The Pennsylvania Lawyer Magazine - November/December 2019 by Kelly Vanek

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SIDE BAR

Building Bridges

“The legal system can force open doors and sometimes even knock down walls. But it cannot build bridges. That job belongs to you and me.” — U.S. Supreme Court Justice Thurgood Marshall

ennsylvania is often referred to as “The Keystone State.” A keystone is a wedge-shaped stone that is central to an arch, buttressing the adjoining stones. The symbol reflects Pennsylvania’s key position in the founding days of our nation. We have many beautiful bridges throughout this commonwealth, and as I have traversed the state, I’ve occasionally observed keystones in many of those bridges. I’ve crossed bridges spanning waterways from the Allegheny to the Susquehanna to the Schuylkill. Covered bridges, open bridges and everything in between have given me the opportunity to experience the wonder of a structure that allows one to reach the other side. But bridges span more than waterways; bridges span relationships and professions as well. Bridges also provide a means of spanning our relationships with one another as members of this profession. I happened upon a monument containing a quote attributed to the late U.S. Supreme Court Justice Thurgood Marshall. The inscription read, “The legal system can force open doors and sometimes even knock down walls. But it cannot build bridges. That job belongs to you and me.” I did some research to find the source of that quote, and traced it to his acceptance speech upon being awarded the Liberty Medal, July 4, 1992. What I found most interesting — in my interpretation — is the way the jurist recognized that the legal process can only do so much. We lawyers can get verdicts that give financial remedy, secure orders that mandate action and negotiate resolutions that compromise claims. But those legal forms of relief are just one piece of our societal puzzle. Our use of the legal remedies often needs to be as judicious as the dispensing of them. So when a potential client walks in and asks you to get an order requiring his neighbor to tear down an encroaching fence, the victory isn’t quite so sweet when those neighbors walk out of the courtroom knowing that a newer, bigger fence is likely to be built, just in a different spot. There’s nothing wrong with having the fence to separate the real estate, but the separation of human estate has just become greater. It may not be our job to bring these feuding neighbors together, but maybe we can use the tools

The Pennsylvania Lawyer

we’ve been uniquely equipped with to build small bridges in other ways. We can be courteous to each other even when disagreeing; we can hold the door for each other, even though we’re opponents in the courtroom; we can pick up the phone and call each other before jumping to a conclusion. Marshall’s quote strikes at the heart of personal responsibility. As lawyers, it’s our job to seek justice and give voice to our clients who are in search of it. But our jobs can only take the meting out of justice so far. At some point, it becomes our responsibility to do more. We need to take that extra step beyond opening the doors and knocking down the walls; we need to build the bridges that give ease of entry. I attended a Pittsburgh Pirates game the other day. As you enter the baseball stadium, a gatekeeper greets you. The friendly face and welcoming demeanor framed my experience at that game. As gatekeepers of the legal system, we have a unique opportunity to frame our clients’ experience with the legal system. We can and should use our positions to build bridges with those folks. The legal system provides a bridge between the disputes encountered by citizens and the remedy for those disputes. We meet, inform ourselves, research, prepare and proceed with passion to help our clients. We are the bridges for those individuals. ⚖

November/December 2019

Anne N. John PBA President

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On the Cover: The 2019 Fiction Contest Winners … 21

22 First Place: Victor’s Justice

30 Second Place: Knave

34 Third Place: In the Matter Of

By Thomas L. Harper

By Michael D. Reed

By Linda J. Stengle

Departments

Features 42 Many Helped, More to Be Done PLAN programs help 74,000 clients per year By Samuel W. Milkes

46 Why the TCJA Spells Trouble for Charities A critical review of the Tax Cuts and Jobs Act By Laura Solomon and Emily Christian

50 Ratings of the Appellate Court Candidates, 2019 PBA Judicial Evaluation Commission

Cover Art: Design by Kelly Cassidy Vanek Cassidy Communications, Inc. www.cassidycommunications.com

The Pennsylvania Lawyer

November/December 2019

63 8 56 6 62 60 6 4 2 14 64 18

Ad Index Discipline Ethics Digest Letters Marketplace On the Hill PBA Dates People Side Bar The Effective Lawyer To Wit Your PBA

The Pennsylvania Lawyer (ISSN 01934821) is published six times a year in January, March, May, July, September and November by the Pennsylvania Bar Association, 100 South Street, PO Box 186, Harrisburg, PA 17108-0186. Subscription rates: $30 per year for nonmembers. Periodicals Postage Paid at Harrisburg, PA, and at additional mailing offices. POSTMASTER: Send address changes to The Pennsylvania Lawyer, PO Box 186, Harrisburg, PA 17108-0186

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PEOPLE

APPOINTED/ELECTED

McCahon

Mooney

Cohen

Panzer

Myers

Confer

Siegel

Fox

Rattigan

On boards and committees of the Supreme Court of Pennsylvania: Commonwealth Court Judge Renée Cohn Jubelirer, Centre County, appointed to the Judicial Conduct Board; Stella L. Smetanka, Allegheny County, named vice chair, Pennsylvania Interest on Lawyers Trust Account Board. At offices of Barley Snyder: Sarah Rubright McCahon, Reading, named to the board, Girls on the Run Berks County; Keith Mooney, Lancaster, named board president, Berks Arts Council. Samuel E. Cohen of the Philadelphia office of Marshall Dennehey Warner Coleman & Goggin PC, appointed to the executive advisory board, Philadelphia chapter, Special Olympics Pennsylvania.

FIRM MOVES Douglas Panzer, formerly of counsel, Fitzpatrick Lentz & Bubba PC, has rejoined Caesar Rivise PC as a partner, practicing out of the Philadelphia and Lehigh Valley offices. Karl S. Myers, appointed chair of the appellate practice group, Stradley Ronon Stevens & Young LLP, Philadelphia. Joining offices of Barley Snyder: David R. Confer and Martin R. Siegel, of counsel, York; and Michael W. Fox, associate, and David H. Rattigan, partner, in the firm’s new Schuylkill Haven office.

Macy T. Laster, formerly an associate at Weber & Kracht & Chellew, Perkasie, has joined as an associate at Wisler Pearlstine LLP, Blue Bell. Berwyn-based McAndrews Law Offices has expanded its name to McAndrews, Mehalick, Connolly, Hulse, Ryan and Marone PC.

SPEAKING OUT Roseann B. Termini, Widener University Delaware Law School, conference director and course planner, 9th Annual Food and Drug Law CLE Symposium “All Matters FDA: Marijuana, Kratom, Opioids, E-Cigarettes, Device Safety, Food Enforcement, Personal Care Products, Dietary Supplements, and Other Hot Topics.” Jeffrey D. Bukowski and Julie E. Ravis of the Reading office of Stevens & Lee, presenting “Beyond Boilerplate: The Importance of ‘Standard’ Contract Provisions” at the Association of Corporate Counsel Central Pennsylvania In-House Counsel program, Marietta. Francis J. Sullivan of the Yardley office of Hill Wallack LLP, panelist for the National Business Institute seminar “The Mini MBA for Attorneys,” Philadelphia.⚖

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November/December 2019

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PBA DATES

LETTERS

Commission on Women in the Profession Fall Retreat Nov. 1-2, Bedford Springs Board of Governors Meeting Nov. 13, Harrisburg Committee/Section Day Nov. 14, Harrisburg House of Delegates Meeting Nov. 15, Harrisburg Commission on Women in the Profession Full Commission Meeting Jan. 6, 2020 Harrisburg, Philadelphia, Pittsburgh Family Law Section Winter Meeting Jan. 16-19, 2020, Hershey

We’re Past the Two-Minute Warning

Board of Governors Meeting Jan. 29, 2020, Bahamas Midyear Meeting Jan. 29-Feb 2, 2020, Bahamas For more information on these and other PBA meetings, check the PBA website at www.pabar.org.

The email address for letters to the editor of The Pennsylvania Lawyer magazine is editor@pabar.org. Letters by mail should be sent to the Pennsylvania Bar Association, Attn. Editor, 100 South Street, P.O. Box 186, Harrisburg, Pa. 17108-0186.

In response to the article by Anthony Natale III [in the September/October issue], “Pennsylvania Workers’ Compensation Act and the Student Athlete: The Ultimate Mismatch,” for student athletes who have suffered an injury that may affect their future ability to work in any occupation, it may well be time for a Doug Flutie Hail Mary. To refute the bases of his conclusion: • Professional athletes’ entitlement to workers’ compensation contradicts the contention that all sports is “just play.” • The argument that sports are casual in nature and/or not part of the “regular course of business” of colleges is defied by common sense, if not hard data. The physical and time commitment of student athletes is likely far more intensive than many jobs. Furthermore, the income generated by colleges from athletic programs, compared to the income vs. expense for actual education, would surely reveal sports programs are a significant contributing factor to virtually every university’s bottom line.

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• Any existing case law on the issue may be ripe for reconsideration, given the evolution of college athletics into a major business enterprise on the backs of uncompensated and unprotected student athletes. • [E]liminating every student athlete because some may not meet the criteria avoids the issue rather than addresses it. [As to the] insurance industry’s likelihood of challenging any given injured athlete’s entitlement to benefits, each athlete’s claim must be evaluated on a case-by-case basis, just as any other worker whose claim may be challenged. Though disputing virtually the entire premise of Mr. Natale’s conclusion, [I agree that] the “correct” solution remains elusive. A confluence of each state’s differing laws, federal law, tax implications and the rules and regulations of the NCAA and each professional sports entity provide a dizzying array of potential hurdles. Perhaps the biggest obstacle is the NCAA itself. Injured student-athletes should not be required to choose between their health, their eligibility and/or their future. While no system is likely to be perfect, “no system at all” is worse. […T]he State of California, echoed by several other state legislatures (including Pennsylvania), are actively contemplating bills to

November/December 2019

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Executive Editor: Jeffrey A. Gingerich Editor: Patricia M. Graybill People Editor: Nancy H. Wilkes

DEATHS

Contributing Writers: Fredrick Cabell Jr., Robert A. Creo, Anne N. John, David J. Millstein, Barry M. Simpson, Victoria White, Nancy H. Wilkes, Thomas G. Wilkinson Jr. Design: Kelly Cassidy Vanek Cassidy Communications Inc.; www.cassidycomm.com; Bethlehem, Pa.

Allegheny County Peter J. King, 81 Pittsburgh

Display Advertising: PBA Communications Department Phone: 800-932-0311, ext. 2226. Classified Advertising: PBA Communications Department; Phone: 800-9320311, ext. 2226.

Butler County Wesley F. Hamilton, 72 Lancaster Township Erie County John R. Evanoff, 52 Erie Northumberland County Myron M. Moskowitz,* 93 Coal Township *PBA 50-year member

enable student athletes to earn an income, citing the difference between allowing a student-musician, -artist or [member of the] debate club to have a job or otherwise earn income (such as from licensing their name). While not characterizing them as employees of the school, it is a crack in the NCAA’s stranglehold on student athletes. And yet, the potentially bigger issue of providing necessary medical treatment remains unaddressed. One thing Tony and I do agree on — these student athletes need some form of protection. Ignoring the issue is not a solution. The antiquated rules of protecting the “amateur status” of athletes was abandoned by the U.S. Olympic Committee long ago, and it is well past the twominute warning to bring such change to the business of college athletics.

Editor’s note: The following was emailed to “To Wit” columnist S. Sponte, Esq. in response to his column in the September/October issue. It appears here with the letter-writer’s permission.

I Don’t See It I think you hit a nerve with [“The Gravity of Righteousness”] — very funny and one of your very best ever. I’ll bet you get lots of comments about this one. I don’t see this phenomenon in my county bar, actually the opposite, because the holier-than-thou statements they all loudly proclaim allegiance to is belied by the [percentage] who actually do pro bono work. Gregory H. Knight Mechanicsburg

Views expressed in The Pennsylvania Lawyer do not necessarily reflect the official views or policies of the Pennsylvania Bar Association. The appearance of a product or service advertisement herein does not constitute an endorsement of the product or service by the Pennsylvania Bar Association. The Pennsylvania Lawyer welcomes editorial submissions from members of the bar. Letters to the editor from readers on all topics concerning the legal profession are welcome. The publisher reserved the right to select letters to be published. Letters may be edited for length and style. Editorial items and correspondence should be mailed to the Pennsylvania Bar Association, Attn. Lawyer Magazine Editor, 100 South Street, P.O. Box 186, Harrisburg, Pa. 17108-0186. Telephone: 800-932-0311. Email address: editor@pabar.org. Unsolicited manuscripts will not be returned unless accompanied by a self-addressed, stamped envelope. The Pennsylvania Lawyer is distributed to all PBA members as a membership benefit. Subscription is $30 per year. To join the PBA, call 800-932-0311. The Pennsylvania Lawyer is underwritten in part by the Pennsylvania Bar Insurance Fund. Soy-based inks used in printing. BOARD OF GOVERNORS OFFICERS President: Anne N. John President-elect: David E. Schwager Vice President: Kathleen D. Wilkinson Immediate Past President: Charles Eppolito III Chair, House of Delegates: Kim Denise Morton Secretary: Beverly H. Rampaul Treasurer: Terry D. Weiler

YOUNG LAWYERS DIVISION REPRESENTATIVES Chair: Jennifer Menichini Chair-elect: Colin J. O’Boyle Immediate Past Chair: Alaina C. Koltash

GOVERNORS Minority Governor: Tyra Oliver Minority Governor: Phillip H. Yoon Unit County Governor: Melinda C. Ghilardi Woman Governor: Nancy Conrad Zone 1: Wesley R. Payne IV Zone 2: Jonathan M. Huerta Zone 3: Kristen B. Hamilton Zone 4: Rita G. Alexyn Zone 5: James P. Valentine Zone 6: James T. Davis Zone 7: Philip B. Friedman Zone 8: Mary E. Schellhammer Zone 9: Michael P. Pierce Zone 10: David E. Henderson Zone 11: Kelly A. Mroz Zone 12: Jacqueline B. Martinez

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EDITORIAL COMMITTEE Chair: David L. Narkiewicz; Vice Chair: Bernadette M. Hohenadel; Members: William I. Arbuckle III, Lori Wisniewski Azzara, Emeline L.K. Diener, Richard J. Frumer, Zanita ZacksGabriel, Judge Thomas King Kistler, Peter W. Klein, Stephanie F. Latimore, Seth A. Mendelsohn, Michael J. Molder, Tiffany Raker; Jill M. Spott, Andrij V.R. Szul, Thomas G. Wilkinson Jr.; Board of Governors Liaison: Michael P. Pierce PBA Staff — Executive Director: Barry M. Simpson; Deputy Executive Director: Francis J. O’Rourke; Director of Communications: Jeffrey A. Gingerich; Director of County Bar Services/Education & Special Projects: Susan E. Etter; Director of Finance: Lisa L. Hogan; Director of Legislative Affairs: Fredrick Cabell Jr.; Director of Management Information Systems: Alan Trosky; Director of Meetings: Wendy A. Loranzo; Director of Member Services: Karla Betts; Director of Western Pennsylvania Services: Bridget M. Gillespie

The Pennsylvania Lawyer

November/December 2019

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DISCIPLINE

PUBLIC DISCIPLINE June 15 through August 16, 2019 ALLEGHENY COUNTY The Supreme Court of Pennsylvania on June 28 ordered Fred William Freitag IV subject to a public reprimand, as unanimously recommended by the Disciplinary Board. According to the opinion, “the conduct at issue relates to an eightmonth time span wherein [Freitag] failed to properly maintain funds entrusted to him.” The report continued, “In further violation of the rules, [he] did not list his Business Account on his Attorney Registration Form for 2015-2016, despite holding entrusted funds in that account during the time period covered by that form.” The report noted that, “[s]tanding alone, [Freitag’s] misconduct, involving a small amount of funds and lack of harm to clients, ordinarily would result in private discipline,” but given his “substantial history of professional discipline,” and “considering that [he] has demonstrated no remorse for his actions, a Public Reprimand is appropriate discipline to ensure that the public is protected and the integrity of the legal system is maintained.” The court on Aug. 2 ordered John E. Quinn subject to a public reprimand, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Quinn’s misconduct involved the mismanagement of his IOLTA account and his lack of communication in connection with several client matters. The report described that in the course of his firm going through several iterations between 1983 and 2016, Quinn “inherited” an IOLTA account that he had not previously controlled and that had not balanced for many years. Relying on what he believed to be an approximately $40,000 surplus in the account, he began withdrawing portions of the perceived surplus, which actually resulted in two overdrafts and a referral from the Pennsylvania Lawyers Fund for Client Security to the Office of Disciplinary Counsel (ODC). In reaching the recommendation for discipline, the panel considered mitigating circumstances that included his admission to misconduct and cooperation with the ODC, depression that has “certainly been a contributing factor to his handling of a handful of cases,” a “difficult family situation,” the “inherited” IOLTA problem that “weighed heavily on [him],” and his “difficulty in recent years

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saying ‘no’ to potential clients, especially ones who were referred to him by previous clients or other attorneys, even if the cases [had] dubious merit,” as well as the aggravating factor of a prior informal admonition. Noting that the “lack of client harm and dishonest or deceitful conduct in combination with the other mitigating factors mitigates against a suspension,” the panel indicated “precedent supports the imposition of a public reprimand for an attorney’s mismanagement of an IOLTA account resulting from poor record-keeping as opposed to dishonest or deceitful conduct.” BUCKS COUNTY The Supreme Court of Pennsylvania on July 3 ordered Andrea D. Goodrich suspended on consent for six months, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Goodrich, who had registered as voluntarily inactive July 1, 1995, and had been working in Georgia and New Jersey, engaged in the unauthorized practice of law when she accepted a job and served as corporate secretary and senior vice president for a financial group in Pennsylvania between January 2017 and May 2018. The report indicated that “[u]pon realizing she was required to be actively licensed in the commonwealth, [she] immediately informed her supervisor,” subsequently retired from the company to stay home with family and has not been practicing law. In mitigation, the board considered her admission to and remorse for her misconduct, her cooperation with the ODC and her lack of prior discipline. DELAWARE COUNTY The Supreme Court of Pennsylvania on July 1 ordered Amanda Iannuzzelli suspended for three years. According to the disciplinary report, Iannuzzelli was charged with multiple violations of the Rules of Professional Conduct and Pennsylvania Rules of Disciplinary Enforcement arising out of eight separate charges. The report indicated “that in five client matters, [she] neglected clients, refused to account for and refund unearned fees, and engaged in a conflict of interest. [She] ignored voicemail messages, texts and emails from her clients asking about their respective matters, then appeared surprised that clients expected [her] to be prepared and to show up for meetings and hearings. … In three of the matters, [her] clients sued her and obtained

November/December 2019

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judgments against her. [She] failed to comply with IOLTA rules.” The report also indicated, “[She] allowed her law license to lapse by failing to file the annual registration statement and pay her annual attorney fee[,] continued to engage in the practice of law in contravention of the Court’s Order,” blamed her misconduct on office staff, “engaged in inappropriate and deceptive actions by submitting an altered document to [the ODC] during its investigation, and engaged in criminal behavior by failing to pay employment taxes.” Noting “that during the time frame of her misconduct, she was beset by extensive personal problems,” the board concluded that “the breadth of [her] misconduct, her lack of remorse, her unwillingness to accept responsibility, her bewildering attitude towards her professional problems, and the lack of mitigating factors present in this matter, in combination with the evidence of [her] personal problems, warrant a suspension of three years.” The court on July 1 ordered Jeff Lee Lewin suspended on consent for two years, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, related to three client matters and a separate subpoena covering a three-year period, Lewin violated the Rules of Professional Conduct, demonstrating a “lack of diligence, lack of competence, failure to communicate, failure to maintain client accounts and refund unearned fees, and breach of duty to former clients.” In mitigation, the board considered his lack of prior discipline in “over 42 years as a member of the bar,” as well as his “demonstrated remorse and acceptance of responsibility,” concluding that, “[t]he parties agree that the particular facts of this case warrant a two-year suspension. After completing his suspension, [Lewin] will be required to petition for reinstatement and demonstrate his fitness and competency prior to resuming practice, thus protecting the public and meeting the goals of the disciplinary system.” The court on July 30 ordered Scott Lawrence Kramer disbarred, as unanimously recommended by the Disciplinary

Board. According to the disciplinary report, Kramer was charged with violating multiple Rules of Professional Conduct in matters involving clients, who “independent of each other, all had similar complaints that [he] had improperly retained unearned fees, neglected matters, failed to communicate, and failed to provide competent representation,” including one matter wherein he converted $123,900 in excess fees and misappropriated $5,000 in order to make a personal investment, an action the board called “outright theft.” The report also made note of his “sloppy” preparation of court documents, “lack of professional ethics” and “disingenuous” testimony. As indicated in the report, “[Kramer] expressed no remorse and put forth no character evidence. [He] has practiced law since 2004 with no prior discipline; however, the misconduct … began in 2010, not very long after his admission to the bar.” The report indicated the board’s determination that “[a] recommendation of disbarment is appropriate and consistent with precedent involving attorneys who convert funds, mishandle accounts, fail to refund fees for work that was never performed, neglect client matters, engage in conduct prejudicial to the administration of justice, make misrepresentations and act dishonestly, and commit a multitude of other violations over the course of six years involving six clients,” and that “[Kramer’s] multiple and severe breaches of his obligations to his clients demonstrate that he is unfit to practice law and is a threat to the public.” LUZERNE COUNTY The Supreme Court of Pennsylvania on July 9 ordered Kevin Tanribilir subject to a public reprimand. As indicated in the text of the reprimand, Tanribilir, who had no history of prior discipline, violated the Rules of Professional Conduct in the course of his conduct in three bankruptcy matters, wherein he “failed to exercise diligence, competence and due care by filing … verifications, signed … under penalty of perjury, that expressly attested that all of the information contained in the filed documents was complete and accurate, without confirming with each client-

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debtor that they had reviewed actual prepared documents,” “failed to promptly address the omission and did not take corrective steps until after the issues were discovered by the Chapter 7 Trustee” and “appeared at the evidentiary hearing unprepared, and failed to provide forthright testimony.” The report indicated that even when sanctioned and fined by the bankruptcy court, “[Tanribilir] continued to deny that [he] engaged in any misconduct. MONTGOMERY COUNTY The Supreme Court of Pennsylvania on June 20 ordered John Kelvin Conner disbarred, as unanimously recommended by the Disciplinary Board. According to the disciplinary report, on Feb. 28, 2018, the ODC filed a petition for discipline against Conner arising from allegations that he used a power of attorney granted to him by an elderly client who required round-the-clock caretaking at her home to withdraw $95,192.47 of the client’s personal funds a total of 172 times at various casinos, “sometimes several times per day and multiple times per week … to help fund his gambling” over a nine-month period without the client’s knowledge or permission and “despite the unambiguous language of his Acknowledgment Executed by Agent, whereby he was required to exercise his power granted in the power of attorney for the benefit of [the client.]” According to the report, “when it appeared that the balance in the [client’s checking account] was low, [Conner] transferred … other funds from her savings and investment accounts … at least 33 different times. … [His] scheme ended … when the Wells Fargo overdraft protection on the account was exceeded[,] paychecks to [the client’s] personal caretakers were returned for non-sufficient funds” and the client revoked the power of attorney. The board found not credible Conner’s testimony that he had the client’s permission to borrow funds to gamble and that she filed a complaint against him with ODC “and accused him of using her account without permission because [he] made one of her caretakers pay income taxes,” and found no mitigating factors, concluding,“[Conner’s]

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DISCIPLINE

unauthorized use of his client’s funds, prior discipline for mishandling client funds and lack of remorse signify that severe discipline must be imposed.” The court on June 20 ordered Brian Joseph Smith suspended on consent for one year and one day, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Smith’s misconduct involved two matters: “a frivolous pleading [for which he] was ultimately held in contempt for violating a court order” and “a referral to [the ODC] from Client Security relating to a shortfall created in [his] PNC IOLTA.” Regarding the IOLTA account, the report indicated that Smith “failed to keep required records for these fiduciary funds and his indifferent and casual responses to [the ODC’s] numerous requests for these records unnecessarily delayed the investigation and ultimately effectively prevented ODC from performing a comprehensive audit.” While noting the mitigating factors of Smith’s more than 25 years in practice without discipline, his admission to misconduct and his remorse, the panel considered his “extremely belated” cooperation, his “complete disdain for the disciplinary proceeding” prior to the eve of the scheduled disciplinary hearing and that he “has not paid any of the sanctions, counsel fees or costs imposed by the [court],” concluding that his “indifference demonstrates his unfitness and in totality with the underlying misconduct, justifies a one-year and one-day suspension.” The court on June 27 ordered Douglas B. Breidenbach Jr. suspended on consent for six months, as recommended by a threemember panel of the Disciplinary Board. The disciplinary report detailed how, following being appointed by court order to serve as an attorney for an estate, Breidenbach failed to take appropriate and timely action to resolve the estate. Noting as mitigating factors Breidenbach’s remorse and his cooperation and actions following his receiving notice of the disciplinary complaint, the board determined that “[his] history of discipline involving prior client neglect and poor communication

The Pennsylvania Lawyer

warrants increased consequences,” and concluded that “[a] six-month suspension is consistent with the range of sanctions imposed in similar cases.” PHILADELPHIA The court on July 1 ordered Michael Albert Hanamirian suspended on consent for two years with the suspension stayed in its entirety and Hanamirian placed on probation for one year, subject to conditions including that he provide the ODC with “bank statements, including monthly statements of account, checks, deposit slips, and other transactions, and client ledgers for his IOLTA, as well as monthly reconciliations for each fiduciary account,” as recommended by a three-member panel of the Disciplinary Board. The court on July 3 ordered Lokanath Mohapatra suspended on consent for six months, retroactive to Dec. 31 2009, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Mohapatra was ordered placed on administrative suspension effective Dec. 31, 2009, for failing to meet his required continuing legal education credits, following which he failed to inform his firm and client that he was ineligible to practice law, and engaged in the unauthorized practice of law (UPL). According to the report, although he eventually satisfied his CLE requirements, he failed to take any additional steps to resume active status, and in January 2012, he returned to his native India to care for his elderly mother. The report indicated that following his return to the United States in 2014, he worked as a nonlegal consultant and, in July 2017, self-reported his UPL. In mitigation, the board considered that Mohapatra self-reported his misconduct, and cooperated with the ODC, as well as his remorse and lack of prior discipline. The report concluded that his “UPL occurred over seven years ago. [He] will have to petition for reinstatement because he has been on administrative suspension for over nine years, a factor that may be taken into consideration when final discipline is imposed.”

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The court on July 9 ordered Douglas Andrew Grannan suspended for one year and one day as unanimously recommended by the Disciplinary Board. According to the disciplinary report, Grannan, a sole practitioner serving the immigrant community in Philadelphia, who had practiced law since 1997 with no history of discipline, and who was commended by the hearing committee “for undertaking representation of this often underserved community,” had, “[d]uring a span of two and one-half years, … engaged in a course of misconduct in five immigration and two personal injury matters. His misconduct involved lack of competence, lack of diligence, failure to communicate, failure to return client files, and conduct prejudicial to the administration of justice.” The board found “particularly troubling” his poor communication, “as his clients’ limited English placed them in a vulnerable position with regard to their understanding of the legal processes in which they were involved. [His] misconduct resulted in adverse consequences to his clients, as their rights were either jeopardized or lost due to [his] failure to present evidence or pursue arguments essential to the advancement of their matters. Some clients’ files were never

returned. Many clients retained new counsel in an attempt to remedy [his] wrongdoing. [His] conduct burdened the court system, which had to contend with his repeated incompetence.” The report indicated that the board found “[his] attempt to defend himself by claiming that his clients failed to provide him with necessary documents or information [ ] not credible [… and …] the testimony of [his] clients … ‘significantly’ more credible than his own.” Noting that Grannan “did not demonstrate genuine remorse for his misconduct, did not show appreciation for his wrongdoing by demonstrating measures to remediate his practice problems, and did not present any character evidence,” the board concluded that “[he] is not fit to practice law. A one year and one day suspension removes [him] from practice and thereby protects the public, fulfilling the predominant mission of the disciplinary system. If [he] desires to practice law in the future, he will be required to prove his fitness by clear and convincing evidence.” The court on July 18 modified the probation order for Adam J. Rogers, including that he file written reports with the Disciplinary Board on a monthly rather

e-brief, the PBA Members-Only Electronic Newsletter in a Quick-Read Format Breaking PBA news, legislative and member benefit updates, and the latest association meeting and event details are available in the PBA’s electronic newsletter titled e-brief, another exclusive benefit of PBA membership. The e-brief is distributed to subscribers by email twice each month in a userfriendly format with links to helpful online information. To join the thousands of your fellow PBA members who are already receiving the e-brief, just send an email that includes your email address, with the words “member email address update” in the subject line, to jodi.wilbert@pabar.org.

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than quarterly basis and that he obtain a new sponsor in Narcotics or Alcoholics Anonymous who is not a blood relative, as recommended by a designated member of the Disciplinary Board. Justices Max Baer and Sallie Updyke Mundy dissented from the court’s order in favor of a revocation of probation. The court on July 25 ordered Mark Francis Houldin subject to a public reprimand, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Houldin was ordered administratively suspended, effective Oct. 21, 2015, for failing to complete annual registration requirements and while administratively suspended, engaged in the unauthorized practice of law. In support of the recommended discipline, the board noted “several weighty mitigating circumstances,” including “a causal connection between his misconduct and his depressive episode,” his self-reporting of misconduct, his cooperation with the ODC, consent to discipline and his lack of prior discipline. OUT OF STATE The Supreme Court of Pennsylvania on June 27 ordered Susan Steinthal, Jersey City, N.J., suspended on consent for six months, with the condition that she not apply for admission to the Pennsylvania Bar for two years, as recommended by a three-member panel of the Disciplinary Board. Justice Sallie Updyke Mundy dissented from the court’s order in favor of a six-month suspension with no additional conditions; Justices Debra Todd and David N. Wecht joined the dissent. According to the joint petition in support of discipline, Steinthal “began her on-line application for admission to the Pennsylvania Bar … in 2016. [She] believed that she had filed her application at that time, but she did not hit the ‘submit’ button to file the application. [She] later realized that she had not actually hit the ‘submit’ button, and she did so on June 16, 2017.” The report indicated that, “[b]eginning in October 2016 and continuing until on or about Nov. 13, 2017, approximately 232 answers were

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DISCIPLINE

filed on behalf of Garnishee [her employer], in Pennsylvania proceedings that included affidavits signed by [Steinthal] in her capacity as Deputy General Counsel for [her employer]” and on which she stated that her “application for admission in Pennsylvania is pending.” The report indicated that once the ODC placed Steinthal on notice that she had engaged in the unauthorized practice of law, she ceased providing an affidavit on behalf of her employer and provided proof to the ODC that her appearance had been withdrawn as counsel of record. Noting among the mitigating circumstances that “[Steinthal’s] conduct was not willful, as she at all times believed that her representations were truthful, and that she had disclosed that she was not a member of the Pennsylvania Bar in her Affidavits,” the board concluded that her agreement not to seek admission to the Pennsylvania Bar for two years was consistent with similar discipline. The court on July 25 ordered Mario Sausville-Macias, Utica, N.Y., suspended for two years, as unanimously recommended by the Disciplinary Board. According to the disciplinary report, Sausville-Macias was charged on Oct. 10, 2017, with Pennsylvania and New York rules violations arising from his failure to appear for a public reprimand before the board. The underlying misconduct in the matter was his unauthorized representation of a client in an immigration matter while on administrative suspension. According to the report, his misconduct was “aggravated by several weighty factors. In the instant matter, [he] failed to accept responsibility and failed to express contrition for his wrongful behavior towards his client and his serious professional lapses that resulted in his nonappearance for the imposition of discipline. Furthermore, [he] has a history of disregard for his clients and disrespect for his law license. In 1990, [he] abandoned his law office, law practice and clients in Pennsylvania. … [His] flagrant disavowal of his professional responsibilities wasted the resources of the court and Office of Disciplinary Counsel.” The

The Pennsylvania Lawyer

report also noted the open judgments against Sausville-Macias in New Jersey and Florida, that he has not reimbursed the Lawyers Fund for Client Security for the claim paid to the client and the lack of mitigating factors, concluding, “[His] categorical disregard for his clients and lack of respect for the courts and the disciplinary system commenced decades ago and has continued through his failure to appear for his Public Reprimand. [He] has repeatedly demonstrated a lack of fitness to practice law and must be prohibited from representing clients until he can prove his fitness to do so.” EMERGENCY TEMPORARY SUSPENSION — Rule 208(f) The Supreme Court of Pennsylvania ordered the following attorneys placed on emergency temporary suspension: John M. Kerr, Cumberland County, on July 11; Eric J. Linder, Philadelphia, on Aug. 2. EMERGENCY TEMPORARY SUSPENSION — Rule 208(f)(5) The Supreme Court of Pennsylvania ordered the following attorney placed on temporary suspension pending further definitive action by the court: John Richard Shreve, Warren County, on Aug. 14. TEMPORARY SUSPENSION — Rule 214 The Supreme Court of Pennsylvania ordered the following attorneys placed on temporary suspension under a rule of disciplinary enforcement pertaining to attorneys convicted of a crime: Ivan Stewart DeVoren, Allegheny County, on July 3; Lawrence Jay Weinstein, Montgomery County, on July 18; Donald B. Moreman, Fayette County, on July 30; Joseph Christopher Francis, Washington County, on Aug. 1. DISBARMENT ON CONSENT — Rule 215 The Supreme Court of Pennsylvania ordered the following attorneys disbarred

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on consent under a rule of disciplinary enforcement pertaining to resignations by attorneys who are being investigated for allegations of misconduct: Kenneth Lasch Smukler, Montgomery County, on June 24, retroactive to April 1, the date of his temporary suspension under a rule of disciplinary enforcement pertaining to attorneys convicted of a crime. Justices Debra Todd and David N. Wecht did not participate in the matter; David Leonard Quatrella, Trumbull, Conn., on July 8, retroactive to April 6, 2017; Steven James Lynch, Washington County, on July 15. TRANSFER TO DISABILITY INACTIVE STATUS â&#x20AC;&#x201D; Rule 301(e) The Supreme Court of Pennsylvania ordered the following attorneys transferred to inactive status for an indefinite period under a rule of disciplinary enforcement where, in the course of a disciplinary proceeding, the respondent contends that he or she is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which makes it impossible for the respondent to prepare an adequate defense: Alicia Ann Blakenship, Lancaster County, on July 3; Howard Mark Hyman, Wilmington, Del., on July 18. RECIPROCAL DISCIPLINE The Supreme Court of Pennsylvania imposed reciprocal discipline on the following attorneys: John Shasanmi, New York, N.Y., disbarred, on July 18, for like discipline imposed by the Supreme Court of New York, Appellate Division, First Judicial Department; Michael Evan Weintraub, Hamilton, N.J., suspended for six months, on Aug. 6, for like discipline imposed by the Supreme Court of New Jersey.

REINSTATEMENTS June 15 through August 16, 2019 The Supreme Court of Pennsylvania granted reinstatement to Peter Joseph

Payne Jr., Allegheny County, on July 22, from disbarment on consent ordered May 1, 2013, upon consideration of the report, unanimous recommendation by the Disciplinary Board and the dissenting opinion of the Disciplinary Board hearing committee. According to the boardâ&#x20AC;&#x2122;s report, Payne was disbarred for â&#x20AC;&#x153;misappropriation of entrusted funds of clients in his law firmâ&#x20AC;&#x2122;s IOLTA account, in the amount of $500,000, which he converted for his personal use.â&#x20AC;? Noting that â&#x20AC;&#x153;[Payneâ&#x20AC;&#x2122;s] acts of misconduct, while extremely serious â&#x20AC;Ś are not so egregious as to prevent reinstatement,â&#x20AC;? the board indicated that â&#x20AC;&#x153;even prior to complaints being filed with the ODC pertaining to [his] misconduct, [he] began the process of reimbursement,â&#x20AC;? â&#x20AC;&#x153;[his] actions demonstrated that he accepted responsibility for his misconduct and remorse for what he did,â&#x20AC;? and concluded that â&#x20AC;&#x153;despite the relatively short length of time that [he] has been disbarred, â&#x20AC;Ś he has met his burden to prove that he is fit to resume the practice of law.â&#x20AC;? The court granted reinstatement to Madeline E. Schwartz, Philadelphia, on July 22, from a three-year suspension, as unanimously recommended by the Disciplinary Board. According to the reinstatement report, Schwartz was ordered suspended on Feb. 6, 2012, for misconduct involving â&#x20AC;&#x153;converting client funds and neglecting matters of a client, and issuing bad checks to witnesses â&#x20AC;Ś serious practice violations â&#x20AC;Ś aggravated by [her] failure to participate in the disciplinary proceedings or appear at the disciplinary hearing.â&#x20AC;? According to the report, the board, noting that Schwartz â&#x20AC;&#x153;testified to the many negative, difficult and stressful events in her personal life that occurred during the time frame of her misconduct and into her period of suspension â&#x20AC;Ś which impacted her ability to meet her professional responsibilities, specifically operating her own law firm as a solo practitioner,â&#x20AC;? also found as credible her testimony that she is â&#x20AC;&#x153;remorseful and apologeticâ&#x20AC;? and that she has â&#x20AC;&#x153;truly learned from her experiences, has made positive changes in her life, and is a moral, competent, hard-working

The Pennsylvania Lawyer

individual whose reinstatement will not present a danger to the public or harm the integrity and standing of the bar.â&#x20AC;? The court granted reinstatement to active status to Raul I. Jauregui, Philadelphia, on Aug. 1, from a one-year suspension on consent ordered June 11, 2018. â&#x161;&#x2013;

Disciplinary Board Information The Disciplinary Board of the Supreme Court of Pennsylvaniaâ&#x20AC;&#x2122;s website provides public access to information on lawyers admitted to practice in Pennsylvania, including whether a lawyer has been subjected to public discipline, as well as to recent disciplinary actions of the court and board. See www.padisciplinaryboard.org/for-the-public

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THE EFFECTIVE LAWYER

Core Competencies: Autonomy and Accountability By Robert A. Creo

revious columns have addressed the lawyer’s reputation, self-awareness, professional growth, the art of persuasion, navigating emotions and the importance of perpetual learning. The current series explores the importance of soft skills and the development of core competencies involved in decision-making and effective client representation, including the science and the nuts and bolts of lawyer wellness, competency and contentment. The previous column spoke to the benefits of affiliation and association. This column looks at the concepts of autonomy and accountability as core competencies and how to find a balance between autonomy and connectedness. Sink, Swim or … Tread Water At my recent college reunion, I had a long discussion with two of my classmates who became lawyers, Dwight Dickerson and Mary Connaughton. Dwight runs a program for paralegals in Oakland, Calif., and Mary is a longtime clinical law professor in Boston. Our discussion focused first on how ill-prepared we were to actually practice when we graduated from our respective law schools and how, despite the proliferation of clinical programs and a recognition of the value of soft skills, most law school graduates are likewise far from practice ready. We shared stories of screwing something up when given what our bosses viewed as a routine task or filing. It had been embarrassing to ask the courthouse clerks, most of whom had no schooling beyond high school, to review our filings and correct our documents. Mary noted that, since law clinics serve real clients with real problems, she constantly struggles with how to maintain oversight while not taking over a project or undermining a student’s confidence. This is a fine line to respect. It is often a moving target, with each student making it more difficult to mentor effectively across the spectrum of attitudes and abilities. We discussed how mentoring responsibilities often did not involve any billable hours or have direct economic consequences to the students or the programs. Our discussion reminded me of a story told about Henry Kissinger when he was a professor at Harvard. A student turned in a paper on a The Pennsylvania Lawyer

complex policy matter. Professor Kissinger returned it only with “Is this the best you can do?” written on it. The student handed in another draft a few days later. It was returned with the same handwritten notation. When the paper was returned a third time, the exasperated student met with Professor Kissinger and said that it was the best he could do. Kissinger responded, “OK, I will read it now.” That said, I have never been 100% certain how I feel about express or implied criticism without any constructive feedback. Senior lawyers often only focus on the negative or shortcomings of any long project worked on by junior members of a legal team. Editing is often a matter of semantics and style. Striving for perfection in documents or arguments may impact how the client is billed and the delivery of cost-effective legal services. Certainly an overly intrusive and critical mentor lessens the autonomy and confidence of the newer lawyer. To Bill or Not to Bill? The amount of time that it takes to research an

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We have become

ogy has de-professionalized at least two of the three traditionally learned professions of law, medicine and theology. The media is replete with stories of physicians and other health care providers spending excessive amounts of screen time to input data or otherwise maintain the infrastructure. This contributes to less meaningful work and burnout. My own primary care doctor sits on a stool in front of his computer and types in what I say, along with his observations and other notes. I do not doubt the benefits on improving health care nor suggest there is better way for physicians to practice. Portable technology and information are now structural matters integrated into the professions. We have become more autonomous as individual practitioners as technology has become integrated into daily law practice. We offer take-out services on the go.

more autonomous as individual practitioners as technology has become integrated into daily law practice.

issue, draft transactional clauses or negotiate with adversaries usually has little to do with the economic size of the matter. When even newer associates bill at rates of $200 per hour, it is often not cost effective for a lawyer to provide comprehensive, i.e., effective, representation for even the simplest matters. Lawyers quickly learn, or should learn, that a fee retainer agreement is not a license to spend limitless time pursuing justice or victory at the client’s expense. The practice of delegating routine work downward to associates and paralegals is the correct model, but it raises a host of other issues. One issue is how much time to bill when both the partner and associate are meeting together on the assignment. The same is true of discussions involving a referral lawyer. Lawyers spend a significant amount of time on administrative tasks, such as scheduling using electronic calendars and typing their own emails. Technol-

Autonomy Feels Good Social science research is unanimous regarding workplace satisfaction being directly correlated and proportional to the level of autonomy vested in each worker. Many people (including magazine contributors) do not like to have bosses. Political theory contends that democracies and capitalist societies empower the individual, which then tends to encourage defiance over compliance. Historians note that migrants to America had a common trait of either defying or avoiding authority. The Protestant work ethic, rugged individualism, “can do” practices and attitudes of exceptionalism historically are American values. Many lawyers eventually leave their employers to venture out on their own in solo or small firm practices. Research supports the conclusion that these lawyers are generally happier, provided that they do not fall into either extreme end of the spectrum: economic insecurity from a lack of work or burnout from too much. Since 1979 when I ventured on my own into private practice, I have met these twin challenges with internal calmness

The Pennsylvania Lawyer

and external hustle as the circumstances dictated, aided by amassing as many credit lines and high credit card limits as feasible when times were good. One of my first clients, a wealthy real estate investor, taught me to line up borrowing when I was flush, since no bank will lend you money when you actually need it for practice and living expenses. The American legal system does not operate on a 35-hour workweek with generous vacation, holiday and other paid leave. So lawyers work many hours — most of them alone. Even if more than one counsel is assigned to the same case, they usually perform diverse and complementary, not identical, tasks. Law firms, unlike innovative technology and similar businesses, do not assign competing teams to the same project. Whether by choice, economic limitations or historical evolution, even the newest lawyers work autonomously from other lawyers at most stages of the production and delivery (court filings, appearances, client communications, meetings) of the products of our industry. Law school graduates have increasingly been forced to go it alone as solo practitioners since the legal job market was gutted during the 2008 Great Recession in the frenzy of financial tranches, derivatives and swaps that few of us will ever fully understand. Accountability Ever since Benjamin Franklin popularized the phrase “industry” to equate to hard work and ethical commerce, the consensus among researchers, workplace commentators and self-improvement gurus is that accountability is a characteristic inherent in commercial and professional success. People chose a vocation, a “life’s calling,” that had meaning to them and, in Franklin’s view, that promoted both individual and common good. The classical view of the learned professions is that they serve the public good and hence are accountable to the public. Our ethical

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THE EFFECTIVE LAWYER

codes are based upon the ideal of a virtuous lawyer who balances client needs with fair play within a confining set of rules and procedures. The legal profession promulgates codes of conduct. So lawyers are “officers of the court” and as such are guardians of the public trust in the legal system. This structural accountability is good for the profession and the public. We are obviously accountable to our clients. I regularly hear the lawyer narrative about helping clients solve problems. When I had my general practice in my storefront office across from my elementary school, often representing schoolmates or their parents, this was true. The two years as a corporate lawyer were ultimately about the company’s bottom line. The former was inherently more meaningful. My work as an ADR neutral is a mixture of cases — some involve profound issues for traumatized or victimized human beings, others are commercial disputes involving the passing of money and sometimes the restoration of face or pride. Often my purpose comes from the process of solving a complex or intractable issue or the joy of working with extremely capable counsel on difficult substantive legal issues. I have a great gig. Although I am accountable to perform my work to the best of my ability (think Professor Kissinger), this requires that

most of my motivation be intrinsic rather than extrinsic. Workplace research has shown that after certain economic thresholds, including for lawyers, additional compensation does not provide sufficient incentive to work with peak performance and contentment. The same is true with career advancement. Moving up the ladder does spur achievement, but it will plateau at some point, perhaps when the Peter Principle kicks in and an employee gets promoted above his or her own level of competence. What Can I Do? Fortunately, autonomy and accountability are teachable and learnable core competencies. They also involve significant introspection and a supportive employer or work environment. Lawyers working in public interest, academic settings and governmental, regulatory and compliance roles are a long way on the road to responsible accountability as they pursue well-defined missions. Studies show that these lawyers are happier since their work involves concepts of justice and the public good and usually impact human beings in significant ways. Lawyers intrinsically motivated by mission are more reliable than those working for the next paycheck. In law firms, corporate legal departments and other similar groups, a supportive

The Pennsylvania Lawyer

environment for professional development and wellness is the best foundation to promote accountability while maintaining autonomy. However, current billing systems and the expectations or culture regarding client communications will need to be revised in order to sustain them. Mentoring also contributes — I believe the more formal and structured, the better — although there is significant evidence that informal teaching moments and discussions can be effective. Randy Kiser notes in his book, How Leading Lawyers Think, that judgment and decision-making benefit when lawyer “interactions with colleagues take a variety of forms, ranging from informal hallway chats to regular roundtable meetings with partners, associates, and claims representatives.” He notes that the value of these interactions has been statistically proven in studies of lawyers. These interactions are all part of a connectedness fostered by the culture of the legal community. I think of accountability as the offspring of knowledge and a commitment to reliability. If it takes root, habits change. Your attitudes and habits can be a balance of many things: authentic, autonomous, accountable, connected, reliable and ethical. They will provide excellent results for your clients. You can be content, if not happy. Information is usually absorbed incrementally. Immersion programs, boot camps and courses, including online ones, work better than one-day CLEs and workshops. Attending programs over time and tracking the incremental shift in behavior with written records is an excellent path to professional development and its resulting boost in contentment. Don’t whine or wallow in self-pity. Try it! ⚖

November/December 2019

••••• Pittsburgh attorney Robert A. Creo has practiced as an in-house corporate lawyer and a solo and small firm general practitioner before becoming a full-time neutral. He has mediated and arbitrated thousands of cases, including as a salary arbitrator for Major League Baseball, a grievance arbitrator for the National Football League and a hearing offi-

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cer for the U.S. Senate Select Committee on Ethics. He has been on the mediator roster of the Court of Arbitration for Sports in Lausanne, Switzerland, which provides ADR services for international sports, including the Olympics. He has served as adjunct professor at Duquesne University School of Law and the University of Pittsburgh School of Law. He is the 2018 recipient of the PBA ADR Committee Sir Francis Bacon Alternative Dispute Resolution Award. He is annually included in Best Lawyers in America and named as a Superlawyer. He has a passion for storytelling and is a frequent presenter at The Moth. He is the principal of Happy! Effective Lawyer LLC (www.happy.lawyer) and author of The Effective Lawyer blog (happyeffectivelawyer.org/). His website is www.robertcreo.com. If you have a story to share on this subject or other practice topics, please email racreo@gmail.com.

TA K E A W AY S

Sources and Additional Reading Derrick Bell, Ethical Ambition, Living a Life of Meaning and Worth, (Bloomsbury, 2002).

• Lawyers love autonomy. • Autonomy exists in many practice areas and positions. • Accountability is derivative of intrinsic and extrinsic motivators.

Jane Goodman-Delahunty, et al, “Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes,” 16 Psychology, Public Policy, and Law, No. 2, 152 (2010).

• Core competencies derive from soft skills that are teachable and learnable.

Jonas Jacobson, et al, “Predicting Civil Jury Verdicts: How Attorneys Use (and Misuse) a Second Opinion,” 8 Journal of Empirical Legal Studies, 99-119, (2011).

• Authentic reliability is a virtue that will serve you well as a lawyer.

Randall Kiser, How Leading Lawyers Think, Expert Insights Into Judgment and Advocacy (Springer, 2011).

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November/December 2019

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YOUR PBA

A Gift of Good News By Barry M. Simpson

he “season to be jolly” is rapidly approaching. Some of you need no encouragement to get in the holiday spirit. Others may need a little nudge. Either way, the PBA is helping to magnify your jolly. Those of you who have already received your PBA membership invoice know that there is no dues increase for 2020. No dues increase for three years in a row! It took continued strong stewardship by our board of governors and staff to provide this gift of good news for all PBA members. These efforts include examining our programs and services to make sure we continuously adapt to the changing environment of association membership and business and that we are rightsized. Our 2020 PBA budget projects revenues of approximately $7.7 million. Of that, about $4.9 million is dues and $2.6 million is nondues revenue. That nondues revenue is a relatively healthy 36% of total revenue. Certainly good, but not enough to rest on our laurels. So late last winter, the board authorized the hiring of a part-time development officer to augment in a dedicated way the efforts of the PBA Member Services Department, now headed by Director of Member Services Karla Betts. Siena McLees joined our staff the first week in May as our first development officer. Her responsibilities, working with Karla and her team, and with Deputy Executive Director Fran O’Rourke, are to identify, develop and support new nondues revenue streams and help enhance existing relationships with current vendors and sponsors. Siena has completed extensive research of bar associations in Pennsylvania; other state and local bar associations across the country; and other local, state and national professional associations to see what nondues programs, services and sponsorships they offer. The goals of that research included determining structures and fees charged for sponsorship programs, defining the vetting process that associations use to target the businesses and providers they solicit for sponsorships, reviewing marketing collateral used to solicit sponsorships, and identifying benefits and services PBA might add to

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Karla Betts

Siena McLees

our existing array to enhance the value of PBA membership. From this research, three categories of sponsorship are being developed. They include the existing Preferred Partners program, as well as the new Capital Business Partners and Business Meeting Partners programs. The goal of these three programs is to offer standardized levels of benefits packages and opportunities to vendors and sponsors across the PBA. You will be reading more about these programs in the weeks ahead. A master vendor/sponsor list is being compiled and updated daily. This work is in addition to the sources and lists we have developed in-house over the years. And in this holiday season, and beyond, here is your opportunity to “gift” your fellow PBA members and assist Siena, Karla and the PBA staff in putting a ribbon and bow on this project. To the extent you can, please suggest programs, services, vendors and sponsors that might benefit you and all of our members, including present and future ones. To make this gift of information, email Siena at siena.mclees@pabar.org and/or Karla at karla.betts@pabar.org. We will all be thankful for your time and suggestions and your helping us grow nondues revenue, thereby keeping dues as low as possible. May all your holidays be happy and enjoyable.

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Barry M. Simpson Executive Director

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2019 Short Story Fiction Contest Harper, Reed and Stengle Take Top Spots in 2019 Fiction Contest

Reed, who was also a finalist in our 2013 and 2015 contests, indicated, “One of the joys and reliefs of writing fiction instead of pleadings and briefs is that while the legal writing by necessity must spell out all the facts and inferences you want to communicate, in fiction you try to leave room for the reader to make his or her own inferences and conclusions.”

first-time entrant in our contest, Thomas L. Harper, an associate with Zator Law in Allentown, is the first-place winner of The Pennsylvania Lawyer magazine’s 2019 Fiction Contest for his story, “Victor’s Justice.” Our second-place winner is Michael D. Reed, shareholder at Harrisburg’s Mette, Evans & Woodside for his story, “Knave.” Another first-time entrant, Linda L. Stengle of Stengle Law, Boyertown, earned third place in the contest with “In the Matter Of.”

Our judges called Reed’s entry “a modern parable that satisfied all of the requirements of a well-made short story by following the dramatic arc perfectly.” “The story portrays our profession’s best instincts.”

Harper noted he was “incredibly nervous to submit an entry,” as this was “the first bit of fiction I have tried my hand at since the days of high school English class.” Members of our independent, three-judge panel praised his “excellent use of rich imagery and clever dialogue to convey a parable of good and evil,” calling his entry “a wonderful story. I was engaged from the beginning and it ended up actually being a bit of a page turner.”

Stengle told us she is a former writing professor. “I am always surprised by the differences in legal writing and other types of writing,” she said. “In fiction, I have to be careful about writing from a character’s point of view. In legal writing, I am always on the hunt for facts, without much regard for point of view. Both types of writing are interesting; they are very different disciplines.” The contest judges noted her “care in writing and editing” and “the natural and convincing dialogue” of her entry.

Asked to distinguish fiction from legal writing, Harper said, “I love the freedom it gives you …, although analyzing a 19th century judicial opinion on tax law is sometimes easier than writing believable fictional dialogue. That said, I found that the ability to distill complicated concepts into easily digestible material is a skill that is incredibly useful in both fields.”

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Congratulations to our top three winners! Thank you to our judges. And thank you to all the lawyer-writers who entered this year’s contest. We hope our readers enjoy these winning entries.

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F I R S T P L A C E

Victor’s By Thomas L. Harper

raitor. No one made a sound in the makeshift courtroom, but that word hung in the air as if it were being shouted in a deafening chorus. There were no bullets flying, no cannon balls raining down, yet as Captain Benjamin Allen stood in the sweltering courtroom, he felt a pang of fear in his gut normally reserved for the battlefield. Ben remained rigid at the position of attention at counsel table, but he could feel the piercing stares from the packed gallery. Three days ago they were his brothers-inarms, his friends — men he had fought and survived beside. Three days ago, he had been regarded as one of the finest young officers in his unit. Now he might as well be wearing the same dingy grey uniform of the client standing beside him. How much can change in 72 hours, he thought. FIRST CALL. Night had long since fallen on the sea of tents that made up the 108th Pennsylvania

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Infantry Regiment’s encampment. Inside his tent, Ben toyed with his lantern, working to keep light on the bit of paper before him. Josephine, my love, I bring wonderful news. Our men fought gallantly and we have beaten back the enemy at a place called Jonesboro. By the time you read this Atlanta will no doubt have fallen and we will continue onward toward the sea. Know that you are in my thoughts always. Hold little Caleb and Mary close and tell them that we will be together again soon. Yours ever,

Bjam Ben carefully folded the letter and paused as the sound of celebratory whoops filled his tent. Ben checked his pocket watch and was surprised when he saw the time. It was normal for the camp to be festive after a

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victory, but exhaustion would usually drive even the happiest soldier to his bedroll by now. Ben shrugged it off when suddenly a set of hurried footsteps beat past the front of his tent. That’s odd, he thought — soldiers didn’t just voluntarily run anywhere after dark unless they were being ordered around or chased. Ben grabbed his uniform coat and decided to go have a look. As he stepped outside, he heard several familiar voices nearby and headed in their direction. “I hear he smoked a pipe and laughed while watching Sumter burn,” said a voice to a chorus of incensed profanities as he rounded the corner. Several officers sat around the fire, their caps off and blue uniform coats unbuttoned. “I’m looking forward to doing the same at his execution,” replied Captain James Bridges from across the campfire. Ben and James, or “Stick” as he was affectionately nicknamed for his lanky build, went way back, having met while standing in line to volunteer for the war. The two had been inseparable

since then, having escaped death together more times than Ben cared to count. “They say he never takes prisoners — we’ve been trying to capture that bastard since the start of the war,” Stick added, a look of disgust on his face. Sitting beside him was First Lieutenant Ezra O’Connor, an Irishman from Philadelphia who had an accent thick enough to cut with a saber. “Them stories are true. My cousin was at Bull Run helpin’ to collect the bodies — said they stumbled upon 20 or 30 men, all cut down by his blade, hands still tied behind their backs.” Stick suddenly looked up, a wide grin breaking across his face. “Gentlemen, make way for the illustrious Captain Benjamin Allen!” Stick announced, beckoning Ben to sit beside him. “Now what could have possibly drawn you out from your exciting nightly ritual of getting to bed at a reasonable hour?” Stick joked, handing him a jug of something that smelled strong enough to strip paint off a barn.

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“I’d never miss … well, whatever it is we’re celebrating,” Ben said, taking a long swig while fighting back a gag. “You haven’t heard about our esteemed guest?” Stick replied, rising to address the group. Spreading his arms wide, Stick bellowed. “The 108th Pennsylvania Regiment, pride of the Commonwealth, has a great present for General Sherman sitting in this very camp. None other than Lieutenant Colonel Joseph Tremont — the Butcher of Bull Run himself!” “Patrol found a whole bunch of locals in town, all shot in the back,” O’Connor added. “Tremont cut ‘em down like dogs as he ran.” “Think they’ll just cut to the chase and let me put him down?” Stick asked. “I’d shoot him myself, but he’s not worth the ball,” Ben replied. The night wore on as they continued passing the jug around, talking about all the ways they’d get revenge on Tremont. It proved to be the most fun Ben had had in a long time.

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REVEILLE. Ben nearly shot out of his cot as the cold water hit his face. Stick stood nearby, bucket in hand and bent over in laughter. “Captain Allen, as an upstanding officer you really should get the proper amount of rest,” Stick said in a mock serious tone. Ben collapsed back onto the edge of his cot. “Did a horse kick me or do I blame you for this?” Ben asked with his head in his hands. “Georgia’s finest, my friend. You can lodge a complaint with the rebs about the quality of their booze later, but right now the Colonel wants to see you,” Stick declared. “This would be a great time to tell me you’re joking, Stick,” Ben groaned, still keeled over. “Afraid not, friend. You better get over there before we’re both assigned to clean the pig pen,” Stick warned before ducking out of the tent. Ben wondered what the Colonel could possibly want with him. There was no such thing as a friendly meeting with the Colonel. Ben wracked his aching brain trying to think of what stupid mistake landed him in this position. Whatever it was, he’d soon find out. A short while later, Ben stepped into the commander’s tent. Colonel John J. Hastings towered over a table, intently studying a large map. In spite of his age, the Colonel was still an imposing figure. Barrel-chested and as tall as an oak tree, the soldiers joked that he probably wrestled oxen for fun. “Sir, Captain Allen reporting as ordered,” Ben let out, saluting. The Colonel silently gestured Ben forward, still scanning the map. He raised his head, looking Ben over. “I hear you were a lawyer before the war, Captain.” “A-apprentice lawyer, yes sir — under my father,” stammered Ben. He hadn’t expected small talk, but the Colonel’s sudden question about his seemingly distant past life had caught him off guard. “That’ll do just fine,” the Colonel declared. “Captain, I have a special assignment that’s right up your alley.”

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“You’ve no doubt heard that we recently captured none other than Lieutenant Colonel Tremont,” said Hastings. “Yes sir, the Butcher of Bull Run,” Ben acknowledged. “Butcher indeed,” echoed Hastings. “You’ve also no doubt heard of his latest atrocity — gutlessly murdering some local civilians during his retreat.” Ben nodded, unsure of where the Colonel was headed. “Captain, we are going to give Tremont the justice he deserves, but I find myself in a bit of a quandary — one I’m confident you can help me solve,” said the Colonel, leaning against his desk. “You see, our superiors will demand, from the comfort of their Washington offices no less, that we afford the Lieutenant Colonel fair treatment. Due process, they’ll say — a trial, even!” he scoffed. “What they cannot comprehend is that we are an army on the move with a war to win. And that, Captain, is where you enter.” “Sir?” Ben questioned. “I’m assigning you to act as Lieutenant Colonel Tremont’s defense attorney. General Sherman wants this army ready to march in four days’ time, come hell or high water. You’ll have Tremont ready to stand trial in three,” Hastings ordered. Ben felt his heart drop into a pit as his face flushed hot. “ … Sir?” Ben repeated, in utter disbelief. Colonel Hastings stood up, bringing himself to his full height. “Captain, I’m fully aware this job is not glamorous. But I will not allow General Sherman to be pestered by Washington bureaucrats, nor will I allow a single Confederate prisoner to delay our entire advance. This is a team effort and I expect you to play your role. Are we clear?” “Clear, sir” Ben gritted. Ben left the Colonel’s tent, his head spinning. He was surrounded by a thousand men who would love nothing more than to put a knife into Tremont’s belly. Now he was supposed to defend that man.

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ASSEMBLY. The next day, Ben sat pushing his rations around his tin plate. Seventy-two hours, he thought. In 72 hours he’d be free of this damned assignment that was hanging around his neck like an invisible yoke. “Well I hear a certain someone made a new friend.” Ben picked up his head to see Stick walking up. “Word is that there’s gonna be a courtmartial for ole Tremont … and the Colonel tagged you to defend him,” Stick said, a smirk on his face. “If you were going to replace me as your best friend, you could’ve at least given me a heads up,” he added, smiling wide. Not amused, Ben hung his head. “Maybe if I run away for a bit this whole thing will blow over.” Stick shook his head. “No can do. You’d just be making extra work for me since I’d be the one ordered to go drag your sorry tail back.” “Besides, everybody knows you got stuck with this and we all know how it’s gonna end. Think of yourself less as a lawyer and more like … Tremont’s professional guide to the gallows.” Ben chuckled — Stick always had a twisted way of finding a bright spot. “I suppose it’s time to go see my client then,” Ben responded sarcastically as they both laughed in unison. In the heat of the day, Ben could nearly taste the stench of the camp pigsty as he approached. Another small pen bordered it, with a bit of rough canvas haphazardly set up in the corner as a crude shelter from the searing Georgia heat. Underneath it sat a gnarled chunk of railroad track with a man chained to it. It was the Butcher of Bull Run in the flesh. Ben had never encountered Lieutenant Colonel Tremont on the battlefield, much less even seen a painting of him. Based on the rumors, Ben always imagined him as a hulking brute, one step removed from a savage wild beast. The man chained in the pen was anything but that. Tremont’s uniform hung loosely on his body as if it were a size too big. His face was gaunt and

framed by a ragged grey beard. What looked to be a fresh burn peeked up over Tremont’s collar. He probably hadn’t been taken without a fight, Ben thought. Ben had expected to look upon the embodiment of cruelty when he met Tremont. Instead, he simply saw a broken and exhausted old man. Ben stood there silent for a moment. “Tremont?” He finally blurted out. Tremont didn’t look up. “It’s Lieutenant Colonel to you,” he retorted, his southern drawl dripping with contempt. “I suppose it’s time then?” “Time for what?” Ben asked. Tremont looked up and met Ben’s eyes for a moment. “The hangman’s noose,” he said, matter-of-factly. Ben had come prepared to lock horns with a terror of a man, but now he was knocked off-kilter. “N-no,” Ben stammered. “Well — not yet at least. The Colonel has ordered that you stand trial first.” Tremont kicked back his head and belted out a mock laugh. “Well, how genuinely kind of your Colonel.” Ben felt a spark of anger. “And when exactly is this grand trial?” Tremont asked. “Two days from now.” Tremont grunted in amusement. “What charges, pray tell, do I have to answer for?” “The locals you murdered during your retreat,” Ben replied coldly. Tremont’s chuckle halted and he locked his eyes with Ben for a moment before dropping his head back down. “Well, Captain, I thank you for being the Colonel’s dutiful messenger.” Ben gritted his teeth. “I’m not the messenger. I’m your defense counsel.”

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Tremont once again brought his gaze up to meet Ben’s, a look of amusement again painted on his face. “Oh are you, now? You may wear Captain’s bars, but you look to be about 14. How long have you been a soldier?” “Nearly two years.” Tremont let out a snort. “And what’s your experience defending accused war criminals?” “Well I was apprenticing as a lawyer before the war — ” Tremont cut him off, erupting into a full-throated laugh. “Well, Captain, please tell your Colonel that I am much obliged for his commitment to justice.” Ben’s anger flashed. “He’s giving you a chance, which is more than you deserve.” Tremont’s laughter abruptly died. “I’m chained up, accused of murder, and my only ally is someone who’s neither a soldier nor an attorney. That’s some chance. Why don’t you come get me when the noose is ready, Captain.” Back in his tent, Ben paced back and forth, still furious. He’d only met Tremont once and already wanted to personally march him in front of a firing squad. How could he possibly defend such a man? As his mind feverishly worked through ways he could get out of the assignment, he noticed the folded paper of his last letter home. A stab of guilt shot through him as he took it into his hands. His wife had begged him not to volunteer for the war. He had reassured her that he was answering a higher calling — it was a fight for the soul

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Tell Us Your Favorite ‘War Story’ What’s the lawyer story you most love to tell when you bend an elbow with friends after hours? Every lawyer has a favorite “war story” — a tale of a hardwon legal battle, a story with a hilarious twist, an account of an incredible escapade. Pick your best can’t-top-this adventure with a judge, jury, client or colleague and write about it for us in 400 words or less. We’ll choose the best of the best to share with our readers in an upcoming issue of The Pennsylvania Lawyer magazine. Email your “war story” to us at editor@pabar.org or mail it to Pennsylvania Bar Association, Attn. Editor, The Pennsylvania Lawyer, P.O. Box 186, Harrisburg, Pa. 17108-0186.

of this nation, he had told her. If she knew how he was acting now about defending Tremont, she’d point out that his grand speech was nothing more than a load of sanctimonious garbage. His guilt grew white hot as he thought of his children. They had beamed with pride the first time he’d donned his uniform. Ben was their hero, their knight in shining armor. Now he cowered in his tent, tears welling up in his eyes. Ben took a deep breath, wiping his face. He had no clue where this road was leading, but he was certain that sitting in his tent was not where he belonged. RETREAT. Darkness had fallen as Ben walked up to Tremont’s pen. The only light came from a small fire crackling near the prisoner. “Let me guess. The Colonel saw how lovely it is tonight and decided to move up my execution?” Tremont growled, barely lifting his head. “With what I’ve heard about you, I’m amazed they didn’t just shoot you on sight,” Ben remarked as he walked up and took a seat nearby. Tremont chuckled dryly. “I’m sure you would have appreciated that sort of due process.” “No different than what you gave those boys at Bull Run,” Ben fired back. Tremont studied him. “What sort of man do you think I am, Captain?” “Cruel beyond measure. Someone with no regard for human life,” Ben answered without hesitation. “Believing that a man is soulless makes killing him a heck of a lot easier,” Tremont replied. “Or easier for a jury to find you guilty and send you to die,” Ben added coolly. Silence hung in the air for a moment. “Is the story true — did you execute those prisoners at Bull Run?” Tremont met Ben’s eyes. “I thought my trial was about dead locals, not some bit of ancient history.” Ben kept his stare locked on Tremont. “Did you kill those men, Colonel?” “We’re at war, son.”

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“Did you kill those men?” Ben demanded. Tremont narrowed his eyes. “My job in all this madness is simple — to defeat my enemies, no matter what the cost — something I wouldn’t expect a pup like you to understand.” Ben’s fingers curled into fists. “I suppose those civilians were a fair price to pay so you could save your hide?” “You’re my lawyer. I’m about to stand trial in the middle of a war. Does the truth make much of a difference?” “It does to me. If I’m going to help you, the least you can do is be honest.” Tremont stared distantly into the fire. “You have children, Captain?” Without pausing, he continued. “I had a daughter. Emily. She managed to fight and live for 10 months. Ten months longer than her mother,” he continued. “By the time I learned Alice was carrying our baby, I had seen enough war for a lifetime. That baby was my ticket to redemption — to a better life. Alice gave her life to bring Emily into this world.” “After that, keeping Emily alive was all that mattered.” Tremont gritted his teeth. “It was my only purpose in life and I failed.” He paused again, looking Ben directly in the eyes. “Don’t think for a moment that I want to bear the burden of causing another innocent person’s death. I kill my enemies in combat because it is required. I make no apologies for that. I’m prepared to answer before the Almighty for my deeds on the battlefield, but killing those civilians is not one of them.”

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Ben sat silent for a moment. He then stood up and regarded Tremont. “Get some sleep, sir. We’ve got work to do tomorrow.” TATTOO. The sun had barely peeked above the treetops as Ben pored over a battlefield map and a stack of field reports from the Jonesboro battle. “Knock knock,” Stick announced as he stepped into Ben’s tent. “I see someone is back to trying to make the rest of us look bad.” “It’s Tremont,” Ben replied distractedly, his eyes still scanning the map. Stick cocked his head. “If you’re trying to figure out how we could have whipped him more quickly, there’ll be time for that later.” Ben didn’t lift his head. “I’m trying to pin down which units would have been in the area when those civilians were killed.” “Wait. Are you actually doing lawyer work here?” Stick said, the playfulness disappearing from his voice. Ben handed a pair of reports to Stick. “Take a look at these. That first one is from Captain Jewett of the 15th Infantry. His men made the initial sweep through town after we broke the Rebels. Jewett reports encountering civilians as they went house to house seizing supplies.” “Now go to the second report, the one from the 10th Ohio Cavalry. They reported finding the bodies that same day.” Stick turned the page, reading silently.

“Seems like a normal report to me.” “I thought so too until I read them together.” Ben replied. “The Ohio Cavalry reported being out on patrol for supplies when they found the bodies. But look at the timing of the report.” Stick furrowed his brow. “1900 hours — so?” “So why would a patrol go for supplies just four hours after Captain Jewett’s men had been through the same houses?” Ben questioned. “Army efficiency at its finest. It wouldn’t be the first time two units got sent to do the exact same thing,” Stick argued, unmoved. Ben shook his head. “True, but Jewett interacted with the townspeople and didn’t report any casualties. Why would Tremont flee the battlefield and then risk coming back just to murder people?” Stick shrugged, handing the reports back. “Maybe Jewett missed the bodies or maybe your new friend is an even bigger monster than we thought. Who cares?” “I’m supposed to defend him, Stick. Maybe Jewett and his men would be able to tell us a little more.” Stick screwed up his face. “Maybe you should head over to the aid station to get checked because you’re sounding crazy.” Ben felt stung. “You know the Colonel stuck me with this job. I could use your help on this one, Stick.” Stick stepped backwards. “I’m not playing any part in this. Tremont deserves to die and that’s the end of it.” And with that, he left.

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A short time later Ben strode across camp towards Captain Jewett’s tent. A soldier on horseback suddenly came riding up, flagging Ben down. “Sir, the Colonel wants to see you immediately.” What now, Ben wearily thought. Ben entered Colonel Hastings’ tent and was greeted before he could even report. “Captain Allen, I trust everything is in order for tomorrow?” “Not yet, sir. Getting things together in less than three days has been a challenge.” “General Meade only needed three days to beat Lee at Gettysburg, Captain. Surely you’ll be ready to walk a man into a courtroom in that amount of time,” Hastings retorted derisively. “And what’s this I hear about you wanting to talk to men from the 15th Infantry?” Hastings added. The question caught Ben off guard. He hadn’t talked to anyone except for Stick about the 15th Infantry. “Sir, I — I have some questions about what they saw — ” “Captain Jewett and his men are extremely busy,” the Colonel interjected. “I understand, sir, but I would only need a bit of their time.” Hastings rose from his chair. “Captain, I thought I had made myself clear about your assignment.” “Sir, I’m defending Lieutenant Colonel Tremont as ordered.” “I ordered you to play a part, Captain,” Hastings spat back, his voice rising. Ben reflexively locked up at the position of attention, staring straight ahead as Hastings continued. “You will not be speaking with Captain Jewett or anyone else for that matter. You will have that monster ready to face justice tomorrow, or you’ll face your own courtmartial.” Ben felt as though he’d been hit square in the jaw. “You’re a fine officer, Ben. Don’t waste it all on a murderer. You’re dismissed.” “Yes sir,” Ben sputtered before leaving. Night fell over the camp as Ben walked aimlessly among the tents, still reeling from the Colonel’s words. Tremont wasn’t owed

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much, but he deserved to know the truth about what to expect tomorrow. As he made his way towards Tremont’s pen, he heard an awful howl rise up. Ben broke into a sprint, but came skidding to a halt when he came upon the pen. Tremont lay on the ground with his hands up, still chained to the railroad track. Three soldiers stood around him, their jackets off and sleeves rolled up. The sergeant standing in the middle held a long piece of metal with a red-hot tip. “Stick him again!” one of the other soldiers yelped excitedly. “STOP!” Ben blurted out as he burst through the gate. The soldiers turned around, looking unconcerned. Tremont’s filthy shirt was opened and several fresh burn marks lay across his chest as he writhed in pain. “This man is a prisoner of war, what are you men doing?” Ben demanded. “Sir, we’re just carrying out our orders,” the sergeant calmly countered. “Orders from whom?” “Stand down, Captain Allen,” came a voice from behind Ben. He wheeled around to see Stick approaching. Ben felt his stomach drop into his feet. “Stick — d-did you know about this?” Stick looked past him. “Sergeant, why don’t you tell Captain Allen the good news?”

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“Sir, the prisoner confessed to us that he killed those locals,” the sergeant said. “Was that before or after you branded him like a piece of livestock?” Ben shot back. “Well that’s beside the point now, isn’t it?” Stick interjected, smiling. “You asked for my help, so I wanted to do my part. Now your job tomorrow is simple.” “Get the hell out of here. All of you,” Ben replied, disgusted. Stick stood firm. “My men have things under control here. Why don’t you go rest up for your big day tomorrow?” Ben drew his revolver and leveled it at Stick, cocking back the hammer as his hand trembled. “Leave, Captain Bridges.” Still smiling, Stick slowly raised his hands. “Boys, why don’t we leave Captain Allen to his friend here.” Ben kept his revolver up as Stick slowly backed away, winking at Ben as he and the other soldiers disappeared into camp. Ben remained frozen in place for a time, the barrel of his gun visibly shaking. He slowly holstered it before collapsing beside Tremont. TAPS. The town’s clapboard church was packed to the gills the next day, its pews filled with soldiers rather than parishioners. Tremont’s court-martial had drawn a reasonable crowd at first. But when word got out that Ben had opened the trial by demanding that Lieutenant Colonel Tremont be transferred to Washington, soldiers had flocked to the makeshift courtroom. Ben sat gazing up at the sanctuary that now served as a makeshift bench for the tribunal. Tremont sat to his left, looking as if he’d just been plucked from the battlefield. Shackles still bound his hands to his ankles, as if a man in his condition could make it any further than the first few pews. Stick sat in the first row, his stare boring holes into Ben’s back. Ben had been surprised when the presiding officer allowed him to proceed with his argument for a change of venue. Each bit of evidence he offered had been met with a volley of boos and protests from the crowd.

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A riot nearly broke out when Tremont testified about his treatment. After presenting the last of his evidence, the tribunal’s mood appeared to range from boredom to outright annoyance. A feeling of resignation began to seep into Ben’s mind. “Have you anything else to present, Captain?” the presiding officer asked. Ben nodded and slowly rose from his chair. “I do not stand before you to proclaim Lieutenant Colonel Tremont’s innocence or demand that he receive special treatment. All that I ask is that he be given a fair chance — the same chance that any one of us would want if we were in his place.” Ben turned to the crowd behind him, seeing Stick with a disgusted look on his face. “Lieutenant Colonel Tremont presents us with a mighty struggle that cuts to the very heart of why we are fighting. I’ll be the first to admit that I thought he should have been executed on sight. Why should we give mercy to an enemy who offers none in return? “But this war isn’t being waged to simply crush our enemies into submission. We fight in defense of a union that our forefathers sacrificed so much to forge — a union built upon a set of values and the belief that all men are created equal and are bestowed with certain unalienable rights. It is those values that must guide our conduct. War may be hell, but it is no excuse to cast off the very values that set our union apart and make it something worth fighting and dying for.

“Lieutenant Colonel Tremont stands accused of awful crimes. But neither the severity of those crimes, nor his status as an infamous enemy officer is cause to forfeit his basic right to be tried fairly and to defend himself. It is rare to find certainty in war, but the evidence today has shown an undeniable truth: He cannot receive a fair trial here. “If our sacrifices are to mean anything, we cannot yield the moral high ground, no matter how easy, convenient or tempting it may be. If we do, it will forever be a black mark upon all that we are fighting for. I ask, therefore, not that you excuse Lieutenant Colonel Tremont, but that you send him to a place where can be impartially judged, as all men deserve.” Deliberations had taken what felt like an eternity, but the tribunal finally marched back to their seats. “Accused and defense counsel, please rise,” the presiding officer intoned. Ben’s stomach twisted into knots, his heart hammering in his ears. Much had changed in the last 72 hours, but while Ben stood against the withering stares of his brothers-in-arms, he couldn’t help but feel that he was the same soldier that he’d always been. Though the battleground he fought on had changed, he was confident that he was fighting for the same cause that had driven him to volunteer in the first place. As Ben prepared for the inevitable defeat, he found solace in knowing that he had not lost himself in all this madness. The presiding officer spoke, but it was as if his words were uttered in a foreign language. Ben shook his head, looking to the altar with confusion. “Excuse me, sir?” The presiding officer sighed. “Captain Allen, I said that while our decision was not a unanimous one, it is the decision of this tribunal that Lieutenant Colonel Tremont shall be remanded to military police custody for immediate transport to Washington, D.C. This proceeding is adjourned.” As the church erupted in pandemonium, Ben stood there in bewilderment. Two soldiers acting as bailiffs hurriedly escorted Tremont out of the raucous church, yelling at the crowd to keep

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back. Ben stood there, watching the mayhem as if it were in slow motion, barely noticing the gap where Stick had been. Outside, Ben stood looking on as several military police prepared to load Tremont onto a wagon. He should have felt a sense of victorious triumph in that moment. Instead, Ben felt helpless, for he would soon be back on the march, his path diverging from Tremont’s as quickly as their two worlds had come crashing together. Tremont looked up in Ben’s direction and for a moment they locked eyes. Still shackled, Tremont came to the position of attention and raised his right hand as best he could in a salute. Just then, Stick approached, flanked by a pair of rifle-wielding soldiers. A set of iron handcuffs dangled from his hand. “The Colonel’s requested your presence, Captain Allen,” Stick said. “Now would be a good time to tell me you’re joking, Captain Bridges,” Ben replied. “Afraid not, friend,” Stick replied, a certain twisted satisfaction in his voice. Ben didn’t know what his future held, but for once he finally knew why the Colonel wanted to see him.⚖ •

•

“My background as a military attorney and my interest in historical fiction combined to help spark the story,” says fiction contest winner Thomas Harper, who, in addition to practicing in the areas of general counsel work, business and real estate transactions, land development and municipal law, is also a major in the U.S. Army JAG Corps (Army Reserves). “Having both advised on the law of war in Afghanistan and handled numerous criminal cases, I have seen the moral and ethical tension points portrayed in ‘Victor’s Justice’ play out first hand. Beyond my own experience, the concept of an attorney’s ethical duty to represent their client is one that fascinates me and is something to which most attorneys can relate.” As to his own fiction favorites, Harper said, “Being dad to a toddler means that the fiction I read these days generally involves puppies, Sesame Street characters, or Dr. Seuss creations. When I do have the time to read for myself, I tend to escape to the world of ‘Star Wars’ fiction novels, which are something I have loved since I was a kid. While it is impossible to pick favorites, I find myself coming back to Claudia Gray’s writing again and again. She is a former attorney whose work extends well beyond ‘Star Wars.’ Her stories are exceptionally engrossing and do not shy away from tackling difficult moral issues, albeit in the galaxy far, far away.”

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S E C O N D â&#x20AC;&#x2C6; P L A C E

Knave A By Michael D. Reed

fter 42 years of practicing law with the same small firm, Ted McGowan was comfortable in his role as senior partner. He still handled cases, but only those that truly interested him or had been brought to him by longstanding clients. The rest of the many referrals that came his way he generously passed out among the younger lawyers of the firm. Most of those lawyers still consulted with him regularly, not just for his well-regarded strategic advice, but for his wisdom on matters only remotely related to the practice of law â&#x20AC;&#x201D; family issues, money issues, and everything that young lawyers grappled with as they sought to balance their personal lives with their professional careers. On this particular Friday evening in late September, Ted turned in his high-backed leather desk chair toward the windows of his office that looked out over the river. It occurred to him now that this position

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as mentor to the younger attorneys of the firm was in fact the pinnacle achievement of his career. He had won some satisfying verdicts and appeals over the years, but the magnitude of his actual legal work had fallen short of the grandiose dreams he had harbored in law school. Instead, he now understood, it was going to be this incremental accumulation of experience and wisdom to be passed along to others that would define his legacy. Caroline, his wife of 35 years, was gone now, and they had never been blessed with children. This firm, and the lawyers he had mentored over the years, were his family. On most Friday nights by this time, Ted would have joined his best friend, Patrick Swenson, for a drink at the club on his way home. However, this evening, Carl Hurston, one of his partners who would have called Ted his mentor, but in reality rarely sought Tedâ&#x20AC;&#x2122;s advice now after 20 years of his own with the firm, had asked Ted to meet after hours here at the office.

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Carl had called at about 4:30, on the road back from a meeting, and had told Ted that he wanted to share a drink from a great bottle of single malt Scotch Carl had received as a gift from a client. He promised he would be back by six o’clock. Ted had mentored Carl early in his career, but Carl had quickly built his own reputation as a fierce and successful litigator, attracting and winning cases at a level Ted had never reached in his own career. He was consistently the firm’s largest producer, and while he deferred to Ted as did all the younger lawyers in the firm, Carl and Ted both understood that Carl was his own man and did not really need Ted’s help or guidance in the practice of law. Unfortunately, Carl’s professional success had not translated into a happy personal life. He had gone through two relatively short marriages, and his son from the first marriage was a drug addict constantly in trouble with the law. All of those strains, compounded by Carl’s inattention to the details of his personal finances, had resulted in several occasions where he had sought personal loans from Ted, who had always obliged those requests. None of this had restrained Carl’s taste for the good life, as he continued to buy hand-tailored suits, expensive ties, and cars composed of what he liked to call “German steel.” Even the fine Scotch of which he had promised Ted a taste this evening struck Ted as an affectation on Carl’s part. He suspected that the intricacies of the whiskey’s taste escaped Carl, who instead drank it because it was terribly expensive. Ted also suspected that the promise of a shared drink this evening was really the opening for Carl to seek yet another personal loan from Ted. That suspicion was rendered a virtual certainty by the look in Carl’s eyes as he appeared a few minutes after six with the bottle of Scotch and two glasses, gently closing Ted’s office door behind him. In his mid-40s, Carl still cut a handsome, athletic figure. He had shed his suit jacket, but the monogrammed cuff links, the sharp crease of his navy wool pants and the rich leather of his British-made shoes attested to his

style, one which only he and Ted understood Carl could scarcely afford. After pouring two generous drinks and trading a few admiring comments about the whiskey with Ted, Carl launched into his story, which both of them tacitly understood would end with a specific request for a particular sum of money. It was, Ted reflected, much like a closing argument to a jury. “So, Ted, you know that Marstley case I’ve been handling?” “The one against the financial advisor?” “Exactly. I don’t know if you’ve ever met Bob Marstley or his wife Cheryl.” “Yes, I believe you introduced them to me at the firm’s client reception last spring.” “Right. Well, you may have noticed that Cheryl Marstley is a complete knockout. She’s about 10 years younger than Bob, and she lured him away from his first wife when she was working as a receptionist at Bob’s architectural firm.” “I don’t think I knew that.” “Well, anyway, she’s very good at flirting. And I sort of found that out the hard way.” Here Carl paused. Despite his marital issues, he had never discussed women with Ted, whose long marriage to Caroline had never been marred by infidelity. Carl seemed to consider backing off, but then went on, a bit more quietly. “Well, one night when I was here late working on their case, she dropped off some documents I needed, and while we were talking, she let drop that Bob was out of town for a couple of days, and she was feeling lonely out at their house. One thing led to another and I ended up sleeping with her that night.” Ted was stunned. He had always worried about Carl’s personal judgment, but had never suspected that it would infect his professional ethics. Sleeping with a client? The wife of another client? Unable to form words, Ted took another drink from his glass and nodded for Carl to go on. “I knew it was wrong. But, my God, she was so gorgeous and so affectionate. And Bob was so arrogant and dismissive of her

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when we were together, it seemed like he almost deserved it. So I fell into this affair with her and it’s been going on for about 10 months.” “You mean it’s still going on?” “No. That’s why I needed to talk to you. I met with Cheryl last night and told her I was breaking off the affair.” “How did she take it?” “Not well. Of course there were the tears and the pleading, which I expected. But then, after she realized I wasn’t changing my mind, she turned on me. Started telling me she knew the affair was unethical. That she would tell Bob that I started it by forcing myself on her. That they would report me to the Disciplinary Board.” “Dammit.” Ted, not given to profanity, let the word slip out as he inevitably considered the potential impact of this on the firm. “I know. So, I tried to calm her down, but she stormed out and she won’t answer my calls or reply to my texts.” They both sat in silence for a minute. Ted finally spoke. “So what do we do?” At that, he saw a glimmer appear in Carl’s eyes.

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“I’m so glad you said ‘we,’ Ted, because I really need your help. I was up all night worrying about this. And then, the solution finally came to me. But listen, I have something worked out that I don’t want to get you too involved in. Frankly, I just want to talk to you about a loan. I need $20,000.” “Carl, you know we’ve done this too many times before. I want to know what the money is for.” Carl spoke louder and more firmly now. “No, Ted, you don’t want to know.” “Well, not to be too blunt, but without knowing, I’m not going to give you the twenty-thousand. By not telling me what it’s for, you’re already telling me it’s probably something illegal, and I’m not going to fund that.” “I was afraid you would say that, Ted. So I do have another means of financing this plan, but it is riskier and would make things even worse if it all falls apart. Either way, I’ve thought it through and this plan is the only way to go. If you finance it, it’s safer for me and the firm.” Carl knew that invoking the best interests of the firm was the strongest move he could make with Ted. He waited a few seconds as Ted thought it over before responding. “Okay, Carl. I will consider financing whatever it is you’re up to, but I want to know what it is, even if it puts me in a bad spot.” “All right, Ted. I’m going to explain this to you. But at the end, if you want out, just pretend it was a bad hypothetical and that I was never even here tonight.” Ted nodded. “Okay.” “Remember that pro bono client I had, Billy Watson? I got his conviction overturned on appeal and he’s been out for over three years now. He was so grateful when I won his case, he told me if I ever needed his help on anything he would always be there for me. Well, I called him last night and we met and talked it through. He’s willing to do this, to get rid of my problems, but he needs $20,000 to do it.” Ted was incredulous.

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“Are you talking about what I think you are?” Carl looked Ted straight in the eye, and after about 30 seconds, nodded just slightly. Ted’s stomach flipped, and he resisted the sudden urge to vomit. He tried to concentrate on his breathing. Before he could decide what to say to dissuade Carl from his horrific idea, Ted studied Carl’s face and suddenly understood the true nature of this dilemma. Carl had not come to his office for advice. He had come here for money. Worse, Ted saw that simply refusing to fund Carl’s murderous scheme probably would not stop it. He decided to give Carl one last chance to be honorable. “Why would you make a bad situation worse? Just call the Disciplinary Board Monday morning and report yourself. They’ll go easier if you self-report. This other thing — this is something you would never recover from, even if you got away with it. Please, Carl.” Ted watched Carl’s face to gauge whether his words had registered. He saw nothing that gave him any hope. Carl clenched his jaw before responding. “I can’t do that, Ted. A suspension would ruin me. I can’t take that risk. You know I can’t afford anything that hurts my income. I considered every option. Bob and Cheryl are too wealthy to be bribed. This is my only way out.” They sat in silence for a minute. Ted knew from prior experience that he could not persuade Carl. Carl had moved beyond Ted’s guidance years ago, for better or worse. It had now become a choice between Carl and the firm. Now that the moment had arrived, Ted did not find the choice difficult. He considered his next step very carefully. “When … ah, when would you need the money?” Carl spoke firmly. He was clearly ready for this question. “Tomorrow. I’m meeting Watson at the park near the reservoir outside of town at two o’clock. I think we need to get this done this weekend. I figure if they’re going to contact the Disciplinary Board, that will likely happen Monday.”

“If it hasn’t already.” “No. I’m pretty sure it hasn’t. Bob was out of town and getting back late tonight. I figure Cheryl will be breaking it to him over the weekend.” Somehow, the calm resolve of Carl’s responses crystallized Ted’s disgust, and helped him begin to form a plan of his own. “Okay. I’ll have the cash here for you by one tomorrow. Stop here on your way to meet Watson.” Carl stood and offered his hand. Ted could not bring himself to shake it, but instead looked down at his desk before he spoke. “Sorry. Thank you for the Scotch, Carl.” Carl looked at him for a few seconds, trying to interpret this response. He took the bottle of Scotch and started out of Ted’s office. At the door, he turned. “I really am sorry, Ted. I will never ask another favor of you after this one.” Ted did not answer him. As soon as Carl left, he turned to the bookshelf behind his desk, and looked, as he often did in a crisis, for his volume of Lincoln’s speeches and letters. He pulled the book from its place on the shelf and quickly found the page he was looking for. It was from 1850, Lincoln’s speech to young men considering the law as a profession: “Resolve to be honest at all events; and if, in your judgment, you can not be an

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honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.” Ted read the passage twice, thinking it all through. Then he picked up his phone and dialed the number of his best friend, District Attorney Patrick Swenson. They would need to postpone their usual Friday evening Lincoln conversation to collaborate on a plan of action — one that needed to be in place by noon the next day.⚖ •

•

Michael D. Reed, who practices construction law, commercial litigation and government procurement law, reports his inspiration for his entry was “the quote from Abraham Lincoln that is included in the story. Lincoln gave a speech in 1850 addressing a group of young men in Springfield, Ill., on the subject of the legal profession. He noted that while there were enormous opportunities to do good in the practice of law, it also presented opportunities for nefarious activity if the lawyer were dishonest. This gave me the idea to oppose one character who is an honest, ethical lawyer, against one who is dishonest and tries to lure the honest lawyer into joining him in an unethical scheme.” Among his favorite writers, Reed lists Ernest Hemingway, Tobias Wolff, Richard Ford, Alice Munro, Elizabeth Strout and David Huddle. He says, “I would hope that some elements of each of them are observable in my own work, but I always try to be conscious of my late father’s admonition not to get my shoulder too far out of joint by patting myself on the back.”

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T H I R D P L A C E

In The Matter Of By Linda J. Stengle

Monday ecily looked down at her ruined manicure. Glancing around the room to see if anyone had noticed, she tucked her hands under her thighs and pretended to study one of the room’s kitten posters. This one said, “Hang in there!” Nurse John arrived and sat in a chair, facing the door. “OK, everyone, we have a new member today. Everyone say hi to Cecily.” The girls droned, “Hi, Cecily.” Cecily gave a little wave, feeling her face redden in embarrassment. Nurse John continued, “Cecily, you don’t have to talk today, but next time, you’ll have to participate. Got it?” Cecily nodded. The nurse turned to one of the other group members, an overweight girl dressed in sweats, her hair tied in a high ponytail. “Brandy, you want to start?” Brandy said, “I had one incident at lunch and got isolation. Not fair. Shireen started it.”

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Nurse John said, “We’re working on taking responsibility for your own behavior, right?” Brandy interrupted, eyes defiant. “I take responsibility for my behavior, but when Shireen …” As Nurse John patiently counseled Brandy, Cecily noticed the other girls looked anywhere but at Brandy, pretending to study a poster or their hands or the floor. Eventually, Nurse John turned to the thin girl seated to Cecily’s right. “Amber, how about you? It says they found you with a paper clip. Is that right?” Amber nodded, biting her lower lip. “You didn’t carve yourself up, did you?” Amber quickly raised her sleeves and showed her forearms, which were covered with scars, none of them new. Cecily winced and busied herself by looking at everyone’s shoes. Nurse John, satisfied, moved on, quizzing each of the girls in turn. Half-listening and half-studying shoes, Cecily waited for the group session to end. As everyone rose and filed out of the ther-

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apy room, Cecily looked anywhere but at Amber. She picked a place on the couch and pretended to read. Tuesday Cecily had been staring at the same page in the Twilight book for several minutes when Nurse Emily unlocked the door to the ward, admitting a woman dressed in a gray suit. The two chatted briefly, and Nurse Emily gestured for Cecily to join them. As Cecily approached, the woman put out her hand, “Cecily, I’m Brittany Keiller, your lawyer.” Stunned, Cecily lightly grasped the woman’s hand. Lawyer? Nurse Emily showed them to a small side room. The lawyer took the chair in front of a small table, pulled a white notepad from a manila folder, and then turned to face Cecily. “Cecily’s a pretty name,” she said. “I’ve heard of some people with that name, but I think you’re the first Cecily I’ve met.” Cecily forced a smile and waited. The woman continued, “Did you know you were getting a lawyer?”

Cecily shook her head and fixed her gaze on the wall just behind her visitor. The woman explained, “Whenever a kid gets involved with the courts for something like this, they appoint a lawyer to make sure the kid knows what’s happening legally and to make sure the kid’s wishes are known to everyone involved.” Cecily nodded, still focused on the wall. The woman said, “So I got appointed to represent you in this business with your stepfather. First, I just want to check some information I have.” Cecily winced. No, no. I am not awake enough for this today. To her relief, the woman started by checking her address and her birthdate. She nodded that each was correct. “That makes you, what? Thirteen years old?” Cecily nodded again. “And you go to private school in Bryn Mawr?” When Cecily nodded, the woman asked, “Seventh grade?” Cecily nodded again. “Great,” said the woman. “I represent you. I’m in private practice, and my only

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concern, my only job here, is to make sure you know what’s happening, and your wishes are known.” Cecily absorbed the information as the woman waited, watching her. She spoke for the first time. “H-how do you get paid?” Cecily’s voice sounded shaky. Not awake yet, she thought. The woman answered, “I volunteered. No charge.” Cecily nodded, again fixing her gaze on the wall behind the lawyer’s head. The lawyer continued, “You can tell me whatever you like about it. I have to make sure you’re safe, but other than that, I advocate for you. I have to keep our conversations confidential, too. Your mom already called, wanting to know what was going on. I explained I represent you, and I won’t tell her anything you tell me.” Cecily grimaced. “She can be mean sometimes. Did she yell at you? I’m sorry.” The lawyer looked her in the eye. “I don’t mind. Most parents don’t understand what I do. Your mom seems like a takecharge kind of person.” Cecily nodded. “She runs my stepdad’s firm. He’s an architect.” Cecily watched the lawyer make another note. The lawyer asked, “Is she an architect, too?” Cecily said, “No. She’s an, um, office manager, I think.” The lawyer changed the subject. “Is your dad around at all? The paperwork only lists your stepfather. What’s your dad’s name?” “Adam Summers.” Cecily spelled the name when asked. Cecily explained that she had last seen her dad a few years ago, but hadn’t heard from him since then. Brittany wrote something down. “You’re going to have to do an interview for the police. They’ll want details about the sexual assault.” Cecily felt a stinging heat behind her eyes. Sexual assault. She blinked rapidly and looked up at the ceiling. The lawyer said, “Don’t worry. The interviewers talk to lots of kids who have been in all sorts of situations, including sexual assault. You just need to be honest and answer their questions.”

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Looking around the bare room, the lawyer asked, “How’s it going in here?” Cecily answered, “It’s OK. Everyone’s nice. It’s kind of boring. There’s nothing to do. I’ve read almost everything in here already.” “Anything good?” Cecily considered, looking up at the ceiling. “Mm, the Twilight book is pretty good. I’m almost done with it. There’s a series, I think, but I only found one.” “You look tired. Are you?” Cecily shrugged. “I don’t know. A little. Yeah, I guess so.” Cecily noticed she had forgotten to hide her nails and quickly tucked her hands under her thighs again. “It might be the meds,” she added quietly. “What are the meds for?” Cecily tried to sound breezy and grown up. “Oh, my anxiety and my, um, stress. I think they’re helping. They make me sleepy, but I need to sleep, so … .” She shrugged. “How’s the food?” The lawyer wrinkled her nose, as if she imagined the food to be terrible. Cecily smiled a little. “Terrible.” They laughed. Picking up her file, the lawyer turned back to Cecily, extending her hand. Cecily grasped it lightly. The lawyer said, “I’ll see you about once a week while you’re in here, and I’ll try to

get hold of your father.” She handed Cecily a business card, saying, “Here’s my card, in case you need it.” Cecily squinted at the card. “Your name is Brittany?” The lawyer nodded, “That’s me.” Wednesday Cecily followed Nurse Emily to a spacious office behind the nurses’ station and, when directed, she sat in a leather armchair and scrutinized the man behind the desk. He wore glasses and had short, dark hair, neatly styled. After a few minutes, he looked up. “Hello, Cecily, I’m Dr. Westin. We’re going to decide on your goals and your, um, behavioral plan.” He frowned and looked at the top paper on the pile on his desk. Cecily nodded as if she understood, but she didn’t, not really. Behavioral plan? Dr. Westin nodded too. “How did you get here?” Cecily dutifully recited the events of the previous Saturday, “My mom came to my aunt’s house, and she wanted my phone, and my aunt said she wanted to check with the police first, and my mom got mad, so she started yelling and then my aunt told her to leave, and my mom said no, and my aunt said she would have to call the police to make her leave, and my mom still wouldn’t leave, so my aunt called them.”

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Dr. Westin wrote something down, nodding. “Your aunt called the police. What happened next?” Cecily continued, “The police came, and my mom yelled at them, and I think she broke something, and the police told her she had to leave, but she wanted me to come with her, and I said no, so then the police said I had to go, and I said if they made me, I would kill myself, so they brought me here.” Cecily blinked back a sudden threat of tears and felt her face redden. Dr. Westin didn’t notice, glued to his small stack of papers. Cecily wiped her eyes with her sleeve. “How often do you think about suicide?” Cecily startled at the question. “That was the first time.” “Really?” He glanced at her and frowned. “Yes,” Cecily said in a small voice. Dr. Westin made another note. “Why don’t you want to go home?” Cecily crossed her arms, resting them on her stomach. Remembering her nails, she tucked her hands under her thighs. She answered quietly, “Because of my stepfather.” Dr. Westin held up a paper, squinting as he read. “You said he raped you, right?” “Raped? I said he, um, touched me, um, down there and put his finger, um, you know, in.” Cecily felt she might cry, the burning behind her eyes suddenly intense. Dr. Westin scribbled. “Your mother reports you have a history of lying and manipulation to get your way. She says you did this to get out of washing the dishes. Is that true?” This surprised Cecily. “What? I was at my aunt’s house. She has a dishwasher!” Dr. Westin looked unconvinced. “Your mother and aunt are coming in for family therapy on Thursday. I’d like you to attend, but it’s your decision.” Cecily shook her head violently. “I don’t want to see my mother. I’m good with my aunt, but not my mom. No way.” Dr. Westin flipped a paper. “It’s your decision, but I must say I’m disappointed. If

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you change your mind, let the nurse know.” He started writing again. Cecily studied the framed diplomas on the wall behind his head. Without looking up, he said, “I’m increasing your medication; you seem agitated. For group, I want you to talk about your suicidal thoughts. That’s your goal — talk openly about your suicidal thoughts. Got it?” He looked up and waited for confirmation he was understood. Cecily nodded. Dr. Westin asked, “Any questions?” Cecily asked, “What if I don’t have any sui-suicidal, um, thoughts?” Dr. Westin set down his pen. “You aren’t going to get well if you aren’t honest about your feelings. Just tell the truth. Understand?” Though she didn’t understand, Cecily nodded and said, “Yes.”

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Friday The woman at the desk said, “You must be Cecily! Hi! If you need anything, just let me know. We have some snacks back there. Just help yourself.” She handed Cecily a bottle of water. Cecily took it and followed the lawyer through a short maze of offices to one with the door open. They sat down, and Cecily unscrewed her water bottle cap and took a big swig. Brittany wasted no time. “OK, we talked about this interview earlier this week when we met. Do you remember?” Cecily nodded, thinking, was that this week? Brittany explained she and the police would be in a different room, watching the interview through a monitor. Only Cecily and the interviewer, said Brittany, would be in the room while Cecily answered questions about the “situation.” Cecily hesitated before blurting out, “Will my mom be there?” Brittany shook her head. “Nope. Nobody you know, except maybe the policemen and maybe Steven from Children and Youth.” Cecily nodded, a bit unsure. “I think he came to the house once.” She felt distant while she followed Brittany to yet another

429 Fourth Avenue, Suite 500 Pittsburgh, PA 15219

FORMER FEDERAL JUDGE

SEAN J. MCLAUGHLIN LEADS KNOX LAW ADR SERVICES

Hon. Sean J. McLaughlin (ret.) returned to Knox Law earlier this year to lead ADR Services, including mediation, arbitration and early neutral evaluation in both federal and state courts. He brings nearly 40 years of diverse experience to his practice, including 19 years as a United States District Court Judge for the Western District of Pennsylvania (1994-2013), five years as General Counsel of Erie Insurance Group (a Fortune 500 company) and 13 years of private, civil litigation practice at Knox Law. The breadth and depth of his experience provides him a unique perspective on the resolution of legal disputes. Knox Law’s ADR Services team has experience in assisting parties evaluate and resolve a wide range of complex disputes in Pennsylvania and beyond. Knox Law has been providing quality legal services to businesses, governmental entities, nonprofit organizations, insurance companies, financial institutions, individuals and families for over 60 years.

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Knox McLaughlin Gornall & Sennett, P.C. Erie | North East | Pittsburgh | Jamestown, NY 814-459-2800 | www.kmgslaw.com

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small room with an upholstered couch and matching chair. Cecily took a seat on the couch as far from the chair as possible and looked around for a camera. Spotting nothing, she sat back, closing her eyes. A short time later, a woman in a yellow dress entered, interrupting her daydreams. “Cecily? Hi, I’m Joanna. I’m your interviewer today. OK?” Cecily nodded but began to tune out again as the woman explained rules for the interview. Tell the truth, listen to the questions carefully, people were watching to keep her safe … blah, blah, blah. After the instructions, the woman began asking about her stepfather. Cecily could feel her face redden as she answered the woman’s questions. The interviewer quickly got into the details of the two times her stepfather had touched her. Cecily focused hard on a picture of a duckling on the wall, trying not to cry. The interviewer asked, “Did he put his fingers on top of your pajamas, under your pajamas, or something else? Cecily heard herself answer, her voice sounding stronger than she would have guessed. “Under my pajamas.” “On top of your underwear, inside your underwear, or something else?” “Inside my underwear.” Cecily wondered about lunch and school as she answered the interviewer’s questions. She wondered how her friend Rachel

scored on the World Literature test. I guess I flunked. Cecily decided to think about lunch instead. Tacos? The interview shifted to other times spent with her stepfather. Cecily found herself nodding in response to a question and elaborated. “He would just say, ‘show us your big tushy,’ and then, I would pull down my pants and, you know, wiggle my butt at him.” Cecily obediently reported as the interviewer probed for more details. No, she could not remember when this first started. Yes, her mother had been in the room, and yes, her mother had laughed. Finally, the interviewer left the room, and Cecily was alone again. The interviewer quickly returned with Brittany. “OK, kid, let’s go talk.” Walking back to the first room, Brittany indicated Cecily should sit. Brittany closed the door. “The police believe you. I don’t know if they’ll prosecute. After the police are done, someone at the prosecutor’s office will decide what happens next.” Cecily didn’t understand. “He needs to go to jail,” she said in a small but angry voice. Brittany said, “I don’t know what will happen. A lot depends on the investigation. It’s going to be tough. He’s already hired a lawyer.”

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Cecily nodded, as if she understood this could be a problem. I did my part, she thought. I told the truth. Now he should go to jail. Tuesday Cecily watched the locked door, jumping up as soon as Nurse Emily buzzed the lawyer into C Ward. “Hey,” said Cecily, bouncing a little, shifting her weight from one foot to the other. Brittany smiled, and the two made their way to the tiny meeting room. Cecily had fantasized all week about her stepfather being handcuffed and put in the back of a police car. “Did they arrest him?” The lawyer frowned. “No, it’s not going to be fast. I don’t know if they will.” Cecily’s heart sank. “Why? I thought the police believed me.” “Well, they do, but it takes more than that,” Brittany said. She talked about evidence and a trial and whether or not people on a jury would believe her. Cecily could feel herself getting dreamy. She nodded but only half listened. Brittany reported she had not been able to find Cecily’s dad. “Tell me more about him,” she said. In response to questions, Cecily shared what she knew about her father, where he last lived and so on.

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“My mom said he didn’t want me to call, so I stopped.” Cecily looked down at her hands, her eyes beginning to tear. Brittany nodded. “She told Children and Youth he was out of the picture, so they have your stepfather listed in your records as your father. I don’t think they tried to find him. I’ll see what I can do, but don’t get your hopes up.” The tears flowed now. Cecily nodded, wiping her eyes with the back of her shirtsleeve. She knew Brittany didn’t mind if she cried, but it was embarrassing. She looked around for a tissue. Nothing. The room was bare. Brittany handed Cecily a tissue from her purse. “Your mother said he left when you were born, but it sounds like you’ve seen him more recently than that. How long’s it been?” Cecily startled. “I’ve seen him a lot! He picked me up every other weekend, and we would have family dinner. MomMom Dee made the best meatballs every year for my birthday, and we had parties. Her, PopPop, Dad, Uncle Shaune, all of us.” “When did that stop?” Cecily frowned as she tried to remember. “When she got with Patrick, I guess. Maybe I was eight? Um, third grade?” Brittany said, “OK, did your dad tell you not to call? Or was it just your mom who said that?” Cecily tried to remember what, if anything, her dad had said. She shook her head. “No, just my mom. Dad always said he wanted me to call, and he, um, you know, loved me and stuff.” This brought fresh tears. She folded the soaked tissue and attempted to dry her eyes. Brittany gave her another tissue. She said, “I’ll see if I can find him. I don’t think anyone’s told him what’s been going on, and he needs to know. In the meantime, I’m filing for a protection order for you. I’m worried your mother will bully Children and Youth into making you go back to your stepfather’s house.” Cecily felt herself getting dreamy again. Brittany was her guardian? She nodded numbly, watching Brittany pull more papers out of her manila folder.

Brittany paged through the stack and then put two pages in front of Cecily. “I need you to read these pages and tell me if I got everything right. It’s part of the petition for the protective order.” Cecily nodded absentmindedly as she looked at the papers. She began to read, reddening as she realized the pages included a detailed account of her stepfather touching her on two occasions. The “Tushy Game” was described, along with her mother’s participation. How many people are getting copies of this? She finished reading and looked up at Brittany. “All good?” Cecily nodded, pushing the papers back to Brittany. “OK, I’ll get this filed. We’ll probably have a court hearing about it. If so, I’ll be back, and I’ll explain everything before we go. Is that OK?” Cecily shrugged. “Sure,” she said. She paused and then asked, “Can I have that?” She pointed at the papers she had just read. Brittany said, “Sure.” As Cecily watched, Brittany set the papers down on the desk and started to reattach a paper clip to keep them organized, but Cecily stopped her. “We’re not allowed to have paper clips.” Brittany looked up, surprised, but shrugged and put the paper clip back in her bag. She handed the papers to Cecily and said, “This is the whole petition.” Cecily clutched the small pile of papers and walked back to the living area, as Nurse Emily escorted Brittany out through the locked door. Sunday Uncle Mike looked uncomfortable in his button-down shirt. Aunt Jackie chatted about the progress they had made on the nursery and the two Yorkies they owned. She sometimes touched her stomach, the pregnancy barely perceptible. “When can I come back?” Cecily blurted. Aunt Jackie stiffened, and Uncle Mike looked down at his hands. Aunt Jackie said, “About that, Silly, we told Steven we don’t think we can continue to take care

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of you.” Cecily felt her attention fade, and she tried to listen, without much success. Aunt Jackie talked about her mother and how they had decided the situation presented a risk to the baby. Cecily nodded. “I’m sorry,” she whispered. Aunt Jackie protested, saying it wasn’t Cecily’s fault. Cecily nodded, turning her attention to a kitten poster on the wall. Her thoughts kept wandering, until Jackie mentioned her grandmother. “She called?” Jackie glanced at Mike. “Yeah, she’s really worried about you. She said your father’s coming to the hearing.” Cecily brightened, “Really?” Jackie nodded. “They can’t wait to see you!” Jackie shared bits of her conversation with Cecily’s grandmother. After about 10 minutes, she excused herself, saying she had to use the restroom, leaving Cecily alone with Mike. Cecily looked at her uncle, unsure what to say. Mike patted her hand. “Hey, kiddo. I feel awful about all this.” Cecily nodded and looked down at her hand, almost entirely covered by her uncle’s giant paw. Don’t cry. Don’t cry. Don’t cry. “I didn’t know what else to do,” he said. Cecily nodded and tried to focus on her uncle’s thumbnail. If I concentrate really hard on his thumbnail, maybe I won’t cry. Jackie interrupted, already back, “Everything OK?” Mike pulled back, and Cecily burst into tears. He immediately leaned forward again, covering her hands with both of his. He said to Jackie, “We’re OK. This is just really hard. Right, Silly?” Cecily pulled her hands free and grabbed the tissue that appeared in front of her, put there by Jackie. Jackie told her it was OK to cry and then changed the subject by talking about her dogs’ antics. Cecily dried her eyes, wondering how her own small dog, Bluto, was faring in her mother’s care. She decided not to ask.

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Tuesday Sitting in the tiny room, Cecily tried to concentrate on a blue pamphlet Brittany had given her, entitled “What to Expect From Your PFA Hearing.” “Your dad called me, and he’s going to be there.” Cecily looked up. “He’s coming?” Brittany nodded, “Yeah. He called me last night and said he’ll do whatever it takes to help. He said he’s bringing someone.” She looked through her notes. “Shaune?” Cecily smiled and clapped her hands together. “Uncle Shaune’s coming? That’s awesome!” Brittany added, “Your grandmother wants to come. She’s trying to get off work. She doesn’t know for sure.” Cecily clapped her hands again. “MomMom Dee!” Brittany said, “I asked if she could sit with you in the coffee shop while we’re in the hearing. I don’t know if you’ll have to testify or not. Your stepfather will probably ask for a delay until the police investigation is done.” Cecily frowned. “Delay? You mean put it off? I don’t want a delay.” Brittany waved her hand, dismissively. “A delay’s normal for a criminal investigation. The judge will probably agree if your stepdad asks. Your protection order will stay in effect. No contact with your stepfather until the judge says otherwise, so I think it’s best right now.” Cecily tried to absorb the information. She asked, “So I already have, what is it, a protection order?” Brittany nodded. “They put one into effect as soon as the petition was filed. He’s not allowed to have any contact with you — no calls, no messages, nothing — until we have a hearing or they agree or whatever.” Cecily said, “No going back to my mom’s house?” Brittany shook her head. “Children and Youth said he has to move out, and your mom said no way, so no. You probably won’t go there, unless she changes her mind.” “I don’t think she will,” Cecily murmured.

Thursday MomMom Dee opened an enormous Tupperware container and positioned a plastic knife, fork, paper plate, and napkin in front of Cecily. “I made meatballs, your favorite,” she said. Cecily clapped her hands and stood up to hug the tiny older woman seated across from her in the courthouse coffee shop. “Oh my God! I’m starving!” Sitting again, Cecily spooned several meatballs onto the paper plate. She eyed MomMom Dee between bites. “These are so good! Thank you!” MomMom Dee beamed. “I missed making them for you, child. Hey, remember that baby chick, Beanie? You should see her! She’s big now, one of my best laying hens.” Cecily basked in her grandmother’s warm attention, stuffing herself with homemade meatballs. She wanted to ask about her father but was afraid of ruining the moment with some bad news. Don’t ask about him. Don’t talk about upstairs. “How’s Pickles?” “Getting old but still kicking. Don’t make yourself sick now.” Cecily grabbed the Tupperware bowl and pulled it out of her grandmother’s reach, laughing. “Mine!” “Oh, you!” MomMom Dee chatted about everything, just to pass the time. She talked about her new phone and some of the dogs she groomed, while Cecily ate as many meatballs as she could. Finally stuffed,

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Cecily pushed the bowl away and sat back in her chair, feeling better than she had in days. She forced herself to pay attention to what her grandmother was saying. Is she talking about a TV show? “Cee Cee!” Cecily looked up to see her dad striding through the coffee shop to their table. He held his arms open wide, and she ran to him, hugging tightly. She felt his big, warm arms encircle her and breathed in deep, enjoying his familiar after-shave. He held her tight, rocking her a little from side to side. She shut her eyes, feeling her tense muscles relax. After a moment, he let go and stood her back a little. “Look how much you’ve grown!” She smiled at him, doing a little spin. Just behind him, she could see Brittany standing next to a man in a suit. He looked familiar. “Uncle Shaune!” She ran to her uncle and hugged him hard. “Hey, Trouble! How you been?” Shaune rubbed her head, messing up her hair. Cecily objected, “Hey!” She could see Brittany talking with her dad and MomMom Dee and wondered what happened upstairs. Uncle Shaune watched her. “It went fine,” he said. “Go talk to your lawyer. We can talk later.” As Cecily positioned herself next to her grandmother, Brittany said, “Your stepfather asked for a delay until the criminal investigation is over, and the judge agreed. We set a date for six months, but it might take longer.” Cecily nodded. Brittany turned to Cecily’s father. “You’re going to call Children and Youth, right? They told me your ex-wife said you’ve been out of Cecily’s life since she was born.” MomMom Dee said, “What? That’s a goddamned lie!” Cecily’s father murmured, “Mom, I’ll take care of it.” To Brittany, he said, “I might need a lawyer to get her out.” Brittany said, “Getting a lawyer is always a good idea. You said there’s no custody order saying you can’t have her, right? If not, I don’t know how they can keep you

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from taking her, but it’s best to try to work with them.” Her dad remained motionless. Brittany said, “Anyway, why don’t I take you all to lunch? We can go to the place across the street. I really appreciate everyone coming in for this.” MomMom Dee didn’t seem happy. “Whole lot of nothing,” she muttered. Cecily’s dad spoke up. “That would be great. Shaune, can you go with them and get a table? I want to talk to Cee Cee a little.” Cecily watched them gather their things, worried about what her dad wanted to say. As soon as they disappeared from sight, Adam took Cecily by the hand, and they both sat down. Cecily’s heart pounded. “Cee Cee, I never told your mother I didn’t want to see you. She said you didn’t want to see me, and when I called, she said you didn’t want to talk to me. I sent you cards and presents. Did you get them?” Cecily shook her head no, eyes wide with surprise. “I didn’t get anything!” Adam shook his head, “I figured. I guess she’s been trying to keep us apart, but the cat’s out of the bag now.” Cecily looked up into her father’s eyes. Wait, does he think this is funny? He’s smiling!

He said, “I’m so glad to have you back in my life. She’ll never separate us again.” Cecily began to smile but then remembered why they were at the courthouse. “What happened upstairs? Did the judge yell at him?” “Patrick? No, we agreed we should delay until the police finish their investigation. Not sure why it’s taking so long. Seems like they should be done already.” Cecily saw her father’s face turn pink. She remembered he always got red in the face when he was angry. Adam said, “But I’ll deal with that later.” He exhaled and sat back on his chair. “I wanted to take you home with me right away, but your lawyer thinks it would be best if I call this, what’s his name, Steven?” Cecily nodded. Adam continued, “I’ll call him right after lunch, but it might take a couple of days.” Cecily started to tear up a little, and she looked down at the tabletop. She realized she had hoped everything would change as soon as her dad appeared, and now, she realized things were more complicated. She felt a tear fall and saw it land on the table.

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Her dad reached over and touched her chin, lifting it slightly until she looked in his eyes. “It’ll happen. Soon. Believe me?” She nodded and tried to smile, but the tears flowed freely now. Embarrassed, she looked for a clean napkin to dry her eyes. Her dad found one first and handed it to her. “OK, let’s get some lunch, though how you can eat anymore, I don’t know. You put a real dent into MomMom’s meatballs.” Cecily giggled. “I couldn’t stop myself. They are so good! I’ve missed them so much.” The two walked out of the courthouse, holding hands.⚖ •

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Solo practitioner Linda Stengle indicates she has a “split practice at the moment. I represent whistleblowers who report fraud against the government and I represent children on a pro bono basis through the Montgomery Child Advocacy Project. … I thought other lawyers might want to read about child advocacy,” she said. “It’s hard to understand what is at stake for these children unless you have represented them. I hope this story will motivate other lawyers to get involved.” She also told us, “Right now, I am reading all of Terry Pratchett’s work, and I particularly enjoy the way he crafts his dialogue. Almost everything I read finds its influence in what I write.”

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Many Helped, More to Be Done PLAN programs help 74,000 clients per year By Samuel W. Milkes

The unmet need for legal aid has doubled since 2009.

hile making my plans to step down as executive director of Pennsylvania Legal Aid Network (PLAN) on March 31, 2020, I’m grateful for the opportunity to share some observations about access to justice. I started this position in 2001 and I’ve spent my career in civil legal aid.

Civil legal aid programs are vital to preserving the legal rights and livelihoods of lowincome individuals. Civil legal aid lawyers provide help in critical matters such as housing, domestic violence and employment, as well as in protecting the rights of vulnerable seniors, children and veterans. In 2002, I wrote an article for The Pennsylvania Lawyer about the state of legal aid for low-income Pennsylvania residents. Going on 20 years later, there is good news to report. While challenges remain to achieve access to justice for low-income Pennsylvanians, PLAN programs help ensure that many clients who face court are treated fairly. Over the years, they’ve helped to promote fairness and justice for millions of clients whose basic human needs are at stake. Unfortunately, total funding for PLAN today is about one-half what it was over 40 years ago — taking inflation into account but including important added supports from the Legislature and the Pennsylvania Interest on Lawyers’ Trust Accounts (IOLTA) Board. Even without taking inflation into account, state funding today is the same as it was over 40 years ago. People living in poverty are counting on us to improve that.

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face foreclosure. Just under 6,000 of these cases are pro bono cases handled by local attorneys.

PLAN is made up of eight regional programs that provide direct services in every county of the commonwealth and six specialized programs that provide statewide specialized services. While PLAN is the single system of legal aid with on-the-ground services across the state and 65 program offices, we recognize and appreciate the many other legal aid programs across Pennsylvania, mostly providing certain kinds of important specialized services, and the much-appreciated pro bono services provided by lawyers through county bar associations and some stand-alone programs. I began the 2002 article by referencing the curse, “May you live in interesting times.” Those were interesting times, not long after the Sept. 11 attack on our nation and the economic hard times that followed. Survival for our clients was difficult, with a tight job market and pullbacks in economic benefits for low-income Pennsylvanians. Legal aid was vital toward getting many clients through that time. Today, we still live in “interesting times,” but as I write this article, the economy is strong, albeit with great fluctuations in the market and nervousness about a recession around the corner. It’s not a particularly

strong economy for our clients, though, who struggle to find decent familysustaining jobs with benefits, safe and affordable housing, access to transportation and other basic necessities. There is good news to report about civil legal aid in Pennsylvania. According to a study of the IOLTA Board, for every dollar spent on legal aid in Pennsylvania, there is an $11 return. Also, in connection with PLAN’s receipt of filing fees, in 2016 the General Assembly’s Legislative Budget and Finance Committee was required to study the Access to Justice Act. That independent body reported that funds were well-administered and that clients were satisfied with services. However, it also found that the unmet need for legal aid has doubled since 2009.

Recent studies show the need for legal aid. Voices for Civil Justice commissioned an independent national communications initiative for the civil legal aid sector, in partnership with Lake Research Partners, a prominent public opinion research firm, to study public opinion about views on civil legal aid and access to justice. Many of the findings are very encouraging to us: ● Eighty-four percent of voters believe it is important for our democracy to ensure everyone has access to the civil justice system — an enormous level of support. ● Eighty-two percent of voters agree that “equal justice under the law is a right, not a privilege.” ● Strong majorities of voters support increasing state funding to build a more accessible civil justice system and, surprisingly, that support remains robust even when tied to the notion of raising taxes to do so.

Total Cases Handled 2018-1019

Consumer-8.80% Family-29.60% Housing-28.95% Miscellaneous-3.76%

In the fiscal year that ended June 30, 2019, PLAN programs represented approximately 74,000 clients. Of those, over 15,000 clients — one in five — were people experiencing domestic violence, who needed help obtaining a protection from abuse (PFA) order or help in a custody dispute. Overall, 30% of our clients need help with family law concerns. Nearly 10%

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Education-0.20% Juvenile-2.42% Income Supports-9.99% Employment-6.4 47% Health-5.68% Individual Rights-4.13%

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Legal aid is all about stories of changed lives.

● Voters overwhelmingly support the most traditional and familiar form of service to ensure access to the civil justice system — namely, having a lawyer. ● But voters believe that low-income individuals — especially those living in rural areas — and people struggling to make ends meet, face the most difficulty in obtaining legal help.

sual conversations, I’ve learned anecdotally that a large portion of our population believes there is a right to counsel, even where one does not yet exist. They know well the right to counsel in the criminal context, but many believe it crosses over to key areas of the civil law.

To tell the story of civil legal aid in Pennsylvania, it is important to share some of the data, as I’ve done here. But legal aid is all about stories of changed lives. Children who are able to remain in stable housing due to PLAN representation; families able to survive threats of foreclosure, eviction and utility shutoff; people with disabilities who are able to receive life-sustaining benefits from the Social Security Administration; survivors of domestic violence who are able to secure PFA orders and have firearms removed from abusers; elder clients needing protection from those who seek to financially exploit them; children who can reside in nourishing homes through PLAN representation in custody cases; and the list goes on. Some readers of this article have probably experienced the same thing I have. In ca-

There should be a right to counsel in civil legal cases where basic human needs are at stake. In fact, the American Bar Association, the Pennsylvania Bar Association and many other bar associations in Pennsylvania and nationally have formally endorsed this principle. But we aren’t there yet. I find that many people think there is a right to counsel for someone who has experienced domestic violence and is seeking a PFA order. They think that before a bank can take a family’s home in foreclosure, when there is a valid defense, they would have a right to a lawyer. PLAN programs handle thousands of these kinds of cases every year for people who cannot afford counsel. Unfortunately, we cannot cover all of them. The federal Legal Services Corporation (LSC) conducted two national studies, one in 2009 and one in 2017, looking at what happened when a person contacted a civil

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legal aid program. We also collected data for all the PLAN programs, not all of which receive LSC funding. The studies examined what happens to a person who is eligible for services when he or she contacts a legal aid program and asks for help. The 2009 study found that for each person who could be helped, another person who had reached out for help had to be turned away due to lack of resources. By 2017, the news had gotten worse. The updated study revealed that for each person represented by a legal aid program, there were two people who were turned away or simply provided with referrals or brief information. We know from other professional studies that have previously been conducted in Pennsylvania and elsewhere that legal aid meets less than 20% of the actual need; a different question than what happens to a person who reaches out for legal aid. I believe it is wrong that the lack of funding for civil legal aid forces legal aid organizations to turn away two out of every three people who need help and ask for help. We are proud of the important legal services that PLAN programs provide to Pennsylvanians who have nowhere else to turn.

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We hope that in the future there can be an increase in state funding for legal aid; that we can work with the private bar to increase pro bono services; and that we can continue to work with the courts, where legal aid programs help in the operation of court systems and help to assure fairness or our justice system.

local PLAN or pro bono program to volunteer your pro bono services for lowincome members of your community. You’ll be referred a case you are equipped to handle. The needs described above can only be met through the combined efforts of legal aid and private lawyers. Second, let your federal and state legislators know about the importance of fully funding legal aid. Together we can achieve justice for all. ⚖

My call to action is twofold. First, please work with your county bar association or

Real stories about PLAN programs representing clients:

Anthony had lived in the same housing since the 1950s. Eighty-threeyears old and a military veteran, Anthony became homeless. Although his housing was family-owned for decades, a corporation bought the building and cleared out the residents, ultimately locking Anthony out of his unit and leaving him literally out in the cold. With nowhere to go, he began sleeping at 30th Street Station in Philadelphia. Anthony came to Community Legal Services (CLS) for help. His legal aid attorney quickly discovered that there was a court order for the eviction, but Anthony was never properly notified of the hearing, so he wasn’t able to present his case in court. CLS filed a petition to vacate the judgment and allow Anthony to go back to his home. Because of CLS’ expert legal representation, an attorney was able to successfully negotiate for Anthony to be let back into his home of 60 years, enabling him to be safe and secure.

When Charlotte married a man who had already hurt her, she didn’t think of him as an abuser. Jay’s anger could lead to cruel words and bruises from grabbing her too hard, but he hadn’t hit her — yet. That started within a year of their wedding day, and his rage-filled outbursts escalated after they had a child. Pregnant for a second time, Charlotte felt forced to move with Jay to live with his parents overseas. Isolated, barred from access to even her own money, Charlotte endured threats to herself and her children with a knife, a heavy mallet and the words, “Some people just need hit.” Eventually, back in the United States and more frightened than ever, Charlotte tried to file for a temporary protection from abuse (PFA) order — but, overwhelmed and afraid, she did it incorrectly. Soon after, she learned about Neighborhood Legal Services (NLS) in Pittsburgh. An NLS attorney stood by Charlotte and she was granted a PFA. NLS also opened many more doors for Charlotte than the one to a courtroom. “My NLS lawyer spent time talking to me about what abuse is. I hadn’t recognized a lot of what Jay had done as abuse, because most of the people in my family exhibited those behaviors,” she said. “One thing became crystal clear: Something I thought I had no choice in was actually abuse, and I didn’t have to go back to it.”

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Samuel W. Milkes is executive director of Pennsylvania Legal Aid Network. If you would like to comment on this article for publication in the next issue, please email us at editor@pabar.org.

In retaliation for PFA and support cases, Angela’s abusive husband canceled their joint credit cards, drained their shared accounts and threatened to terminate utility services to the home — giving her just 30 days to transfer service into her name. When Angela contacted the utility to switch service to her name, the utility demanded two forms of photo identification and a $250 security deposit before they would do so. Angela had none of those. Immediately upon hearing about her trouble with the utility, the domestic violence program working with Angela suggested she contact the Pennsylvania Utility Law Project (PULP) for assistance. PULP was successful in removing both barriers and, within 24 hours of contacting PULP, Angela’s utility service was established in her name without any upfront payment of a security deposit, allowing her to remain in stable housing.

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Why the TCJA Spells Trouble for Charities A critical review of the Tax Cuts and Jobs Act By Laura Solomon and Emily Christian

poses and regularly carried on. Historically, few charities conducted unrelated business activities, but there has been a significant shift in the charitable sector in recent years. Many charities now operate various social enterprises and other activities to generate earned income as a way to decrease their reliance on contributed income. Some funders even require it. But those same practices that charities use to promote sustainability now make them vulnerable to taxation.

haritable organizations feared the 2017 Tax Cuts and Jobs Act â&#x20AC;&#x201D; for good reason. We now know how the act directly affected charities and how it has negatively impacted donors, and therefore charities, indirectly. This article provides a brief overview of the three changes that directly affect tax-exempt, charitable organizations, and four that impact their donors. It also highlights certain provisions that did not make it into the act and provides resources to learn more about the act and ongoing efforts to repeal portions of it.

The act changed the corporate tax rate applicable to charitable corporations (but not trusts) with UBIT in a significant way. Prior to the act, charities paid UBIT at rates ranging from 15% to 35%. The act now imposes a flat rate of 21%. The net effect is that organizations with little UBTI are likely to experience a tax increase and organizations with greater levels of UBTI are likely to experience a tax decrease.

Those act provisions directly affecting charities include changes affecting unrelated business taxable income (UBTI), a new excise tax on executive compensation and a new excise tax on private college and university endowments. Those indirectly affecting charities include the increased standard deduction; the removal of the deduction for contributions related to athletic tickets; an increase in the adjusted gross income (AGI) limit for charitable deductions and increased estate and gift tax exclusions.

The act also requires that charities compute UBTI separately for each unrelated trade or business. This new silo requirement means that losses from an activity may only offset gains from that activity. They may not be bundled together. There is also a limit of 80% on the offset of income by losses from a particular trade or business. Net operating losses (NOLs) from an unrelated trade or business generated on or after Jan. 1, 2018, can be carried forward indefi-

Significant UBTI Changes Tax-exempt, charitable organizations pay a tax known as the unrelated business income tax (UBIT) on income from commercial activities they conduct that are unrelated to their tax-exempt pur-

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nitely, but not back. NOLs from before Jan.1, 2018, can offset income from any trade or business and generally can be carried back two years and forward 20 years. And, the $1,000 deduction of UBTI that applies before the tax is triggered now applies to the sum of net UBTI from all unrelated trades or businesses. Charities donâ&#x20AC;&#x2122;t get a $1,000 deduction on each activity as they did before. Internal Revenue Service Notice 2018-67 has provided much-needed guidance on these changes.

ments from affiliated organizations but excludes payments to licensed medical professionals for the performance of medical services. For example, a hospital would pay the tax on a $1.5 million salary it pays to its CEO but not $1.2 million paid to the physician who heads its radiology department.

The most outrageous UBTI change is the new rule that charities must include as UBTI amounts paid or incurred for certain fringe benefits, including qualified transportation fringe benefits, parking facilities used in connection with qualified parking, and on-premises athletic facilities, unless the amounts are directly connected with an unrelated trade or business. This means that tax-exempt, charitable organizations are paying a tax on an expense rather than on income. This provision was the subject of IRS Notice 2018-99 and has been the subject of significant legislative efforts to repeal or limit it. On March 14, representatives from Independent Sector and the Council on Foundations, supported by Sen. Chris Coons (D-DE), met on Capitol Hill to encourage repeal of the new UBIT provisions. In late February, Sen. Coons, along with Sen. James Lankford (R-OK), re-introduced the Lessening Impediments from Taxes (LIFT) for Charities Act. The act would prevent nonprofits from paying taxes on employee transportation fringe benefits. Charities and other interested parties are standing by for the outcome of this proposed legislation. New Excise Tax on Executive Compensation The act also created a new tax equal to 21% on the applicable tax-exempt organization employer that pays executive compensation (including an excess parachute payment) in excess of $1 million to covered employees (the Section 4960 Tax). Compensation for this purpose includes pay-

A covered employee includes an individual who was one of the five highest paid employees for the current tax year or an individual who was one of the five highest paid employees for any prior tax year starting on or after Jan. 1, 2017. The Internal Revenue Service issued its Notice 2019-9 on Dec. 31, 2018, to provide guidance on the Section 4960 Tax. That notice provides interim guidance by the Treasury Department and IRS on the application of the 4960 Tax, but significant questions remain. For example, it is unclear what an applicable tax-exempt organization is for this purpose and when an organization is deemed to be related. The Treasury has not addressed what medical services are excluded from this definition, and charities are unclear how this tax applies to splitdollar life insurance and deferred compensation. Many corporate and family foundations are struggling with how to treat their volunteer officers who are also paid directors, officers or employees in a separate taxable entity that may be treated as related. New Excise Tax on College and University Endowments The act created a new 1.4% net investment income tax on endowments in excess of $500,000 in assets per student held by private colleges and universities with 500 or more students where 50% of students are located in the United States. This new excise is the lesser evil that had been suggested for college and university endowments: That was a threatened, mandatory 5% payout requirement, akin to that applicable to private foundation noncharitable use assets.

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November/December 2019

The tax is not imposed on endowments that are used for educational purposes, yet the term educational purposes is not deďŹ ned in the legislation.

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Nevertheless, questions remain with this tax as well. In particular, clarification is sought on whether it applies to public colleges and universities or colleges and universities that do not charge tuition. The mechanics for reporting and paying the tax are also unclear. Colleges and universities are also seeking guidance on who is a student for purposes of the $500,000 per student requirement and what expenses may be deducted. Additionally, the tax is not imposed on endowments that are used for educational purposes, yet the term educational purposes is not defined in the legislation. Further, the actual financial impact of the tax is yet unknown, leaving affected institutions unsure about how to budget for it. IRS Notice 2018-55 provides some guidance on the calculation of the new excise tax, outlining the applicable Internal Revenue Code (IRC) provisions that apply to affected colleges and universities. It also describes the calculation of basis for purposes of determining gain or loss on the disposition of property held by an affected college or university and the netting of capital gains and losses. And if the UBTI and new excise taxes weren’t enough, the act also made four changes that are indirectly negatively impacting charities. Increased Standard Deduction The standard deduction for individual filers has increased from $6,350 to $12,000; for married filers it has increased from $12,700 to $24,000. Heads of households have an increased deduction from $9,350 to $18,000. These increases are set to expire Jan. 1, 2026.

The fear was that these increased deduction levels would significantly decrease the number of taxpayers who itemize their deductions, thus also decreasing the charitable contribution deduction incentive to make charitable gifts. Available survey data confirms that this has indeed occurred. The share of people making $200,000 to $500,000 who itemized deductions on their federal income taxes in 2018 fell by 45% and individual giving declined by 1.1%. Adjusted for inflation, individual giving decreased by 3.4%. This is the first drop in individual giving since 2013. The increased standard deduction has also changed and distorted giving patterns. Donors are bundling or “bunching” contributions in certain years to take advantage of the deduction and, as a result, many are making larger gifts to private foundations and donor-advised funds to accelerate their charitable contribution deductions. In fact, corporate giving rose by 5% in 2018 — one of the few bright spots in the 2018 Giving USA data. Overall, though, when adjusted for inflation, total giving has declined 1.7%. Increased Estate Tax Exemption Amount The act also doubled the current estate and gift tax exclusions amounts. Previously, there was a $5 million basic exclusion ad-

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justed for inflation ($5.49 million in 2017). Now, there is a $10 million basic exclusion adjusted for inflation. In other words, a married couple must have in excess of $20 million before the federal estate tax will apply. Like the increased standard deduction amount, this increase is set to expire Jan. 1, 2026. Reasonable people differ on the impact of this change, however. Some take the position that the increased exemption amount will dramatically reduce the charitable giving that would otherwise occur to avoid the tax. Others say that sophisticated, highnet worth individuals were already using generation-skipping trusts and other vehicles to avoid the tax and will be charitably motivated regardless. Increased Charitable Deduction Limit for Cash Contributions The only silver lining in the act was the raised charitable contribution deduction for contributions of cash, increased to 60% of a donor’s adjusted gross income from 50%. The problem is that very few taxpayers actually contribute more than 50% of their AGI. Thus, the impact of this increase impacts a small group of donors — though it could be helpful with “megadonors.” This provision also expires on Jan. 1, 2026, if it is not otherwise extended.

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charitable organizations or repeal the safe harbor.

impact the timing and amount of their giving.

Whatâ&#x20AC;&#x2122;s a Charity To Do? Thankfully, some charities are unaffected by at least a few of the changes. For example, smaller, grassroots organizations need not worry about the 21% excise tax on executive compensation, and only colleges and universities are subject to the endowment excise tax.

You can find additional resources, including information about legislative efforts to repeal the act on the websites of the Council of Nonprofits, Council of Foundations, Independent Sector, the U.S. Senate Finance Committee and the Internal Revenue Service. â&#x161;&#x2013; â&#x20AC;˘

For everyone else, the best plan is always to pursue the charitable mission effectively and efficiently in a way that demonstrates the impact. Charities should evaluate any new activities, including social enterprises, that will generate earned income, to evaluate the potential impact of the new UBTI provisions. They should also be engaged in lobbying and advocacy so that their voices are heard by legislators within the federal limits and in keeping with federal and state registration requirements. And now more than ever, itâ&#x20AC;&#x2122;s critical to cultivate donor relationships and understand the donorâ&#x20AC;&#x2122;s perspective and tax planning as it will likely

Athletic Seating Deduction Another provision with limited impact is the removal of deduction for donation to a college or university in exchange for the right to purchase tickets for an athletic event. Proposed Changes That Didnâ&#x20AC;&#x2122;t Make the Cut A number of provisions that were discussed did not make it into the final act. Those include: 1. The repeal of the Johnson Act, which prohibits political, partisan activity by charitable organizations. 2. A proposed, universal charitable contribution deduction. 3. The repeal of the tax-exemption of interest on private activity bonds of hospitals, universities, low-income housing organizations and museums. 4. A proposed 1.4%, simplified net investment excise tax for private foundations. 5. A mandatory payout requirement for donor-advised funds. 6. A 1,000 minimum-hour requirement for art museums run by private operating foundations. 7. A long-overdue increase in the volunteer mileage rate (now 14 cents per mile, with no inflation adjustment). 8. A proposal to apply the IRC Section 4958 Intermediate sanctions excise tax on

â&#x20AC;˘

Laura Solomon is the founder of Laura Solomon & Associates, a law firm devoted to the representation of charitable and other taxexempt organizations and philanthropic individuals. Emily Christian is an associate at the firm. They can be reached at Laura@LauraSolomonEsq.com, Emily@LauraSolomonEsq.com or via the firmâ&#x20AC;&#x2122;s website at http://laurasolomonesq.com. If you would like to comment on this article for publication in our next issue, please email editor@pabar.org.

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November/December 2019

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Ratings of the Appellate Court Candidates, 2019

n this year’s appellate court elections, Pennsylvania voters are selecting two judges to fill vacancies on the state Superior Court and deciding on the retention of four sitting judges, two on the Superior Court and two on the Commonwealth Court. In the course of the year, the Pennsylvania Bar Association Judicial Evaluation Commission (PBA JEC) has rated those seeking election to and retention on the state’s appellate courts this Election Day, Nov. 5.

process, the panels submitted confidential reports to the commission.

The PBA JEC based its ratings for each candidate seeking election to fill a vacancy on a two-part evaluation process. Investigative panels conducted the first phase of the process, which included personal interviews with the candidates and with individuals who have had professional or personal dealings with them. Upon completion of the investigative

The commission includes lawyer and nonlawyer members from across the state.

Upon receipt and review of the investigative panel’s report, the commission conducted the second phase of the evaluation process. The commission interviewed each candidate in Harrisburg, discussed his or her qualifications and reached consensus on each candidate’s rating.

Each candidate for election who is evaluated by the PBA JEC is eligible to receive a rating of Highly Recommended, Recommended or Not Recommended.

JEC Ratings Deﬁned

Highly Recommended: The candidate possesses the highest combination of legal ability, experience, integrity and temperament and would be capable of outstanding performance as a judge or justice of the court for which he/she is a candidate.

Recommended: Based on legal ability, experience, integrity and temperament, the candidate would be able to perform satisfactorily as a judge or justice of the court for which he/she is a candidate. Not Recommended: Based on legal ability, experience, integrity or temperament, or any combination thereof, at the present time, the candidate is inadequate to perform satisfactorily as a judge or justice of the court for which he/she is a candidate.

Candidates Seeking to Fill Vacancies on the Superior Court of Pennsylvania The candidates up for election to a 10-year term on Superior Court and their ratings by and rating descriptions from the PBA JEC are as follows.

Amanda Green-Hawkins Rating: Not Recommended

The candidate has been an attorney for the United Steel Workers (USW) since 2002. Prior to working at the USW, she served as a law clerk for Judge Laurence Lawson on the Superior Court of New Jersey. At the USW, the candidate has served as an assistant counsel and, most recently, as director of the Civil and Human Rights Division, where she has been charged with providing advice and counsel, overseeing training and compliance, and developing policy. She has successfully argued cases in both federal district and appellate courts. Her peers, mentors and supervisors credit the candidate with having a strong work ethic. The candidate supports underserved communities, acts with integrity and displays an appropriate demeanor. However, the commission finds the candidate has not had the experience and preparation necessary to take on the role of judge on the Pennsylvania Superior Court and, therefore, does not recommend her candidacy at this time. Green-Hawkins’ campaign website is https://amandagreenhawkins.com.

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Megan McCarthy King Rating: Recommended

Judge Daniel D. McCaﬀery Rating: Highly Recommended

Judge Christylee L. Peck Rating: Recommended

The candidate began her legal career in 1996 with the Lancaster County District Attorney’s Office where she focused on cases involving child abuse. The candidate then clerked for Justice Thomas Saylor of the Pennsylvania Supreme Court from 1999 to 2001. In 2012, the candidate returned to the Lancaster County District Attorney’s Office where she was integral in leading the Elder Abuse Unit and in maintaining duties in the Child Abuse Unit. In 2015, the candidate began working as the deputy district attorney in the Child Abuse Unit in Chester County. The candidate has extensive criminal trial experience. She is described by attorneys and judges as intelligent, articulate, fair, well prepared and diligent. In addition to her legal experience, she is involved in several charitable organizations. The commission finds that the candidate possesses the legal ability, experience, integrity and judicial temperament to perform satisfactorily as a judge of the Superior Court and recommends her candidacy. King’s campaign website is https://meganking2019.com.

The candidate is an experienced jurist known for his high degree of professionalism and good judicial temperament. He is engaging, sincere, intelligent and affable with an admirable work ethic. His legal career has taken several paths. He served as an assistant district attorney for five years and then was in private practice for 16 years. The candidate has served as a common pleas court judge since 2014. He has a sound knowledge of legal principles, with his opinions and legal writings being well reasoned. He also has extensive community involvement, including volunteering as a coach for the past 20 years. Because of his broad experience as a practicing attorney, proven record of judicial leadership, high ethical standards and dedication to the legal profession, the commission is confident that the candidate would serve with distinction as a Superior Court judge and highly recommends his candidacy. Judge McCaffery’s campaign website is https://www.judgemccaffery.com.

The candidate has practiced law since 2001, first serving as an associate in private practice with civil trial litigation and business law duties and then as an assistant district attorney in Lancaster County in the Child Abuse Unit. From 2005 until her election in 2011 to the Cumberland County Court of Common Pleas, she served as the senior district attorney in Cumberland County specializing in the prosecution of sex crimes, child abuse and other major crimes. The candidate has acquired a broad array of experience as a result of her duties as a prosecuting attorney and seven years on the bench. Her legal opinions are considered thorough, logical and well reasoned. She is recognized as a hard worker, articulate and accomplished, as well as thoughtful, approachable and fair in her interactions with litigants and attorneys. The commission believes the candidate’s experience as a lawyer and as a judge will enable her to ably fulfill the responsibilities of a Superior Court judge and therefore recommends her candidacy. Judge Peck’s campaign website is https://electjudgepeck.com.

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Standing for Retention On Sept. 3, the PBA JEC released its ratings of four appellate court judges standing for retention in the Nov. 5 election. On the Superior Court of Pennsylvania: Judge Anne E. Lazarus and Judge Judith F. Olson. On the Commonwealth Court of Pennsylvania: Judge P. Kevin Brobson and Judge Patricia A. McCullough. All received a rating of “Recommended for Retention.” Because retention elections require only a yes or no vote, the commission rates retention candidates either as Recommended for Retention or Not Recommended for Retention. The commission based its findings for each retention candidate on a two-part evaluation process. Investigative panels conducted the first phase of the process, which included a thorough review of the candidate’s completed questionnaire, an analysis of written opinions authored by the candidate within the last three to five years, and interviews with judges and lawyers who have appeared before the retention candidate. The panels then submitted confidential written reports to the commission outlining the results of their investigations. As the second phase, the commission members reviewed the questionnaires and written opinions, as well as the investigative panel reports, and interviewed the panel chairs before rendering their own evaluation and recommendation. “Our commission provides information to help voters choose candidates who are best suited to serve as fair, impartial and knowledgeable jurists on our commonwealth’s highest courts,” said Heidi B. Masano of Berks County, chair of the PBA JEC. “The PBA JEC only recommends candidates found to have the legal ability, experience, integrity and temperament that are needed to provide satisfactory or outstanding performance as appellate judges and justices.” Serving with Masano in the leadership of the PBA JEC are Berks County lawyer Richard A. Estacio and Allegheny County lawyer Kimberly D. Moses, who are the commission’s co-vice chairs, and Montgomery County lawyer Robert F. Morris, who is the commission’s immediate past chair. Lawyer members include Jennifer S. Coatsworth of Philadelphia County, Stephanie F. Latimore of Dauphin County, Lara J. Endler of Luzerne County, Brian J. Lindsay of Crawford County, Rhoda Shear Neft of Allegheny County, Denise C. Pekelnicky of Erie County, Howard A. Rothenberg of Lackawanna County, Joel C. Seelye of Blair County and Su Ming Yeh of Philadelphia County. Nonlawyer members are Victoria A. Connor of York County, Mary A. Coploff of Clinton County, Gregory Cowhey of Philadelphia County, Keith W. Eckel of Lackawanna County, Melody A. Filicky of Fayette County and Edith M. Marino of Lycoming County. The PBA JEC’s descriptions of its findings for each candidate follow. Online links to the candidates’ questionnaires can be found on the PBA website at www.pabar.org and the PBA-sponsored voter education website, PAVoteSmart, at www.pavotesmart.com.  page 54 The Pennsylvania Lawyer

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PBA Preservation Walk Be Part of a Very Special Project!

or more than 60 years the PBA has been the proud owner of the Maclay Mansion. Built in 1791 by William Maclay, Pennsylvania’s first U.S. senator, this historic Harrisburg property is maintained by generous member donations to the PBA Sustaining Fund. The fund is dedicated to the maintenance and preservation of the PBA “campus,” which includes the mansion on the corner of South and Front Streets, the Fleming Building facing South Street and the Chancery Building fronting on State Street.

You have the opportunity to enshrine your and/or a loved one’s contribution to the preservation of the PBA campus through your purchase of a stone in the Preservation Walk. These include 12” x 12” diamond-shaped center stones, 8” x 8” border pavers and 4” x 8” pavers. For the Preservation Walk brochure and an order form listing prices, go to the PBA website at http://www.pabar. org/pdf/brickbrochureFinal.pdf. All proceeds go to the PBA Sustaining Fund.

Linking our Harrisburg properties is the beautiful walkway — designated the Preservation Walk — that connects the buildings and is seen and used daily by attorneys, judges, legislators, members of other associations and our many other visitors.

Thank you.

Barry M. Simpson, Esq. Executive Director

The PBA is a 501(c)(6) organization. Consult your tax adviser regarding your contribution being eligible as a tax deduction.

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 from page 52

Retention Candidates for the Superior Court of Pennsylvania

Retention Candidates for the Commonwealth Court of Pennsylvania

Judge Anne E. Lazarus Rating: Recommended for Retention

Judge P. Kevin Brobson Rating: Recommended for Retention

The candidate has served as a Superior Court judge for the past 10 years. Her impressive career also includes service on the trial court for a combined total of nearly 29 years on the bench. She has earned the reputation as an extremely capable and hardworking jurist. Her judicial temperament has been described as “perfect,” and her opinions are thoroughly researched and well written. The candidate was active in creating the First Judicial District’s Pro Bono Committee, out of which the mortgage foreclosure committee and the custody conciliation committee were created. In addition to her work on the Superior Court, the candidate teaches courses to both law students and lawyers throughout the commonwealth. She has earned the respect of both litigants and lawyers during her time on the bench, and the commission recommends her retention for the Superior Court.

The candidate has served on the Commonwealth Court since 2010. The candidate is recognized by members of the bar and bench as an excellent jurist who is even tempered, fair and knowledgeable. The candidate’s judicial opinions are well written, thorough and precise. He is currently the board chair of the Judicial Conduct Board of Pennsylvania. He exhibits his dedication to the profession through community service, including acting as the jurist-in-residence at Widener University Commonwealth Law School and providing pro bono legal service. The commission recommends the candidate’s retention because of his consistent judicial excellence, even-keeled temperament, and commitment to the bar, bench and community at large. Judge Patricia A. McCullough Rating: Recommended for Retention

Judge Judith F. Olson Rating: Recommended for Retention

The candidate previously served on the Court of Common Pleas of Allegheny County and has served on the Commonwealth Court since 2010. Those who were interviewed concerning the candidate describe her as conscientious, hardworking, fair minded, open to new concepts and dedicated. The attorneys who come before her and her fellow judges consider her to be professional, well prepared and having a firm grasp of the facts and the law. The candidate was appointed to the Pennsylvania Supreme Court Appellate Court Procedural Rules Committee, which she currently chairs. She is active in the Pennsylvania and Allegheny County bar associations and is a course planner for continuing legal education courses. The candidate is also active in the community. She served on the United Way Strategic Planning Committee, the Pennsylvania Catholic Committee on Social Concerns and Immigrants Against Domestic Violence Task Force. The candidate’s character and integrity make her well suited for her position on Commonwealth Court. For all the reasons stated above, the commission believes the candidate should continue service on the Commonwealth Court and accordingly recommends her retention.

Having served on Superior Court for the last 10 years, the candidate is regarded as a hardworking and extremely capable jurist. She has authored wellwritten opinions that are easily followed and understood, and which demonstrate appreciation of the effects legal decisions have on the lives of the parties involved. She is described as talented, bright, prepared and fair in her application of existing law to the cases before the court. The candidate has actively participated in community and charitable boards and is loyal to the missions and purposes of the institutions. She also speaks at bar association programs, giving practical advice to those in attendance. The candidate has earned high praise and respect for her service on the Superior Court and the commission recommends her retention.

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November/December 2019

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The Pennsylvania Bar Association Insurance Program Powered by USI Affinity

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ETHICS DIGEST

2019-030 Chief Public Defender Challenging Effectiveness of Subordinate Lawyer Inquirer served as chief public defender in County X, during which time defendant was a client of the public defender’s office in two cases. In the first case, an assistant public defender represented defendant in a domestic violence case in which it was alleged that defendant assaulted his wife. That case proceeded to trial and defendant was convicted. Direct appeal was not successful. Defendant filed a pro se petition for post-conviction collateral relief under the PostConviction Collateral Relief Act (PCRA) alleging ineffective assistance of counsel against the assistant public defender. Counsel from outside of the office of the public defender was appointed to represent defendant in that PCRA, which was denied, after which an appeal was taken. After defendant’s conviction, he was charged in the second case with crimes arising out of the first case, namely, perjury for his trial testimony, solicitation of perjury for seeking to have his wife commit perjury, and intimidation of a witness as against his wife. Defendant was convicted and direct appeal was not successful. Defendant then filed a pro se petition for post-conviction collateral relief and the trial court appointed inquirer to represent defendant in connection with the PCRA and post-conviction proceedings. Inquirer asked whether a conflict of interest would exist in representing defendant in the PCRA given that the claims pursued in the PCRA were claims that the assistant public defender who represented defendant in the perjury, solicitation and intimidation case provided ineffective assistance of counsel while that assistant public defender was working on the staff of the office of public defender under inquirer’s supervision. The opinion cited Rule 1.7 (Conflict of Interest: Current Clients) of the Pennsylvania Rules of Professional Conduct, which provides in relevant part: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

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Comment [8] to Rule 1.7 explains: Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. … The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Inquirer was advised that under Rule 1.7(a)(2), consideration must be made as to whether inquirer’s personal regard for the assistant public defender, a former subordinate lawyer, would materially interfere with inquirer’s independent professional judgment in representing the defendant. In other words, would inquirer’s loyalty to or concern for that lawyer conflict with inquirer’s duty to investigate and evaluate the defendant’s claim of ineffective assistance of counsel, especially in light of the fact that inquirer was the chief public defender in charge of all assistant public defenders? A prior ethics opinion, PBA Informal Opinion 97-24, addressed the question of whether a lawyer who had previously worked as an associate in a firm owned by the trial lawyer at the time of the alleged ineffectiveness, could now assert ineffectiveness against the lawyer’s former employer. Beginning with the assumption that the lawyer could not be a witness in the proceeding on any of the factual issues, the opinion stated: It would be difficult to see how an associate would not be affected in raising issues of ineffective assistance about a former employer, someone the associate worked with and presumably someone who taught the associate areas of the law. Claims of ineffective assistance essentially allege the lawyer didn’t do a proper job and can also open the door to potential civil liability if there is a finding of ineffective assistance. In a serious criminal case where the conviction is on a murder charge, the lawyer has to make absolutely certain he or she is willing to take tough stands and, if need be, challenge the former employer’s competency and/or honesty. Rule 1.7(b) creates a very difficult hurdle for a new lawyer who would now be alleging his or her former employer, during the time the former employer was on the case, was ineffective.

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PENNSYLVANIA

ETHICS HANDBOOK FIFTH EDITION

Your guide to professional responsibility • Amended Rule 1.2, providing guidance for representing clients in the medical marijuana industry • Amended Rule 1.17, allowing lawyers and law firms to buy/sell a single area of practice, and the possible impact on succession planning • Updates on the Rules, ABA recommendations, ghostwriting, protecting confidentiality in electronic communications and the cloud, and the requirement of familiarity with technology to maintain competence

Safeguard your practice This opinion determined that inquirer could not reasonably believe that inquirer would be able to provide competent and diligent representation to defendant in light of the fact that inquirer would have to question the work or competency of a former subordinate lawyer. Therefore, it was recommended that a lawyer with no prior association with the public defender’s office in the county be appointed to assist the defendant with the pending PCRA and post-conviction proceedings. The conclusion of the opinion was expressly based on the assumption that the defendant’s claims of ineffective assistance of counsel did not include an allegation that the assistant public defender was not properly supervised, in which case, Rule 3.7 may apply, which prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness.

2019-036 Associated Lawyers Practicing in the District Attorney’s Office and Practicing Criminal Defense Inquirer posed two questions relative to inquirer’s private law firm and service as a juvenile court hearing officer.

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FOR MORE INFO AND TO PURCHASE: www.pbi.org ALSO AVAILABLE AS AN eBOOK

The first question concerned inquirer’s two associate attorneys. One associate was handling several active criminal defense cases while the other associate was considering accepting a part-time position as an assistant district attorney (ADA). The district attorney’s office advised inquirer that the associate/ADA would be “walled off ” from any involvement or information regarding the criminal cases that the other associate was handling. Inquirer asked whether this procedure was an ethically permissible way to avoid a conflict of interest. The second question involved inquirer’s handling misdemeanor or summary juvenile cases as a juvenile court hearing officer. Inquirer asked whether recusal would be required if the associate/ADA would be “walled off ” from juvenile delinquency cases.

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With regard to inquirer’s first question, inquirer was advised that the associate who practices criminal law would be precluded by Rule 1.7 (Conflict of Interest: Current Clients) from prosecuting individuals on behalf of the Commonwealth of Pennsylvania because the interests of the Commonwealth of Pennsylvania are directly adverse to the interests of the associate’s current clients. Under Rule 1.10 (Imputation of Conflicts of Interest: General Rule), the conflict of the associate would impute to any lawyer in inquirer’s firm. See PBA Inquiry No. 2014-035 (A lawyer may not accept a position as an independent contractor for a district attorney’s office as long as the attorney or firm with which the lawyer is associated practices criminal defense law without complying with the provisions of Rule 1.7(b), which requires informed consent from both clients).

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We’re looking for a few good articles …for The Pennsylvania Lawyer magazine.

The Pennsylvania Lawyer is your PBA membership magazine. Our mission is to inform, educate, analyze and provide a forum for comment and discussion. We’re always looking for informative articles of 2,000 to 3,000 words that help lawyers understand and deal with trends in the profession, offer ways to practice more efficiently and shed light on issues of importance. If you’re interested in writing for us, we’d like to hear from you. To submit an article proposal or request our writer guidelines, email editor@pabar.org or write to Pennsylvania Bar Association, Attn. Editor, The Pennsylvania Lawyer, P.O. Box 186, Harrisburg, Pa. 17108-0186.

ETHICS DIGEST

Screening the associate/ADA would not be an available option under the circumstances. As to inquirer’s second question, the opinion noted that a juvenile court hearing officer is akin to a nonemployee special master. The Pennsylvania Code of Judicial Conduct (CJC) makes clear that neither the CJC nor the Code of Conduct for Employees of the Unified Judicial System applies to nonemployee special masters. However, as a juvenile court hearing officer, inquirer was under the supervision and authority of the president judge. Rule 2.12 of the CJC states, “A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.” Rule 2.11(A)(1) of the CJC requires disqualification in matters in which the judge has a personal bias or prejudice concerning a party’s lawyer. Disqualification for bias or prejudice is not waivable under Rule 2.11(C). Further, Rule 2.11(A)(5) requires disqualification in matters in which the judge “was associated with a lawyer who participated substantially as a lawyer in the matter during such association.” Taken together, recusal from hearing any matter involving the associate/ADA would be required. However, given that the associate/ADA would be “walled off ” from juvenile delinquency cases, these concerns would not be an issue.

2019-037 Simultaneous Service as Special Master and Solicitor to the Prothonotary Inquirer asked whether simultaneous service as a special master in County A and solicitor to the county prothonotary would violate the Pennsylvania Rules of Professional Conduct. As a special master, inquirer was responsible for holding hearings in family practice matters and preparing and filing reports and recommendations, which were subject to exceptions by the parties and had no effect until adopted by a judge. In this position, inquirer was not a county employee, but rather was paid by the parties who appeared before inquirer. While inquirer reg-

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ularly practiced in many counties of Pennsylvania including in County A, inquirer did not practice family law, either in the county or elsewhere. The opinion cited Rule 1.11 (Special Conflicts of Interest for Former and Current Government Officers and Employees) of the Pennsylvania Rules of Professional Conduct, which states in relevant part: (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom. (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent. Inquirer was advised that as a special master, inquirer was subject to Rules 1.11(c) and (d). Rule 1.11(c) addresses confidential government information and prohibits a lawyer who has acquired “confidential government information about a person” while serving as a public officer or employee from representing “a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.”

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New Third Edition! FAGNILLI AND KOSIR ON

Under Rule 1.11(d), inquirer was subject to Rules 1.7 and Rule 1.9. The opinion noted that Rule 1.7(a)(1), which prohibits a lawyer from representing a client whose interests are directly adverse to another client, did not apply to restrict inquirer from representing the prothonotary given that inquirer would not be representing another client as a special master. Rule 1.7(a)(2) also appeared to be inapplicable insofar as there did not appear to be a significant risk that inquirer’s responsibilities as a special master would materially limit inquirer’s representation of the prothonotary. If, however, circumstances would arise in which inquirer’s representation of the prothonotary would be materially limited by inquirer’s responsibilities as a special master, inquirer could not proceed unless inquirer reasonably believed that inquirer would be able to provide competent

and diligent representation to the prothonotary, and the prothonotary gave informed consent. ⚖ •

•

DEEDS THIRD EDITION

Fundamentals of Deed Drafting and Recording

•

This material has been compiled by Victoria White, PBA ethics counsel, and edited by Thomas G. Wilkinson Jr., a past president of the PBA and a past chair of the PBA Legal Ethics and Professional Responsibility Committee. The opinions of the committee are advisory only and are Wilkinson not binding on the Disciplinary Board of the Supreme Court of Pennsylvania or on any court. The opinions carry such weight as an appropriate reviewing authority may choose to give them. References to rule numbers are to the Pennsylvania Rules of Professional Conduct. The formal and informal opinions of the committee are posted on the PBA website, www.pabar.org. Questions and requests for copies of opinions should be directed to the Legal Ethics Hotline, 800-932-0311, ext. 2214. Requests may also be addressed to victoria.white@pabar.org.

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Make connections with like-minded lawyers by joining Pennsylvania Bar Association committees and sections. Choose from the more than 50 different specialty and interest groups. Committee membership is always free. The first year of membership in one section is also free, if you have not been a member of that section for five or more years. Sign-up today by going to http://www.pabar.org/ site/Get-Involved/Join-Committees-and-Sections.

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November/December 2019

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ON THE HILL

Where Are We Going? By Ashley P. Murphy

ell, well, well — we meet again. Why have I taken over Director of Legislative Affairs Fred Cabell’s column in this issue? It is not to tell you about the Pennsylvania Bar Association’s recent legislative victories like I did the last time I wrote this column. That’s old news. (But please do not forget about said victories and please contribute to the PABAR-PAC). I am here to tell you about some of the priorities of the PBA this legislative session and some of the issues that we will be lobbying on at the Capitol on behalf of PBA members. First up is a PBA initiative that you have heard about before: Senate Bill 320 or the Fiduciary Access to Digital Assets Act. SB 320 would extend a fiduciary’s existing authority over a person’s tangible assets to include the person’s digital assets (photos, music, financial records, emails, etc.) with the same fiduciary duties to act for the benefit of the represented person or estate. This bill has already had movement this session and is currently in the Senate Appropriations Committee. Another priority is House Bill 437, which addresses contempt of custody orders. You might think that if Party A violates a custody order, Party B would be able to make up the custody time they missed due to the violation. Think again. Right now under the Custody Act, the only remedies for contempt are short imprisonment, probation, driver’s license suspension and counsel fees and costs. In the past, judges would commonly award make-up custody time for the parent who had missed custodial time with a child due to another parent’s contempt of a custody order. However, a few years ago the Superior Court noted that make-up time was not a contempt remedy set forth in the statute, which put an end to that. Are you a civil litigation attorney who has attempted to obtain documentation from law enforcement for a civil matter only to be told the release of information is prohibited by the Criminal History Records and Information Act? We are working to amend the CHRIA so that law enforcement has immunity when providing investigative information pursuant to a court order or subpoena. The Pennsylvania Lawyer

Two long-term legislative projects for the PBA include increasing indigent criminal defense funding and advancing legislation prohibiting “paper terrorism.” The PBA Legislative Department and legal experts from the Civil and Equal Rights Committee have been hard at work in the initial stages of advancing legislation that would increase indigent criminal defense funding. We propose the creation of a statewide appeals center to be funded by the Commonwealth. Attorneys from this center would handle appellate cases, per the request of county public defender’s offices, thus providing public defenders’ offices with more time and resources to devote to other cases. Our second long-term project involves “paper terrorism.” What is paper terrorism, you might ask? This threat/harm occurs when an individual (often those self-identified as “sovereign citizens”) files fraudulent liens against a public official or judicial officer in order to harass and cause financial harm. Our goal is to pass legislation that would prohibit the fraudulent use of liens and other encumbrances against public officers and employees, including members of the judiciary, a protection that would be extended to immediate family members. Now let’s talk “defense.” While there are always bills we are trying to get passed, a large part of our job is to defend against bad (although perhaps well-intended) legislation. One bill we oppose is House Bill 1397, which would create a presumption, rebuttable by clear and convincing evidence, that shared physical and legal custody and equal parenting time is in the best interest of the child.

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ESTATE LAW INSTITUTE 2019

Reserve your seat for the Commonwealth’s finest Estate and Trust Law event Various iterations of this legislation have popped up over the years. While this legislation might seem, at first glance, like a perfectly good idea, our family law experts have a whole host of reasons why the legislation would be bad for children and families. We anticipate a hearing on this matter, with PBA experts testifying, in the near future. What else are we always vigilantly opposing? Any advertising legislation that does not have a carve out for county legal journal advertising and any sales tax on legal services. Let’s talk about a sales tax on legal services. This issue has usually come up in the context of the elimination of school property tax. While the issue was quiet for a while, it is back! In fact, a bipartisan, bicameral work group (which includes members from the governor’s office) has been convened and the members all agree on one thing — they want to eliminate school property taxes. The elimination of school property taxes would call for a huge source of revenue, so the question always becomes where to get the money? Taxing retirement income? Taxing legal and other services? Homestead exemptions? There are various options floating around, so stay tuned, everyone! Lastly, I want to introduce you to the newest member of our team, Logan Stover. He is the PBA legislative coordinator and helps Fred and me out behind the scenes. The next time you are at a PBA event, please take the time to introduce yourself to Logan and be sure to ask him about his baseball/football career at Lebanon Valley College. ⚖ •

•

Ashley P. Murphy, Esq., is legislative counsel in the PBA Legislative Relations Department. She can be reached at ashley.murphy@ pabar.org For additional information on the PBA’s legislative program, contact the PBA Legislative Relations Department at 800-932-0311.

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November/Decemeber 2019

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TO WIT

The Eight Billion Ways to Lie By S. Sponte, Esq.

rt Clark slowly hung up the telephone on his desk and took a deep, contemplative breath. It was late in the afternoon and it had up to now been a nice enough day, one of the few in recent years in which he hadn’t fantasized about throttling the bejesus out of someone or other. Rancid cigar smoke, the only palpable remains of a wasted client conference he had had earlier in the day, pecked at his nostrils from the ashtray across the room. Remnants of smoke remained, and the late afternoon sun pierced through the window blinds and haze to cast an eerie shadow of repeating vertical stripes into the room and across to the wall behind him. He sat there for a long, unbillable time, thinking about the conversation he had just had. “Your wife is on the phone,” Miss Murgatroyd, his secretary, notified him through the intercom. He ignored them both, instead placing a call to Billy Vitornot, his best friend since childhood. “I just got off the phone with my best client, a guy I’ve represented for more than 30 years,” he told Billy, “and he just lied to me, he flat out lied. He’s never done that before.” “You get no sympathy from me,” Billy replied. “I’m a psychologist, remember? You think all my male patients mean it when they say they really don’t ‘want’ their mommies, if you catch my drift? If you don’t like being lied to, hey, start representing another species.” Art went home in a funk. Over the course of the sullen evening, neither he nor Jack Daniels could figure it out. Why would his client lie to him? Sometime past the witching hour, he turned on his computer and Googled “why clients lie to their lawyers.” The little hourglass spun and spun for a really long time and, when it stopped whirling, Art stared at the screen in disbelief; there were more than 5 million hits. Wildly he began to scroll through the results, moving his forefinger over the mouse wheel so fast and hard that it soon began to throb. He could hardly believe what he read. There was lying by word, by deed, by silence, by presence, by absence, by writing, by oath, by pledge, by

The Pennsylvania Lawyer

signature, by body language, the list went on and on and on. Some lies were just plain obvious, others quite sophisticated and inventive. On hit 3,542,875 he paused. There was the translation of a treatise written by Perpetonio Lybaldli, a 14th century lawyer/alchemist who had calculated that between content and presentation, there were 8 billion different combinations of lies clients could tell. He posited that once all those had occurred, all lawyers would be by the blackest of arts turned into dentists. He shuddered uncontrollably at the thought. That morning he got to work early. The rancid cigar smell had lingered and when he opened the blinds the same vertical shadows reappeared. He sat there catatonically until the familiar noises of his secretary’s arrival stirred him into action. He picked up the phone and dialed his client; the secretary answered “Good morning, Jez,” he said, “Is he in?” “Good morning,” she replied. “He said to say he’s off on a three-hump, blind camel ride and expects it to be very slow going. He won’t be back anytime soon.” Yet another lie. Art hung up the phone and slowly sat back in his chair again. At first imperceptibly, then increasingly, his jaw began to hurt. Soon it became quite painful and started to throb. He rubbed his jaw and felt around inside his mouth with his tongue. “Must be a damn cavity,” he thought. “Miss Murgatroyd,” he called out, “where did we put those pliers?” ⚖ •

•

“To Wit” is satirical fiction and should not be regarded as necessarily reflecting the official views of the PBA. If, for any inexplicable reason, anyone wants to contact the author, he can be reached at ssponte@gmail.com. © 2019, S. Sponte, Esq.

November/December 2019

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