pennsylvania announced plans for an upcoming community education tour led by Justice Kevin Dougherty who, in recent years, has fervently promoted several new court initiatives aimed at better serving Pennsylvanians on the autism spectrum. Justice Dougherty asserted, “Pennsylvania is the first and only state in the nation focused on creating meaningful change for those with an ASD coming through the court system. We have the opportunity to be the starting point for new conversations and increased levels of understanding – that’s not something to be taken lightly. We must do everything we can to be the positive change that children and families need.”
 
During the tour, Justice Dougherty will visit county courts effectuating “an autism-based focus in their courtrooms through innovative concepts including the use of environmental studies and sensory items”. Throughout the state, Justice Dougherty will meet with community autism providers to discuss court projects and to establish additional partnerships to support individuals with autism within the court system.
 
On its website and social media channels, the courts will share additional information about autism and the judicial system as well as resources and services available throughout the Commonwealth.
 

---

New Infographic Highlights Distracted Driving Citations in Pennsylvania

Earlier this month, the Unified Judicial System released a new infographic highlighting distracted driving citations across the Commonwealth. The graphic notes a ten percent decrease in citations from 2021, following a downward trend in recent years.

In Pennsylvania, a distracted driving citation can be issued for wearing headphones or texting while driving or using a handheld mobile phone while driving a commercial vehicle. A full breakdown of distracted driving offenses filed from January 2018 through the end of 2022 can be found on the UJS website.
 

Promoting Professional Excellence in the Law: Pennsylvania Bar News Explores Legal Issues of Facial Recognition Technology
 
The April 3^rd issue of Pennsylvania Bar News offers invaluable articles and resources promoting professional excellence in the law. The cover story, “Legal Concerns, Challenges Persist with Facial Recognition Technology,” includes an interview with Samuel D. Hodge Jr., professor of Legal Studies at Temple University. Professor Hodge introduces readers to a number of concerns surrounding FRT, including the lack of federal legislation regulating FRT and the inconsistencies with how individual states are addressing this issue. He considers the inability of the current FRT software to accurately identify non-white males and to adapt to hairstyle changes, different facial expressions, and aging, specifically noting, “The scary thing is that facial recognition technology struggles to recognize a person after just five years of aging.”
 
The use of FRT impacts almost everyone and continues to exponentially grow and evolve. According to Hodge, “By the year 2026, the FRT market for consumer applications is expected to be $11.6 billion.” Readers will quickly realize that the FRT implications extend beyond our courtrooms, the practice of law, and our need to remain current on legal trends; FRT impacts our everyday lives. Through drivers’ license photos, social media, and moving down local streets, “more people are being exposed to greater facial recognition techniques without even being aware of it or by giving them your permission,” Hodge explains. “In a big city, it’s estimated that you will have about 75 encounters with a camera every single day.”
 
Further exploring this topic, Professor Hodge will present a one-hour CLE program on May 4, 2023 from 9:30-10:30 am during the PBA Annual Meeting in Philadelphia. Registration is required. Learn more about Annual Meeting events and register on PBA’s website.
 
Pennsylvania Bar News is a benefit available to PBA members. Those who are not currently PBA members are invited to take advantage of PBA’s membership drive and save 25% off prevailing rates from now through the end of June 2023. Join to take full advantage of all the ways that PBA adds value to members’ practice and professional well-being.
 

---

Please note that the Disciplinary Board of the Supreme Court of Pennsylvania and the Pennsylvania Bar Association (PBA) are separate organizations. For more information about PBA, visit their website.