The online 2023-2024 Annual Attorney Registration is open in the Unified Judicial System Web Portal. Attorneys must register by July 1, 2023. Exemptions from the requirement of online filing are available for good cause but must be requested in writing.
 
Registration fees are $275 for active status and $100 for inactive status; there is no fee for attorneys assuming retired status. Attorneys may choose to pay online with a credit card or to mail a check and printed voucher. Vouchers cannot be created after the initial July 1^st deadline.
 
The first $200 late fee is assessed after July 16^th, and the second $200 late fee is assessed after August 1^st. These late payment penalties are imposed automatically and are not waivable by the staff or Board. An additional fee of $25 will be assessed in the event of any returned payment. Failure to complete registration by August 1^st may be deemed a request for transfer to administrative suspension under Pa. R.D.E. 219(f).
 
In cases of extreme financial hardship, a waiver of the annual fee may be granted. Eligible attorneys must be registering for active status and have an adjusted gross income less than or equal to the federal poverty guidelines for the applicable household size.
 

 

Disciplinary Board Releases New Lawyer Well-Being Webpage
 
On May 26^th, the Disciplinary Board released a new webpage “connect[ing] Pennsylvania attorneys with available resources to better understand and support their mental health and well-being, particularly as they relate to the legal profession.” The new “Lawyer Well-Being” page highlights mental health organizations, articles, and upcoming events for the legal community.
 
The Board worked with Lawyers Concerned for Lawyers (LCL) to assemble relevant content supporting a wide breadth of individuals and needs. Helpful links to resources address those facing anxiety, depression, eating disorders, PTSD, and drug and alcohol misuse. Resources centering the unique experiences of BIPOC and LGBTQ communities also feature on the page.
 
The webpage offers a frequently-updated list of both virtual and in-person well-being events available to the legal community. Such events will include guided meditations, CLE opportunities, and local and national conferences.
 
Spotlighting matters like vicarious trauma, sleep hygiene, and mindfulness, Board-published articles provide practical approaches to well-being issues pertinent to law practice. Throughout May 2022, the Board partnered with LCL to publish an article series on mental health and well-being in the legal profession. With the expertise of Jennifer C. Zampogna, M.D., former Director of Operations at LCL, the series presents several topics on wellness as it relates to both attorneys’ personal and professional lives and misconduct prevention.
 
To access the Board’s new “Lawyer Well-Being” page, visit padisciplinaryboard.org/for-attorneys/well-being.
 

 

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Board Publishes Late/Collection Fees
 
In a posting at 53 Pa.B. 2588, the Disciplinary Board has published the schedule of late and collection fees for attorney registration for 2023-2024.
 
Failure to complete registration by July 16^th will automatically result in imposition of a late payment penalty of $200. If registration is not completed as of August 1^st, a second late payment penalty of $200 will be automatically added to the delinquent account for a total late charge of $400 over and beyond the registration fee. These penalties are non-waivable and cannot be excused by the staff for cause.
 
If any payment of the annual registration fee is returned to the Board unpaid, a collection fee of $25 will automatically be added.
 
Complete registration now to avoid late fees or administrative suspension.
 

One violation we see frequently is the lack of a written fee agreement. In a recent investigation, the respondent’s attorney insisted that, among criminal defense attorneys, the prevailing practice was to forego a written agreement. The issue was the respondent’s failure to complete the case for which he was retained, but he and his lawyer took the position that since the lawyer had represented the client on a previous occasion and the client understood that the fee was a flat, nonrefundable fee, there was no violation and no reason to return money.
 
We hear this all the time, and it is wrong, both on the need for a written agreement and the refundability of the fee. RPC 1.5 requires a written fee agreement for every paying engagement unless the lawyer “regularly represented” the client. “Regularly” does not mean that once upon a time you did a divorce or handled a drug prosecution for this client. It means an ongoing engagement to handle similar tasks under an identical billing arrangement, such as business closings or collection matters or its severance agreements.
 
An exchange of text messages doesn’t suffice. They are writings, but at 160 characters per text, the exchange is unlikely to explain adequately that the fee is nonrefundable. There are two other problems with texts: Rule 1.15(c) requires that fee agreements be preserved for five years and in a format can be printed and produced to ODC and the Lawyers Fund for Client Security, see RPC 1.15(c)(3). Few people keep a cell phone for five years, carriers don’t save texts, and many phones are set to delete texts automatically after a time. Secondly, cell phone texts often are not confidential. Other people often have access to a lawyer’s cell phone, and the phone’s apps may access texts and send them to the app creator.
 
As for flat fees, recently, the PBA and the Philadelphia Bar Association issued a joint opinion on “Flat, Earned Upon Receipt and Non-Refundable Fees”. Anyone who charges fees must read this opinion. At minimum, the agreement must say that the fee is “nonrefundable and earned upon receipt”. And, even then, if the attorney is discharged before the work is done, part of the flat fee might need to be refunded to avoid the prohibition against excessive fees.
 
A final word: even more recently, the ABA opined that nonrefundable, earned on receipt fees are never permissible. It characterized the language approved in the PBA/Philadelphia opinion as “an act of legerdemain” that “does not withstand even superficial scrutiny”. ODC does not issue advisory opinions, but there are two significant differences between the ABA’s Model Rule 1.15 and Pennsylvania’s RPC 1.15. MR 1.15(c) reads, “A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred”; to that PA’s corresponding Rule 1.15(i) adds, “unless the client gives informed consent, confirmed in writing, to the handling of fees and expenses in a different manner.” Rule 1.15’s comments on fees, comment [3] in the ABA Rules and [7] in PA’s, also are identical, except PA’s adds a sentence: “Unless the fee is non-refundable, it should be deposited to a Trust Account and drawn down as earned.” The additional language in our Rule and comment seems to condone non-refundable fees.

Thomas J. Farrell
Chief Disciplinary Counsel

 

Application Instructions

 
Applications are due by June 30, 2023.

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

ABA Formal Opinion Addresses Retainers and Fees Paid in Advance
 
The Standing Committee on Ethics and Professional Responsibility of the American Bar Association has released a formal ethics opinion discussing the treatment of retainers and fees paid in advance. Formal Opinion 505 was issued May 3, 2023.
 
The Committee begins by noting, “Fees for services may be paid after completion of the services, of course. However, for certain matters, many lawyers request or require that funds in a certain amount be paid to the lawyer at the outset of the representation to secure payment for the lawyer’s later work.” Under the terms of Model Rule 1.15, such fees must be placed in a trust account. The Model Rule allows lawyers to protect themselves from the prospect of nonpayment by requiring payment in advance, and the requirement to place such funds in trust protects the client against the risk that the lawyer may be unable to repay them if the fees are not earned.
 
The opinion comments, “When a client pays an advance to a lawyer, the lawyer takes possession – but not ownership – of the funds to secure payment for the services the lawyer will render to the client in the future.”
 
The Committee acknowledges that some lawyers refer to fees paid in advance as “retainers” but points out that this term does not appear in the Rules of Professional Conduct. They note that a general retainer to assure the attorney’s availability may be considered earned when received but state that this does not mean the general retainer is nonrefundable if the lawyer does not perform services contemplated in connection with the retainer. The Committee characterizes such true general retainers as rare but claims that fees are nonrefundable on this theory are more common.

The Committee notes that many lawyers charge flat or fixed fees for certain services such as real estate transactions, will preparation, or business incorporation. Such fees are permissible but are still fees paid in advance which the lawyer must keep in a trust account until the services are performed.

On the subject of “nonrefundable” retainers, the Committee states, “The Model Rules of Professional Conduct do not allow a lawyer to sidestep the ethical obligation to safeguard client funds with an act of legerdemain: characterizing an advance as ‘nonrefundable’ and/or ‘earned upon receipt’.” It points out that Comment [4] to Rule 1.5 specifically states that such fees cannot be characterized as nonrefundable and must be placed in a trust account and refunded if not earned.

The Committee observes, “In 2002, Model Rule 1.15 was amended to address specifically the issue of advance fees in a new paragraph (c): ‘A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.’” It is noteworthy that this language was not incorporated into Pennsylvania’s version of RPC 1.15 which differs dramatically from the ABA Model Rule. However, RPC 1.15(i) states, “A lawyer shall deposit into a Trust Account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, unless the client gives informed consent, confirmed in writing, to the handling of fees and expenses in a different manner.”

The Committee goes on to note that Model Rule 1.16(d), regarding termination of services, requires that, upon termination of representation, the lawyer must refund “any advance payment of fee or expense that has not been earned or incurred.” According to the Committee, Rules 1.15 and 1.16(d) work in tandem to protect the client against loss due to the conduct of unscrupulous lawyers. The Committee notes that apportioning earned and unearned fees can be difficult but that courts routinely apportion the services completed and sum earned when a representation ends before completion of the intended goals.

The Opinion concludes with three hypothetical situations, involving a “nonrefundable” retainer, a general retainer, and a flat fee arrangement. The Opinion as a whole provides detailed guidance for lawyers dealing with different fee structures and the approach to be taken when a representation ends short of completion of the contemplated goals.
 

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Attorney Suspended for Dismissing Case without Client’s Approval
 
A Philadelphia attorney agreed to a one-year suspension of his license after admitting that he dismissed a client’s case without the client’s knowledge or consent and led the client to believe the case was ongoing for more than six months.
 
Jonathan Warren Chase of Philadelphia entered into a Joint Petition in Support of Discipline on Consent with the Office of Disciplinary Counsel. In the factual stipulations, Chase admitted that he represented Keith Regan in an Americans with Disabilities Act claim against Regan’s former employer, Temple University. In August 2019, he filed a complaint on Regan’s behalf with the United States District Court for the Eastern District of Pennsylvania. Subsequently, Chase left his former law firm and took the case with him to his new practice.
 
Chase served interrogatories and requests for production of documents to which Temple University responded in December 2019. However, he did not take depositions or conduct further discovery. In May 2020, Chase informed the client of a possible June 2021 trial date.
 
In February 2021, Temple University filed a Motion for Summary Judgment against Regan. Chase informed his client of the motion and suggested they get together to discuss the case.

However, on March 2, 2021, without Regan's knowledge or consent, Respondent signed and filed a Joint Stipulation and Order of Dismissal with Prejudice. The judge approved the Stipulation, dismissing Regan’s case with prejudice.
 
Chase did not inform his client of the dismissal. Instead, he continued to make statements in telephone calls and emails that led the client to believe the case was ongoing. The client spent considerable amounts of time amassing evidence and communicating with Chase about how to respond to the motion to dismiss and prepare for trial.
 
In September 2021, Regan independently discovered that the case had been dismissed. When confronted by the client, Chase explained that he was worried the client would be liable for legal fees, and said, “Sorry, I apologize.” He offered to compensate Regan with free legal advice “down the road”.
 
Chase expressed remorse and a sincere belief that failing to dismiss the lawsuit would result in the imposition of attorney fees on his client.
 
The Stipulation provided that Chase’s conduct violated nine of the Rules of Professional Conduct and called for a one-year suspension from the practice of law. A three-member panel of the Disciplinary Board approved the agreement, and the Supreme Court accepted the recommendation and suspended Chase for one year.
 

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Attorney Reprimanded for Unknowingly Bringing Gun to Court
 
A New Jersey-based attorney agreed to a public reprimand before the Disciplinary Board after his plea of guilty to the offense of unlawful possession of a weapon for leaving a firearm in his trial bag when he appeared at the courthouse for a case.
 
Mark Bae Jander of Oakhurst, New Jersey entered into a Joint Petition for Discipline on Consent in which he acknowledged that he had pled guilty to the offense in a New Jersey court. He stated that he was preparing for his first case trial in his office in the basement of his parents’ home, where he lived. He took a break from preparation to clean a .38 caliber revolver and put the revolver into his trial bag, intending to transfer it into his safe. However, he forgot to do so, and the gun was still in his trial bag when he went to the courthouse for his trial. The court’s scanner picked up the presence of the weapon, and he was arrested on the spot. He did not have a permit to carry a firearm as is required by state law.
 
Jander pled guilty to the offense of unlawful possession of a weapon and was admitted to the pre-trial intervention program. He underwent thirty-six months of supervision, performed fifty hours of community service, and forfeited the gun and his firearms purchasing permit. He complied with all other aspects of the order. He self-reported the matter to the Disciplinary Board.
 
The Supreme Court of New Jersey imposed a censure on Jander’s New Jersey law license.
 
In the Joint Petition, Jander acknowledged that his conduct violated Rule 8.4(b) of the Rules of Professional Conduct, criminal conduct that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness to practice law. He and Disciplinary Counsel agreed that the appropriate discipline was a public reprimand before the Disciplinary Board. A three-member panel of the Disciplinary Board agreed with that disposition and ordered the reprimand which has yet to be scheduled.
 

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Lawyer Cited Fake Court Cases from ChatGPT
 
We previously reported that the Artificial Intelligence program ChatGPT was lumbering toward legal competence, earning a passing, if mediocre, score on a law school examination. But lawyers tempted to save some time with this mediocre-but-passable resource may want to double-check that work. As a New York attorney found out the hard way, it turns out that ChatGPT sometimes cites cases that aren’t quite there.
 
Stephen Schwartz, an attorney with over thirty years of experience, used ChatGPT to draft a response to a motion to dismiss in a personal injury case in the U.S. District Court for the Southern District of New York. It was the first time he had used the program to assist in legal drafting. A member of his firm, Peter LoDuca, filed the response as Schwartz was not admitted in the district. It did not go well. As an Order entered by the Court explained, several of the cases cited in the response were simply non-existent. The Court noted:
 
The Clerk of the United States Court of Appeals for the Eleventh Circuit, in response to this Court’s inquiry, has confirmed that there has been no such case before the Eleventh Circuit with a party named Vargese or Varghese at any time since 2010, i.e., the commencement of that Court’s present ECF system. He further states that the docket number appearing on the “opinion” furnished by plaintiff’s counsel, Docket No. 18-13694, is for a case captioned George Cornea v. U.S. Attorney General, et al. Neither Westlaw nor Lexis has the case, and the case found at 925 F.3d 1339 is A.D. v Azar, 925 F.3d 1291 (D.C. Cir 2019).

The bogus decision contained several citations and quotes which the Court also found to be non-existent. The Court also identified five other non-existent cases cited in the filing.
 
The judge ordered Attorney LoDuca to appear for a hearing on June 8, 2023, to show cause why he should not be sanctioned. In an affidavit, LoDuca responded that he relied on Schwartz’s experience and research. In his affidavit Schwartz stated that he “consulted the artificial intelligence website ChatGPT in order to supplement the legal research performed” but that he “relied on the legal opinions provided to him by a source that has revealed itself to be unreliable”. He stated that the incident was his fault for not verifying the citations provided and that he “regrets having utilized generative artificial intelligence to supplement the legal research performed herein and will never do so in the future without absolute verification of its authenticity”. His affidavit included a screenshot in which he asked the AI, “Is varghese a real case?”
 
“Yes,” it replied. “It is a real case.” It went on to add that the case and the others cited could be found in Westlaw and Nexis.

Therein lies a disturbing difference between people and AI: people can admit when they are wrong.
 

Chief Justice Todd Authors Letter to Bar Encouraging Support for Pro Bono
 
Chief Justice Debra Todd has published her second open letter to Pennsylvania attorneys encouraging support of pro bono legal work across the Commonwealth. She joins Michael J. McDonald, whose term as Pennsylvania Bar Association President commenced on May 5, 2023, in urging all PA attorneys to consider furthering their support of legal aid and free legal services.
 
Chief Justice Todd lauds the efforts of those currently performing such needed legal work and recognizes each PA attorney’s contribution to civil legal aid through the IOLTA portion of the annual attorney registration fee. She also acknowledges the impact of direct service in Pennsylvania’s communities. “It is lawyers who volunteer who have the most direct impact on those in need,” Chief Justice Todd emphasizes.
 
Chief Justice Todd recognizes the variety of opportunities to perform pro bono legal work in the Commonwealth, including the Court’s emeritus status, first established in 2018 for attorneys who have retired from the practice of law who seek to provide pro bono services through eligible legal aid organizations, and the PBA’s PA Free Legal Answers program.
 
Read Chief Justice Todd’s full letter here.
 

 

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How Does PBA Membership Help Make a Better Lawyer?
 
Bar association membership provides a variety of opportunities to elevate and grow as a lawyer and as a human being. The Pennsylvania Bar Association connects you with people, resources, and opportunities. Below are just a few highlights:

• Are you concerned about cybersecurity and cyber insurance to protect you, your firm, and your clients in the event of a data breach? The PBA provides numerous resources to help, including the Cybersecurity and Data Privacy Committee, CLE programs, cyber insurance, law practice management articles on technology, and so much more.
• Are you a new attorney with a lot of questions about practicing law? Attend the Young Lawyers Summer Summit, July 19-21 in State College, to get practical advice, connect with PBA leaders and young lawyers, and engage in the Young Lawyers Division to continue learning and growing your practice.
• Are you looking for convenient ways to stay current and competent in substantive practice area knowledge? The PBA includes over sixty-five committees and sections that are a great way to connect with other practitioners and judges. Members also have access to Fastcase, PBA’s free legal research tool, which recently merged with vLex, a major global legal research provider, making it the world’s largest global law library with over one billion legal documents from around the world. And, of course, PBA's continuing legal education department offers hundreds of live and on-demand CLE courses, manuals, and books  ̶  as well as a yearly CLE subscription service to ProPass  ̶  to help you stay up-to-date on your CLE credit hours and knowledge.
• The PBA cares deeply about its members’ wellness, quality of life, and work balance and have officially adopted a Wellness Pledge and “seven-point framework” aimed at reducing substance abuse disorders and mental health distress in the legal profession. Members of PBA’s Quality of Life/Balance Committee have the opportunity to connect with other attorneys and share helpful resources.
• For those who are ready to take on a leadership role in PA’s legal profession, the PBA is the perfect place to connect with judges and lawyers from across the Commonwealth and to expand one’s statewide circle of influence. There are many paths to leadership; if you are not sure where to start, send PBA an email to discuss opportunities.

The PBA provides the tools, resources, and opportunities to grow legal careers and enhance quality of life. Learn more and join today.
 

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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.