From the Chair
 

As I approach the mid-year mark of my final year of service to the Disciplinary Board, I do so with a renewed vigor, proud of the work we have completed and driven to finish our remaining tasks. Education and transparency have been the focus of my time as Chair, and this month’s message continues with that emphasis. We have covered a lot of ground to date in my prior messages, and now I turn to a specific topic that is often raised in casual discussions about the Disciplinary Board with other lawyers. It concerns the serious matter of the duty to self-report.
 
Through past editions of this publication, the Disciplinary Board’s Chief Disciplinary Counsel and Deputy Chief Disciplinary Counsel have emphasized the responsibility of both lawyers and judges, respectively, to report suspected attorney misconduct. This month, however, I want to highlight the equally important, yet extremely difficult, responsibility of a lawyer’s duty to self-report.
 
Pennsylvania Rule of Disciplinary Enforcement (“Pa.R.D.E.”) 214(a) addresses an attorney’s obligation to self-report a criminal conviction within twenty days to the Office of Disciplinary Counsel. It is important to note that the attorney’s responsibility under the rule does not abate because the conviction is under appeal or that an appeal is being contemplated. Further, an attorney should not assume that his or her obligation to report is satisfied if the clerk of court transmits the notice of conviction to Disciplinary Counsel. The attorney must always report the criminal conviction if required to do so under Rule 214.
 
What types of criminal convictions must be reported? Pa.R.D.E. 214(h) provides that the term “crime” means an offense that is punishable by imprisonment in the jurisdiction of conviction whether or not a sentence of imprisonment is actually imposed. Furthermore, the term “crime” includes DUI convictions and criminal contempt whether direct or indirect and without regard to the sentence that may be imposed or is actually imposed. However, “crime” does not include parking violations or summary offenses, both traffic and non-traffic, unless a term of imprisonment is actually imposed. The rule does not limit the criminal conduct to Pennsylvania convictions; the crime can take place anywhere.
 
Many Pennsylvania lawyers are admitted in other jurisdictions. Pa.R.D.E. 216(e) addresses the duty to self-report to our Board within twenty days of the imposition of discipline (suspension, disbarment, or revocation of license), resignation while under disciplinary investigation, and transfer to disability inactive status in those jurisdictions.  
 
Communicating the information required under Rules 214 and 216 is simple. The Board’s website contains the contact information for the Board’s Executive Office, Office of Chief Disciplinary Counsel, and the four District Offices.
 
Why it is important to self-report? Besides being an ethical obligation, there are benefits to self-reporting. The early admission of wrongdoing and cooperation with the Office of Disciplinary Counsel (ODC) often leads to mitigation of punishment in disciplinary proceedings should the situation so require. Conversely, the failure to report a conviction, accept responsibility, and cooperate with ODC all may be used as aggravating factors in the determination of appropriate attorney discipline. I encourage all Pennsylvania lawyers to familiarize themselves with these rules for their benefit and the benefit of our colleagues who may need assistance.
 
Thank you for reading and enjoy the beauty of our state’s unique fall surroundings. And again, let us continue to look out for one another and remember that the Disciplinary Board is here to help, not hurt, Pennsylvania lawyers.
 
Dion G. Rassias
Board Chair

September 2023

Suspension John William Eddy Delphine Lara Farr

September 2023

Disciplinary Board News

 

Connect to Pro Bono Opportunities and Resources Through the Disciplinary Board's Pro Bono Webpage

In 2021, 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. 

The Disciplinary Board’s Emeritus status program is 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.

Via the PA CLE Board, attorneys can 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 Chief Justice Debra Todd’s May 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 Board's “Pro Bono” webpage at padisciplinaryboard.org/for-attorneys/pro-bono.
 

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2023-2024 Annual Attorney Registration Summary
 
Annual Attorney Registration opened on May 1st to over 75,200 attorneys who were eligible (and required) to complete annual registration by July 1st. By the July 1st deadline, nearly 88% of attorneys had completed their registration. Prior to the assessment of the first late fee on July 17th, nearly 97% of attorneys had complied. Prior to the assessment of the second late fee on August 2nd, over 98% of attorneys had completed the registration process.
 
Throughout the registration season, numerous email reminders are sent to attorneys with an outstanding requirement at the time of email distribution. These reminder emails (sent from PAAttorneyRegistration@pacourts.us) continue to be sent until an attorney’s registration is complete or until the Supreme Court Order for Administrative Suspension is effective. Emails are sent to various groupings, including:

• all attorneys whose registration is incomplete;

• attorneys who chose to create a mail-in payment voucher, but payment has not yet been received; and

• attorneys admitted to the Pennsylvania bar during the previous registration year (first timers).

Because communications regarding the registration requirement are only sent electronically, it is crucial that all Pennsylvania attorneys ensure that current contact information is on file with the Disciplinary Board.
 
On August 9th, a Supreme Court Order was issued for Administrative Suspension of the remaining noncompliant attorneys. Prior to the effective date of the Order, attorneys can complete their registration and thus be removed from the list of those to be administratively suspended. On September 8, 2023, the remaining 328 unregistered attorneys were administratively suspended for continued failure to comply.
 
Thank you to all the attorneys who registered timely this year!

Upcoming Public Proceedings

Vacancies

Articles of Interest
 

ABA Ethics Opinion Offers Advice on Preparing Witnesses
 
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has issued a formal ethics opinion providing guidance to lawyers on “The Ethics of Witness Preparation”. Formal Opinion 508 was published August 5, 2023.
 
The opinion begins, “The distinction between legitimate witness preparation and guidance versus unethical efforts to influence witness testimony, a practice sometimes known as coaching, horseshedding, woodshedding, or sandpapering, can be ambiguous owing in large part to the concurrent ethical duties to diligently and competently represent the client and to refrain from improperly influencing witnesses.” (We confess we have never heard the terms “horseshedding", "woodshedding", or "sandpapering", but we wish we had.) The Committee notes that ethical issues in witness preparation have become more critical in a time when many proceedings are conducted by remote technology.
 
The Committee lists several witness preparation activities that are proper and integral to thorough and effective trial preparation:

• remind the witness that he or she will be under oath;

• emphasize the importance of telling the truth;

• explain that telling the truth can include a truthful answer of “I do not recall”;

• explain case strategy and procedure, including the nature of the testimonial process or the purpose of the testimony or deposition;

• suggest proper attire and appropriate demeanor and decorum;

• provide context for the witness’s testimony;

• inquire into the witness’s probable testimony and recollection;

• identify other testimony that is expected to be presented and explore the witness’s version of events in light of that testimony;

• review documents or physical evidence with the witness, including using documents to refresh a witness’s recollection of the facts;

• identify lines of questioning and potential cross-examination;

• suggest choice of words that might be employed to make the witness’s meaning clear;

• tell the witness not to answer a question until it has been completely asked;

• emphasize the importance of remaining calm and not arguing with the questioning lawyer;

• tell the witness to testify only about what they know and remember and not to guess or speculate; and

• familiarize the witness with the idea of focusing on answering the question, i.e., not volunteering information.

The Committee cites several of the Model Rules of Professional Conduct which prohibit certain actions in witness preparation. Model Rule 3.4(a) generally states that it is unethical to obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value, either by direct act or encouraging another to do so. Model Rule 3.4(b) prohibits a lawyer from advising or assisting a witness—whether a client or not—to give false testimony. Model Rule 3.4(c) bars a lawyer from knowingly disobeying an obligation under the rules of a tribunal. Model Rule 8.4(d) forbids conduct prejudicial to the administration of justice.
 
The Opinion names a number of practices that might violate these rules, including:

• telling a witness to “downplay” the lawyer’s preparation;

• encouraging a client to misrepresent a location of a slip and fall accident to have a viable claim;

• witness coaching and influencing behaviors include programming a witness’s testimony;

• knowingly violating sequestration orders;

• counseling or assisting a witness to give false testimony;

• advising a client or witness to disobey a court order regulating discovery or trial process;

• offering an unlawful inducement to a witness;

• procuring a witness’s absence from a proceeding; or

• winking at a witness during trial testimony, kicking a deponent under the table, or passing notes, or whispering to a witness mid-testimony. 

• In Footnote 10, the Opinion notes: “Telling a witness that a truthful answer of ‘I do not recall’ is an acceptable response and ethically distinguishable from telling a witness, ‘The less you recall the better.’”

The Opinion discusses remote proceedings which have proven particularly challenging for assuring the integrity of witness testimony. It cites cases where lawyers were disciplined for providing a client with answers to questions while off camera. The Opinion names a number of precautions that can be taken to prevent such misconduct. In conclusion, it states, “It is prudent for lawyers and adjudicators to consider prophylactic measures designed for use in remote proceedings to prevent and detect incidences of unethical coaching conduct.”
 

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Lawyer Who Took Fees While Suspended Agrees to Extended Suspension
 
A suspended Fayette County lawyer agreed to a Joint Petition in Support of Discipline on Consent that started a new three-year suspension after admitting that he took fees from a client for legal services he was not eligible to provide.
 
John William Eddy was suspended for three years by order of the Supreme Court in 2021, retroactive to September 6, 2019. The period of his suspension ended in September 2022, but he has not applied for reinstatement as is required to resume practice after a suspension for more than one year.
 
Eddy admitted that, between April and June 2021, he accepted payments from a client whose son was facing criminal charges. He failed to inform the client that he was on interim suspension and was not eligible to practice law. Instead, he informed the client that he would work with an attorney who was his former partner to represent her son in his criminal case. Over the next few months, he accepted payments in the amount of $3,418.50. He never spoke to his former partner about the case and did not pass on any of the money for legal fees or expenses. He did nothing to arrange for representation of the client’s son. His inaction resulted in issuance of a bench warrant for the son due to his failure to attend hearings.
 
Upon learning of the deception, the client demanded a refund which Eddy did not provide. She subsequently filed a claim with the Lawyers Fund for Client Security which paid her claim. Eddy eventually reimbursed the Fund through counsel.
 
Eddy admitted that he underwent a relapse of drug and alcohol addiction during the period of this conduct.
 
Based on this fact situation, Eddy and the Office of Disciplinary Counsel agreed that the appropriate discipline was a new three-year suspension which would take effect on the date of the Supreme Court’s order and not be retroactive.
 
A three-member panel of the Disciplinary Board approved the Joint Petition, and the Supreme Court accepted its recommendation and suspended Eddy for three years by Order dated September 12, 2023. The new suspension will run through September 2026.
 

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California Shelves 1,700 Attorneys in Trust Accounts Sweep

Approximately 1,700 attorneys in California have been placed on administrative suspension as the California State Bar moves to implement a new Client Trust Account Protection Program adopted last year.

The new measure was enacted in reaction to the case of former Los Angeles attorney Thomas Girardi who was accused of stealing $18 million from clients. Girardi was the subject of 205 complaints, only three of which led to his disbarment. A review by an outside law firm hired by the Bar found that Girardi had close connections to many individuals in the system that led to cases not being vigorously pursued.

The Client Trust Account Protection Program requires attorneys to register their client trust accounts annually with the state bar, complete a yearly self-assessment of their practices managing client trust accounts, and certify with the state bar that they comply and understand the requirements for safekeeping funds. Initially, more than two thousand attorneys were found to be noncompliant, but only those who failed to come into compliance by the June 30th deadline were administratively suspended. By July 28th, the number of attorneys not in compliance had dropped to 1,641.

Steven Moawad, the special counsel overseeing the trust account program, stressed that the suspensions were administrative, not disciplinary, and based solely on failure to report rather than findings of financial misconduct. He stated that some of the nonreporting lawyers may be deceased or otherwise out of practice, acknowledging that the Bar’s recordkeeping of such cases is limited to what is reported to it. He also noted that some lawyers may be failing to report because they know their accounts are not in order. More severe discipline may await those lawyers.
 

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ABA Seeks Volunteers to Help Maui Wildfire Victims

The American Bar Association has become actively involved in providing legal assistance to people displaced and distressed by the Maui wildfires.
 
The Disaster Legal Services Program of the ABA Young Lawyers Division is partnering with the Federal Emergency Management Agency, the Hawaii State Bar Association, and the Legal Aid Society of Hawaii to provide assistance to those in qualifying counties who cannot afford an attorney for representation in disaster-related legal issues. Common issues include replacing wills and other legal documents destroyed in the fires; scams or identity theft; landlord/tenant or foreclosure issues; and disability-related access to federal, state, and local disaster programs.
 
Lawyers who are not admitted to the Hawaii bar can support relief efforts with donations to an ABA fund to deploy pro bono attorneys for help Maui survivors with immediate and long-term legal needs. Lawyers can also consult the ABA’s Disaster Relief Pro Bono Portal, an online resource providing opportunities to address legal issues arising from natural disasters. More information on the Maui situation is available on the ABA’s website.
 

Attorney Well-Being

Legal Employers’ Role in Combatting Mental Health Stigma

Education is a key first step in reducing stigma and preventing and addressing burnout and other mental health issues in the workplace. Firms should offer frequent and diverse CLE programming on topics of wellness, mental health and substance use issues, stress management, and mindfulness. Lawyers Concerned for Lawyers of Pennsylvania offers free educational programs on a myriad of topics to all legal employers, bar associations and other legal entities. In our experience over the last 30 plus years, the reach of our educational programming has been directly proportional to the number of lawyers, law students and judges that reach out to us for supportive services. The more legal professionals we reach via educational programming, the more they are willing to reach out for help.

Education empowers individuals to reach out for support and resources. Our goal, as should be the goal of legal employers, is to ‘normalize the ask.’ Given the fact that at least one in three lawyers will experience a significant mental health or substance use challenge throughout the course of their career, employers have a clear mandate to focus on education, prevention, and compassionate treatment and support for employees facing such issues to foster a healthy work culture that will benefit not only their employees but also their clients.

Besides being the absolute right thing to do, it is also far more profitable for employers to have healthy lawyers representing satisfied clients than having burned out employees who are distracted and exhausted struggling to stay above water. Every firm and workplace has its own culture which is often determined and perpetuated by its leaders. You can offer all the wellness initiatives possible and still have burned out employees if healthy boundaries, prioritization of well-being, and authentic support for such efforts are not modeled strongly and consistently by firm leaders.

Other simple things legal employers can do to promote a healthy and mutually supportive work culture and reduce risk of burnout include:

• Frequently recognizing and expressing appreciation for the hard work of their employees (This can be an overt, formal gesture as well as a simple “thank you” delivered with sincerity and consistency.);

• Ensuring that employee input and feedback is valued, supported, protected, and recognized by leadership (It may be best to provide a structure and method for such input that can be easily reproduced.);

• Having an unmanageable workload is a primary driver for burnout. Legal employers can take proactive measures to critically assess workloads and incorporate employee feedback to determine and rectify what factors may be exacerbating the workload issues (lack of resources, lack of time, lack of clarity of assignment, issues impeding collaboration, etc.);

• Ensuring there are ample resources to support the work of the employees and their mental health as well as consistent utilization and promotion of such resources by leadership;

• Providing transparency of decision-making by leaders and checking in with employees frequently; and

• Exhibiting approachability, authenticity, and sincerity in all interactions with staff.

Taking these steps will reduce burnout, improve outcomes, and foster a sense of community, autonomy, and self-efficacy among employees. It’s a win-win for everyone.

Jennifer C. Zampogna, M.D.
Former Director of Operations, Lawyers Concerned for Lawyers of Pennsylvania

Originally published in 2022, this article is part of a series produced in partnership with Lawyers Concerned for Lawyers of Pennsylvania, exploring lawyer well-being as misconduct prevention. Topics include challenges to mental health, stress and burnout, preventative strategies, employer support, and seeking support through LCL.
 

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Free Virtual CLE Event to Be Hosted by Lawyers Concerned for Lawyers and the Philadelphia LGBTQ Bar Association

Join Lawyers Concerned for Lawyers of Pennsylvania (LCL) and the Philadelphia LGBTQ Bar Association for a free virtual CLE event (1.0 Ethics) on Wednesday, October 18th from 12:00pm-1:00pm. "Inspiration: Turning Our Test into Testimony" will address the prevalence of mental health and substance use challenges in the legal profession through a candid panel discussion. Learn more and register online.

 

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Explore the Disciplinary Board's Lawyer Well-Being Webpage

Earlier this year, the Disciplinary Board released a new "Lawyer Well-Being" webpage that connects Pennsylvania attorneys with pertinent resources, articles, events, and CLE opportunities to better understand and support their mental health and well-being. To access the Board’s new “Lawyer Well-Being” page, visit padisciplinaryboard.org/for-attorneys/well-being.
 

 

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