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From the Chair
 In the practice of law, we are often presented with conflicts and stressors that can compromise overall health and well-being, but purposeful maintenance can encourage much-needed relief. Without preventative education and practices, the stresses of the legal profession can have profound effect on one’s personal life and can lead to patterns of behavior prompting professional misconduct and necessitating discipline. Both throughout May’s Mental Health Awareness Month and year-round, the Disciplinary Board promotes awareness about mental health issues and seeks to lessen the stigmas that often plague them. In addition to the crucial resources offered by Lawyers Concerned for Lawyers of Pennsylvania, the Disciplinary Board offers a “Lawyer Well-Being” webpage, a well-being hub that connects Pennsylvania attorneys with available resources to better understand and support their mental health and well-being, particularly as they relate to the legal profession.
I would like to extend my sincere admiration and congratulations to Justice Kevin M. Dougherty and the entire Autism and the Courts team who, last month, led the court system’s observance of Autism Acceptance Month. Guided by Justice Dougherty and the task force, the Supreme Court of Pennsylvania has resolutely endeavored to better serve Pennsylvanians on the autism spectrum. Numerous projects and inclusive initiatives have been zealously executed to ensure that all Pennsylvanians have more equitable access to justice. As you’ll read in this month’s newsletter, Justice Dougherty’s team recently announced additional sensory-friendly courtrooms and an auspicious partnership with the PA Parole Board.
On May 1st, the 2024-2025 Annual Attorney Registration opened to all Pennsylvania attorneys with approximately 18,700 having already completed the process at the time of this newsletter’s publication. Each year, all active and inactive status attorneys are obligated under Pa.R.D.E. 219 to complete an annual registration form through the Unified Judicial System Web Portal.
In addition to basic Board operations, the attorney annual fee sanctioned by Supreme Court order helps to finance the PA Lawyers Fund for Client Security, which reimburses victims of attorney misconduct where needed, and the PA IOLTA Board, supporting pro bono legal services throughout the state. Together, the Disciplinary Board and the Lawyers Fund provide for essential mental health and substance use support to lawyers, judges, law students through Lawyers Concerned for Lawyers. I encourage all to fulfill their yearly requirement in a timely and dutiful manner.
Stay well,
John C. Rafferty, Jr.
Board Chair
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Annual Attorney Registration
2024-2025 Online Registration Is Open!
Attorney Registration Portal Is Open; Registration Due July 1st
Annual Attorney Registration is now open for 2024-2025 online registration. Attorneys must register by July 1, 2024. Exemptions from the requirement of online filing for good cause are available but must be requested in writing.
Payment Note: If you choose to "Pay Online" with a credit/debit card, it is recommended to manually enter your information on the payment screens and not allow your browser to auto-populate your information.
As always, please ensure that your contact information is up-to-date with the Board.
Disciplinary Board Continues to Offer Attorney Registration Fee Waiver Opportunity for 2024-2025 Registration
First announced in May 2022, the Disciplinary Board allows attorneys to apply for a waiver of the annual fee under the condition of extreme financial hardship. The application, instructions, and FAQs are available on the Board’s website. Extended only to attorneys filing for active status, a granted waiver will apply to one registration year only.
In order to qualify for the waiver, an applicant’s income must be equal to or below the federal poverty guideline. In 2024, the poverty guideline for a Pennsylvania household of four is $31,200.
The application process includes a waiver request form along with supporting financial documents. Applicants must provide a description of the nature of the financial hardship, proof of monthly income (e.g., wages, pension, Social Security, Workers Compensation, public assistance, dividends, etc.), the most recent year’s personal tax return, and proof of all year-to-date personal income. If applicable, the attorney must also present the most recent year’s business tax return and proof of year-to-date business income. Included in the application packet, a paper registration form also must be submitted.
Waiver requests will be reviewed by the Executive Director of the Disciplinary Board. If the request is granted, the Attorney Registration Office will process the annual registration form. If the request is denied, the applicant has ten days from the date of notice of denial to appeal for reconsideration by the Board Chair. The Chair will make the final decision within twenty days of receipt of a request for reconsideration. It is important to note that while any application or reconsideration is in process, no late fees will accrue. The attorney will have fourteen days from a final denial or until July 16th ̶ whichever the later date ̶ to pay the annual fee in full without penalty. Failure to pay timely may subject the attorney to late payment penalties and transfer to administrative suspension under Pa.R.D.E. 219(f).
Requests for a waiver of the attorney registration fee must be filed by July 1, 2024, the deadline for annual registration. Requests submitted after this date will not be eligible for review.
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Discipline Imposed
April 2024
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Reinstatements
April 2024
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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Rules
U.S. Supreme Court Denies Certiorari in Challenge to Pennsylvania Anti-Bias Rule
By Order dated April 22, 2024, the United States Supreme Court denied a Petition for Certiorari in the case of Greenberg v. Lehocky. This brings an end to the suit filed by attorney Zachary Greenberg, seeking a finding that Rule 8.4(g) of the Pennsylvania Rules of Professional Conduct is unconstitutional as an abridgement of his freedom of speech.
Rule 8.4(g) prohibits a lawyer to “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”. Greenberg, who teaches continuing education programs on First Amendment issues, argued that the rule subjected him to the possibility of professional discipline for quoting offensive statements and action by lawyers in cases, and thus chilled his freedom of speech in violation of the First Amendment to the United States Constitution.
The District Court for the Eastern District of Pennsylvania ruled in Greenberg’s favor, but on August 29, 2023, the United States Court of Appeals for the Third Circuit reversed the decision, finding that Greenberg failed to show that Rule 8.4(g) restricted or chilled his speech in continuing education sessions and that he therefore lacked standing to challenge the Rule. Greenberg filed a Petition for Certiorari with the United States Supreme Court, but it was denied in the April 22 nd Order.
Rule 8.4(c) Amended to Allow Investigations
Rule 8.4(c) of the Rules of Professional Conduct prohibits a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. This rule is frequently invoked in situations where lawyers tell lies or participate in any kind of dishonesty or misrepresentation. However, the rule has posed a dilemma for lawyers who conduct or supervise lawful investigations which may involve investigators posing as consumers or otherwise working under cover.
The Supreme Court of Pennsylvania approved an amendment to Rule 8.4(c) which clarifies this situation. The rule is amended to add the language “except that a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, and investigators, who participate in lawful investigative activities”. A new Comment 2 to the rule states, “This Rule does not prohibit a lawyer from advising or supervising another who engages in an otherwise lawful and ethical undercover investigation [emphasis added], in which the investigator does not disclose his or her true identity and motivation.” The comment adds that the lawyer must take reasonable steps to assure that the person supervised 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 the Rules of Professional Conduct, court orders, and civil and criminal law.
The amendment to the rule was published April 13, 2024, at 54 Pa.B. 1946. It takes effect in thirty days, on May 13, 2024.
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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
Lawyer Brothers Reprimanded for Excess Fees, Failure to Account on Estate
Two lawyers who are brothers in a family firm agreed to public reprimands for their handling of an estate.
John Patrick Sanderson, III and Scott Richard Sanderson, both of Olyphant, Lackawanna County, entered into joint petitions in which they agreed that the sanction of public reprimand was warranted based on their conduct in the matter of an estate and revocable trust.
In 2015, the Sanderson firm prepared a will and trust documents for Timothy Bach. The documents named John Sanderson as the executor of the estate and successor trustee of the trust and the Law Firm as legal counsel for those entities. They also executed fee agreements providing for flat and percentage fees for both the executor/trustee and the law firm. Timothy Bach died in 2018.
Upon the decedent’s death, Scott Sanderson acted as attorney for the estate and trust. Based on the fee agreements, the brothers paid themselves and the law firm a total of $207,500, representing 33.5% of the total assets of the estate.
Three nieces of the decedent, who were beneficiaries of his estate, retained counsel to help secure distribution of the estate. Counsel wrote to Scott Sanderson several times requesting an accounting for the assets of the estate. Scott Sanderson offered to make partial distribution of various amounts, but never complied with the request for an accounting and withheld information as to the sums he and John Sanderson had distributed to themselves and the firm. Eventually they reimbursed the estate out of their own funds.
In the joint stipulations, the brothers acknowledged that their conduct violated several Rules of Professional Conduct, including RPC 1.5(a) for charging excessive fees, RPC 1.15(c) for failing to account for funds received upon request, RPC 1.15(f) for failing to make prompt distribution of funds, and RPC 8.4(c) for conduct involving dishonesty, fraud, deceit, or misrepresentation. The joint stipulations noted mitigating factors including remorse, remedial action, and lack of a prior disciplinary record.
The public reprimands were administered on May 7, 2024.
Lawyer Disbarred for Destroying Computer Before Discipline Hearing
A New Hampshire lawyer has been disbarred based on a finding that he destroyed his computer and changed metadata to create false documents in the course of a disciplinary proceeding.
Justin Nadeau was the subject of a disciplinary proceeding in which he was charged with inducing a client with traumatic brain injury to give him $300,000 in loans and securing the loans with a condominium to which he did not hold title and the anticipated proceeds of a lawsuit that was pending. He was also accused of concealing $165,000 he received in referral fees from a lawyer to whom he referred the client.
The opinion of the Supreme Court of New Hampshire found that Nadeau twice agreed to provide electronic documents relating to the representation of the client to the Attorney Discipline Office (ADO) which was investigating the matter. However, he failed to do so despite four requests over a period of more than eighteen months. The ADO filed a motion to compel production of the documents, in response to which Nadeau provided PDF files and screenshots of Word metadata appearing to confirm the dates of letters supporting Nadeau’s position. However, he failed to produce the Word files themselves which led the ADO to move to compel the production of the respondent's computers so that they could be forensically examined for evidence regarding the disputed documents. Nadeau advised he no longer had his computer, which had been destroyed, but the ADO secured his paralegal’s computer and the firm file server. Examination of these computers by a forensic expert revealed that the dates on the documents provided were not accurate and that they had been created years later when the documents had already been requested by ADO. The expert also testified that Nadeau had downloaded, installed, ran, and later deleted two applications whose specific purpose is to alter metadata and that the metadata had been changed in a way consistent with intentional backdating of the documents.
Based upon this evidence and upon the fact that no references to any of the disputed documents appeared in thousands of text messages exchanged between Nadeau and the client, the hearing panel found that he had repeatedly produced false documents to the ADO and engaged in a deliberate, multi-year effort to deceive the disciplinary authority. The Professional Conduct Commission (PCC) concluded that this conduct violated Rules 3.4(b) and 8.1(a) by failing to preserve evidence and falsifying evidence, among other violations. The PCC found six aggravating factors, including bad faith obstruction of the disciplinary proceeding and refusal to acknowledge the wrongful nature of his conduct, and four mitigating factors including lack of a prior disciplinary record and personal and/or emotional problems. Balancing these factors, it recommended that Nadeau be disbarred based on this conduct alone without even addressing the underlying charges. The Supreme Court agreed with the PCC’s analysis and ordered that Nadeau be disbarred.
ABA Clarifies “Reasonable Care” to Avoid Conflicts
Lawyers and law firms must often collect information from prospective clients in order to determine whether they will enter into representation of those clients. In so doing, they must exercise care not to acquire so much information that they would be disqualified from representing anyone with interests conflicting with those of the prospective client if this process does not result in the formation of an attorney-client relationship. Rule 1.18 of the Model Rules of Professional Conduct ( Pennsylvania version) addresses the circumstances under which lawyers and law firms may undertake representation adverse to a person who sought out their services.
A new formal opinion by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility provides guidance on how to limit the information received so as to avoid disqualification. Rule 1.18(c) states, “A lawyer [who has received information from a prospective client] shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.” The section goes on to disqualify the lawyer’s firm, subject to exceptions in Paragraph (d). One exception allows the firm to accept adverse representation if “the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client” [emphasis added].
ABA Formal Opinion 510 addresses what “reasonable measures to avoid exposure” might be and what steps law firms can take to minimize the risk of disqualification.
The Committee begins by noting that taking more than the minimum information is not in itself misconduct. However, doing so exposes the firm to a risk of disqualification which might necessitate steps such as obtaining informed written consent from the prospective client or declining the adverse representation.
The Committee goes on to state that the lawyer will need to obtain information sufficient to comply with other ethical issues such as assuring that the representation would be within the lawyer’s professional competence, collecting enough facts to determine whether the case has merit, and ascertaining other affected parties in order to analyze whether there is any existing conflict of interest. On the other hand, if the lawyer gathers information with the intent of displaying expertise or persuading the client that the client should employ the lawyer, that information may go beyond what is necessary to determine whether to accept the representation.
The opinion then moves on to address what might constitute reasonable efforts to limit the information received. Allowing the client to talk freely about the matter and conducting factual investigation may run the risk of acquiring information beyond what is necessary. However, cutting the client off in order to limit the information may undermine the soundness of the lawyer’s decision as to whether to accept the representation. The Committee concludes that the “reasonable measures” standard means that lawyers must exercise discretion throughout the initial communications while the lawyer and prospective client are considering whether to enter into a lawyer-client relationship. The lawyer may also warn the prospective client that the lawyer has not yet agreed to take on the matter and that information should be limited only to what is necessary for both the lawyer and client to determine whether to move forward.
Regarding the screening process once a lawyer has received information, the Committee opined that timely screening of a lawyer who has interviewed a prospective client but not taken on the matter need not occur until the law firm becomes aware of information that there may be a conflict. It is not necessary to establish a screening procedure for every lawyer who interviews and does not represent a potential client in the absence of information suggesting a conflict.
The Committee recommends that lawyers should exercise care in obtaining initial information; that the prospective client should be cautioned at the outset of the initial consultation not to volunteer information until after the lawyer has determined whether the representation can or will take place; and that, if the lawyer learns disqualifying information and fails to take reasonable measures to avoid receiving more disqualifying information than reasonably, not only the lawyer but also other lawyers in the firm will be disqualified from representing a client adverse to the prospective client in the same or a substantially related matter without the prospective client’s informed consent.
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Attorney Well-Being
Law School Administrators and ABA Address Mental Health Issues Amongst Law Students
May is Mental Health Awareness Month. Last month, Law.com published an article highlighting the importance of addressing the mental health crisis within the law community from the time that future lawyers enter law school. “‘We’re Literally Dying’: Addressing Mental Health in the Legal Profession Needs to Start in Law School” cites a recent study claiming that an alarming forty percent of surveyed law students report struggling with depression by the time of graduation. In the article, both the American Bar Association and administrators from across the nation share ways that schools are tackling mental health and substance abuse amongst students.
Read the full article here on Law.com.
Lawyers Across the Country "Rebooted" During Well-Being Week in Law
This year's Well-Being Week in Law, observed May 6th-10th, encouraged creating a "clean slate" for refocusing on well-being actions. With the theme "Well-Being Reboot", the Institute of Well-Being in Law (IWIL), the celebration's host, led a wide variety of programming focused on five dimensions of wellness: physical, spiritual, intellectual, social, and emotional well-being.
Each day, IWIL offered activities and webinars aligned with one of the five dimensions of well-being. Webinars included continuing education events offering practical strategies for improving or maintaining personal well-being as well as sessions designed to get participants moving for physical and mental health, including yoga, high-intensity interval training (HIIT), seated boxing, and a special Peloton ride.
Well-Being Week in Law is held annually by IWIL and aims to "to raise awareness about mental health and encourage action and innovation across the profession all year-round to improve well-being". Learn more about this yearly event at lawyerwellbeing.net/well-being-week-in-law.
Explore the Disciplinary Board's Lawyer Well-Being Webpage
The Disciplinary Board's "Lawyer Well-Being" webpage 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
Pennsylvania Courts Honor April’s Autism Acceptance Month through Expansion of Autism and the Courts Initiative
Led by Pennsylvania Supreme Court Justice Kevin Dougherty, the Commonwealth’s Autism and the Courts initiative recently expanded its reach through additional sensory-friendly courtrooms and a partnership with the PA Parole Board.
PA’s Autism and the Courts initiative seeks to better assist individuals in the court system with an autism spectrum disorder (ASD), recognizing their unique experiences and needs. Justice Dougherty explained, “The courthouse setting can be an intimidating one, especially for children and individuals who are neurodiverse. The Autism in the Courts initiative is aimed at finding those gaps in the system where we can enact real and permanent change, to make the court experience more sensory-friendly for those who need it most.” PA is lauded as the first state to focus on identifying and supporting the needs of neurodiverse families within its court system.
Last month, in alignment with Autism Acceptance Month, Justice Dougherty announced that twenty-two PA counties have integrated sensory tools into courtrooms. Some such tools include noise-cancelling headphones, sunglasses, and fidget toys. A dozen of those counties have created sensory spaces in their courthouses aimed to support emotional regulation for children with autism. Spaces may offer weighted blankets and vests, noise machines, mobile devices with apps specifically for individuals with autism, and other resources designed for neurodiverse spaces.
Justice Dougherty and the Autism in the Courts team organized staff from the Pennsylvania Parole Board, the Department of Corrections, and the Commission on Sentencing for training on how to provide needed support to those on the autism spectrum. Parole Board Chairman C. James Fox articulated the urgency that the Board profoundly understand and appreciate the significance of neurodevelopmental conditions in the parole decision-making process. He asserted, “Understanding the unique perspectives and challenges faced by individuals with autism is not only essential for ensuring fairness but also for upholding the principles of compassion and equity within our justice system. Ignoring or misunderstanding these factors can lead to unjust outcomes.”
Visit the Unified Judicial System's "Autism and the Courts" webpage to learn about PA Courts' vigorous efforts to better aid court users with autism.
Support Civil Legal Aid through the Pennsylvania IOLTA Board
Make a donation to civil legal aid while completing 2024-2025 Annual Attorney Registration ̶ or anytime online.
One hundred percent of donations to the Pennsylvania IOLTA Board goes directly to funding civil legal aid for low-income Pennsylvanians across the Commonwealth. Donor support makes it possible for IOLTA-funded civil legal aid organizations to help more people with nowhere else to turn.
To see who donated last year and to learn more about civil legal aid in Pennsylvania, check out the PA IOLTA Board’s 2023 Annual Report.
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From the Pennsylvania Bar Association
Pennsylvania Bar Association Officers Begin Terms
May marks the start of a new bar year at the Pennsylvania Bar Association. Join the PBA in welcoming the new President, Nancy Conrad, and the Officers:
- President – Nancy Conrad
- President-Elect – Kristen B. Hamilton
- Vice President – James R. Antoniono
- Immediate Past President – Michael J. McDonald
- Chair, Young Lawyers Division – Melissa Merchant-Calvert
ll will begin their terms of office on the PBA Board of Governors at the conclusion of the PBA House of Delegates meeting on May 9 th.
Learn more about President Conrad and her leadership focus for the 2024-2025 bar year in the latest edition of The Pennsylvania Lawyer.
Now is a great time to get involved with the PBA or join its committees and sections. Join the PBA today and automatically receive a twenty-five percent discount on 2024 membership!
Please note that the Disciplinary Board of the Supreme Court of Pennsylvania and the Pennsylvania Bar Association (PBA) are separate organizations. For more information about PBA, visit their website or follow Facebook, Instagram, and LinkedIn.
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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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