From the Chair
 

Happy New Year! I hope that all of your enjoy a year filled with health and happiness, and that your law practices flourish beyond your greatest expectations.
 
We’ve covered a lot of ground together in my previous nine monthly messages to you, and I hope that you have gained a better understanding of what the Disciplinary Board is and more importantly, how it functions and what services it offers to assist you. Unfortunately, though, the time has come to discuss one of the last roles of the Disciplinary Board, and it is the most difficult part of serving the Pennsylvania Supreme Court on this Board: punishment.
 
Over my six years as a member of the Disciplinary Board and for six years as a hearing officer prior to that, I have learned that sitting in judgment of another is a very difficult thing to do; in fact, it can be very hard, especially when the punishment involves someone’s law license. 
 
Now, we will review the types of discipline that can be imposed upon a finding of attorney misconduct. Please note that while the Disciplinary Board has great responsibilities in making sure that the disciplinary process follows all applicable rules and is administered uniformly, we are ultimately only tasked with making recommendations to the Pennsylvania Supreme Court about what discipline should be imposed for attorney misconduct. We strive to make sure that our recommendations are based upon the rules and existing Supreme Court precedent. I am very pleased to report that the Supreme Court adopts our recommendations in the vast majority of cases, but I must remind you again that our Supreme Court is the ultimate and exclusive authority over the disciplinary process.
 
Pa.R.D.E. 204 sets forth seven distinct types of discipline, which may be categorized as “private” or “public.” By its nature, private discipline is not information that is shared with the public and is imposed for less serious misconduct. The lowest form of private discipline is the informal admonition imposed by Disciplinary Counsel, followed by the stepped-up private reprimand imposed by the Disciplinary Board.
 
Discipline that is public is shared on the Board’s website. The lowest form of public discipline is the public reprimand imposed by the Board. Following in order of seriousness from least to greatest are public censure imposed by the Supreme Court, suspension imposed by the Supreme Court for a period not exceeding five years, and disbarment imposed by the Supreme Court. Of these types of public discipline, only suspension and disbarment, the most severe sanctions reserved for the most serious offenses, cause the attorney to lose eligibility to practice law. It is worth noting that there is a critical difference between a suspension for one year and one day and a suspension for one year or less. That difference lies in the procedures for reinstatement. Pennsylvania permits suspended and disbarred attorneys to seek reinstatement under the Board’s procedural rules. An attorney suspended for more than one year or disbarred is required to petition for reinstatement to the Supreme Court and prove fitness to resume practice. Reinstatement is not automatic, and not every attorney is able to meet the stringent burden of proof. Attorneys suspended for one year or less are not required to undergo a rigorous reinstatement proceeding and can be administratively reinstated after filing paperwork demonstrating compliance with the order of suspension. Therefore, the “day” that may attached to a one-year suspension is of critical importance because of the process that is associated with it literally could mean the difference of a one or two year time frame, depending on the circumstances, for when a suspended license is ultimately returned to a lawyer. You should very clearly understand that distinction because it is critically important to you as a lawyer.
 
Probation is a type of discipline that may be imposed under supervision by the Board and can be ordered in conjunction with a private reprimand, public reprimand, public censure, or suspension. Probation allows the attorney to continue practicing law within strict terms and conditions imposed to monitor the attorney’s practice.
 
As you can see, the Board and the Court have numerous options when imposing discipline, as there are several types of discipline within the broader categories of “private” and “public”. The appropriate type of discipline to be imposed is based on the nature of the misconduct and the aggravating and mitigating circumstances of the matter. Importantly, there is no “per se” discipline in Pennsylvania; each matter is decided on its own unique circumstances.
 
Recommending punishment for any lawyer, absent the most extreme circumstances, is a very difficult task for the members of the Disciplinary Board. I can assure you that recommending discipline is an issue that we very carefully and assiduously discuss. Recognize that your license to practice law is not absolute despite all of the hard work you have put into getting and maintaining it. Think very carefully about your license if you ever find yourself in a situation where your compliance with the rules seems to be headed toward an area of discomfort. While you have read at least nine (9) times in my past newsletters that the Disciplinary Board is here to help, and not hurt, Pennsylvania lawyers, please never forget that the imposition of discipline is a necessary reality when lawyers make a decision not to help themselves. Thank you again for reading.
 
Dion G. Rassias
Board Chair

December 2023

Temporary Suspension Peter Francis Blust
Suspension Gemma Marilyn Antoine Mary Margaret Cowan John Joseph Grenko Marianne Sawicki	Disbarment Stacey Ellen Barish Nora F. Blair

December 2023

Disciplinary Board News

 

• be a member in good standing of the Pennsylvania bar;
• be licensed to practice law for at least seven years;
• maintain an office for the practice of law within Pennsylvania; and
• have no prior history of discipline. 

• serve a minimum of at least one three-year term;
• participate at disciplinary and reinstatement proceedings; and
• attend Hearing Committee Training, if possible. The next Hearing Committee Training will be held in-person in Hershey, PA on July 23-24, 2024.

Completed applications are due by March 1, 2024. Hearing Committee Members will be appointed by the Board in April 2024 and will begin serving their term on July 1, 2024. Preview the Hearing Committee Member duties for more information and apply today!

CDC Corner

 

Pro Bono Representation of Attorneys in Disciplinary Investigations

Those who litigate in the attorney disciplinary system too frequently witness confirmation of the adage that a party who represents himself has a fool for a lawyer — even when the party is himself a lawyer. Self-representation may be the factor most responsible for abnormally bad results for respondent-attorneys.

The reasons are obvious: a self-representing attorney lacks the emotional distance which is necessary to evaluate the chances of success accurately. Often, the respondent is angry or despairing and either wants to fight or to avoid the proceeding. Both tactics generally prove disastrous. Second, one who has never litigated in the disciplinary system knows nothing about the worth of a case — the likely outcome and sanction — and finds the procedural rules byzantine. I came to this system as a trial lawyer of thirty-five years experience, and I, for one, felt lost at sea.

Many lawyers represent themselves because they lack the means to hire counsel. Some malpractice policies provide coverage for representation in disciplinary proceedings, but not all do, and not all lawyers carry malpractice insurance.

It is not fair that the indigent suffer worse outcomes because of their lack of means. That discrepancy also distorts our system: in considering discipline in future cases, we, the Board, and the Court will face a database skewed by the bad results earned by self-representing lawyers.

In an effort to address this weakness in our system, a group of respondents’ lawyers and my office designed a program of pro bono representation to represent and advise respondents in the earliest stages of our investigations, when ODC first contacts them. This is the point at which many cases go off the tracks. Lawyers fail to recognize their obligation to cooperate with the disciplinary system and, instead, they obstruct its operation. Or, they don’t realize that, in many instances, if they acknowledge a mistake and make efforts to correct it – they remedy the influence of a high caseload on missing a deadline by hiring more staff and implementing case and document management software – we often will impose a private admonition or even dismiss the case, satisfied that they have mended their ways and present no ongoing threat to the public. And, where lawyers did commit misconduct, even serious misconduct, they must face the difficult decision of whether to contest the allegation or to admit it and focus on introducing evidence of mitigation.

On January 12^th, the Pennsylvania Bar Institute presented a half-day remote CLE session to educate lawyers on how to handle the early stages of disciplinary matters. Four attorneys from my office, including me; counsel to the Board; and three experienced respondents’ counsel participated. All attorneys were welcome to attend, but our objective was that some of the attendees would volunteer for this program. The plan is that volunteers will represent financially eligible attorneys at the earliest stages of an investigation through the decision, if one is made, to file formal charges which require a hearing. The volunteers can limit their representation to the pre-charging stage, or, if they wish, they can continue to represent the client at any hearing and appeal.

Respondents’ counsel constantly impress me with the wise advice they give their clients. Not only do they educate us as to their client’s positive attributes and our evidence’s weaknesses, but they often assist their client in repairing the practice management issues, the mental health challenges, and substance disorders that led them to misconduct. Respondents’ counsel — and my staff and the heroes at LCL — help restore attorneys to competence and thereby serve the public so in need of good lawyering.

The pro bono project can be an opportunity for more attorneys in the Commonwealth to do this good work and to maintain the reputation of the Pennsylvania bar as something the nation can be proud of. I hope that some of you will consider it.
 
Thomas J. Farrell
Chief Disciplinary Counsel

Upcoming Public Proceedings

Vacancies

 

Articles of Interest
 

Attorney Suspended for Filing False Petition, Representing Client After Discharge
 
By Order dated December 23, 2023, the Supreme Court of Pennsylvania suspended a Huntingdon County attorney for a year and a day, based on a report by the Disciplinary Board finding that she filed a petition falsely claiming that a woman who was not her client was being held against her will.

Marianne Sawicki became involved in the case of Barbara Kissinger, a woman who lost her home to condemnation. Kissinger was the defendant in a civil case brought by the municipality over an outstanding water bill and a criminal case related to animal neglect and abuse. She was represented by appointed counsel in the criminal matter and unrepresented in the civil one.

Sawicki was brought into the case by members of a Facebook group in support of Kissinger. She contacted criminal defense counsel and expressed concerns that Kissinger was being held against her will. Defense counsel denied this and instructed her not to contact Kissinger.

Sawicki then filed a petition seeking a court order that the Sheriff’s office accompany her to the place where Kissinger was living, alleging that she was being held against her will by armed individuals. At that point, she had never spoken to Kissinger and had no first-hand knowledge of the conditions under which she was living but was relying on a representation by a member of the Facebook group that Kissinger was “brainwashed". The judge arranged for the State Police to do a wellness check, and the police reported that Kissinger was safe and there was no harm.

Counsel in the criminal case reached a guilty plea agreement, and a hearing on the agreement was scheduled. The day before the hearing, Sawicki spoke to Kissinger, got her to sign a pro bono fee agreement, and advised her not to attend the hearing.

When the hearing was called and Kissinger did not appear, defense counsel asked a representative of the Area Agency on Aging to check on her. The Agency staff brought Kissinger to the hearing, where she expressed confusion about who was representing her. At that point Sawicki, irate that Kissinger had attended the hearing against her advice, stated that she was withdrawing from both the civil and criminal cases. However, she did not withdraw from the criminal case and entered an appearance in the civil case without Kissinger’s knowledge or permission.

Over the next several months, Sawicki continued to file documents, communicate with counsel, and otherwise act as legal representative of Kissinger. Eventually, the judge concluded that her actions in the matter were complicating and extending the proceedings and appointed an out-of-county attorney to represent Kissinger. He testified that it appeared the matter was becoming all about Sawicki and that Kissinger was in danger of ineffective representation without the assistance of an attorney experienced in criminal law.

The Disciplinary Board found that Sawicki had committed numerous violations of the Rules of Professional Conduct. Its discussion focused, in particular, on the question of whether Sawicki’s allegations that Kissinger was being held against her will by armed individuals violated Rules 3.1 [Meritorious Claims and Contentions] and 3.3(a)(1) [false statement of material fact to a tribunal]. Sawicki argued that she was justified in making these allegations, of which she had no personal knowledge, because someone believed them to be true. The Board noted, “Respondent was not merely representing to the Court what is ‘believed’ to be true in the abstract but was also certifying that she had conducted a reasonable investigation into the veracity of those allegations … and believed them to be based in fact, or likely to be supported by evidence.” The Board also found that Respondent gave different versions of what basis she had to make the allegations and that her testimony was not credible. The Board also found that she violated Rule 3.3(a)(1) by failing to correct her statements once proven false. The Board also found that she violated rules relating to competence, prejudice to the administration of justice, and failure to withdraw when discharged.

The Board found aggravating factors in Sawicki’s lack of remorse, failure to acknowledge her wrongdoing, and lack of credibility. Mitigating factors included her lack of prior discipline and the testimony of character witnesses  ̶  although none of her witnesses expressed an awareness of the conduct at issue. The Board recommended suspension for one year and one day which will require Sawicki to petition for reinstatement and prove her fitness to practice law. The Supreme Court agreed and imposed suspension for one year and one day.
 

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AI Law Catches a Big Target
 
It seems we have been writing about lawyers caught citing nonexistent cases generated by artificial intelligence services nearly every month, but the trap caught its highest-profile victim yet.
 
A federal judge ordered an attorney for Michael Cohen, a disbarred attorney who once represented former president Donald Trump, to provide copies of three apparently fictional cases cited in a recent motion to discharge Cohen from supervised release arising from his 2018 criminal conviction. U.S. District Judge Jesse M. Furman ordered Cohen's criminal defense attorney, David M. Schwartz, to provide copies of cases cited in his motion, which the court’s staff were unable to locate, or explain why he should not be sanctioned. The Court found that three cases cited in Schwartz’s brief did not exist. One citation landed on a page in the middle of an unrelated opinion, and another did not lead to anything at all.
 
Although Schwartz did not respond to press inquiries about the issue, Michael Cohen subsequently admitted in a court filing that he provided his attorney with the citations which he found using Google Bard, a new search facility which Microsoft has been integrating into its Bing search engine. Cohen said he uses the internet for research because he no longer has access to formal legal-research sources and professed unawareness that the service could generate nonexistent cases.
 
Chief Justice of the U.S. Supreme Court John Roberts addressed AI in his year-end report. He referred to news stories of lawyers citing fictitious cases, known as “hallucinations”, which he opined is "always a bad idea". He noted that the use of AI technology has the potential to increase access to justice for indigent litigants, revolutionize legal research, and assist courts in resolving cases more quickly and cheaply but warned, "Any use of AI requires caution and humility.”
 

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University of Pennsylvania Study Examines Failure to Appear in Criminal Cases
 
Two professors and a doctoral candidate at the University of Pennsylvania and a professor at the University of Virginia School of Law looked into instances of failure to appear (FTA) in which the lack of appearances by defendants, witnesses, police officers, and attorneys led to disruption of criminal court hearings in the criminal justice system for Philadelphia County. In a report published in The University of Pennsylvania Law Review, authors Lindsay Graef, Sandra G. Mayson, Aurelie Ouss, and Megan T. Stevenson found some remarkable patterns in cases of FTA. The authors also contributed an op-ed to The Philadelphia Inquirer.
 
Drawing on detailed data for criminal proceedings in Philadelphia between 2010 and 2020, the researchers found that defendants failed to appear in 19% of cases. Essential parties other than defendants failed to appear at a remarkable rate of 53%. At the pre-hearing level, police officers fail to appear on a subpoena almost twice as often as defendants: 13% versus 7%. Victims and civilian witnesses did not appear in nearly half the cases. In all proceedings, police officers failed to appear in approximately 31% of cases. Cases where a witness did not attend resulted in dismissal in 58% of cases, compared to 28% in cases with no FTA. Prosecutors and public defenders had low FTA rates, but private defense attorneys, both court-appointed and privately hired, failed to appear at least once in 36% of the cases.
 
The authors speculate that prosecutors and public defenders appear in the vast majority of their cases because they tend to handle cases in teams, so coverage is available if an attorney has a conflict and cannot attend a hearing  ̶  while private attorneys are more likely to have competing demands and less likely to have reliable backup. In an interview, one of the authors suggested that private attorneys’ failure to appear may sometimes be strategic, in hopes it may lead to a continuance or spur payment of legal bills. As a matter of ethics, we must note that deliberately failing to appear at a hearing in order to compel payment of legal bills poses a serious risk of violating multiple Rules of Professional Conduct, including Rule 1.3 (diligence) and 8.4(d) (conduct prejudicial to the administration of justice).
 
The authors make a number of recommendations that might help with the complex problem of failure to appear including upgrading the technology infrastructure of the court, enabling prosecutors to coordinate on schedules with police officers, employing social workers to accompany police in domestic violence situations and assist victims in compliance, and splitting up dockets into smaller time slots to avoid the risk of nonparties being forced to sit all day while the court runs through a large docket.
 

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Texas Moves Toward Licensing Paraprofessionals
 
The Texas Access to Justice Commission has come out in support of a proposal that would allow licensing of paralegal professionals to perform some work on behalf of low-income individuals, sometimes with and sometimes without supervision by lawyers. The Commission issued a report based on the recommendations of the Texas Access to Legal Services Working Group which developed the proposal after the Texas Supreme Court sought guidance on paraprofessionals and nonlawyer ownership in October 2022.
 
Under the proposed standards, paraprofessionals would be licensed to perform some legal services for low-income individuals in areas of civil law. For instance, in domestic relations cases not involving parent-child issues or large amounts of property, paralegal professionals would be allowed to prepare and file forms, represent clients in uncontested hearings, provide procedural information (but not legal advice), and communicate with lawyers or paraprofessionals retained by the opposing party. Paraprofessionals would be allowed to practice independently in some areas and under the supervision of a lawyer in others.
 
The Commission rejected another proposal by the working group to allow paraprofessionals to hold an ownership interest in organizations providing legal assistance to low-income persons.
 
According to the report, nine states currently allow some form of practice by paraprofessionals who meet training and licensure requirements. Arizona, Colorado, Oregon, and Utah allow independent practice while Alaska, Delaware, Hawaii, New Hampshire, and Minnesota require supervision by an attorney.
 

Attorney Well-Being

Institute for Well-Being in Law to Hold Annual Conference

The Institute for Well-Being in Law (IWIL) will hold its second annual Well-Being in Law Virtual Conference from January 23-25, 2024. Over fifty experts share their stories, research, and techniques to support individual and workplace well-being. The conference will offer four unique learning tracks as well as special session focused on well-being at the state and local levels.

Dr. Laurie Santos, Chandrika and Ranjan Tandon Professor of Psychology and Head of Silliman College at Yale University, is this year's keynote speaker. In addition to Dr. Santos' "work on the evolutionary origins of human cognition, Laurie is an expert on the science of happiness and the ways in which our minds lie to us about what makes us happy."

View the full conference schedule, learn more about special speaker sessions, and register for this event on IWIL's website.

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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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