Pennsylvania Attorney Reprimanded for Failure to Refund Fee
A Luzerne County attorney agreed to a public reprimand after failing to return a fee paid in advance until the client prevailed in a claim to the Lawyers Fund for Client Security.
Mark M. Mack of Kingston, PA entered into a Joint Petition agreeing to imposition of a public reprimand. The stipulated facts established that a client retained his firm to represent his stepson in a criminal matter.
When the attorney who was handling the matter left the Mack firm, the client came to the firm’s office intending to seek other counsel. After speaking with another attorney, he decided to continue with the firm and paid a fee of $9,000 in advance.
Approximately three weeks later, the client appeared at the law office but was informed that his second attorney had left the firm. At that point, the client requested a copy of his file and a refund of the fee paid in advance. A staff member advised the client he could pick up the file and a refund check, but when the client arrived on August 16, 2023, he was given the file but no refund check.
The client made several telephone calls and sent a letter to Mack requesting a refund of his fee. Mack did not respond to any of these communications and did not refund the fee.
The client filed a complaint with the
Pennsylvania Lawyers Fund for Client Security. On March 18, 2024, the Fund informed Mack that the client’s claim had been approved in the amount of $9,000. On April 18, 2024, Mack reimbursed the client with a check for $9,000.
Mack acknowledged that his conduct violated
Rules of Professional Conduct 1.5(a) [charging a clearly excessive fee] and
1.16(d) [failing to refund an advance payment of fees that has not been earned]. He agreed to imposition of a public reprimand.
Colorado Panel Orders Disbarment of Prosecutor for Faking Text Messages, Destroying Evidence
A Colorado disciplinary judicial panel has
ordered the disbarment of a former prosecutor based on finding that she falsified text messages to frame a colleague for sexual harassment, then destroyed evidence to conceal her misconduct.
A panel of the Office of the Presiding Disciplinary Judge
found that Yujin Choi, who was a prosecutor with the Denver District Attorney’s Office, fabricated several text messages to create an impression that a colleague was harassing her. A forensic examination revealed that the messages were not sent from the colleague’s phone and, in fact, that he had blocked her number long before the episode occurred. In addition, the investigation revealed that the messages were sent from Choi’s own phone to herself. She provided the investigators with a spreadsheet purportedly showing a log of her text messages, but the examination of metadata revealed that she had altered the spreadsheet to insert the messages at issue. At one point, she told investigators that her cellphone had been destroyed by falling into a bathtub, and that she subsequently spilled a glass of water on her laptop computer, also destroying it—on the same evening. The District Attorney’s Office terminated her employment based on the results of its investigation.
The panel concluded that Choi had falsified the text messages that set off the whole incident, fraudulently altered the spreadsheet of her messages to support her story, and then intentionally destroyed her devices as investigators pressured her to make them available for examination. The committee concluded that this conduct violated Colo. RPC 8.4(c) which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. They also found a violation of Colo. RPC 8.4(h) which provides that it is professional misconduct for a lawyer to engage in any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects on a lawyer's fitness to practice law. They determined that this conduct directly, wrongfully, and intentionally harmed the colleague implicated in the messages and caused him reputational and emotional injury. Her refusal to admit wrongdoing, her persistence in the pattern of dishonesty, and the elevated harm caused by an attorney in a position of public trust were listed as aggravating factors. The panel noted that she “poisoned the morale of the DA’s Office, contributing to an environment in which victims feared they might be disbelieved and others feared they might be wrongly accused.”
Based on the American Bar Association Standards for Imposing Lawyer Sanctions and Colorado case law, the panel concluded that disbarment was the appropriate sanction and ordered her disbarred. The disbarment, which is subject to appeal, will take effect on issuance of an “Order and Notice of Disbarment.”
ABA Formal Opinion Addresses Duties of Organization Counsel to Individuals
The
American Bar Association Standing Committee on Ethics and Professional Responsibility has authored
Formal Opinion No. 514 to provide
guidance to lawyers representing organizations about conduct that may create legal risks for the organization’s constituents.
“Constituents” are individuals associated with the organization, such as executives, employees, officers, and board members. Model Rule 1.13(a) explains that the organization can only act through its duly authorized constituents, and all of counsel’s communications must pass through them. When the lawyer communicates information and advice to those constituents, the organization is the lawyer’s client, and the lawyer’s duties flow to the organization’s interest. However, the constituents communicating with the lawyer may not always understand that the advice is intended solely for the organization’s benefit and is not intended for the individual constituent’s own personal benefit or interests. The lawyer may have an obligation under the circumstances to prevent or rectify the constituents’ misunderstanding. The opinion addresses situations where the lawyer knows or reasonably should know that the constituents are likely to have their own legal interests at stake – for example, where the lawyer is advising the organization about possible future conduct for which the constituents may be subject to personal civil or criminal liability, and the lawyer does not intend to create a client-lawyer relationship with the constituent or assume fiduciary or contractual duties to the constituent.
An organization’s lawyer does not owe the organization’s constituents a duty of competence or other duties established by a client-lawyer relationship. The lawyer must assess whether the organization’s decision makers would want or expect to be told when proposed conduct has significant legal implications for constituents. The lawyer may need to include the legal risks to nonclient constituents among the subjects of discussion. It will be up to the decision makers to determine whether the organization wishes to engage the lawyer to analyze the legal risk to constituents. This determination is up to the decision makers and is governed by organization law rather than the Rules of Professional Conduct.
The opinion goes on to discuss the lawyer’s duties to constituents who are not clients.
Model Rule 4.1 compels the lawyer to be truthful in such communications.
Model Rule 1.13(f) provides, “In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.” The Committee notes that the Model Rules require an organization’s lawyer to take reasonable measures to avoid or dispel constituents’ misunderstandings about the lawyer's role.
In conclusion, the opinion states, “An organization’s lawyer would be well advised to instruct organization constituents about the lawyer’s role early and often during the relationship, not only at times when constituents might rely to their detriment on a misunderstanding of the lawyer's role. Educating organization constituents who may receive the lawyer’s advice in the future will lay the groundwork for later situations where lawyers may be advising the organization on matters with legal implications for the organization’s constituents.”
Note that this opinion is advisory only. It is not binding on the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court.
Law School Now Requires Students to Get Artificial Intelligence Certification
Case Western Reserve University School of Law
has become the first (although certainly not the last) to
require its students to achieve certification in Artificial Intelligence (AI). In a press release, Avidan Y. Cover, Professor of Law and Associate Dean for Academic Affairs at the School of Law, stated, “By integrating AI education into the foundational curriculum, we are not only addressing the demands of a rapidly evolving legal landscape but also empowering our students with the tools and knowledge they need to navigate and lead in a technology-driven profession.”
Beginning in February, first-year students will be required to take the “Introduction to AI and the Law” program, taught by lecturer Oliver Roberts, co-head of the AI Practice Group at Holtzman Vogel, and developed in partnership with Wickard.ai. The press release states that the program “will immerse students in the fundamentals of artificial intelligence and its impact on the legal world.” Topics covered will include:
- Understanding AI fundamentals;
- Practical applications in legal practice;
- Ethical and regulatory guidelines;
- Best practices for data and client management; and
- Driving innovation and addressing legal challenges.
The program is not just designed to promote the use of AI technology but will also educate students in problems and traps to be avoided in its use. Joe Patrice of
Above the Law comments, “A graduating lawyer in the latter half of the 2020s will need to know what the major legal AI products are, how they work, and how NOT to use them.”
Fed-Up Fed Judge: Do Lunch and Work This Out
Chief U.S. District Judge R. David Proctor of the Northern District of Alabama is known as a jurist with little patience for petty squabbling by lawyers. So when counsel for the plaintiff in a sexual harassment case tried to condition grant of a motion to extend on forbearance by the defendant from filing a motion to dismiss, Judge Proctor
was not pleased.
In response, he entered an
Order excoriating the professionalism of this action. He wrote, “There is generally no good reason that an extension such as this should be opposed, let alone denied. The Golden Rule—do unto others as you would have them do unto you—is not just a good rule of thumb for everyday life. It is a critical component of legal professionalism.” He added, “Such nonsense wastes time, damages professional relationships, and makes the lawyer withholding consent (or conditioning it) appear petty and uncooperative. Judges rightly expect lawyers to handle minor procedural issues like extensions without unnecessary conflict, and refusing to do so is unprincipled.”
In addition to granting the motion for extension, Judge Proctor ordered the parties to go to lunch together and to discuss how they can act more professionally in the conduct of the case. He required Plaintiff’s counsel to pay the check and Defendants’ counsel to leave the tip. Further, he directed them to file a joint report of the results of the lunch date.
The parties
complied with this direction. Their
report states that they dined at Saw’s BBQ in Hoover, Alabama and discussed “the practice of law, families, some big-ticket items for the 2024 holiday season, everyone’s small town bona fides, and the plan for communication going forward in this matter.” They concluded that “a healthy dialogue regarding professional norms ensued.” Plaintiff’s counsel paid the $74 bill, and Defendants’ counsel left a $74 tip.
At least on the surface, this seems to constitute a happy ending. Certainly, the server would agree.
Attorney or Lawyer: What’s in a Name?
Attorney or lawyer – is there a difference in the meaning of the words?
A recent article in the
ABA Journal raises the question of whether there is any substantial difference between the terms. The article notes that in common usage, both for the general public and within the legal community, the terms are often treated interchangeably or as synonymous. The article quotes several individuals speculating on what the difference between the terms might be, some of which are inconsistent.
The most interesting comment comes from Oliver Morrisey, the owner of Empower Wills and Estate Lawyers in Sydney (Australia, we presume). He notes that historical English common law identified distinct roles, such as “barrister,” “solicitor,” and “attorney” in which legal professionals might serve in different functions. Those who appear in court are generally referred to as barristers while solicitors primarily advise clients and handle business out of court. Attorneys were appointed to act as representatives in legal matters, particularly in courtrooms. He notes that, over time, especially in the United States, these roles merged, and the language used to describe them did as well.
Delving into dictionaries sheds light on the distinction.
Merriam-Webster defines
"attorney" as “one who is legally appointed to transact business on another’s behalf,
especially: LAWYER.” It defines
"lawyer" as “one whose profession is to conduct lawsuits for clients or to advise as to legal rights and obligations in other matters.”
Black’s Law Dictionary expands on this distinction: “In the most general sense this term denotes an agent or substitute, or one who is appointed or authorized to act in the place or stead of another.” It should be noted that this definition does not incorporate admission to the bar. Surely, legally-educated people are aware of the concept of an “attorney in fact,” who need not be a member of the bar. It goes on to define “attorney at law” as “an advocate, counsel, or official agent employed in preparation, managing, and trying cases in the courts. An officer in a court of justice, who in employed by a party in a cause to manage it for him.”
Black’s then defines “lawyer” as “a person learned in the law; an attorney, counsel, or solicitor; a person licensed to practice law.”
Parsing these definitions, it appears that “attorney” implies one who works in a representative role on behalf of another, particularly in the courts, while “lawyer” refers more generally to one’s background and qualification.
Whether one sees a distinction here or not, the terms are used fairly interchangeably in Pennsylvania professional conduct law. The Rules of Professional Conduct uses the term “lawyer” almost exclusively (ninety-nine percent of references, other than those to “attorney-client” relationship or privilege). The Pennsylvania Rules of Disciplinary Enforcement (eighty-nine percent of references) and Rules of the Disciplinary Board (ninety-two percent) opt for “attorney.” So, whether one is engaged in representing clients or not, do take seriously communications from the “Attorney Registration Office.”
