From Inactive Mark Eric Mullaney

From Administrative Suspension Judy Arline Smith Augusta Wilson

We encourage you to observe our public disciplinary and reinstatement hearings, oral arguments, and public reprimands on the Board’s YouTube channel. View “Upcoming Public Proceedings” at the bottom of the Board’s home page, www.padisciplinaryboard.org.

July
July 15 - George W. Bills, Jr. - Public Reprimand
July 15 - Paul Christopher Dougherty - Public Reprimand
July 15 - Michael B. Howard - Public Reprimand
July 15 - Shawn Kendricks Page, Sr. - Public Reprimand
July 15 at 10:15 am - Robert J. Colaizzi - Oral Argument

August
August 2 - Michael John Pisanchyn, Jr. - Dispositional Hearing
August 3 - Michael John Pisanchyn, Jr. - Dispositional Hearing
August 10 - Peter Richard Henninger, Jr. - Disciplinary Hearing
August 11 - Peter Richard Henninger, Jr. - Disciplinary Hearing

September
September 9 - Anthony M. Crane - Reinstatement Hearing
September 29 - Erik Benjamin Cherdak - Disciplinary Hearing
September 30 - Erik Benjamin Cherdak - Disciplinary Hearing

October
October 5 - John Anthony Costalas - Reinstatement Hearing
October 6 - Joshua M. Briskin - Disciplinary Hearing
October 13 - Joseph A. Gembala, III - Reinstatement Hearing

November
November 4 - Herbert Karl Sudfeld, Jr. - Reinstatement Hearing


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

• Committee on Rules of Evidence - There are four positions available. Applicants should be knowledgeable about the Pennsylvania Rules of Evidence and possess trial court experience.
• Minor Court Rules Committee - There is one position available. Applicants should be knowledgeable about the Pennsylvania Rules of Conduct, Office Standards and Civil Procedure for magisterial district judges and courts, and experienced in magisterial district court practice.

 

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Disciplinary Board Releases New Pro Bono Webpage, Encouraging Service to PA Communities
 
On June 30, the Disciplinary Board released a new webpage for attorneys, highlighting pro bono resources and opportunities through the Board, the PA IOLTA and CLE Boards, and other legal organizations throughout the commonwealth.
 
One such opportunity is the Disciplinary Board’s emeritus status program offered to retired Pennsylvania attorneys. Emeritus designation allows registered attorneys on retired status to use their experience and expertise to help provide more equitable access to legal assistance.
 
The PA IOLTA Board provides critical grant funding to legal aid organizations delivering free civil legal aid to low-income Pennsylvanians facing a legal crisis where a basic human need is at stake. Training and support not typically provided in their regular practice is extended to volunteer attorneys.
 
In 2019, the PA CLE Board began a three-year pilot program allowing attorneys to receive CLE credit for pro bono service completed through Accredited Pro Bono CLE Providers. The Supreme Court of Pennsylvania approved this project in an effort to blend legal education initiatives with much-needed access to legal assistance.
 
Other resources featured on the webpage connect users to opportunities through the Pennsylvania Legal Aid Network (PLAN), PAProbono.net, the PA Bar Association, and the American Bar Association.
 
The “Pro Bono” webpage presents helpful links, documents, and news items to interested attorneys. Users can also find the Chief Justice’s letter calling on the legal community to provide pro bono service and greater access to justice for all Pennsylvanians. Interested in learning more about pro bono opportunities? Visit the new “Pro Bono” webpage at padisciplinaryboard.org/for-attorneys/pro-bono.
 

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Case Research Collection: A Quick Tour
By Edwin Frownfelter, Disciplinary Board Newsletter Editor
 
As the Disciplinary Board prepared to unveil to the bar and the public its new Case Research Collection, I was given access to the system and asked to prepare an article of my impressions. I have long been interested in the availability of past cases for research, so I appreciated the opportunity to take a test drive. I was not involved in the design of the system, so this is a user’s perspective.
 
The General Search allows three options for searching. If you are looking for a particular case, the first section allows you to search by first, middle, and/or last name, or by county.
 
Choosing a recent case, I typed “Porsch” into the Last Name field, and the search function popped up two cases for Matthew Porsch, including the 2020 case I was looking for at No. 248 DB 2018. Clicking the “View Case” button goes to the discipline summary, from which you can download the Board Report or the Order/Opinion in PDF. So far, so good.
 
What if I remembered the respondent’s first name but not the last? I searched for “Matthew” in the First Name field and obtained ten results, including the two I retrieved by the last name search.
 
Searching by county is also an option. Many years ago I practiced in Franklin and Fulton Counties, so I looked them up. The engine gave me three cases in Franklin and none in Fulton. That’s not to say there has never been a Fulton County disciplinary case. The system only goes back through 2016, when the Board started indexing cases for the system. The system contains over 700 cases.
 
The second part of the search form allows you to search by rules. First you specify whether you want to search the Rules of Professional Conduct, Rules of Disciplinary Enforcement, or Disciplinary Board Rules and Procedures. Then you identify the rule number and, if you want to be specific, the section. I searched for cases citing D.Bd. Rule 85.10, the stale matters rule, but 85.10 wasn’t included in the dropdown menu under “Select a Rule,” so apparently there are no cases citing that rule in the system. Rule 85.13 (failure to verify response) was in the menu, so I tried that, and retrieved two results, both Informal Admonitions.
 
When you view a result in a case where private discipline was imposed – informal admonition or private reprimand – you are directed to a summary screen that lists the data for the discipline and includes a summary of the facts and violations found, but not the name or identifying information of the attorney. The discipline documents themselves are not available.
 
The final section of the search screen is for keyword searches. This search is limited to keywords that have been coded into the case by Board staff. It doesn’t do Boolean or word searches on the underlying documents, so you will need to choose from the search terms in the dropdown menu. A list of searchable keywords can be found in the collection’s user manual. A video tutorial is also available online for further guidance.
 
My overall impression is that the Case Research Collection will be a useful research tool for attorneys practicing before the Disciplinary Board. The reach is limited to fairly recent cases, although it will grow with time. Some topics may not be addressed by cases currently in the system. But any lawyer practicing in the field of disciplinary law would be well advised to access the collection and do some practice searching, as someday it may lead you to just the case you need.
 
The Case Research Collection is currently live at https://www.padisciplinaryboard.org/cases/case-research-collection 
 

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12 Attorneys Take on Hearing Committee Responsibilities; 44 Attorneys Reappointed

Hearing Committee members perform essential roles in Pennsylvania’s disciplinary system, chief among them to review Disciplinary Counsel’s recommended dispositions and to conduct hearings into formal charges of attorney misconduct and petitions for reinstatement. These efforts, which include reviewing pleadings and briefs, weighing evidence, and writing reports, are critical to guiding the Board and the Supreme Court in their determinations.
 
The newly-appointed members below have committed to this substantial service to the legal profession by accepting appointments as Hearing Committee members, effective July 1. Also listed below are current Hearing Committee members who have agreed to extend their tenure by accepting reappointment to an additional three-year term, effective July 1.

Pennsylvania Supreme Court Overturns Cosby Conviction

By an Opinion dated June 30, 2021, the Supreme Court of Pennsylvania overturned the conviction of actor and comedian Bill Cosby on charges of indecent assault based on a 2004 incident in his home in Cheltenham, Montgomery County involving former Temple University Director of Basketball Operations Andrea Constand.

The Court reviewed the extensive record of the proceedings and determined that a 2005 decision of former Montgomery County District Attorney Bruce Castor not to prosecute Cosby was binding on his successor in office. Castor stated that he issued a public statement declaring that Cosby would not be prosecuted in order to remove the privilege against self-incrimination, so that Cosby would be compelled to testify in civil proceedings brought by Constand. Cosby gave depositions in the civil case.

Castor’s successor in office Risa Vetri Ferman determined she was not bound by Castor’s decisions, and filed a new criminal case in which Cosby’s civil depositions were admitted into evidence. Cosby was convicted in a second trial after a mistrial, and sentenced to three to ten years in prison. He had served more than two years at the time of the Court’s decision.

The Supreme Court decided the case on the issue of whether Castor’s public decision not to prosecute was binding on his successor. The opinion, written by Justice David Wecht, found that it was: After an examination of caselaw on the effect of non-prosecution agreements, the Court concluded that: The Court noted that Castor’s intent to foreclose Cosby’s assertion of the privilege against self-incrimination, along with Cosby’s reliance on that result by giving depositions without asserting the privilege, were key facts triggering the due process concerns on which the decision was based.

The Court concluded that the only sufficient remedy was to hold Castor’s successor to his decision by vacating Cosby’s conviction and barring further prosecution. Justices Todd, Donohue and Mundy joined the opinion. Justice Dougherty filed a concurring and dissenting opinion, joined by Chief Justice Baer, in which he criticized Castor’s decision to foreclose prosecution and advocated a remedy of suppressing the depositions in the criminal case, rather than forcing specific performance of the non-prosecution decision. Justice Saylor dissented, arguing that the Court should give more deference to the trial court’s findings as to the nature of the non-prosecution decision.
 

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New York Court Suspends Giuliani’s License

The Appellate Division of the Supreme Court of New York entered a disciplinary decision of major consequence. In a per curiam Order issued June 24, 2021, the Court granted a motion by the New York Attorney Grievance Commission to temporarily suspend the license of Rudolph W. Giuliani, former U.S. Attorney, New York City Mayor and presidential candidate, based on numerous statements he made in litigation and public campaigns regarding the outcome of the 2020 presidential election.

The Court noted that “Only uncontroverted claims of professional misconduct may serve as a basis for interim suspension on this motion.” Over the 33 pages of the order, the Court listed numerous statements made by Giuliani both in court proceedings and in public settings such as press conferences, TV programs, and podcasts, in which he made various claims of election fraud which were contradicted by documents and affidavits offered by the AGC. Giuliani did not directly contradict the allegations, but argued that any inaccuracy in his statements was not knowing falsehood, because he relied on various sources including media reports, incorrect research reported to him by interns, and a blog. He did not offer affidavits confirming the sources on which he relied, but cited them in his own affidavit.

The Court rejected Giuliani’s argument that his statements were protected by the First Amendment. Opining that Giuliani’s claims undermined confidence of the public in the integrity of the election, the Court stated that attorneys involved in litigation of issues of public interest are subject to a higher level of scrutiny than other people, even in statements made outside court proceedings. “They are perceived by the public to be in a position of knowledge, and therefore, a crucial source of information and opinion,” wrote the Court, quoting Gentile v State Bar of Nevada, 501 US 1030, 1051 (1991).

The suspension of Giuliani’s license is a temporary interim suspension while disciplinary proceedings are pending. He will have the opportunity to present his case in future disciplinary hearings and arguments leading to a final resolution of the case.
 

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Bankruptcy Court: Disbarred Lawyer Can’t Discharge $1.3 Million Owed to Client Security Fund

Disbarred California attorney Anthony Kassas owed a pile of money. Kassas was disbarred based on a scheme in which he obtained millions of dollars through mail solicitations falsely stating that he was engaged in litigation against various banks. His disbarment order required Kassas to pay restitution to 56 former clients, in the total amount of $201,706 plus interest, as well as $61,112.27 in costs. The California State Bar’s Client Security Fund paid out a total of $1,367,978.12 to 305 former clients of Kassas. With interest added in, Kassas owed the Client Security Fund $2,090,096.32.

Kassas filed for bankruptcy seeking to discharge all of these debts. The State Bar conceded that the restitution payments were dischargeable, and Kassas acknowledged that the assessment for costs was not. The parties litigated the question of whether the $2 million he owed to the Client Security Fund could be discharged. The State Bar argued that the debt’s primary purpose is to punish Kassas by forcing him to confront the magnitude of the harm caused by his actions. Kassas contended that because his reimbursement obligation is calculated by the amount paid to his victims, the State Bar is acting as a conduit to reimburse third parties for actual pecuniary loss, which would be dischargeable.

U.S. Bankruptcy Judge Ernest M. Robles of Los Angeles ruled against Kassas in a June 14 opinion. Noting decisions of the California Supreme Court that the primary purpose of restitution payable to the Client Security Fund is rehabilitative, not compensatory, he found that the duty to reimburse the Client Security Fund was a penalty imposed in furtherance of the State’s interest in punishing and rehabilitating errant attorneys, rather than compensation for actual pecuniary loss. The Court then granted the State judgment finding that the amounts Kassas owed to the Client Security Fund and for costs of the disciplinary case were non-dischargeable.

Kassas filed a direct appeal of the decision to the 9th U.S. Circuit Court of Appeals at San Francisco.
 

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Texas Supreme Court: Lawyer Statements in Press Release Aren't Protected by Judicial Proceedings Privilege

The Supreme Court of Texas declared in a May 21 ruling that the absolute privilege for statements made by lawyers in judicial proceedings does not extend to press releases and public statements made in connection with a case.

The Court revived a defamation lawsuit by a Texas restaurant owner against an attorney for an animal rights organization protesting the treatment of four white Bengal tigers housed at the restaurant.

“Although attorneys often make publicity statements for their clients, wrapping these statements in an absolute privilege would unreasonably shield attorneys from liability for defamatory statements that would be actionable if uttered by anyone other than an attorney,” the Court said. “Attorneys who make such statements outside a judicial proceeding have many potential defenses to defamation liability, but the judicial-proceedings privilege and attorney immunity are not among them.”
 

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Florida Supreme Court Denies CLE Credit for ABA Programs due to Diversity Policy

The Supreme Court of Florida issued an order banning continuing legal education credit for programs which use any quotas based on race, ethnicity, gender, religion, national origin, disability, or sexual orientation in the selection of course faculty or participants.

The order puts Florida into conflict with the American Bar Association’s Diversity & Inclusion CLE Policy, which sets forth an expectation that all its sponsored or co-sponsored CLE programs will include members of diverse groups based on race, ethnicity, gender, sexual orientation, gender identity, and disability.

The Florida Bar’s CLE approval department determined that under the order, ABA programs not approved prior to April 15, 2021 will be allowed for CLE credit. As of that date, the ABA had 361 programs approved in Florida.
 

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Zoom Follies of the Month: Lawyer Fined for Middle Finger in Zoom Session Says It Was Directed at his Computer

The Michigan Court of Appeals has fined a lawyer and referred him for possible further discipline after determining he raised his middle finger to an opposing lawyer during recent oral arguments.

Attorney James Heos, of East Lansing, Michigan, acknowledged that he made the gesture, but claimed he did so out of frustration at his blank screen, believing he was not visible to the court and counsel. He walked back an earlier claim that he was “pointing at the screen.” He described himself as “technically challenged.” He added, “I had a pitching wedge in the corner. I wanted to pick up that pitching wedge and just break that computer."

The court, after reviewing the recording, didn’t buy Heos’s explanation, and fined him $3,000, saying "Mr. Heos exhibited shameful disrespect to the court and to opposing counsel in his offensive gesture and his dishonest replies to the court’s inquiries.” Heos promptly paid the fine.

Lawyers Concerned for Lawyers (LCL) is a confidential and safe resource for Pennsylvania attorneys and their family members who may be struggling with their mental health or substance use. An astounding one in three legal professionals will face these issues at some point in their career. Since 1988, LCL has confidentially assisted and supported thousands of individuals who have faced a myriad of challenges (including grief, stress, anxiety, depression, eating disorders, gambling problems, problematic alcohol or prescription drug use, etc.), helping them navigate through dark and difficult times. Members of our profession are dying because they are afraid or unable to ask for help. If you or someone you know is struggling, please call us. You may save a life. There is help and there is hope.
 

Around the Court
 

Juvenile Justice Task Force Task Force Report Highlights Challenges

In December 2019, Governor Tom Wolf, Supreme Court Chief Justice Thomas G. Saylor, and General Assembly leaders from both houses and parties jointly established the Pennsylvania Juvenile Justice Task Force, charged with conducting a comprehensive, data-driven assessment of Pennsylvania’s juvenile justice system, reviewing laws and polices, research about what works to improve outcomes, and input from hundreds of citizens through roundtables, public testimony, and questionnaires provided to nearly 800 judges, probation officers, and district attorneys. 

The Task Force delivered its Final Report and Recommendations in June 2021. It also published an Executive Summary highlighting its findings and recommendations.

Task Force Key Findings:

• Research shows most youth are not on a path toward adult crime and over-involvement in the system can increase their likelihood of reoffending. Yet most youth in the juvenile justice system have little or no prior history of delinquency, have not committed a felony or a person offense, and do not score as high risk to reoffend.
• Despite its success, diversion is underutilized.
• Young people with low-level cases end up on probation and in residential placement.
• Young people spend years out-of-home and under court supervision, on average.
• Out-of-home placement consumes the vast majority of taxpayer spending - even though services for youth living at home are generally more effective.
• Outcomes for youth show large disparities by race and geography - even for similar behavior.

Task Force Policy Recommendations:

• Strengthen due process and procedural safeguards.
• Employ evidence-based practices at every stage of the juvenile justice process.
• Raise the minimum age for when a youth can be tried in juvenile court.
• Narrow the criteria for trying young people as adults in criminal court.
• Consistently divert young people with low-level cases to community-based interventions in lieu of formal delinquency proceedings.
• Focus the use of pre-adjudication detention.
• Focus the use of residential placement on young people who pose a threat to community safety, and keep youth out-of-home no longer than the timeframe supported by research.
• Reinvest averted costs in non-residential evidence-based practices and increased access to services.
• Prioritize restitution payments to victims and prevent unnecessary system involvement by eliminating the imposition of fines and most court fees and costs.
• Ensure that young people who have completed their obligations to the court are not held back from successful transition into adulthood by records of juvenile justice system involvement.
• Improve oversight to ensure that every young person placed in the custody of the Commonwealth is safe, treated fairly, and receiving a quality education.
• Increase system accountability and address inequities through enhanced data reporting to the public and wider representation on oversight bodies.