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If you would like to be considered to serve on a board, committee, advisory group, or related independent entity, email the application, cover letter, resume, and other pertinent information expressing your reasons of interest to SCApplications@pacourts.us.

More information may be found on the Unified Judicial System of Pennsylvania website.
 

Third-Party Payment of Legal Fees

Is it ethically permissible for an attorney to accept payment from a third-party to represent a client? Are there guidelines for how an attorney must handle this situation? The answer to both questions is “yes”. 
 
This situation is not uncommon. Parents pay attorneys to represent their children, even into adulthood. Insurance companies pay for their insureds’ representation in claims arising under the policy. Employers, including government entities, find and pay lawyers to represent their employees in work-related suits. I am represented by counsel paid by the Disciplinary Board in the Greenberg v. Lehocky, et al, the federal civil rights action over RPC 8.4(g), where I am a party-defendant in my official capacity. Friends sometimes altruistically volunteer to assist with fees, but so too do mob bosses when their underlings are under a criminal investigation which may target the boss.
 
The Rules of Professional Conduct recognize that the arrangement holds some risk and impose prerequisites. Rule 1.8(f) states:
 
A lawyer shall not accept compensation for representing a client from one other than the client unless:
 1. the client gives informed consent;
 2. there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and,
 3. information relating to representation of a client is protected as required by Rule 1.6.
 
This is a conflict rule. Even where the attorney does not represent multiple persons in the same matter—a practice with its own dangers, e.g., ODC v. Baldwin, 225 A.3d 817, 842 (Pa. 2020); see also In re Grand Jury Investigation, 983 A.2d 1097, 1106 (NJ 2009)(“There cannot be any current attorney-client relationship between the lawyer and the third-party payer.”) — the attorney’s personal interest in being paid may influence the advice he gives to the client in a way that favors the payer. See RPC 1.7(a)(2); Peter A. Joy & Kevin C. McMunigal, “Paying Witnesses’ Attorneys,” Criminal Justice (Fall 2022).
 
Because of this potential for conflict, RPC 1.8(f) emphasizes considerations that ought to govern any representation. There must be no interference with exercise of an attorney’s judgment on behalf of the client nor his obligations to the client. The Rule’s comments cross-reference Rule 5.4(c) which again identifies the third-party payer context as one is which the lawyer must be vigilant to exercise uncompromised judgment on the client’s behalf, and only the client’s behalf. RPC 1.8(f) also reminds the attorney to safeguard confidential information because the payer often may want to know what the client is saying and planning to do such as whether the client plans to implicate the payer in wrongdoing. These exhortations recognize that a payer often has self-interested motives. See Comment [11].
 
Finally, the Rule requires the client’s informed consent to the arrangement. It doesn’t specify the risks of which the client must be advised, but implicit in this requirement is that the client must be told that there are risks. At minimum, the lawyer must identify the third-party payer. See RPC 1.8, Comment [12].
 
The New Jersey Supreme Court has proscribed specific guidelines for third-party payment arrangements:

• The client must give informed consent after being advised of the risks and alternatives.
• The payer cannot try to influence the attorney’s judgment.
• The lawyer cannot concurrently represent the payer.
• The lawyer may not communicate with the payer concerning the substance of the representation.
• The payer must pay promptly in the ordinary course of business.
• The payer cannot discontinue payment without court approval. The client’s election to pursue a course disadvantageous to the payer never is reason to shirk the payment obligation.

 

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

Reinstatement Denied for Ill-Prepared Lawyer
 
A suspended Allegheny County lawyer learned that reinstatement from suspension is not a privilege to be taken lightly when the Supreme Court denied his application for reinstatement after an adverse report by the Disciplinary Board.
 
William James Helzlsouer was suspended for one year and one day by the Supreme Court on January 23, 2020, based on three separate matters involving neglect, mishandling of his IOLTA account by allowing his adult son unauthorized access to the account, failing to hold entrusted funds properly, failing to promptly refund unearned fees, and engaging in the unauthorized practice of law while suspended. On August 6, 2021, he filed a petition for reinstatement. But after a hearing, a three-member Hearing Committee recommended denial of his application. The Disciplinary Board concurred with that recommendation, and the Supreme Court accepted its recommendation and denied reinstatement.
 
Helzlsouer’s problems began early in the proceeding. The Hearing Committee directed that both sides provide a list of witnesses and exhibits which he failed to timely provide. Fewer than twenty-four hours before the hearing, he attempted to send a list to the Hearing Committee members but failed to file it properly. He requested a continuance at the beginning of the hearing, but it was denied. He was not permitted to offer his witnesses and exhibits due to his failure to comply with the order. He filed his brief late although it was accepted by the Hearing Committee. Two months later, he filed a Motion to Open the Record and attempted to file a Supplemental Brief to the Committee which were both rejected.
 
The Hearing Committee found that Helzlsouer’s answers to several questions on his reinstatement questionnaire were incomplete, false, or substantially inaccurate. The Committee found fault with his failure to address two disciplinary complaints filed against him during his suspension, his suspension from the bar of the United States District Court, and questions regarding his continuing legal education hours and outstanding judgments. The Committee noted that he had three prior incidents of discipline, including two three-month suspensions. They also cited two incidents where he engaged in law-related activities while suspended. They concluded that he presented no evidence of efforts to ameliorate the circumstances of the conduct leading to the complaints against him and that he showed no remorse or acceptance of responsibility for his wrongdoing. Finally, the committee cited his lack of preparation, deference to the process, and compliance with the pretrial and briefing schedules as evidence of a lack of competence to practice.
 
Upon review of the Hearing Committee’s report, the Disciplinary Board stated, “Upon the totality of the evidence before us, we conclude that Petitioner has failed to meet his burden of proving his moral qualifications, competency and learning in the law by any standard, much less clear and convincing, nor has he shown clearly and convincingly that his reinstatement would not be detrimental to the integrity and standing of the bar and the administration of justice, nor subversive of the public interest.” The Disciplinary Board recommended that reinstatement be denied, and in an Order dated December 7, 2022, the Supreme Court did so.
 

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Lawyer Unable to Navigate Filing Website Gets No Sympathy
 
Utah lawyer Steven Call found out the hard way that a last-hour login to an electronic case filing system is a risky proposition. He did not find the Tenth Circuit Court of Appeals in a forgiving mood.
 
Call was representing a bank in disputing the bankruptcy discharge of a rancher who defaulted on a loan and sold cattle listed as collateral, according to the bank. The bank was given a deadline sixty days after the first meeting of creditors to file a complaint objecting to discharge.
 
After deposing the debtor until 3:00 p.m. on the same day, Call raced to complete and file a complaint by the midnight deadline. He logged on to the bankruptcy court’s ECF system at 11:40 p.m. He attempted to file the complaint but ran into two problems. First, he was unable to enter the amount of the demand in the appropriate field after attempting to insert a dollar sign into a field that allowed only integers. Once he got past that, he prepared to file the complaint but believed he had to complete the payment process first. Unable to locate a payment window, he left the ECF system at 11:58 p.m. to email the complaint and documents to opposing counsel. He returned to the system and succeeded in filing the complaint at 12:16 a.m. His assistant completed the payment process the following morning.
 
Predictably, the Bankruptcy Judge dismissed the bank’s complaint as untimely. The District Court agreed, and the bank appealed to the Court of Appeals. In an Order entered December 14, 2022 the Tenth Circuit affirmed the dismissal.
 
The Court found that the bank was not entitled to relief because the factors that led to the later filing were counsel’s own fault and were not failures of the system. As to the entry of the amount of the demand, the Court found that the field would have functioned properly even if left blank, and the malfunction probably occurred because Call entered a dollar sign and failed to delete it, contrary to the training he had been through in order to be enrolled in the ECF system. The Court found that this problem only consumed about five minutes of the time Call was logged onto the system and that he still had nearly fifteen minutes to complete the process when it moved on. As to the payment problem, the Court found that Call failed to realize that, under the procedures of the ECF system, he could not complete the payment process before filing the complaint. He repeatedly used the back button on his browser which was not a feature employed by the ECF system. When he abandoned the process at 11:58 to email the documents to opposing counsel, he lost the opportunity to timely file the complaint. The Court noted that he was able to file the complaint promptly once he returned to the system.
 
The bank argued that it was entitled to an extension of time to file due to the inaccessibility of the clerk’s office as authorized under Fed. R. Bankr. P. 9006(a)(3). The Court found that the rule did not apply as the evidence supported the Bankruptcy Court’s conclusion that the fact that the ECF system was functioning properly meant the clerk’s office was not inaccessible. The Court also rejected a claim that the bank was entitled to equitable relief as no failure of the ECF contributed to the untimely filing of the complaint.
 

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Lawyers Give Advice on Avoiding Deepfake Challenges to Evidence
 
We have written before on deepfake technology – the use of high-tech resources such as artificial intelligence to create realistic but false video evidence. We have discussed the threat that deepfake technology poses to the reliability of evidence and how to spot deepfakes.
 
Two lawyers from the District of Columbia firm Wilmer Hale have addressed the opposite question: how does a trial attorney avoid having evidence challenged or questioned with unsubstantiated accusations of the use of deepfake technology? Brent Gurney and Matthew Ferraro address the issue in an article on the firm’s website entitled “The Other Side Says Your Evidence Is A Deepfake. Now What?”.
 
Gurney and Ferraro begin by examining a number of cases in which video evidence was challenged on technological grounds, including a case arising from the January 6, 2021 US Capitol attack where an FBI expert was questioned and unprepared to address whether video evidence from the event might have been altered.
 
They cite Federal Rules of Evidence regarding the authentication of electronic evidence including videos. They note that Rule 902(13) allows for the authentication of a "record generated by an electronic process or system that produces an accurate result" if "shown by a certification of a qualified person" in a manner set forth by the rules, and Rule 902(14) allows for the authentication of "[d]ata copied from an electronic device . . . by a process of digital identification, as shown by a certification of a qualified person." They point out that Rule 903(11) requires a proponent to give an adverse party reasonable written notice of the intent to offer the record and must make the record and certification available for inspection prior to trial so that the party has a fair opportunity to challenge them.
 
They discuss ethical aspects of challenges to such evidence and note that the ABA's Criminal Justice Standards for the Defense Function prohibit defense counsel from making objections to evidence without a reasonable basis. They also observe the “reverse CSI effect” in which jurors expect dramatic high-tech evidence even in routine cases based on their experiences seeing TV courtroom dramas featuring such effects.
 
They offer advice for lawyers to prevent and meet challenges to video evidence:

• Follow the Federal Rules of Evidence;
• Do not take the admissibility of any evidence for granted;
• Provide circumstantial evidence to help establish the authenticity of imagery and video;
• Prepare forensic witnesses to address questions around authenticity and deepfakes; and
• Be knowledgeable about the technology you are using.

For parties considering evidence proffered by the opposition, they suggest:

• Reviewing disclosed evidence in advance of the trial;
• If media is questionable, considering retaining an expert to evaluate and explain issues of authenticity; and
• Only questioning evidence when there is a good faith basis for doing so.

 

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Lawyer Barred from Rockettes Show Based on Facial Recognition Software
 
Last month, we took note of the ongoing conflict between Madison Square Garden Entertainment Corporation and several law firms who have sued the company or any of its subsidiaries. MSG sought to ban any lawyers associated with the firms from attendance at any of its facilities but was told by a judge it had to admit any of the lawyers who appeared at the venue with a valid third-party ticket.
 
The vendetta reached a new level of intensity in December when one of the company’s venues used facial recognition technology to identify and turn away an associate at one of the law firms as she entered the building to accompany her daughter on a Girl Scouts field trip.
 
Kelly Conlon, an associate at Davis, Saperstein & Salomon in New Jersey, reported that she entered Radio City Music Hall with her daughter and the Girl Scout troop for a performance by the Rockettes. She heard a security warning about a woman with long dark hair and a grey scarf over the loudspeakers, and security guards confronted her at the metal detectors. The guards told her that “our recognition picked you up” and identified her as a banned party. Her firm represented parties suing a restaurant under the MSGEC umbrella, but she does not practice in New York and was not involved in the litigation. She said that her daughter continued into the arena to see the show with her troop while she waited outside, an experience she described as “embarrassing” and “mortifying".
 
MSGEC issued a statement defending its action, stating that the banned firms had been notified twice of the company’s policy. MSG venues have been using facial recognition technology since at least 2018 for security purposes, but Conlon insisted she posed no security threat. "I was just a mom taking my daughter to see a Christmas show," she asserted.
 

Supreme Court of Pennsylvania Releases New Official Photograph
 
The Supreme Court of Pennsylvania has released a new official photograph of its six Justices. Following the passing of Chief Justice Max Baer in October of this past year, the Honorable Debra Todd ascended to the position, becoming Pennsylvania’s first female Chief Justice. Chief Justice Todd is joined in the portrait by Justices Christine Donohue (a former Disciplinary Board Member) and Kevin M. Dougherty in the bottom row and Justices P. Kevin Brobson, David N. Wecht, and Sallie Updyke Mundy in the top row.