Disciplinary Board Proposes Undercover Investigations Comment
 
The Disciplinary Board has published a proposed rulemaking at 52 Pa.B. 6357 (10/8/22) which would add a new comment to Rule 8.4, Misconduct. The proposed rule would clarify that a lawyer does not violate the prohibition of RPC 8.4(c) on conduct involving dishonesty, fraud, deceit, or misrepresentation by participating in a matter which involves undercover investigators “pretexting”, or using assumed identities for purposes of the investigation.
 
The new proposed Comment 2 states:
 
“Notwithstanding the general restriction against engaging in deceit, this Rule does not prohibit a lawyer from advising or supervising another who engages in an otherwise lawful and ethical undercover investigation, in which the investigator does not disclose his or her true identity and motivation, regardless of the nature of the matter or substantive area of law involved.”
 
In its explanatory note, the Board observes that the United States Supreme Court has recognized that deception and pretext are permissible tools of lawful investigations. Lewis v. United States, 385 U.S. 206, 209 (1966) (recognizing the propriety of concealing and misleading agents' identities in investigations); Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982) (approving deception and pretext in determining housing discrimination). Examples of contexts where pretexting is often used include employing ''testers'' who misrepresent their identity or purpose (or both) to apply for housing or job openings to uncover discriminatory practices or directing investigators to pose as business customers to identify potential trademark infringement activity taking place in the daily operations of a target company.
 
The Board notes that approximately twenty states have adopted amendments to their Rules of Professional Conduct to authorize and define deception in pursuit of lawful undercover activities. Such allowances are often limited to particular classes of lawyers pursuing the public good. The majority of these jurisdictions still forbid the lawyer to participate personally in the pretexting and only allow their participation in efforts where nonlawyer investigators perform the acts that constitute pretexting.
 
The Comment goes on to add:
 
“This Rule does not change the scope of a lawyer's obligations under Rule 4.2 and thus a lawyer must take reasonable measures so that the investigator does not communicate with a represented party in violation of Rule 4.2, does not seek to elicit privileged information, and otherwise acts in compliance with these Rules, court orders, and civil and criminal law.”
 
This part of the Comment imposes a duty on the lawyer to draw boundaries for the persons engaging in pretexting, to assure they understand the kinds of information they can elicit without putting the lawyer in a position of violating other Rules of Professional Conduct.
 
Interested persons are invited to submit written comments, suggestions, or objections on or before December 7, 2022 by mail, email, or fax to the Executive Office of the Disciplinary Board of the Supreme Court of Pennsylvania.
 

The Disciplinary Board of the Supreme Court of Pennsylvania
601 Commonwealth Avenue, Suite 5600
PO Box 62625
Harrisburg, PA 17106-2625
Fax: (717) 231-3381
Email: DBoard.Comments@pacourts.us
 

CLE Board Proposes New Rule with Sexual Harassment/Diversity Mandate
 
The Continuing Legal Education Board of the Supreme Court of Pennsylvania has published a proposed set of amendments to Rule 105 of the Pennsylvania Rules for Continuing Legal Education (''Pa.R.C.L.E.'') and Section 3 of the Regulations for Continuing Legal Education. 
 
The proposed amendment would consolidate subsections 105(a)(2)(ii) through (iv) into one subsection (ii), Ethics and Professionalism. The minimum annual CLE requirement will remain at twelve hours.
 
The amendment to Section 3 of the CLE Regulations states that “Ethics and Professionalism” is defined to include:

• lawyer ethics and the rules of professional conduct;
• lawyer professionalism;
• substance abuse as it affects lawyers and the practice of law;
• diversity, inclusion, and anti-bias training related to lawyers and the practice of law;
• sexual harassment awareness and prevention training related to lawyers and the practice of law; and
• such other subjects as may be designated in the future by the Pennsylvania Supreme Court.

Pennsylvania Lawyer Sanctioned for Copying Motion
 
The United States District Court for the Eastern District of Pennsylvania imposed an order of sanctions on a Montgomery County attorney based on a finding that she filed a motion which was copied word-for-word from a motion filed by opposing counsel.
 
Attorney Christine E. Munion represented the Borough of West Chester in a challenge to its open burning ordinance filed by two activists based on a flag-burning protest.
 
The evening before a court-imposed deadline for filing motions in limine, counsel for the protestors filed a motion seeking to exclude the opinion testimony of a police officer on the grounds he had not been disclosed as a witness and lacked the necessary expertise to provide opinion testimony. The following day, Munion filed a similar motion seeking to exclude opinion testimony from the plaintiffs on the same grounds. In fact, the court found that whole paragraphs of the motion were lifted word-for-word from the plaintiffs’ motion, including typographical errors carried over from the original.
 
Judge Gene Pratter found that the wholesale copying of the plaintiffs’ motion violated Rule 3.3 of the Rules of Professional Conduct, which requires candor to the tribunal, and also Rule 1.1, which mandates competent representation of a client. Judge Pratter determined that an award of attorney fees to plaintiffs’ counsel was an appropriate sanction; however, she also found that the number of hours claimed for the drafting of the motion for sanctions was excessive for a clear-cut case and pared the award back to an adjusted award of $8,483.55 for fees and costs.
 
Blogger Eugene Volokh discussed the case and noted, “Plagiarism in lawyering is judged by different standards from plagiarism in academic life. For instance, when a lawyer copies material from a law firm colleague's old motion, and properly adapts it for the new motion, that's considered wise use of time and the client's money, not plagiarism.” However, he also notes that massive copying from the other side's work product without properly adapting the language to fit the client and the facts is likely to land the lawyer in trouble with the courts.
 

Eight Financial Mistakes that Get Lawyers into Ethical Trouble
 
The American Bar Association’s Law Practice Today published a useful summary of financial mistakes that can get lawyers into serious ethical trouble. The list was compiled by Canadian attorney David J. Bilinsky, the principal of Thoughtful Legal Management, a practice management consulting firm.
 
Bilinsky counts down the most serious mistakes:
 
8. Financial abuse of vulnerable or incapacitated clients: A lawyer acting as a fiduciary for an elderly or disabled client may have access to large amounts of money with relatively little supervision or accountability. Dipping into those funds is deplorable on a moral basis, and also a pathway to serious discipline.
 
7. Commingling client funds: RPC 1.15(b) mandates a strict separation of client funds from the lawyer’s own resources. Particularly where the lawyer begins to think of client funds as partially their own (such as for legal fees), commingling often leads to ethical violations due to carelessness.
 
6. Failing to have a proper trust and general accounting system and using it properly: Bilinsky notes that double-entry bookkeeping is the expected standard for accurate accounting of funds. Some lawyers use spreadsheets which were not designed for the purpose and which do not provide the protection that a well-designed double-entry system does.
 
5. Failing to properly run your trust account, do monthly reconciliations and investigate potential problems promptly: RPC 1.15(a) and (g) through (o) contain detailed requirements for establishing and using trust accounts. Every lawyer who handles client funds is expected to know and abide by these requirements.  
 
4. Paying others for recommending the lawyer’s services or for channeling professional work: RPC 5.4 prohibits sharing fees with nonlawyers. Paying a referral fee to a lawyer is acceptable under some circumstances, but referral fees to nonlawyers are fraught with ethical issues. Recent years have seen the rise of online service providers who offer limited-scope legal services to be provided by a local attorney within set rates with the payment of a fee to the online company. Bilinsky details several ethical issues with such an approach.
 
3. Inflating your billable hours or overcharging your client: RPC 1.5 provides for eight factors to be considered in determining the reasonableness of a fee. It should be obvious that claiming fees for time one has not actually spent, double-billing, and billing for activities not reasonably related to the client’s needs present serious ethical questions.
 
2. Failing to render an accurate trust, fees, and expenses reconciliation to a client when required or requested to do so: RPC 1.15(d) requires a lawyer to render prompt notice of receipt of any funds on a client’s behalf and a prompt accounting upon request.
 
1. Dipping into your trust account to meet expenses or any other reason not connected with the client’s business: Taking a client’s funds for personal use, even on the belief that the lawyer is owed money for legal fees, is one of the most serious ethical offenses a lawyer can commit and has led to many cases of serious discipline including disbarment and, in many cases, criminal charges as well.
 

Autistic Lawyer Reviews Extraordinary Attorney Woo
 
There is no shortage of lawyer dramas on television, but the South Korean series Extraordinary Attorney Woo, based on the professional and personal life of a lawyer on the autism spectrum, stands out. Autistic attorney Woo Young-woo, portrayed by acclaimed actor Park Eun-bin, obtains a job at a prestigious law firm based on her top-ranked grades at law school and the intervention of a senior partner. She encounters a rocky start but soon wins the support of her colleagues by using her extraordinary powers of memory and intellect to pathways to success that her allistic colleagues miss. The series offers drama and comedy as well as an intriguing look into the legal system of another culture.
 
Autistic attorney Haley Moss, who has written about the challenges neurodiverse attorneys face, watched and commented on the series. She found the title character “endearing and relatable”. She noted that many of the character’s quirks, such as being very routine-driven, always eating the same foods, and wearing noise-canceling headphones whenever in public, are common traits of autistic people which she herself shares. She notes that the show misses opportunities for the title character to engage in more self-advocacy, relying on the kindness and tolerance of those around her. She also regrets that the show fails to address the need for “masking”  ̶  the suppression of certain neurodiverse traits in order to fit in with neurotypical people  ̶  which she says creates a psychological toll for the autistic person trying not to be her genuine self. She expresses the view that the show presents exaggerations of autistic traits, perhaps because the creators neither consulted with autistic people nor cast autistic actors.
 
Despite these flaws, she concluded that the series is a step forward in the portrayal of autistic characters in the media and a large one for much of the world where perceptions of neurodivergent people are harsher and less supportive than in the United States.
 

Attorneys Tackle Fleeing Inmate

Most district attorneys will tell you their job is to help catch criminals, but few take that duty as literally as Oklahoma County District Attorney David Prater.

A&E’s Court Cam caught Prater and a group of attorneys leaping into action when a fleeing suspect shook loose two rounds of deputies and made a break for freedom. Prater saw the situation developing and, after taking the time to unbutton his suitcoat, clamped on to the decamping defendant’s arm and hung on long enough for a posse of fellow counsel to swarm and subdue the fleeing felon until the deputies could arrive and reassert their cast-off custody.

Remarkably, this was the fourth time Mr. Prater has been called upon to lasso a fleeing fugitive. Perhaps he could be excused for wearing track shoes to court.