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From the Chair
 As summer starts its inevitable transition into autumn, I am reminded that nearly half my term as Board Chair has concluded. In one of my first monthly messages, I promised to serve the bar by educating lawyers about discipline and the disciplinary process in Pennsylvania. Together we’ve covered several important topics and even some of the lesser-known issues. Today, we deviate a bit so that I can bring to your attention the recent ruling in Greenberg v. Lehocky where a unanimous, three-judge panel of the U.S. Court of Appeals for the Third Circuit rejected a free speech challenge to Pennsylvania’s anti-harassment and anti-discrimination ethics rule. On the basis of standing, the Third Circuit reversed a federal district court decision which had permanently enjoined enforcement of Pennsylvania Rule of Professional Conduct (RPC) 8.4(g).
RPC 8.4(g), first adopted by the Supreme Court of Pennsylvania in 2020 and amended in 2021, prohibits a lawyer in the practice of law from knowingly engaging in conduct that constitutes harassment or discrimination based on race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. The goal of the amendment is to curb intentional harassment and discrimination in the practice of law and assure that the profession functions fairly for all participants. Advancing this goal is critically important to the legal profession in Pennsylvania, as discriminatory and harassing conduct undermines trust in the profession. It is a self-explanatory rule and a very important one.
Before the rule amendment took effect, the plaintiff, a lawyer licensed in Pennsylvania, filed suit against the Disciplinary Board, Chief Disciplinary Counsel, and Deputy Chief Disciplinary Counsel, claiming that he risked violating the rule through his continuing legal education presentations and non-legal seminars where he intended to discuss and speak freely on controversial topics and use verbal epithets found in judicial opinions that others might consider hateful and offensive. The plaintiff alleged that RPC 8.4(g) was unconstitutional because the potential for discipline had a chilling effect on attorney speech. After a federal district court twice struck down efforts to impose the rule, the Third Circuit determined that the plaintiff lacked standing to maintain a pre-enforcement challenge of Rule 8.4(g). The Court stated, “Rule 8.4(g) does not generally prohibit him from quoting offensive words or expressing controversial ideas, nor will the defendants impose discipline for his planned speech. Thus, any chill to his speech is not objectively reasonable or cannot be fairly traced to the Rule. We will reverse.”
The opinion cited several important historical bases for its decision, but one that you should know about, generally, is that from 2016 to 2018, the Office of Disciplinary Counsel dismissed 87% of the complaints without requesting a response from an attorney. That confirms that your Office of Disciplinary Counsel does a tremendous amount of work screening the approximately 4,200 complaints that it receives on a yearly basis and only brings forward those cases where a rule violation is legitimately in question. The Third Circuit’s opinion clearly recognized that conduct can only constitute harassment or discrimination when it is targeted at a person. The rule’s commentary defines harassment as conduct that is intended to intimidate, denigrate, or show hostility or aversion toward a person. Stated another way, teaching lawyers and students about what constitutes harassment and discrimination, even while using vile examples or distasteful language, is not targeting anyone; to the contrary, it can be argued that using such examples enhances and clarifies the elements of the rule for the Bar by explicitly explaining what a lawyer should never do.
The Third Circuit ruling allows enforcement of RPC 8.4(g). I urge each of you to familiarize yourselves with the rule and the Third Circuit’s opinion. Finally, you should also know that the Disciplinary Board’s Rules Committee is a very active committee that is constantly reviewing and investigating all of the rules in an effort to make them better, tighter, and clearer. At any given time, as a result of the initial work of the Rules Committee, the Disciplinary Board usually has several recommendations, be it to a rule or a comment, pending with the Pennsylvania Supreme Court for its consideration. Rule 8.4 will be no different in that regard.
Thank you for reading 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
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Discipline Imposed
August 2023
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Reinstatements
August 2023
Note: The above-listed granted reinstatement matters reflect only those granted by Supreme Court Order. An attorney listed as reinstatement granted, but whose current license status does not reflect reinstatement, has yet to submit the fees necessary to finalize reinstatement.
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Disciplinary Board News
Visit the Disciplinary Board's New Conservatorships Webpage
In July, the Disciplinary Board released a new “Conservatorships” webpage. Within Pennsylvania’s legal profession, conservators are “attorneys appointed by a court to protect the interests of the clients of an absent attorney”. In such situations, the term “absent attorney” extends to “an attorney who abandons his or her practice, disappears, dies, or is transferred to inactive status because of incapacity or disability; and no partner or other responsible successor to the practice of the attorney is known to exist”. This webpage makes available important conservatorship information to all affected clients and other interested parties. The webpage details both open and discharged conservatorships. To access the Board’s “Conservatorships” page, visit padisciplinaryboard.org/cases/conservatorships.
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Rules
Disciplinary Board Proposes Extension of Sex with Clients to Nonphysical Communications
In a proposed rulemaking published at 53 Pa.B. 5275 (8/26/23), the Disciplinary Board has proposed an amendment to the comments to Rule 1.8(j) of the Pennsylvania Rules of Professional Conduct. It seeks to clarify that the prohibition on sex between lawyers and clients extends to communications that are sexual in nature.
Rule 1.8(j) states, “A lawyer shall not have sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced.” Comment [17] to Rule 1.8 explains the intentions behind the rule:
[A] sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role, in violation of the lawyer's basic ethical obligation not to use the trust of the client to the client's disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer's emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment . . .
The Board proposes to add a line to Comment (17) stating, “For purposes of this Rule, ‘sexual relations’ includes, but is not limited to, sexual communications with a client.”
The Explanatory Report to the amendment states, “Recently, Pennsylvania’s disciplinary system has experienced an increase in ‘sex with clients’ investigations where the matters involve sexual communications by way of ‘sexting’ or similar communications, as opposed to actual physical relationships.” The amendment makes it clear that such conduct with clients violates Rule 1.8(j).
Interested persons are invited to submit written comments on or before September 26, 2023 by mail, email, or fax to the Executive Office of the Disciplinary Board.
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
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CDC Corner
Client Trust Account Self-Assessments?
Noncompliance with the rules on safekeeping client property is a persistent problem in Pennsylvania. The Rules of Professional Conduct 1.15 requires, among other things, that attorneys maintain ledgers and other records of client money entrusted to them and that they personally reconcile those records every month. The Pennsylvania Bar Association and County Bar Associations offer frequent CLEs to explain these obligations, and my office often participates in them. I and other members of the bar constantly write articles to remind attorneys of these obligations. On the IOLTA Board’s website, attorneys can find an excellent handbook on all of RPC 1.15’s requirements. Yet, time after time, we hear from lawyers that they were ignorant of the rule.
Rule 1.15 is not a mere paternalistic imposition on lawyers’ freedom to self-regulate. Its requirements are indispensable to prevent loss of client monies due to employee theft, bounced checks, credit card chargebacks, and plain error. Recently, I reviewed a self-report by two attorneys. Someone had hacked into their firm trust account at the bank, stealing nearly $900,000. They reported the matter to law enforcement, and the bank admitted fault and reimbursed the account, eventually. No case, I figured. They were good lawyers, responsible lawyers. Months later, however, we imposed an informal admonition because we found they had not been reconciling their trust account. Had the bank not discovered the fraud after seven months, the loss could have been more; had the attorneys followed RPC 1.15(c)(4), they would have stopped the damage in the first month.
Our annual registration form has attorneys certify, “I am familiar and in compliance with Rule 1.15 of the Pennsylvania Rules of Professional Conduct regarding the handling of funds and other property of clients and others and the maintenance of IOLTA Accounts, and with Rule 221 of the Pennsylvania Rules of Disciplinary Enforcement regarding the mandatory reporting of overdrafts on fiduciary accounts.” However, we, the Board, and the Court never discipline attorneys for the falsity of this certification in bad recordkeeping cases. To the contrary, we often accept neglect and ignorance as mitigation. I don’t understand why intent warrants a harsher sanction than neglect in a non-punitive but client-protective system such as ours.
California is testing a nudge that Pennsylvania should consider, in my humble opinion. It requires each attorney to every year complete a self-assessment which asks twelve specific questions about attorney trust accounts. Among them:
3. I affirm that all client funds or funds entrusted by others to me or to my firm or organization under the provisions of rule 1.15 of the Rules of Professional Conduct are held in one or more accounts labeled as a “Trust Account”, or similar designation, and are maintained separate from any accounts held by me, by other individual attorneys in my firm/organization, or by the firm/organization that primarily hold personal or business funds . . .
4. For each client trust account maintained by me or my firm, I affirm that the following records are maintained:
- Client Ledger
- Account Journal
- Bank Statements
- Canceled Checks . . .
5. I affirm that a written, monthly reconciliation of the bank statement, client ledger, and account journal are completed and maintained for each client trust account . . .
6. I affirm that timely reports are provided to clients or other persons accounting for funds, securities, or other property held in their name, including deposits, withdrawals, and other transactions . . .
7. If a fee agreement involves advances for costs, expenses, or fees, such funds are held in a client trust account prior to being expensed or earned, unless subject to an exception . . .
8. I affirm that fees are withdrawn from client trust accounts at the earliest reasonable time once the fees, or a portion thereof, become fixed and earned . . .
Apparently, approximately two thousand California attorneys failed to answer these questions in proper fashion, and over 1,700 were administratively suspended. Frankly, if an attorney is not complying with these steps described in the California self-assessment, he or she should not be practicing law, at least until he/she puts his/her house in order.
Thomas J. Farrell
Chief Disciplinary Counsel
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Upcoming Public Proceedings
We encourage you to observe our public disciplinary and reinstatement hearings, oral arguments, and public reprimands on the Board’s YouTube channel. You can also view “Upcoming Public Proceedings” at the bottom of the Board’s home page.
Scheduled proceedings begin at 9:30 am unless otherwise noted.
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Articles of Interest
Third Circuit Rejects Challenge to Harassment Rule: Declaratory Judgment Reversed
In an Opinion dated August 29, 2023, in the case of Greenberg v. Lehocky, the U.S. Third Circuit Court of Appeals reversed a declaratory judgment of the District Court for the Eastern District of Pennsylvania. That judgment found the amended Rule 8.4(g) of the Pennsylvania Rules of Professional Conduct unconstitutionally vague and barred the Disciplinary Board from enforcing it. The Court of Appeals dismissed the challenge to the rule on the grounds that the plaintiff did not have standing to bring the suit.
Rule 8.4(g) states that “in the practice of law, knowingly engage in conduct constituting harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status.”
Lawyer Zachary Greenberg regularly gives continuing legal education presentations about First Amendment protections for offensive speech. His presentations often quote offensive language from judicial opinions and discuss arguably controversial topics. Greenberg sued to enjoin enforcement of Rule 8.4(g), which was adopted in 2020, on the theory that persons offended by the topics he discussed could file complaints against him and that this prospect chilled his ability to speak on subjects of legal and public interest. The District Court agreed with Greenberg and issued a declaratory judgment prohibiting enforcement of the rule which remained in effect until the Third Circuit’s decision.
In an Opinion authored by Judge Anthony J. Scirica, the Third Circuit disagreed with the District Court’s conclusion. The opinion noted that Rule 8.4(g) is clearly addressed to “knowing or intentional harassment or discrimination against a person.” It noted that Comment 4 to the rule defines harassment as “conduct that is intended to intimidate, denigrate or show hostility or aversion toward a person.” Comment 5 defines discrimination as conduct that “manifests an intention to treat a person as inferior, or “disregard[s] relevant considerations of individual characteristics or merit,” or “cause[s] or attempt[s] to cause interference with the fair administration of justice” based on the characteristics listed in the rule.
The Court found that Greenberg’s proposed use of examples of offensive conduct could not reasonably be construed as violating individual rights as defined in the commentary to the Rule. The Court noted, “Greenberg plans to verbalize epithets found in judicial opinions within an academic discussion, not direct them at an audience member. Greenberg’s general advocacy of potentially controversial positions does not denigrate any person or treat any person as inferior based on a protected characteristic.” [22]
The record included a declaration by Chief Disciplinary Counsel Thomas J. Farrell stating the office’s interpretation of Rule 8.4(g). He explains that the rule is not applicable to the educational presentations Greenberg planned as they were not directed at a particular person for purposes of harassment or discrimination.
After a review of the law of standing, the Court concluded that Greenberg had failed to show an actual risk of disciplinary prosecution sufficient to confer him with standing to challenge the rule. It reversed the District Court’s decision and directed it to dismiss the complaint on grounds of lack of standing.
In a Concurring Opinion, Judge Thomas L. Ambro expressed his agreement with the majority opinion but noted that someday an attorney with valid standing may challenge the Rule and that “the existing Rule and its commentary may be marching uphill needlessly.” He suggested that the Board could preemptively amend the Rule to eliminate many of the issues raised by Greenberg. He recommended the Board look to rules adopted in other states, including Maine, New Hampshire, New York, and Connecticut, that include protections for free speech.
The Office of Disciplinary Counsel has not enforced Rule 8.4(g) since its adoption due to the pendency of the litigation. With that barrier cleared, the ODC will begin considering complaints and developing an approach that serves the purposes of the rule while providing protection for freedom of speech.
Lawyer to Be Reprimanded for Disorderly Conduct Incident
A Pennsylvania lawyer who was convicted of offenses involving unlawful conduct in a personal matter was reprimanded, and another lawyer previously reprimanded and placed on probation for similar conduct was suspended when he failed to comply with the terms of his probation.
Mark Steven Pearlstein of Delaware County agreed to a public reprimand based on a guilty plea for disorderly conduct arising from a road rage incident. Following a minor traffic accident, Pearlstein became embroiled in a confrontation with the other driver. When the other driver approached his vehicle, Pearlstein pulled a gun and “whizzed one past his ear”. The discharge of the weapon caused the local police to follow an enhanced “shots fired” protocol. Pearlstein claimed he was in reasonable fear for his safety and acting in self-defense, which the other driver and the District Attorney’s office denied. He also admitted to brandishing but not firing the weapon in other traffic incidents.
Pearlstein entered into a Joint Stipulation in Support of Discipline on Consent, agreeing that his conviction in the matter warranted discipline under Rule 8.4(b) of the Rules of Professional Conduct, commission of a criminal act that reflects adversely on the lawyer’s fitness, and Pa.R.D.E. 203(b)(1) which provides that conviction of a crime is grounds for discipline. He agreed to imposition of a public reprimand.
One of the cases cited in the Pearlstein stipulation was the 2021 case of Todd Leta of Lycoming County. Leta was reprimanded and placed on probation after he pulled a gun on a neighbor and threatened him after mistakenly entering the neighbor’s apartment while intoxicated. He pled guilty to a series of misdemeanor and summary offenses including terroristic threats and disorderly conduct. Leta failed to timely report this conviction to the Office of Disciplinary Counsel. The Disciplinary Board imposed a public reprimand and a one-year period of probation that included abstaining from alcohol and meeting with a sobriety monitor.
Leta was back before the Disciplinary Board this year. In June, he entered into a Joint Petition in Support of Discipline on Consent in which he acknowledged that he had not abstained from the use of alcohol and had not cooperated with his sobriety monitor. He agreed to the imposition of a period of suspension for one year and one day, which will require him to prove his rehabilitation in a reinstatement proceeding before resuming the practice of law. The Supreme Court granted the Joint Petition and suspended Leta by Order dated August 5, 2023.
Florida Referee Finds Lawyer’s Hurricane-Area Tent Office Did Not Violate Rules
A retired Florida judge serving as a referee found that a Louisiana-based, Florida-admitted lawyer did not violate the Rules of Professional Conduct by setting up a temporary office built from a trailer and tent in the area devastated by Hurricane Ian. The referee also criticized the bar’s investigation into the matter.
After the hurricane swept through the state, lawyer Jennifer Perez set up a "Mobile Claims Center" assembled from a truck, trailer, and tent in the parking lot of a defunct motel in Fort Myers, Florida. The Bar charged that Perez used the site to solicit clients and concealed the firm’s name on the vehicle to create a false impression that the facility was associated with the Federal Emergency Management Agency or a state-run site. The Bar sought an emergency suspension.
The referee found, however, that the Bar had conducted an inadequate investigation and misconstrued the nature of Perez’s site. He accepted Perez’s explanation that the site was not intended to solicit new clients, only to set up appointments or teleconferencing with existing firm clients. It was staffed by nonemployee contractors of the firm, and Perez traveled to the site to speak with clients by appointment. The referee also found that the firm name was covered up, not to mislead clients into thinking it was a government agency but out of concern display of the name could violate prohibitions on advertising. The site did not attempt to sign up walk-ins as clients, and no new clients were recruited there.
The referee concluded that Perez and her firm did not violate the Florida Rules of Professional Conduct. He opined that she should have taken more care by covering up the “mobile claim center” wording on the trailer and that the firm’s website should have specified that the facility was for use by appointments only. He recommended that she should be required to take ethics training on lawyer advertising rules.
The referee criticized the haste with which the Bar pursued the matter. The Bar did not interview or contact Perez or seek her response before filing the petition for emergency suspension. The referee also found that the Bar had not disclosed information which should have been available to Perez.
The Bar stated in a letter that it would not oppose the referee’s findings. The matter will now go before the Supreme Court of Florida for disposition.
“You Don’t Look Like Your Picture”: Taco Bell Sued Over Mexican Pizza and Crunchwraps
A class action lawsuit filed in the United States District Court for the Eastern District of New York alleges that Taco Bell has defrauded consumers by publishing pictures of its popular Crunchwraps and Mexican Pizza that exaggerate the amount of meat and other ingredients in the entrees.
The class action complaint, listing New Yorker Frank Siragusa as lead plaintiff, incorporates photographs of five entrees, juxtaposing the promotional photos employed by Taco Bell with photos allegedly of the actual products. The promotional photos appear more stuffed with ingredients than the latter. No other evidence of misrepresenting the product is cited.
In addition to statutory and compensatory damages and restitution, the suit seeks an injunction requiring the chain to stop selling the “Overstated Menu Items” or provide more accurate images in its advertising.
The attorneys who represent the plaintiffs also have filed suits against Burger King, McDonald’s, and Wendy’s for allegedly inflated burger images.
In the interest of full disclosure, the author of this note, after viewing the images in question, traveled to Taco Bell and purchased a Crunchwrap Supreme to investigate the allegations of the complaint. Sadly, it being dinnertime, the evidence was not preserved.
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Attorney Well-Being
September Is Suicide Prevention Awareness Month
September is Suicide Prevention Awareness Month, and despite high rates of depression throughout the legal community, far too few are educated about mental health and suicide prevention. Thankfully, there are numerous resources tailored to the unique experiences of the legal profession. Our friends at Lawyers Concerned for Lawyers (LCL) provide a confidential hotline at 1-888-999-1941 open to all Pennsylvania lawyers, judges, law students, and family members of legal professionals in need of support. Among their offered resources and services are:
- General information, resources, and free literature;
- Referral to a qualified healthcare provider for a free and confidential consultation and diagnosis;
- Development of a personalized treatment plan, if indicated, by a healthcare professional;
- Assistance with treatment admissions;
- Peer support from a recovering law student or lawyer who has faced and overcome similar mental health or substance use challenges;
- Resource coordination and ongoing support by LCL staff; and
- Information on lawyer- and law student-only support groups.
Suicide is complicated and tragic, but it is often preventable. Knowing the warning signs for suicide can save lives. Learn about behaviors that may indicate that someone is thinking about suicide via the National Institute of Mental Health website.
If you or someone you know is experiencing a mental health crisis, call or text the Suicide & Crisis Lifeline at “988” immediately. Consider adding the lifeline to your phone now; it could save a life later.
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.
Lawyers Concerned for Lawyers is a confidential assistance program for the Pennsylvania legal community and their family members. LCL may not report information about a subject attorney back to the Disciplinary Board.
Confidential 24/7 Helpline: 1-888-999-1941
Last year, the Supreme Court of Pennsylvania adopted amendments to the Pennsylvania Rules of Disciplinary Enforcement (Pa.R.D.E.) relating to confidentiality of proceedings, providing for three exceptions to the requirement of confidentiality under Pa.R.D.E. 402(d). Included in these exceptions is the allowance for Disciplinary Counsel to make a referral of an attorney to Lawyers Concerned for Lawyers of Pennsylvania (LCL) and share information as part of the referral. However, it is crucial to note that LCL may not report information about a subject attorney back to the Disciplinary Board. LCL is a confidential assistance program for the Pennsylvania legal community and their family members.
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Around the Court
Traffic Citations in School Zones Highlighted in New Infographic
With students returning to schools, the Unified Judicial System recently released a new infographic highlighting traffic citations in school zones from 2018 to 2022. Laws regarding overtaking or passing a school bus and speeding in a school zone have been cited over 25,000 times over the past five years in Pennsylvania with the highest rates of occurrence in the fall months.
County-level data is included in an addendum to the press release.
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From the Pennsylvania Bar Association
Celebrate Constitution Week with the Pennsylvania Bar Association
We the People of the United States, in Order to form a more perfect Union . . .
September 17, 2023 is the 236th anniversary of the signing of our U.S. Constitution, and the PBA Law Related Education Committee is organizing a series of events to celebrate.
- What are the Federalist Papers, and who wrote them? Test your U.S. civics knowledge in the PBA’s Constitution Challenge! PBA has selected twelve questions from the naturalization test given to applicants for U.S. citizenship and are challenging you to test your civics knowledge. Simply answer the questions online and submit your responses. Three entries with all of the correct answers will be selected at random, and the winners will receive a $100 coupon off a PBI ProPass subscription. The challenge opens September 5th and closes at midnight, September 18th.
- Lawyers and judges can virtually visit a classroom of elementary grade students and help educate the next generation on our Constitution and our judicial system by signing up to read during the week of September 18th-22nd. It’s easy! All materials are provided, and it only takes about thirty to forty-five minutes from the comfort of your office. Learn more and register online.The PBA website has many resources, sample lessons, and activities to help lawyers and judges talk with students about the law and our Constitution. Did you know? Those classroom visitors ̶ at any time throughout the year ̶ can request Constitution Preamble bookmarks, pocket-sized copies of the Constitution of the United States, and a poster-sized Constitution that can be signed by students? The PBA provides these at no cost through a grant from the PA Bar Foundation.
The Foundation supports civic education programs and continue the work to provide constitutions and educate students about the rule of law and the importance of an independent judiciary. For those able to donate to the Foundation, just $25 makes a difference and helps ensure that future generations understand and value our Constitution.
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We Want To Hear From You...
We are always on the lookout for stories of interest relating to legal ethics, new issues in the practice of law, lawyer wellness, and funny or just plain weird stories about the legal profession. If you come across something you think might be enlightening, educational, or entertaining to our readers or social media followers, pass it along. If you are our original source, there may be a hat tip in it for you.
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