Each year, we review most significant cases decided within the Pennsylvania disciplinary system. We look at cases that interpret or illustrate important ethical considerations or disciplinary procedures, that apply disciplinary law to unusual fact situations, or that address emerging issues of technology and change in the legal profession.
The following cases caught our interest:
1. Greenberg v. Lehockey, 81 F.4th 376 (U.S. Court of Appeals, 3rd Circuit, 2023)
The U.S. Third Circuit Court of Appeals decided a case challenging the constitutionality of a 2020 amendment to Pa. Rule of Professional Conduct 8.4, adding subsection (g) that prohibits harassment and discrimination in the practice of law. Zachary Greenberg, who teaches continuing legal education courses, sued to enjoin application of the rule on the grounds that they inhibited his First Amendment rights and exposed him to disciplinary action for teaching about incidents potentially violating the rule. The U.S. District Court for the Eastern District of Pennsylvania agreed with him and enjoined application of the rule.
The Third Circuit reversed the decision of the District Court on summary judgment. The Court found that Greenberg lacked standing to challenge the rule. The Court noted that there was no reasonable prospect that Greenberg would face disciplinary action for statements made in continuing education programs and that the rule did not chill his freedom of speech. Accordingly, the Court of Appeals reversed the decision and directed that the complaint be dismissed for lack of standing.
In a concurring opinion, Senior Judge Thomas Ambro warned that at some point the same arguments will be raised by a lawyer charged in a disciplinary case and suggested that the Board should proactively amend the rule to meet the constitutional objections.
2. William E. Gericke, No. 154 DB 2022
William E. Gericke entered into a Joint Stipulation for Discipline, agreeing to a one-year suspension. He was conflicts counsel for a Philadelphia law firm. A partner contacted him with confidential information about a pending merger that was not public information. He purchased stock in the company that was the firm’s client without obtaining the informed consent of the client. After the merger was announced, he sold the stock for a $10,000 profit. Subsequently, he became the target of a probe by the Securities and Exchange Commission for insider training and entered into an Administrative Order with the SEC under which he paid a fine for using confidential information. He agreed that his conduct violated four Rules of Professional Conduct, including RPC 1.8(d) which prohibits a lawyer to use information relating to the representation to the detriment of a client. After an extensive analysis of comparable cases, the parties agreed to a suspension for one year, which will not require Supreme Court approval for Gericke to be reinstated. The Supreme Court approved the Stipulation and suspended Gericke for one year.
3. Joshua M. Briskin, No. 72 DB 2021
Joshua M. Briskin was suspended for three years based on findings that he violated numerous Rules of Professional Conduct arising from two cases. Some details from the case are worthy of note.
In one of the cases, Briskin gave his client a written statement of the basis of his fees. But the statement was English, and his client, a Spanish speaker, was unable to read English. Despite the fact that he transmitted the paper to the client, the Disciplinary Board found that he had failed to comply with the requirements of RPC 1.5(b) as he failed to communicate the basis of his fees in a form the client could understand. This demonstrates that requirements to communicate such matters are not mere technicalities but must be communicated in a form that the client can reasonably understand and consent.
The Board also found significant aggravating factors including the Respondent’s behavior in the disciplinary proceeding. The Board noted, “Respondent saw nothing wrong with his conduct and, egregiously, referred to his own clients as ‘trash.’ Respondent conveyed his disdain for these proceedings through his disrespectful behavior to the Committee, Petitioner's counsel, and the witnesses. Respondent's testimony on cross-examination revealed his penchant for flippant and discourteous responses.” He also failed to attend the final day of the hearing. This is one of many cases where a respondent-attorney’s emotionally involved self-representation probably did more harm than good to his outcome.
It is also notable that Briskin had assumed retired status, but the Disciplinary Board declined to treat this as a mitigating factor.
4. Brandon Eberle, No. 54 DB 2023
The Disciplinary Board entered an Order that a Public Reprimand be imposed on Eberle for filing a document containing a forged signature of opposing counsel. Eberle requested an extension of time to file preliminary objections or an answer to a complaint filed by opposing counsel. He contacted opposing counsel with a draft agreement to extend the time for a response. Opposing counsel orally agreed to the extension but stated that she would handle the matter. She subsequently sent Eberle a signed version of the agreement. However, in the meantime, Eberle filed a Motion for Extension of Time that included a forged copy of opposing counsel’s signature and indication of oral agreement. Opposing counsel requested that Eberle file a document striking the filed motion, and the Court ordered that the motion be stricken and removed from the docket. Eberle then filed an Answer, New Matter, and Counterclaim.
In the Public Reprimand, the Disciplinary Board found that Eberle’s action in filing a motion that appeared to have the consent of opposing counsel, when it did not, violated five Rules of Professional Conduct relating to dishonest statements, criminal acts, and conduct prejudicial to the administration of justice.
The case illustrates the importance of taking care to assure that all documents filed in litigation are accurate and avoid falsely implying one has consent when one does not, even if there is general agreement in principle.
5. Brian Frederick Levine, No. 23 DB 2022
The Levine case illustrates the limits of what an attorney can do to negotiate a settlement without stepping over the line into witness intimidation or improper influence.
Levine represented a defendant in charges of receiving stolen property, regarding a Corvette automobile. He contacted the complaining witness to discuss a “global resolution” in which she would not appear at the preliminary hearing or testify against Levine’s client at trial, in return for which he would turn over the keys, possession, and title to the jointly owned vehicle. At one point he advised her it was in her interest not to appear at the hearing because she could face “lateral charges”. The Board determined that the threat of “lateral charges” was a criminal act in violation of RPC 8.4(b), citing the Pennsylvania witness intimidation statute at 18 Pa.C.S. § 4953. It also concluded that his offer of possession of the vehicle in exchange for her refusal to testify violated RPC 3.4(b), which prohibits a lawyer to pay or offer to pay compensation to a witness contingent upon the content of the witness’ testimony, and RPC 8.4(d), conduct prejudicial to the administration of justice.