November/December 2023 I 1
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2 I The Pennsylvania Lawyer
January/February 2024 I 1
SIDE BAR Living, Listening, Learning, Looking Ahead
A
happy holiday season to all! This is the time for extending best wishes and making resolutions for a new year filled with exciting possibilities, for spending time with family and friends and, most importantly, a time for being thankful and thinking of others.
Michael J. McDonald PBA President
“
Lawyers still demand quality CLE with convenience, and that is where the PBA and our Pennsylvania Bar Institute shine.
”
2 I The Pennsylvania Lawyer
The other day my wife Mary Ann asked me if I had a wish for the start of 2024 as PBA president. I replied, “I wish every PBA member had traveled with me across Pennsylvania this past year, and saw for themselves the incredible talent, energy and optimism of PBA members.” “So, you really wish them all new tires for their cars?” she quipped. Her remark prompted me to reflect on my wonderfully busy life since I became PBA president on May 5, 2023. I have been incredibly blessed to experience PBA members all across this commonwealth doing what they do best. It seems we have finally shaken off the confines of the pandemic to embrace and enjoy interacting with each other. By last count, I have attended over 50 different bar-related events. All along the way, I have been honored and privileged to witness fellow lawyers sacrificing their time, talent and treasure to make our clients, our profession and our communities better. From county bench/bar events to the first joint PBA-Hispanic Bar Association of Pennsylvania program, from speaking to fourth graders about the Constitution to the myriad community outreach programs, from PBA committee and section retreats and conferences to the 125th anniversary celebration of the Superior Court, PBA members are energetic and engaged. That same energy, creativity and commitment permeate every level of our association as well, and our incredible staff, led by Executive Director Matt Holliday and Deputy Executive Director and General Counsel Bill
Christman, have risen to the challenge and opportunity of treating every member as their most important member. In all my travels and experiences as PBA president, I have tried to listen and learn from each of you, the members of our great association. I have learned to be thankful for past successes, to be mindful of current issues and to anticipate the challenges and opportunities that lie ahead. I’m reminded of the quote often attributed to Winston Churchill, “Success is never final, failure is never fatal, it is the courage to continue that counts.” Permit me to share here some thoughts on ongoing opportunities and challenges for our members and the profession that you’ve shared with me in my travels. The first topic is near and dear to every lawyer’s heart. At almost every event I attend, members have shared their thoughts, ideas and hopes on the future of continuing legal education. As we all know, there has been a sea change in the delivery of CLE stemming, in part, from changes in technology, consequences of the pandemic and changing social and demographic behaviors. What has the PBA learned from all of this? The bad news first: Simply put, stand-alone, in-person CLE programs not connected with other in-person events are a thing of the past. Gone are the days of traveling an hour or more for a live CLE program, attending the program for 3 to 6 hours and returning home. While some, understandably, lament the loss of valuable networking and discussion opportunities that in-person seminars provide, the verdict is in. The majority of lawyers consider it not worth the travel time and cost. More important to most lawyers is convenience and flexibility. > page 10
ISSUE
1 JANUARY/FEBRUARY 2024 WWW.PABAR.ORG
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ON THE COVER Will the Real S. Sponte Please Reveal Yourself?
Pennsylvania Lawyer humor columnist reflects on more than 44 years of writing ‘To Wit’
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By Andy Andrews
FEATURES May It Please the Court
24
Learning from Professor Bryan Garner on making your case By Robert A. Krebs
Don’t Plan to Win, Plan to Avoid Litigation
32
Anticipating counsel’s differing perspectives By Daniel Kegan
With Individuals and the Community in Mind
40
‘Making it Work’ series profile of Elizabeth A. White By Jon Caroulis
Selling Short
46
40
32
Departments 63
Ad Index
12
Discipline
56
Ethics Digest
16
From the Executive Director’s Desk
8
Letters
62
Marketplace
60
On the Hill
6
PBA Dates
4
People
2
Side Bar
52
The Effective Lawyer
64
True Tales of Trying Times
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Regulation of short-term rental properties By Emeline L. K. Diener 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: $40 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 © 2024 The Pennsylvania Bar Association and the individual authors. All rights reserved. Feature articles, columns and related material available to PBA members online at www.pabar.org.
Cover Art: Design by Kelly Cassidy-Vanek Cassidy Communications, Inc. cassidycommunications.com
January/February 2024 I 3
PEOPLE APPOINTED/ELECTED
Baker
Noble
Bolivar
Iannozzi
On boards and committees of the Supreme Court of Pennsylvania: Veronica L. Morrison, Dauphin County, appointed, Committee on Rules of Evidence; Tuan N. Samahon, Delaware County, reappointed, Continuing Legal Education Board; Steven L. Chanenson, Delaware County, reappointed and named vice-chair, with Judge Steven C. Tolliver Sr., Montgomery County and Judge John E. Jones III, Cumberland County, reappointed to the Continuing Judicial Education Board of Judges; and Judge Kim D. Eaton, Allegheny County, appointed, Domestic Relations Procedural Rules Committee. Judge Julia K. Munley, Lackawanna County, nominated by President Joe Biden and confirmed by the U.S. Senate as a judge on the U.S. District Court for the Middle District of Pennsylvania. Lauralee B. Baker of the Lancaster office of Barley Snyder, appointed to the board, Lancaster Symphony Orchestra.
Thomas
Mumford
Jennifer Bolivar, King, Spry, Herman, Freund & Faul LLC, Bethlehem, appointed to the board, YWCA Bethlehem. Andrew E. DiPiero Jr. of Baratta Law LLC, Huntingdon Valley, recertified as a civil trial law advocate by the National Board of Trial Advocacy.
FIRM MOVES Jacqueline Lynette Carter has joined as an associate in the commercial litigation practice group at the Harrisburg office of Eckert Seamans Cherin & Mellott LLC. Jonathan E. Noble has joined as an associate at Anderson & Labovitz LLC, Pittsburgh. Wisler Pearlstine LLP has opened a new office in Malvern, with Andrew H. Dohan,
4 I The Pennsylvania Lawyer
DEATHS Lawrence County Richard E. Flannery,* 81 New Castle Monroe County Daniel M. Corveleyn, 75 East Stroudsburg a past president of the county bar association Montgomery County Leonard J. Cooper, 85 Laverock Out of State John B. Huffaker,* 97 McLean, Va. *PBA 50-year member
Wendy W. McLean, Sean A. O’Neill, Robert C.F. Willson and Scott E. Yaw, formerly of Lentz, Cantor & Massey, Ltd., joining the firm. Glenn A.W. Thompson, named managing member at the Meadville office of Steptoe & Johnson PLLC. Robert J. Iannozzi Jr. has joined as a partner at Lansdale-based Hamburg, Rubin, Mullin, Maxwell & Lupin PC. Amanda N. Thomas has joined as an associate at Bunde & Roberts PC, Pittsburgh. Shaun J. Mumford, joining the Lancaster office of Saxton & Stump and named co-chair of the firm’s health care litigation practice group. > page 6
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January/February 2024 I 5
PEOPLE Rebeca Himena Miller has joined as an associate in the intellectual property and life sciences practice groups at the Pittsburgh office of Leech Tishman Fuscaldo & Lampl LLC. Miller
Boak
Long
Vanasse
Warner
Alexander
Eisenhart
Schroer
Joining offices of Barley Snyder: Natalie E. Alexander, business and real estate practice groups, Gettysburg; William C. Boak, litigation practice group, Harrisburg; Nichole L. Eisenhart, trusts and estates and litigation practice groups, Lebanon; Caitlin M. Long, business practice group, Reading; and Hannah M. Schroer, employment practice group, and Elizabeth G. Vanasse, real estate and business practice groups, Lancaster.
DATES Family Law Section Winter Meeting Jan. 11-14, Charleston, S.C. Government Lawyers Committee and Administrative Law Section Meet & Greet Jan. 16, Harrisburg Board of Governors Meeting Jan. 24, Aruba
SPEAKING OUT
Midyear Meeting Jan. 24-28, Aruba
At the New Britain office of Sweet, Stevens, Katz & Williams LLP: Andrew E. Faust, faculty, and Thomas C. Warner, course planner and speaker, Pennsylvania Bar Institute Exceptional Children Conference, Mechanicsburg.
Estate and Elder Law Symposium Feb. 7, via webcast
Faust
BINDERS ON PENNSYLVANIA EVIDENCE 12th Edition
Conference of County Bar Leaders Feb. 29-March 2, Gettysburg Commission on Women in the Profession Spring Conference March 7, via webcast Health Law Institute March 12-13, Harrisburg Medical Marijuana and Hemp Law Symposium March 21, via webcast Statewide High School Mock Trial Competition Finals March 21-23, Harrisburg ———————————————————————— Please check the PBA calendar at www.pabar.org/site/Calendar for the most current meetings and events information.
www.pbi.org | 1-800-932-4637
6 I The Pennsylvania Lawyer
PBI’s Live CLE, In-person or via Live Webcast Enjoy PA’s best CLE experience
Estate and Elder Law Symposium
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Mar. 12-13, 2024 Join us in-person in Harrisburg or virtually “anywhere” for a day of health law programming. You’ll be updated on all the newest developments in healthcare.
Executive Editor: Stephanie A. Titzel Editor: Patricia M. Graybill People Editor: Andy M. Andrews Contributing Writers: Fredrick Cabell Jr., Robert Angelo Creo, Matthew M. Holliday, Michael J. McDonald, Robert E. Rains, Victoria White, Thomas G. Wilkinson Jr. Design: Kelly Cassidy-Vanek, Cassidy Communications Inc. www.cassidycommunications.com; Bethlehem, Pa. Advertising: PBA Communications Department; Phone: 800-932-0311, ext. 2226. 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 reserves 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. 171080186. 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 $40 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: Michael J. McDonald President-elect: Nancy Conrad Vice President: Kristen B. Hamilton Immediate Past President: Jay N. Silberblatt Chair, House of Delegates: James A. Wells Secretary: Jacqueline B. Martinez Treasurer: Kelly R. Mroz YOUNG LAWYERS DIVISION REPRESENTATIVES Chair: Jennifer A. Galloway Chair-elect: Melissa Merchant-Calvert Immediate Past Chair: Alaina C. Koltash
Medical Marijuana & Hemp Law Symposium Mar. 21, 2024 Panelists from across the state will provide you with an in depth look at what’s new in medical marijuana and hemp law. You will have the opportunity to interact with panelists as they explore current litigation and legislation and their future implications.
Technology Institute April 2024 Join us and get the best of two worlds! These course materials delve into a broad spectrum of intellectual property practice, including the latest developments in patent, copyright, trademark, and trade secret law, as well as the latest trends and issues in technology innovations.
Learn from PA’s best. Access to over 600 programs from the comfort of your home or office.
PBI.ORG | 800-932-4637
GOVERNORS Minority Governor: Judge Cheryl L. Austin Minority Governor: Tyesha C. Miley Unit County Governor: Matthew M. Haar Woman Governor: Amy J. Coco Zone 1: Riley H. Ross III Zone 2: Eric M. Prock Zone 3: Lisa M. Benzie Zone 4: Judge Tiffany L. Cummings Zone 5: Sean P. McDonough Zone 6: Judge Damon J. Faldowski Zone 7: Tina M. Fryling Zone 8: Christopher G. Gvozdich Zone 9: Carolyn R. Mirabile Zone 10: Richard L. Manilla Zone 11: Adrianne Peters Sipes Zone 12: Lawrence R. Chaban EDITORIAL COMMITTEE Chair: Judge William I. Arbuckle III; Vice Chair: Michael J. Molder; Members: Emeline L.K. Diener, Jill E. Durkin, Mary Wagner Fox, Richard J. Frumer, Bernadette M. Hohenadel, Judge Thomas King Kistler, Peter W. Klein, Alyson Tait Landis, Stephanie F. Latimore, Catherine R. O’Donnell, Riley H. Ross III, Hannah M. Schroer, Cheri A. Sparacino, Ryan W. Sypniewski, Andrij V.R. Szul, Zanita Zacks-Gabriel; Board of Governors Liaison: Riley H. Ross II PBA Staff — Executive Director: Matthew M. Holliday; Deputy Executive Director/General Counsel: William R. Christman III; Director of Committees and Sections: Ursula L. Marks; Director of Communications: Stephanie A. Titzel; Director of CLE Content Delivery: Erika Bloom; Director of CLE Content Development: Clair A. Papieredin; Director of County Bar Services & Special Projects: Susan E. Etter; Director of Finance: Lisa L. Hogan; Director of Information Technology: Terry Rodgers; Director of Legislative Affairs: Anna Malcein King; Director of Meetings: Wendy A. Loranzo; Director of Member Services: Karla Andrews; Director of Western Pennsylvania Services: Bridget M. Gillespie; Pennsylvania Bar Foundation Manager: Tameka L. Altadonna
January/February 2024 I 7
LETTERS about the next bill if it is more than $0, exactly for the reason you wrote: the “result depended, as results always do in this profession, entirely on how things got filtered through someone else’s [here, the judge’s] brain.” Congratulations again for writing about truisms all lawyers — especially trial lawyers — learn, and usually the hard way. Gregory H. Knight Mechanicsburg
Well Done The entire [November/December 2023 issue of the] Pennsylvania Lawyer is very well done. I was humbled by the quality of the three 2023 Fiction Contest stories, and how well the authors allow us to enter their minds to experience their dreams and nightmares. Every article in the issue was wonderful reading and instructive (even the reprised article of S. Sponte). Craig R. Tractenberg Philadelphia
Very Well Done, Indeed, Mr. Sponte! Editor’s Note: The following message was emailed to “To Wit” columnist S. Sponte, Esq., regarding his column “Very Well Done” in the November/December 2023 issue. It appears here with the letter writer’s permission. I’d say your performance in this column was a “Wow!” Hopefully you will have some new ones soon, but the lesson learned (and I’m sure you already knew this) is to never promise a slam dunk for the reason stated in your column: The client will complain 8 I The Pennsylvania Lawyer
Correction Editor’s Note: Our apologies to Thomas L. Harper, winner of the 2023 Lawyer magazine Fiction Contest who was misidentified in the November/December issue. We deeply regret the error.
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.
Law Practice And Building Available Susquehanna County Expand your successful practice of law to beautiful and increasingly prosperous Susquehanna County, Pennsylvania. In recent years, the natural gas industry has made Pennsylvania the second leading natural gas producing state behind Texas, and Susquehanna County the second leading natural gas producing county behind Washington. While the population and wealth of the county continues to expand, the number of active lawyers and law practices has not kept pace. The Susquehanna County market is ripe for additional legal counsel. Since it was founded in 1884 — 140 years ago — Kelly Law Office has been a successful, continuous and active family-only practice of law. The firm has a rich history of providing legal services in the realm of personal injury and other litigation, real estate, wills and decedent’s estates and criminal defense, among other areas of practice. The historic, spacious, two-story, 3,276-square-feet office building with full basement in which this practice is maintained was purchased in 1915 by the founder of the family firm, Attorney John M. Kelly. It is located on the principal business avenue of the county seat, Montrose, within easy sight of and short walking distance to the Susquehanna County Courthouse. It will easily accommodate 7 offices with ample space for your professional practice, client engagement and functional space-sharing needs. There is parking for 3 vehicles behind the building. Presently, the Kelly Law Office is being maintained by its last active local practitioner, family member Laurence M. Kelly, who, at age 83 (and after 58 years in the practice of law), finds himself willing to pass this practice of law and the office building to some motivated, community-oriented, competent successor (or firm) interested in continuing the legacy of providing legal services to Susquehanna County and beyond.
LAURENCE M. KELLY Kelly Law Office 65 Public Avenue Montrose, PA 18801 Phone: 570-278-3861
larrykellylaw@yahoo.com
Terms and scope negotiable. January/February 2024 I 9
SIDE BAR > from page 2
The good news is that lawyers still demand quality CLE with convenience, and this is where the PBA and our Pennsylvania Bar Institute shine. Are we saying live, in-person CLE is going the way of Taylor Swift’s former boyfriends — only to be remembered in nostalgic songs? Thankfully, the answer is no. Inperson programming has a definite place in the CLE universe. The solution lies in tying live, in-person CLE with other events such as bench/bars, section meetings, work conferences, etc. I call it CLE+. Examples of successful CLE+ events that come immediately to mind are the Family Law Section Summer Retreat, the Minority Bar Conference, the Workers’ Compensation Law Section Fall Meeting and the Young Lawyers Division Summer Summit. Those meetings are especially attractive for young lawyers as they provide excellent networking opportunities with the judiciary and state and national bar leaders. I can’t leave this topic without touting the PBA’s focused attention and commitment of significant resources to members’ continuing CLE needs and wants. For example, the PBA is committed to providing multiple channels for digital solutions. You will see continuing upgrades to our selection, presentation and promotion of Pennsylvania Bar Institute products, which continue to be best in class. ProPass, our CLE subscription service, was just $450 per year ($225 for new admittee and retired members). ProPass has been a tremendous benefit to our members and provides unlimited access to PBI’s library of over 900 on-demand courses, live webinars and most live webcasts. Some good news for the New Year is that PBA members can obtain a ProPass for just $350 per year ($125 for new admittee and retired members).
10 I The Pennsylvania Lawyer
The next topic that is mentioned with increasing frequency by members throughout my travels is the ever-increasing shortage of lawyers in small communities. These concerns are as stark as they are real. We all know small towns and communities need lawyers to provide access to justice, make wills and contracts and deal with family law, criminal law and estate law issues. Lawyers make businesses successful, towns vibrant and communities prosper. But a growing chorus is asking the question: Where are they? I didn’t fully appreciate this issue until it was explained to me by worried bar leaders. Maybe over time I was lulled into a false impression, remembering how TV shows and movies portrayed children in small communities being attracted to the comfortable, friendly communities of their parents and grandparents. Maybe I misremembered how those children went to law schools that specifically prepared them for local practices. Maybe I always thought there were young lawyers who, after graduation and passing the bar, would eagerly return home to practice, avoiding the intense competition of big city firms. Maybe I believed there would always be lawyers attracted to the stability, collegiality and satisfaction of making a big difference in a small community. But, as we know, the winds of social change spare no one and care little for my outdated beliefs. Law schools, for multiple reasons, do not particularly focus on preparing future lawyers for the general practice of law in smaller counties and rural areas. Young lawyers fail to see the allure of small-town life compared to the ever-expanding amenities of metropolitan areas. Technology has untethered big law firms from geography and they now compete for business with the smallest local firms. Clients, who formerly demanded face-to-face encounters,
are now completely comfortable with Zoom meetings and text or email communication. But convenience, technology and business realities come at a steep price. Local populations are simply not served in the comprehensive way they were in the past. And the future is even less bright as the baby-boom generation of lawyers retires with no replacements. The world of Atticus Finch is disappearing. Are there any solutions to the problem of small communities becoming “legal deserts”? While there are no easy solutions to this complicated and ongoing issue, a whole set of legal, economic, cultural and educational adjustments are at least part of the solution, according to PBA Law Practice Management Coordinator Ellen Freedman. And no solutions come without changing current practices and mindsets. Law schools need to train, support and encourage students to practice in small communities where there is a great need for access to justice. Law firms in smaller communities need to be innovative and proactive in marketing their amenities, as well as structuring competitive salary and benefit programs. While easier said than done, it is in the long-term interest of even small law firms to increase salaries for summer interns and provide associates with enough compensation to help pay down loans over time. Lawyers and law firms need to introduce potential and new associates to local judges and their staffs, private attorneys and bar representatives as early as possible. Similarly, judges, district attorneys and public defenders should integrate their assistants with the private bar, bar associations and committee events. Finally, law schools, bar associations and the Legislature should work together to identify funds, gifts and grants to provide
scholarships to young lawyers committed to at least a five-year career in a small town. A good reference for these issues is the 2023 Annual Report of the Rural Attorney Recruitment Program of the State Court of South Dakota (https://ujs.sd.gov/uploads/ RARPreport.pdf). Possibly most important of all, I was repeatedly reminded in my travels of the dangers and devastating effects of lawyers’ battles with anxiety, stress and depression. You don’t need me to remind you of our high-stress occupation, incessant client demands and the interminable phone calls, texts and emails that are part of daily life.
The statistics, especially for our law students and young lawyers, are simply startling. Please remember, especially at this time of year, that Lawyers Concerned for Lawyers (LCL) has assisted thousands of lawyers, judges, their family members and law students who struggle with destructive behavior and mental health issues. Please don’t hesitate to reach out. Contact LCL at 1-888-999-1941 or visit their website at https://www.lclpa.org. Remember to take care of yourself first. And remember that the PBA has many programs, events and seminars, including those of our Quality of Life/Balance Committee, that can provide guidance.
I almost forgot to tell you my New Year’s resolution. I have resolved to try my best to make good lawyers better. Better in health, better as colleagues and better in serving our clients, our communities and our system of justice. While there will always be challenges, the PBA is always here for you. Thank you for your efforts in making good lawyers better. ⚖
Michael J. McDonald PBA President
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January/February 2024 I 11
DISCIPLINE Aug. 23 through Oct. 26, 2023 CHESTER COUNTY The Supreme Court of Pennsylvania on Aug. 23 ordered David Addison Grant Murray suspended for one year on consent, retroactive to Feb. 7, 2023, the date of his temporary suspension, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Murray was convicted of criminal trespass and simple assault following an evening of drinking and an early-morning confrontation of his former girlfriend at her apartment. In reaching the recommendation for discipline, the board considered as mitigating factors that Murray “admitted his misconduct, cooperated with disciplinary authorities, agreed to an immediate temporary suspension of his license, and also agreed to accept consent discipline in the form of a suspension. [His] misconduct appears to be isolated, aberrational and situational in nature, and was confined to a single episode of criminal conduct involving his ex-girlfriend that [he] asserted was prompted by his over-imbibing,” as well as that he exhibited remorse and accepted responsibility for his actions. The report concluded with the panel’s determination that “consistent with the specific facts underlying this case and precedent,” a one-year suspension “is justified and appropriate, will serve to uphold the integrity of the legal profession, and will act to impress upon [Murray] the seriousness of his actions as well as deter him from engaging in similar conduct in the future.” The court on Oct. 5 ordered Michael J. O’Neill subjected to a public reprimand. FAYETTE COUNTY The Supreme Court of Pennsylvania on Sept. 12 ordered John William Eddy suspended for three years on consent, as recommended by a three-member panel of the
12 I The Pennsylvania Lawyer
Disciplinary Board. According to the joint petition in support of discipline, Eddy, who was suspended at the time of the instant misconduct and had not sought reinstatement, collected $3,418.50 on behalf of a client, but never informed the client that he was suspended, never visited the client or performed legal work on behalf of the client, and told the client that he was working with two other attorneys on behalf of the client but never informed those attorneys that he was using their names to request money on behalf of the client or forwarded any money to them. The Pennsylvania Lawyers Fund for Client Security ultimately paid the claim made on behalf of the client, and Eddy, through counsel, reimbursed the fund. As indicated in the report, as a result of the matter involving the theft of client funds that led to Eddy’s initial suspension, the Federal Bureau of Investigation conducted an investigation and, on Feb. 9, 2022, Eddy entered a guilty plea in the U.S. District Court for the Middle District of Pennsylvania to one count of wire fraud. The board considered as mitigation that during the period of misconduct related to the instant client matter, Eddy “experienced a relapse in his substance abuse dependency,” and, if the matter were to proceed to a disciplinary hearing, he would submit evidence pursuant to Office of Disciplinary Counsel v. Braun, including that in the matter leading to the initial suspension, the board had found that he “established a causal connection between his mental illness and misconduct by clear and convincing evidence. Further, the [b]oard found that [he] suffered from an opioid addiction.” The report concluded with the parties’ submission that a three-year suspension “is both justified and not unduly lenient considering [Eddy’s] current suspension.” LAWRENCE COUNTY The Supreme Court of Pennsylvania on
Sept. 20 ordered Brian Frederick Levine subjected to a public reprimand. According to the order, the Office of Disciplinary Counsel (ODC) alleged that Levine “(1) offered value to a witness in exchange for her agreement not to testify at a scheduled preliminary hearing in a criminal proceeding in which [his] client was the defendant; and (2) attempted to coerce the same witness by suggesting that charges could be brought against her if she appeared to testify at the preliminary hearing.” In reaching the recommendation for discipline, the board considered as mitigating factors that Levine had practiced law for 17 years with no history of discipline and his cooperation with the ODC, but agreed with the hearing committee that he “did not express remorse or acknowledge his wrongdoing, instead describing his actions as though he were negotiating a settlement of a private matter, with no recognition that his actions were intended to impact a criminal proceeding,” actions that “compel public discipline in the form of a public reprimand in order to underscore the seriousness of [his] conduct.”
temporary suspension under a rule of disciplinary enforcement pertaining to attorneys convicted of a crime: Peter Andrew Galick, Fort McCoy, Wis., on Oct. 12.
EMERGENCY TEMPORARY SUSPENSION — Rule 208(f) The Supreme Court of Pennsylvania ordered the following attorneys placed on temporary suspension: Jason Guy Beardsley, Susquehanna County, on Oct. 11; Daniel Liam Glennon, Montgomery County, on Oct. 12; Christopher John Martini, Elk County, on Oct. 20.
The Supreme Court of Pennsylvania granted reinstatement to active status to Joseph Vaccaro, Philadelphia, on Sept. 6, from a six-month suspension reciprocal with the Supreme Court of New Jersey.
DISBARMENT — Rule 208(f)(9) The Supreme Court of Pennsylvania ordered the following attorney disbarred: Megan Anne Kerrigan, Dauphin County, on Oct. 2. TEMPORARY SUSPENSION — Rule 214 The Supreme Court of Pennsylvania ordered the following attorney placed on
DISBARMENT ON CONSENT — Rule 215 The Supreme Court of Pennsylvania ordered the following attorney disbarred on consent under a rule of disciplinary enforcement pertaining to resignations by attorneys who are being investigated for allegations of misconduct: David Tevis Shulick, Montgomery County, on Oct. 12, retroactive to Sept. 11, 2018. RECIPROCAL DISCIPLINE Supreme Court of Pennsylvania imposed reciprocal discipline on the following attorneys: Delphine Lara Farr, a/k/a Delphine Lara Janey, Lyons, Colo., suspended for six months, on Sept. 14, for like discipline imposed by the Colorado Supreme Court; George Louis Farmer, Northfield, N.J., suspended, on Oct. 26, for like discipline imposed by the Supreme Court of Maryland.
REINSTATEMENTS Aug. 23 through Oct. 26, 2023
The court denied reinstatement to Douglas M. Marinos, Lehigh County, on Aug. 22. According to the disciplinary report, the Disciplinary Board unanimously recommended against Marinos’ reinstatement from a four-year suspension ordered Dec. 3, 2019, retroactive to May 3, 2018, resulting from his conviction for “one felony count of willful failure to collect and remit his law firm’s federal tax obligations for which he was personally responsible.” The board agreed with the hearing committee’s
January/February 2024 I 13
STAY CONNECTED
DISCIPLINE conclusions that Marinos “failed to prove that he has the competency to practice law because his Reinstatement Questionnaire contained misrepresentations and omissions; [he] failed to address his financial obligations resulting from his criminal misconduct; and [he] lacks the moral qualifications required to practice because he failed to show genuine remorse and demonstrated a lack of civility and professionalism throughout the reinstatement process.” The board also agreed that Marinos’ “seemingly nonchalant attitude regarding his tax obligations and his failure to have a plan to satisfy his obligation weigh in favor of denying reinstatement as this evidence cuts against [his] claim that he is rehabilitated from his underlying misconduct.” The report concluded with the board’s determination that Marinos “has failed to meet his reinstatement burden by clear and convincing evidence, as his present shortcomings depict his lack of fitness to resume practice. The totality of the record shows that [he] needs additional time to consider his rehabilitative efforts.” The court denied reinstatement to Craig B. Sokolow, Philadelphia, on Sept. 28, as unanimously recommended by the Disciplinary Board. Following Sokolow’s disbarment in 1997 and reinstatement in 2008, the court on Sept. 14, 2019, ordered him suspended for two years, indicating that his statements to a New York U.S. district court judge and in response to the DB-7 letter “were designed to frustrate the truth-determining process in civil and disciplinary hearings.” As indicated in the report, “The transcript of [his] hearing before the Judicial Committee shows that he attempted to minimize the conduct for which he was suspended … and made false statements to the Judicial Committee, neither of which he credibly explained at his
14 I The Pennsylvania Lawyer
reinstatement hearing.” The board found that his “prior record of discipline shows a propensity for making false statements and his unbelievable, unconvincing testimony at the disciplinary hearing underscores his lack of remorse and failure to appreciate the seriousness of his actions.” According to the report, the board determined that Sokolow’s “cumulative conduct during [the two-year] suspension period is the antithesis of rehabilitative efforts and establishes that [he] is not fit to resume the practice of law.” “Most significant” to the board’s determination to deny reinstatement were Sokolow’s repeated “false statements to tribunals and others,” and it concluded that his “attitude that he simply made mistakes, his two year suspension was not warranted, and he is ‘retired,’ coupled with his dishonest conduct and deficiencies [in] complying with post-suspension rules and regulations and following reinstatement procedures underscores that [he] is not fit for readmission.” The court denied reinstatement to Neil E. Jokelson, Boca Raton, Fla., on Oct. 6. The Disciplinary Board unanimously recommended against Jokelson’s reinstatement from disbarment on consent ordered Jan. 15, 2015, based on charges related to an overdraft in his IOLTA account, business expenses he paid from that account and settlement funds he converted for his own use. According to the report, the board determined that “the tone of [the] reinstatement hearing was set on the first day” when Jokelson failed to acknowledge the reason for his disbarment and “repeatedly objected to ODC’s cross-examination of his character witnesses.” The board found “his inability to accept that he converted entrusted funds without parsing the details as something other than conversion establishes that [his] expression of remorse was not genuine and
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Follow us Join us on Twitter on LinkedIn @pabarassn Follow us on Instagram Find us on Facebook @pabarassn sincere.” The report indicated that Jokelson did not provide evidence addressing “the self-admitted disorganization that has long plagued his legal career,” and his “witnessJoin us es offered nothing of substance to support [his] claim that he is onrehabilitated.” LinkedInThe board concluded that Jokelson’s reinstatement questionnaire contained misstatements and omissions regarding, “among other things, [his] disciplinary history in other jurisdictions, lawsuits filed against [him], which were later revealed upon [the] ODC’s investigation to number in the hundreds, and unsatisfied judgments. These errors and omissions reinforce our conclusion that [Jokelson] is not rehabilitated and raise[ ] issues of [his] competency,” and he failed to meet his reinstatement burden “by clear and convincing evidence and his reinstatement should be denied.” ⚖ ——————————————————————————— The recent disciplinary actions of the court are posted at https://www.padisciplinary board.org/cases/recent-cases
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From the Executive Director’s Desk Seeing the world through a fresh pair of eyes
T Matthew M. Holliday
“
I’m asking you to approach the practice of law with a fresh pair of eyes in 2024.
”
16 I The Pennsylvania Lawyer
here have been thousands of articles covering the mysterious power attributed to New Year’s Eve and Day. The first recorded case of celebrating a new year’s arrival dates back over 4,000 years to the ancient Babylonians. They used to celebrate the new year in late March so that it was timed with the vernal equinox. Had we stuck with that date, I suppose people wouldn’t have to risk hypothermia to stand in Times Square on one of the coldest nights of the year, but, alas, the Roman Empire came along and nipped a March New Year’s in the bud. Julius Caesar decided to shake up the calendar in a pretty major way, and he is responsible for instituting Jan. 1 as the first day of the year. At the time, there were only 10 months and not 12, not to mention the climate in Rome is quite a bit more temperate than Pennsylvania’s. But that is neither here nor there. The point is that humans have been fixated on Jan. 1 for quite some time. Saying goodbye to the past and setting resolutions for the new year are some popular ways (including consuming alcohol) that modern Americans mark this auspicious and ancient holiday. What does any of this have to do with the Pennsylvania Bar Association, you may ask? Well, while you are deciding what resolutions you are going to make (and try to keep) this year surrounding diet, exercise, time with loved ones, travel and the cessation of whatever bad habit you have picked up over the years, consider adding something else to your list. I’m asking you to approach the practice of law with a fresh pair of eyes in 2024. Whether you are a new admittee, in which case everything to do with this profession is new and exciting, or you have been practicing longer than I have been alive, try doing one new thing. Each
morning when you get up, approach your craft with the idea that you are going to find three good things that happen during the course of your day and, if you are feeling extra optimistic, try to remember one kind thing you did for someone by the time you lay your head on the pillow at night. I know this sounds absurd. You are probably wondering when I decided to pretend to be Oprah or, at a minimum, a super-perky kindergarten teacher. The truth is that this is an exercise I asked my eldest goddaughter to start doing every day when she was only 2 or 3 years old. In the early days, her responses ranged from “I don’t know” to an eye roll to a request to add one bad thing to her list. Now that she is 8, something interesting has been happening. At least half of the time, if I don’t ask her for her “3 and 1,” which is what she and I call this little ritual, within the first half hour of my seeing her, she will prompt me with a mild and polite scolding. Sometimes, she will even flip the script and ask me to tell her three good things that happened to me and one kind thing I did for someone else that day. Bringing this back to you and the organized bar, if you can find it in yourself to approach each day of the practice of law with the
intention to identify at least three good things that have happened to you and one kind thing you have done for someone else, I’m confident you will find the exercise well worth your time. Even if it doesn’t change the choices you make, reflecting on the positive aspects of your day will be well worth the effort. Attorneys have hard jobs. No matter how you use your law license, it is unlikely that your job has no stress or difficult personalities to deal with. This could be why a Bloomberg Law survey showed that lawyers said they experienced burnout in their jobs 52% of the time. If my “3 and 1” exercise can help reduce that percentage even a little bit for you, by refocusing your mind to find the positive moments in your day, then it is probably worth the de minimis effort. Better yet, if you push beyond looking for the good that happened to you to focus on the kindness you exhibited for others, we
could really get that burnout percentage down, one attorney at a time. Like any other New Year’s resolution, having someone else hold you accountable for follow-through is a good way to ensure that this resolution becomes a habit. If you don’t feel comfortable asking someone in your life (especially if you don’t have a really cool godfather) to inquire what your “3 and 1” were each day, write it down in a journal. If you are like me and don’t enjoy keeping notes, just email me, and I can be your accountability. Because if you can just retool how you see things, I assure you 2024 will be a lot rosier than you would have expected it to be. It’s all in how you look at it. Be kind to one another. ⚖
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January/February 2024 I 17
18 I The Pennsylvania Lawyer
Will the Real S. Sponte Please Reveal Yourself? Pennsylvania Lawyer Humor Columnist Reflects on Writing
S
By Andy Andrews
o, who is the real “To Wit” humor columnist S. Sponte, Esq.? And what inspired the writer to pen a humor column for more than 44 years that many Pennsylvania Lawyer readers say they read first when they receive the magazine?
S. Sponte is the pen name of David J. Millstein, formerly of Greensburg, who has “retired” to Naples, Florida. David (He prefers to be referred to familiarly, by his first name) focused on civil rights law in addition to running a small-town general practice for 50 years. During that time, he was an active volunteer for the American Civil Liberties Union. He began the column using a pseudonym because of his familiarity with the Latin “sua sponte,” meaning, according to Black’s Law Dictionary, “of his or its own will or motion; voluntarily; without prompting or suggestion.” Usually, a court will act on what one or another lawyer wants, but occasionally a court will act on its own motion, when it thinks it’s necessary, and that’s called acting sua sponte, David explained.
“It seemed to me that nobody wanted me to write these articles, because that was my own initiative, so I would be sort of acting sua sponte, and that’s when it occurred to me that S. Sponte, Esquire, would fit,” he said. “It just hit me like a brick, just one of those things that popped out of my head, and it seemed to me to be perfect.” He came up with the idea to start his column after a particularly irritating experience with an irascible judge in Westmoreland County. One day, he felt dragged through a rough patch in court, so he went to look for some stress relief at the local YMCA. During a massage, the masseuse had both of his legs in the air and split apart. It was at that moment that David thought to himself, “this is what the judge did to me today.” And that’s when the idea to write a humor column under the nom de plume and the name of the first piece jumped into his head “fully formed,” he said. He went home that night and started to write the first column. That first column was called “Lexaplexy.” It was printed first in the publication of the Westmoreland Bar Association in 1976. The title is derived from lexa, the Latin word meaning law, and plexy, the Greek word meaning struck down. “It was about the process of practicing law,” David said. “About how crazy it was. It was about how difficult and nutty
November/December 2023 I 19 January/February 2024
already published locally,” David said. “It’s my recollection that it was published in the next issue.” On June 1, 1979, the magazine published “Lexaplexy,” and has run Sponte’s “To Wit” column in almost every issue since then. “To think I have written 300 humorous articles on the practice of law, and still have anything to say, is hard to imagine,” he said. “I just don’t know how it got done, quite honestly. I don’t know how I did so many. It was easier when I was younger, I had more ideas, there were more things to write about. I had more drive.” Despite what you might think, David has always found writing to be a challenge. Paraphrasing another author, he said, “It‘s easy to write. You sit down at the typewriter until blood comes out of your forehead.”
David and his dog Isaac
In retirement, David has become involved with some organizations “that are dedicated to helping those who would have trouble helping themselves,” he said. “I like that kind of work.” 20 I The Pennsylvania Lawyer
it was to be a lawyer; how unscientific it was; how random it seemed to be, that sometimes it didn’t seem to make any sense; that the results you received were not the results you should have received. Practicing law was not at all like what I had imagined it to be, where everybody would come to agreement as to what the law should be and everybody would just kind of shake hands and that would be the end of it. The practice of law was nothing like that.” The results sometimes seemed to be random, he said. You could be sure that your argument was solid, that you were right on the law and you’d end up losing because somebody else didn’t agree with you. “That, to me, was always hard to fathom, and still is,” he said. “When I received my first copy of The Pennsylvania Lawyer, I sent a letter to Fran Fanucci, who was editor at the time, and I sent him a couple of my columns that I’d
Impetus Began David’s impetus for writing began in middle school. “Ever since I was very young, I always wanted to be a writer,” he said. “It was something that floated in my head ever since I can remember. In the seventh grade, I wrote a little play for the PTA meeting. It was called ‘Romeo and Juliet and Izzy, the Used Car Salesman.’ I’ve always wanted to be a writer. But I went off to boarding school, and then to college and then to law school, and that impetus to be a writer kind of got pushed aside.” David said the whole history of his writing has been trying to deal with the uncertainty of practicing law, “the disappointment at not getting the right results, the astonishment that not everybody agrees with you, that it’s not at all like, let’s say, medicine or science, or even mathematics, where one and one equals two,” he said. “In the
practice of law, sometimes that’s not the case. It’s because everything gets filtered through everybody else’s head. You have a lawyer on your side who thinks one way, and you think another way, you get the judge who thinks another way and the jury thinks another way, and all of the facts get filtered through how many different brains before a result is reached.” When it comes to witness testimony, “It’s almost like that game in which somebody would start off by whispering something into somebody’s ear and then they would whisper it to somebody else,” he said. “They would go around 15 or 20 or 30 people, and, at the end, the facts would be completely different than what they were when it started. Everything that gets filtered through somebody’s head puts their own individual spin on it, and if they repeated to somebody else, it’s different. It gets changed every time. That’s what I think the practice of law is like, because there are so many different brains dealing with the same issue. “There were times when I won cases and I could not understand the opinion,” David said. “I was happy for the result, that’s all I’d primarily cared about. But when you read the judge’s opinion, you think to yourself, what the heck is he talking about? That’s happened to me a number of times, and if you were to talk to other lawyers who would be candid with you, then they’ll tell you the same thing: that they’ve won a case and there’s a written opinion, and that they haven’t a clue what the judge was thinking or why or what the analysis was that made no sense to them.” Courtroom behavior also figures prominently in many of Sponte’s columns.
Fom the Desk of
Sponte
F
or the first time since 1979, one of my columns does not appear on the inside back cover of this magazine. It is a very poignant occurrence for me, one that I have always known would happen sooner or later. I would have preferred later, but sooner got here first. There are a few reasons why this is so, but rather than give you the laundry list, let me just say this: this business of writing, staring at a blank computer screen, trying to create something out of nothing, is excruciatingly hard. I’ve done it about 300 times now and I’m not certain how many more times I can do it. If the druthers were mine alone, I’d be S. Sponte, Esq., forever. I’m not sure, however, that he shares my aspiration. I cannot make any promises other than I still hope, however faintly, that I can from time to time write something new and interesting, but I’m afraid we will have to leave it at that. I have always been and remain wonderfully grateful to those of you who have enjoyed the column for some part of the last 45 years. As for those of you who have done so for all that while, well, you then understand what time and age does to so many of our passions. Best regards to all of you, David
If for any explicable reason, anyone wants to contact S. Sponte, he can be reached at ssponte@ gmail.com.
“There was a piece I wrote called ‘Contempt of Counsel,’” he said. “It was about a judge
January/February 2024 I 21
“I am enjoying not having to do anything,” he said. “I don’t want to put on a coat and tie. I live in T-shirts and blue jeans.”
“As far as retirement is concerned,” he said, “it’s not a bad way to go.”
who treated me so contemptuously that I wanted to write a piece in which lawyers could hold judges in contempt for the way they sometimes behave.”
On Writing Under a Pseudonym “Writing anonymously, you don’t get a lot of feedback. For a lot of years, most people had no idea who I was. Everybody in Westmoreland County knew. But outside of Westmoreland County, not so many.” Now and then there would be letters to the Pennsylvania Lawyer editor about “To Wit.” “Occasionally, ‘Sponte’ would get an email directly from a reader,” David said. “Most of the nice responses were the same kind of thing, about how much they enjoyed the column, how it’s the first thing they read, how people cut them out of the magazine and put them on the desk, or send them to their kids, or circulate it to their colleagues. That was always very nice. I didn’t get a whole lot of criticism.” David recalled an experience with a local lawyer “who was very inexperienced, and how difficult dealing with an inexperienced lawyer can [be],” he said. “I wrote an article, it got published, and he read it and, of course, it was pretty clear that he knew I was talking about the case that I had with him, and his feelings were badly hurt. He wrote to me. He said that I really upset him. I felt bad about that. I apologized to him and said to him that you can’t write humor without offending somebody once in a while, and I said I’m sorry if you were offended, I did not mean for that to be the case. But as a writer, sometimes that goes with the territory: You try to make a point and somebody’s feelings get hurt. That’s just the way it is.” David said it was imperative to write under a pseudonym.
22 I The Pennsylvania Lawyer
“I did not want anybody to ever think that I was making fun of them, or writing about them, or trying to get even, or any of those things,” he said. “I thought if I wrote under a pseudonym, that would eliminate a great deal of that problem. “I wouldn’t have had the freedom to do what I did had I not done that,” he said. “I’ve never needed to hide. I just didn’t want to personalize it. “A couple of years ago, a lawyer that I’ve been friends with since law school, very close with, passed away,” David said. “I wrote a piece about our friendship called ‘Sam and Me.’ It was a wonderful piece. Somebody wrote to me, a lawyer I did not know, and he said that he wished he had the ability to write the way I did, and he hopes that when he passes on somebody will say those kind of things about him as well. It was very touching and it meant a great deal to me.”
In Retirement David has a large family in Naples and in Pennsylvania. He is married to Diana, and has three children: Scott, Rachael and Deborah. He has six grandchildren: Todd, Carter, Curran, Graham, Eleanor and Ephram. The oldest grandchild is 20 and the youngest is 11. “I am retired from the practice of law,” he said. “I surrendered my license. Every once in a while, I think about taking the Florida bar exam. I’ve been an ACLU volunteer lawyer my entire career, and I’ve done a lot of litigation work for the ACLU. In Florida, there’s a real need for that. There’s so much that goes on here that shouldn’t. Then I come to my senses and realize that I don’t really want to do that anymore. I’m done with that. If I were to practice again, it would be for a cause. I’ve always needed a cause.”
(from left) David receives the Pennsylvania Bar Foundation (PBF) Goffman Award, recognizing pro bono service, from Michael J. McDonald, then-incoming PBA secretary and PBF immediate past vice president, May 12, 2016, in Hershey.
In retirement, David has become involved with some organizations “that are dedicated to helping those who would have trouble helping themselves,” he said. “I like that kind of work.” As a member of one organization’s board, he offers counsel on the issues that the farmworkers face, and how they are mistreated and exploited by others. “That’s an organization I’ve become active with,” he said. “There are a couple of other progressive organizations that I serve. Some of them are politically motivated, that kind of stuff. I can advise about the law. I can’t be a lawyer, but we can talk about legal issues, think about legal solutions to problems that come up. I can work with counsel on those kinds of issues.” David said that though writing is becoming more cumbersome, he’s not done yet. “The truth is, my vocabulary has been leaving me, and that’s been very frustrating,” David said. “Words that I’ve used many, many times, sometimes I can’t retrieve them, they’re in there and I can’t remember them. That’s bothersome, but that’s
probably the only memory issue I have. My bigger problem is vision. It’s been hard for me to continue to write, because it’s hard for me to read the computer screen.” He said the “rhythm” of writing is not there so much anymore. “When I started writing, it was with an IBM Selectric typewriter or a pencil and paper,” he said. “For so many years, it’s been using the keyboards. Now it seems to be an enhancement of the writing process, almost the way a piano player plays music with his fingers, the music comes from his head down into his fingers and out onto the keys of the piano. Writing for me was a lot like that. With the keyboard, it was a synergy there that is gone, is diminished. That made the writing much more difficult, between the vision and that sense of rhythm. It’s been difficult.” In 2016, David received the Pennsylvania Bar Foundation Louis J. Goffman Award, which recognizes individuals and organizations committed to outstanding pro bono service. He received a PBA Special Achievement award in 1981 for the “To Wit” column. Recently, David received the
PBA President’s Award from Jay Silberblatt on May 8, 2023, “for contemplating the privileges and pitfalls of being a lawyer by authoring, under the pseudonym S. Sponte, the irreverent ‘To Wit’ column that has been printed in the PBA’s flagship publication, The Pennsylvania Lawyer, for more than 40 years.” What doesn’t he want to do in retirement? “I am enjoying not having to do anything,” he said. “I don’t want to put on a coat and tie. I live in T-shirts and blue jeans. “As far as retirement is concerned,” he said, “it’s not a bad way to go.” ⚖ ____________________________________ Andy Andrews is PBA senior publications editor. If you would like to comment on this article for publication in our next issue, please send an email to editor@pabar.org.
January/February 2024 I 23
May It Please the Court: Learning From Professor Bryan Garner on Making Your Case By Robert A. Krebs
E
very year I sit down with college students in one-on-one sessions as part of a career workshop at Penn State. The students have seen my bio and have signed up for one of the 30-minute meetings to pick my brain for career advice.
24 I The Pennsylvania Lawyer
They have chosen to meet with me to discuss whether to go to law school and what they should do to prepare. I tell them, of course, to take some introductory government classes so that they have a basic understanding of the structure of American government as far as federalism and separation of powers. I will also recommend courses in constitutional law or constitutional history so that they
are familiar with the case method and can read a legal opinion going in. But most of all, I tell them to take courses that make them write. My experience has been that English majors and journalism majors do very well in law school. The students I meet with are always surprised to hear this, but to me, it is obvious. These majors require students to analyze material, collect their thoughts and express them in writing, all while under deadline. This is what they must be able to do in law school and, most importantly, this is what we do as lawyers. Which brings me to Professor Bryan Garner, who has taught and written extensively on legal language, advocacy and brief writing. His most notable books on the subject include The Winning Brief, 100 Tips for Persuasive Briefing in Trial and Appellate Courts, 3rd Ed.
(Oxford University Press 2014), and Making Your Case, The Art of Persuading Judges (Thompson/West 2008), which he wrote with the late Justice Antonin Scalia. He also serves as the editor in chief of Black’s Law Dictionary. I am always interested in hearing what makes for good legal writing and how to make your case to judges. I spent 20 years of my career as a lawyer writing briefs and almost as long as an administrative law judge reading them. So, I want to know what the experts have to say about advocacy. Garner does not disappoint. When you first open The Winning Brief, you are met with a two-page spread of 50 tips on the inside cover in outline form. The inside back cover lists the second 50 to complete the 100 tips. The outline covers composing in an orderly, sensible way; conveying the big picture; marching forward through sound paragraphs; editing and choosing the best
January/February 2024 I 25
Bryan A. Garner words. These tips get you thinking along the lines of organizing a coherent brief. Focus is essential to any argument, and organization is the key to focus. Garner gives us a simple premise: “Good writing can win marginal cases and bad writing can lose good ones.” I agree, and although we think of brief writing in the context of appellate practice, I would submit that this is even more true at the trial level. At trial you are making the record that subsequent courts will be working from, and the judge has great discretion in the process. The best way to win on appeal is to win at the trial level.
Focus on the Real Issue Whether You Are the Petitioner or the Respondent Garner cites a case where the plaintiff won a $700,000 wrongful death medical malpractice verdict against the Veterans Administration. On appeal, the government’s brief avoided the real issues and made irrelevant arguments. The plaintiff’s
26 I The Pennsylvania Lawyer
brief wasn’t any better. The appellate judge on the summary panel wrote an opinion reversing. The next judge on the panel chose to let the case go to argument. Unfortunately, the arguments did not help, but in reviewing the record, the court found ample support for the findings and ultimately affirmed. The hard work of trial was almost lost by the failure of counsel on appeal to organize the material to focus the appellate court on the relevant issues. Garner ends this vignette reminding us that you cannot say that superb briefs will always prevail, but a good brief will improve your chances.
Know Your Audience Remember in both the drafting process and in argument to “know your audience.” Important people are busy and the more important they are, the busier they are. Judges are busy people and they are not superhuman. If they are overloaded with irrelevant material, you will lose their receptivity to your real points. So, Garner suggests, if it is a five-page motion, the essential message should be stated in the first paragraph. If it is a 25-page appellate brief, it should be stated on Page 1. These points should be obvious, but it is easy to lose sight of the big picture when coming out of the academic environment of law school or working in a large law firm or where the brief turns into a group project. It is too easy to slip into the bad habit of believing that “more is better.” It isn’t. You may be billing your client by the hour, but keep in mind that you are not charging by the word. You want the reader to be focused on your message and not on you, so things like spelling errors, vagueness and citations that do not match the propositions for which they are cited are distractions that will reflect on your credibility.
I agree with Professor Garner on this. We often have to stumble through an undergrowth of irrelevant material and typos to find the key point of law that will decide the case. A judge does not need five pages devoted to the standard for summary judgement. He or she will know the standard is whether there is a question of fact that must be determined or if it is just a pure question of law, and a couple of paragraphs on this point are sufficient. Give the court the points of law that govern the matter and then get to the heart of things. Likewise, know your judge. A good lawyer tries to learn as much as possible about the judge who will decide the case. The best way to get answers is by reading the judge’s past opinions, particularly those that involve similar issues to the ones in your case. You can learn a lot about how judges approach precedent, policy and legislative history from their decisions, and online legal research and various search engines can allow you to zero in on these specific topics. You can also see if a judge has given speeches or written articles on the subject. In addition to the local rules of court, many judges have their own “rules” that cover how they conduct matters in their courtroom: things like how they want the exhibits marked, offered and uploaded. Some federal judges require counsel to have agreed in advance on the admissibility of exhibits so that as many questions of admissibility have been resolved by stipulation as possible, leaving only a few that require court rulings.
Organization Is Key When it comes to composition and organization, Garner states: “A brief is not written even by a brilliant lawyer in a single afternoon; if it is, the product is unworthy of
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Preparation, organization and writing are what make an effective advocate.
both the client and the court ...” So often, I have seen lawyers start on a major appellate brief the night before it is due. When I asked why they did this, the answer I would get was “because we have always done it this way.” So much aggravation, stress and frustration can be avoided by some advance planning. In keeping with the theme of composition and organization, Garner introduces us to the “madman-architect-carpenter-judge” paradigm devised by University of Texas English professor Betty Flowers, which breaks down the project into its essential components. Briefly stated, the “madman” represents the creative process of furiously jotting down ideas and approaches to the problem. The “architect” then takes those ideas and plans the structure in the form of an outline, including a beginning, a middle and an end. The “carpenter” begins
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constructing the draft and the actual writing begins. Because of the planning that went on before, the carpenter’s work is simplified. (Although like in any construction project there will always be change orders and some need to redesign things in the field. Garner believes in the need to be flexible with your outline and not let rigid adherence to it overwhelm your writing.) The “judge” then takes over and addresses things like paragraphs, transitions, passive voice and citations. The trick is to keep the judge away from the madman at the beginning since you do not want to stifle the creative process. This approach can be done in most writing, even in a busy law practice. For example, in an hour-long writing project, 10 minutes can be devoted to the madman, seven to the architect, 20 to the carpenter and 10 to the judge, leaving plenty of time for breaks. This process, or some variation, may already be instinctive for many of us. But
seeing it spelled out provides some clarity. Garner reminds us that every brief presents an opportunity for creativity. As one of my former mentors would say, “Cases are more often won in the office,” meaning that preparation, organization and writing are what make an effective advocate.
Know Your Case Judges expect counsel to know more about the facts of the case and the legal arguments than anyone else. But they will not give your position much weight if you are not aware of a key fact in the record or a clearly relevant case, statute or rule. Garner adds, “Your very first assignment, therefore, is to become an expert on the facts and the law of your case. If you’re a senior partner who hasn’t the time to do this, assign the case to the junior partner or the associate who knows it best.” This may be hard to do given the egos involved, but I have seen situations where the case was hampered
by the failure of the firm’s senior members to get out of the way of the more junior attorneys who knew the case better, understood what it was about and where they wanted to go with it.
Understand the Difference Between a Plea to a Jury and an Argument on the Law to a Judge
Knowing your case also means knowing what you are asking for. The court wants to know what relief you are seeking, in short, why you are there. Do you want the matter remanded or an outright reversal and judgment entered in your client’s favor? If you are seeking damages, it goes without saying that you should have already done the math and computed your demand for the court.
In arguing to a jury, emotion and sympathy play an outside role, but that’s not the case in a legal argument to a judge or an appellate court. Appreciating their different roles makes this clear: Juries are finders of fact (i.e., whose story they are going to believe?) whereas, in most cases, judges are arbiters of the law. As Garner notes, “Good judges pride themselves on the rationality of their rulings and the suppression of their personal
A good lawyer tries to learn as much as possible about the judge who will decide the case.
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January/February 2024 I 29
Keep in mind the distinction between an appeal to emotion and an appeal to the judge’s sense of justice.
proclivities, including most especially their emotions. And bad judges want to be regarded as good judges. So, either way, overt appeal to emotion is likely to be an insult.” Too often, lawyers will want to show graphic photos of an injury or, worse, bring in their client in a wheelchair on what is a procedural argument in an attempt to sway the court. It seldom goes well and it can backfire.
points in the case. Questions are your chance to get the court on the right track and looking at what the issue in the case really is. Therefore, do not allow yourself to be frustrated by the judges’ questions, but don’t spend too much time giving lengthy answers to ones that are beside the point. Answer the question and steer the court back to the important point you want to make.
Keep in mind, however, the distinction between an appeal to emotion and an appeal to the judge’s sense of justice. Your job as an advocate is to give the judge the firm legal basis given the facts presented to do justice and achieve the fair result that happens to favor your client.
Use Rebuttal for Rebuttal
At Argument, Lead With Your Strength
Questions mean that the court is engaged with your argument.
30 I The Pennsylvania Lawyer
By beginning with your best argument, you put your case in perspective and are assured that, if the judge is taking notes, that point is going to be noted and the focus of the judge, and subsequently, the judge’s clerk. If you lead with something else, questions from the court might keep you on that issue and you may never get to your best point in your allotted time. If you are the respondent or appellee, counter the main points that your opponent has raised that do the most damage and, once done, move to your strongest argument.
Welcome Questions From the Court Too often, counsel will view the judges’ questions during argument as interruptions that keep them from reciting the points in their brief. Questions mean that the court is engaged with your argument. They give you the opportunity to persuade the judges on the matters that they view as the sticking
Rebuttal is your chance to respond to an issue that was raised by your opponent and should be used for that purpose only. It is not to be a repeat of your argument in chief, which the court has already heard. The court wants to move on and will closely hold you to the time limit, so use it to rebut the point from your opponent and then sit down. These are the main points and, of course, each of them can be expanded upon. With experience, counsel will come to learn what works given his or her individual style. ⚖ ____________________________________ Robert A. Krebs is a commissioner on the Pennsylvania Workers’ Compensation Appeal Board and an adjunct professor of law at the Thomas R. Kline School of Law of Duquesne University where he teaches employment law. Previously, he spent 20 years as a trial attorney in the Pittsburgh area. He is a charter member of the PBA Appellate Advocacy Committee and the former chairman of the Allegheny County Bar Association Appellate Practice Committee. If you would like to comment on this article for publication in our next issue, please send an email to editor@pabar.org.
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January/February 2024 I 31
Don’t Plan to Win,
Plan to Avoid Litigation By Daniel Kegan
32 I The Pennsylvania Lawyer
P
arties seeking a legal agreement typically want the deal done. Lawyers can identify helpful details to specify and advise how to fairly allocate risks. When contract negotiations seem stuck, it can be helpful to temporarily ignore the differing preferred provisions and reflect on the negotiation process and what might be causing the conflict.
A recent negotiation for a friendly sale of a small company almost didn’t happen. It was saved by reflecting on the attorneys’ differing perspectives of risk reduction. This article discusses the major laws involved, how they impacted the negotiation and recommends best practices.
Counsel’s Differing Perspectives In the midst of a difficult company asset sale negotiation, I realized how different my legal perspectives were from those of the buyer’s attorney. He was planning on winning any possible litigation, I was planning to avoid litigation. Realizing these essential cultural differences helped me stay focused on my principal task — getting a reasonable deal concluded while avoiding unreasonable risks.
The seller was a small, 30-year-old software company. The buyer was a knowledgeable user of the software, with energy and funds to update the technology and marketing. The assets were conventional intellectual property, mainly copyrights and trademarks, mainly but not solely U.S.-based. Buyer’s counsel was not an ignorant idiot. He was an experienced attorney, generally closing large company mergers and acquisitions. He was used to, and preferred, his accustomed standard provisions and text, despite the inapplicability to the facts of this particular transaction. His apparent mantra was to avoid all possible risk for his client. His explicit justification: “Buyer is paying a lot of money for these assets.” That the buyer initiated the offered price, what the assets were deemed to be worth, was apparently immaterial.
Don’t Seek to Warrant What’s Unknown Buyer sought what’s too often a common provision: “Seller warrants its intellectual property violates no law anywhere in the world.” This is an unreasonable provision, even for major international businesses.
January/February 2024 I 33
Realizing essential cultural differences helped me stay focused on my principal task.
34 I The Pennsylvania Lawyer
There are over 200 sovereign states in the world. Many are members of the patent (Paris, 1883, Patent Cooperation Treaty), trademark (Madrid system and Trademark Law Treaty) and copyright (Berne) treaties and have similar laws. However, most of the treaties only provide that persons in foreign member jurisdictions are entitled to the same patent, trademark and copyright (PTC) rights as those of nationals in that jurisdiction. Thus, if a jurisdiction prohibits a patent application from being filed after any public disclosure or commercialization, foreign applicants likely have the same prohibition. If local trademark law prohibits trademarks for alcohol or cannabis, foreigners are likewise prohibited. Few large, multinational businesses maintain commercial businesses in every sovereign jurisdiction in the world, much less promptly update changes in national statutes and regulations down to local government ordinances and rules. It can be reasonable for a seller to warrant that it is aware of no asserted unlawful practice of its business in any national jurisdiction in which it actively conducts business. Buyer sought seller to accept that “Applicable law means all laws, statutes, treaties, rules, codes, ordinances, regulations, permits, certificates, orders and licenses” and that “Seller is in compliance with all applicable laws.”
Know the Territory, Assign and Timely Record in Acceptable Form The United States requires PTC assignments to maintain core information and to be timely recorded with the Copyright Office and with the Patent and Trademark Office to receive maximum benefits. Recordation may establish legal priority between conflicting claimants. “An assignment shall be void against any subsequent purchaser for valuable consideration without notice, unless the prescribed information reporting the assignment is recorded in the United States Patent and Trademark Office within three months after the date of the assignment or prior to the subsequent purchase.” (15 USC § 1060 (a)(4). For recordation, U.S. copyright assignments prefer four elements: a) The title’s initial article, A, An, The (in English); b) the title of the work, excluding any initial article; c) authorship information, typically By and author(s) names; and d) the registration number. (See U.S. Copyright Circular 12 for additional details.) U.S. trademarks require the trademark and its registration or serial number (https://etas.uspto.gov); U.S. patents require the patent and its registration
or serial number (USPTO MPEP § 302). Unregistered PTC without registration, serial number or sufficient identification may not be registered and indexed, but may be included in the assignment document. Some foreign jurisdictions require both the seller and the buyer to appropriately sign the assignment. Some jurisdictions have other special requirements, potentially including additional forms and taxes. It is prudent for the attorneys to know these requirements well before closing and to include the acceptable forms in early document drafts.
Bill of Sale v. Assignment, Avoid Duplication and Attend to Verb Tenses Some attorneys are accustomed to having a bill of sale. For primarily an intellectual property sale with primarily U.S. assets, a proper assignment typically suffices. Duplicate purpose documents create additional work, make consistency more difficult, encourage errors and increase attorney costs.
If both a bill of sale and an assignment independently assert that seller now assigns, or “assigns, transfers, sells,” then at least one of those two documents is inconsistent. Once a seller assigns assets, it no longer owns those assets and logically can no longer assign them. A parallel problem arises when the major document focus is on an agreement for the closing. A related problem with an agreement to sell is attending to verb tenses. The typical agreement to buy and sell is that it will be a contract to perform a future act. Another document will likely be necessary to assign the assets. To assign a copyright generally requires a writing signed by the assignor or operation of law, such as an effective will (17 USC § 204).
Overreliance on past practice and archived form paragraphs hinder agreement.
Practically Localize Dispute Resolution Parties often wish dispute resolution, especially litigation, to be in their home state. “With respect to any dispute, controversy or claim arising out of or relating to this Agreement, the Parties agree and consent to jurisdiction of and exclusive venue
January/February 2024 I 35
in the courts of the State of Pennsylvania, United States of America.” Two immediate problems: One, many states are large. A Philadelphia business may disfavor travel to Pittsburgh, Harrisburg or Erie. Two, some intellectual property disputes are better handled by federal courts; some PTC disputes are within the exclusive jurisdiction of the federal courts. Likely better for both parties is: “The parties consent to the state and federal courts in Philadelphia (or other geographic area that has a federal and/or state court), for any disputes arising from this agreement.” Also, the courts decide their jurisdiction, not the parties.
Consider a Mediation Pause If Dispute Arises Mediation often helps resolve disputes without the potential arbitrary decision, without appeal of arbitration and without the management distraction, expense and duration of court litigation. Too often contracts jump into litigation. Mediation may help the disputing parties find a mutually workable resolution. A mediator typically has no power to force any decision from anyone, other than to pay the prior-agreed mediator fees. Consider an explicit mediation pause: “The parties will negotiate in good faith any dispute arising from this Agreement. If such negotiations fail to resolve the dispute within thirty (30) calendar days, the parties will seek mediation. Neither party will initiate any court action within ninety (90) calendar days of notice of breach or notice of dispute. If such negotiations fail to resolve the dispute, the parties consent to the venue and jurisdiction of the state and federal courts in Philadelphia, Pa. The prevailing party shall receive from the non-prevailing party reimbursement for 36 I The Pennsylvania Lawyer
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the reasonable costs of dispute resolution and litigation, including attorneys’ and legal assistants’ fees.”
Recognize Possible Problems With Deemed Notice With most modern communications, there is no need to deem notice received when sent. Notice can usually be effective after received, return receipted. Fax is often now deprecated, replaced by business email. Email ought not be assumed received. Rather, email may be deemed received when confirmed by a human-initiated written message, including email.
Be Explicit With Calendar or State Business Days Many contracts set deadlines by a number of days, sometimes even by “business days.” But various states have differing state holidays, for example, Patriots’ Day in Massachusetts, Maine, Connecticut, Florida, North Dakota, and Wisconsin; and Casimir Pulaski Day in Illinois. A better practice is to use calendar days or defined state business days.
Favor Clear, Simple English Legal forms tend to multiply similar words, perhaps as some lawyers and judges defied Occam’s Razor to use close semantic synonyms to support some particular fact position. When you find yourself using multiple words for a similar meaning, choose the best one and eschew the surplus. The National Archives has disseminated Federal Plain Language Guidelines, https:// www.plainlanguage.gov/guidelines/, developed “to enhance citizen access to Government information and services by establishing that Government documents issued to the public must be written clearly and for other purposes.” (Plain Writing Act of 2010). The Office of Federal Register has developed Principles of Clear Writing, tailored for regulations, https://www.archives. gov/federal-register/write/legal-docs/ clear-writing.html. The 2011 Guidelines are available at https://www.plainlanguage. gov/media/FederalPLGuidelines.pdf.
Help low-income Pennsylvanians get basic legal advice (without the expectation of long-term representation) through an automated tool developed by the ABA. Learn more:
www.pabar.org/site/For-Lawyers/ Pro-Bono-Services/PennsylvaniaFree-Legal-Answers
As an event planner commented, “I wish all lawyers read and followed this! I’m often asked to provide or sign liability waivers for events. But one group has one and someone else has another one, and everyone’s afraid to leave anything out, so they add all
January/February 2024 I 37
those addressing this problem.” (American Bar Association Guidelines for Conduct, June 2, 2020).
Conclusion
A small investment in learning the facts of the transaction and the particular issues of the industry pays large dividends.
38 I The Pennsylvania Lawyer
the language from both, and the forms get ridiculous!”
Eschew Thoughtless Cut-and-Paste Terms When nonattorneys seek to draft and negotiate their own sales agreements, the results are liable to be both poor drafting and increased legal costs. Even if the nonattorney might consult with an attorney, if the bulk of initial sale negotiations and drafting are conducted between management and initial suggestions for neutrally improved text are flatly refused, seek to transfer negotiations to attorneys. Attorneys may feel client pressure to reduce time on a project, even below the core ethical duty to provide competent service. “A lawyer shall provide competent representation to a client.” (Pa. Rules of Professional Conduct) Whether from improper frugality or rigid incivility, such negotiation harms both parties, the profession and the recalcitrant attorney. “The decline in civility is not limited to the legal profession, but this profession has been in the forefront of
When parties want to make a deal, lawyers can help identify issues to be included, suggest reasonable contingencies and draft fair risk allocations. Overreliance on past practice and archived form paragraphs hinder agreement, as does unfamiliarity with the laws central to the transaction. A small investment in learning the facts of the transaction and the particular issues of the industry pays large dividends, both in one’s own drafting and in understanding why the other side wants particular provisions. This small company’s sale negotiation highlighted several faulty legal assumptions and offered simple suggestions to avoid future costly litigation. ⚖ ____________________________________ Daniel Kegan of Kennett Square is a licensed organizational psychologist with Elan Associates and an intellectual property attorney of counsel with Baron Harris Healey, focusing on intellectual property, federal litigation, counseling and providing second opinion counseling to other professionals. He achieved the first U.S. registration of a touch trademark and the first U.S. copyright registration for iconic, nonhierarchical computer programming. He has taught at universities in Chicago, Massachusetts and San Francisco; has published widely and designs professional practice software for GreenLight’s Cudgel®. If you would like to comment on this article for publication in our next issue, please send an email to editor@pabar.org.
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January/February 2024 I 39
Part of the ‘Making it Work’ Series
40 I The Pennsylvania Lawyer
With Individuals and the Community in Mind Profile of Elizabeth A. White By Jon Caroulis
A
s a child, when Elizabeth White would accompany her mom on errands and other trips, people she didn’t know would approach them and thank her mother.
“She was a nurse and a professor of nursing [and] prior students thanked her for what she did for them. Patients would approach my mom” and show their appreciation for the care she provided, said White, who is a partner at the McCormick Law Firm, Williamsport, and president of the Lycoming Law Association. White has made community service, mentoring and interaction of bar members a priority of her term as president. “Interacting with people is important to me because it gives me a sense of being part of a community and allows me to strengthen my community through the relationships I build with the individuals I am meeting,” she said. “I also get satisfaction from being able to help give people peace of mind related to issues that, in the area of elder law, likely are significantly impacting that person’s day-to-day life.” While at the University of Pittsburgh Law School, White met her husband, Austin, and after completing their legal education, they moved to the Williamsport area, as he had been offered a job with McCormick. (He’s now a partner there, too.) In law school, she had courses dealing with elder law and enjoyed them. “I knew elder law would involve
more hands-on lawyering and the ability to meet with individuals, and that is what drew me to the people aspect of it,” said White. Her first position in Williamsport was with an elder law firm. In 2018, she joined McCormick. She was made partner within three years and is now a member of the firm’s marketing committee. “The firm, when I was hired, did not have an elder law and special needs practice or an estate litigation practice. I came in as a lateral to bring these new practice areas to the firm and to provide my experience in more sophisticated estate and tax planning to the firm’s estate planning department,” said White. “I was able to successfully institute both new practice areas and significantly grow the firm in the area of estate planning and administration. I get prospective clients from all over the state now regarding our firm representing estate litigation matters, but currently limit that practice to our geographic area for the most part. The firm recognized the growth and value of offering these services, and recognized the community involvement that is important at our firm,” she said. These efforts led her to being offered a partnership, she said. An advantage of working at McCormick, she said, is there are experienced litigators and experts in other fields of law that can apply to her cases, and she can easily tap into that knowledge.
January/February 2024 I 41
White addresses a meeting of the Lycoming Law Association.
“Relationships built outside the courtroom allow those attorneys to have effective, courteous communication with each other related to their cases.”
“The firm is large and has attorneys to help me on that side of things — contested guardianship actions, contest[ing] of wills, things along those lines. So, I made the decision to really focus my energy in one area, which I find I enjoy. I don’t think I could be a general practitioner. I give general practitioners a lot of credit, but I like to know the ins and outs of certain statutes and case law. And so elder law became what I wanted to know the ins and outs of, and starting at a firm that solely practiced in elder law really helped me to absorb as much as I could in just that area,” she said. White was certified as an Elder Law Attorney by the National Elder Law Foundation, is a member of the National Academy of Elder Law Attorneys and the Pennsylvania Academy of Elder Law Attorneys. She serves on the council of the Pennsylvania Bar Association Elder Law Section and is the chair of the Lycoming Law Association Estate, Probate and Elder Law Committee. Elder law by definition involves interaction with people, but dealing with clients and their families in this area is not always easy.
42 I The Pennsylvania Lawyer
Dealing with the adult children of seniors who could have dementia or families contesting a will are emotional situations. “The first thing that I’m very stringent on is making sure I determine who my client is. I think that’s very important in the area of elder law and with estate planning,” White said. “And that starts to clarify things a little bit. It makes it clear to the other individuals involved who I’m advocating for.” A parent might have signed a power of attorney, but the child might think the person with the power of attorney is not doing right by the parent. “One of the downfalls I’ve seen with this area of law is when that is not clear, that’s when there can be even more negative dynamics,” she said. White said she’s learned in practicing elder law to “give some leeway” to people. She has told people who are interested in the field to recognize any anger or frustration isn’t directed to the attorney, but at a family member. “I know (clients become) very upset, but this isn’t at me,” said White.
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“[B]e active and visible in your community. You will naturally develop business this way.”
“Team Wilkinson”: Michael, Lindsey, Kathleen, Lauren and Tom at the PBA Midyear Meeting in Bonita Springs, Fla., in February Running, White says, is when she gets to case strategies, go through deposition out“untangle my brain.” It can also be a time lines in my head, things along those lines. when an idea relating to a case will come It depends myproud mood.to Sometimes I want I have beenon very serve as the District Court for the Eastern District of to her. it completely free, but sometimes I do use it 127th president of the PBA. Pennsylvania spoke at the section’s asTo a way go through information as well,” the to PBA staff, who have worked Philadelphia Regional Dinner, where I also She ran cross country and rowed crew in so hard made remarks. she said.during the pandemic, I am very high “I grew in held Erie, asopresident’s we rowed grateful and I thank all of you. Special Inschool. late April, the up PBA on the lake, and we did a lot of running beFor several years, White was on the board recognition goes to Barry Simpson, Fran dinner with presidents, governors and execcause the lake was not always cooperative of the Junior League of Williamsport, an O’Rourke, Lisa Hogan, Pamela Kance, utive directors from PBA zones 1 and 9. forThe us toPBA row partnered at 4:30 or with 5 in the morning. organization that seeks to advance womUrsula Marks, Wendy Loranzo and Holly other bars to Wertz for working together to provide celebrate Dayoffinafter Mayhigh withschool another Then I ranLaw on and en’s leadership through volunteer action, me with the best student chalk art contest and opportunities and when I moved to this area, I started collaboration and possible training. bar Sheexperience was active thistheyear. for lawyers speakand in started schools.to train for running a lottomore in Junior League for eight years and Also in May, I thank andinsend wishesastogoing inmarathons. And the I’veU.S. beenEastern runningDistrict pretty was involved suchbest programs coming PBA President Jay Silberblatt, Court of Pennsylvania will host a luncheon consistently since,” said White, who has run into schools and showing children with President-Elect Mike McDonald and for leaders from the PBA and local bar four marathons and many half-marathons. special needs how to cook (and providing Immediate Past President Anne John, associations to discuss the rule of law them with slow cookers). She and other who have all been supportive and great and the isrole thetocourt in community Sunday herofday run, but not always members of the group also asked people colleagues during my presidency, and I outreach. alone. Her first run of the day includes her to donate incoming prom dresses girls would welcome Viceso President Nancy The PBA Bar Institute and son, August, whoLeadership is 5. have the right clothing for the event. She Conrad as a PBA officer. other sections and committees are working followed active and yearschildren, in the Junior “We generallywellness. do a mile orare a little over a To myher husband Tom, on attorney We conducting League with service to other organizations Lindsey, Lauren and Michael, you all have a survey mile. Andwith thenLawyers I have a Concerned dog that I’mfor training beencurrently part of “Team andofhave Lawyers address PBASo, member and servesWilkinson” on the boards the to be my to running buddy. I take needs. the dog made my County year fullUnited of joyWay andand fun.a⚖ Lycoming local on a run on Sundays. I usually run around Goodbye Thank nonprofit nursing home, Valley View, as well 25 miles aand week or so,”You said White. as on the Planned Gifts Committee of the “Sometimes just wantof to the put PBA on music To all of the Imembers and Susquehanna Health Foundation. localtry bars, you for participating Kathleen D. Wilkinson and not thank to think about my cases. Butin the many this I appreciate PBA President She’s also a believer in mentoring young then otheractivities times, I do getyear. some ideas. I do your confidence, support andas kind lawyers. estate and elder law litigation well,words. and
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.
that time helps me kind of think of some The Pennsylvania Lawyer
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May/June 2022
January/February 2024 I 43
important is helping associates to grow the firm’s business. She advises beginning attorneys to “be active and visible in your community. You will naturally develop business this way.” Her work with the Junior League was strictly for service, but client development occurred from the relationships she built in that organization. “If you are at a large firm, look to build existing relationships with clients of the firm in the area(s) of law you practice in that the firm may not handle for those clients.” Another of her recommendations for young attorneys with their eyes on being promoted is “Meet other attorneys and professionals whose approach you trust/respect and develop referral networks to mutually benefit clients. Get to know these individuals, which goes back to attending social events for attorneys and being active in the community, business lunches and meetings to make sure you align with their approach.”
White’s husband and son greet her at the end of a marathon.
“The first thing that I’m very stringent on is making sure I determine who my client is.” 44 I The Pennsylvania Lawyer
“One of the struggles that I see in at least our area, but I think in the legal profession in general, is the mentoring and recruitment of young attorneys in firms and training of young attorneys,” said White, who is guiding a young associate at her firm in elder law practice.
Pennsylvania is the second oldest state in the nation. As the population ages, laws to assist the elderly are debated in the state Legislature.
Mentoring, said White, is an area the legal profession needs to improve.
“The big issue right now in the Legislature is related to guardianships,” said White. “And that continues to be an issue in Pennsylvania, and outside of Pennsylvania as well. The national news in past years has pointed out instances, not necessarily in Pennsylvania, but in other aging populations, of what appears to be financial abuse. And so there’s a push in the elder law community to try to make sure that every [alleged incapacitated person] that someone is attempting to obtain a guardianship over […] is represented.
Learning the ropes of practicing law is important for firms to pass on to young lawyers, but another area she feels is
“And in my county, there is representation assigned by the county to any unrepresented person. I do some of that work in
She brought him to a client meeting, and the associate said it was an eye-opening experience. He was “amazed at how conversational” the meeting was between the client and White.
Lycoming County to make sure that there are not guardianships being obtained over individuals [that are] inappropriate,” said White.
Getting attorneys to socialize with each other can also be helpful to clients, she said, to create referral networks and to get prospective clients with the correct attorney.
“You really are taking the legal rights of that individual into your own hands if you are appointed as the guardian. And it’s not something that, in my opinion, should be taken lightly, and I think the Legislature is starting to see that as well,” she said.
“For example, my firm doesn’t practice family law, and I don’t have opportunities on a regular basis to interact with family law attorneys,” she said, “but, as a result of law association social events, I have gotten to know family law attorneys that I can refer to my clients or others that contact me who may need that attorney’s services, getting that client in the right hands for their specific legal issue.
Another key issue of elder law being discussed in the Legislature is financial exploitation of seniors. “There was a criminal statute imposed on financial crimes against the elderly, but it seems like, in Pennsylvania, at least, there’s probably never enough hands to be looking into that, especially with technology these days and different scams of the elderly,” she said.
“The relationships built outside the courtroom allow those attorneys to have effective, courteous communication with
each other related to their cases. This is beneficial to the clients of both attorneys, as that effective and respectful communication between counsel ultimately will save the clients time and money, and even may resolve each party’s issues in a satisfactory manner to both clients without prolonged litigation.” There’s another reason White thinks attorneys should socialize: “just to have fun!” ⚖ ____________________________________ Jon Caroulis is a writer who lives near Philadelphia. He has written for many newspapers and magazines. If you would like to comment on this article for publication in our next issue, please send an email to editor@pabar.org.
White said serving as president of the county bar association “seems like a great way to serve the legal community in Lycoming.” White also thinks it’s important for attorneys to interact away from the courtroom or when meeting with clients. The association planned 22 events last year, including an annual picnic. “I don’t get to run across criminal attorneys very often in my practice area, but it’s still nice to see them at these events, see how their families are doing. And I think the legal community in general works better when there is that interaction.” “We can be adversaries in the courtroom or not even see each other in the courtroom. But then we’re out in this [picnic] and we can get along. I think it benefits the clients that there’s that mentality, too. We have our personal lives and our professional lives, but it can intersect in a way that benefits both the community and eventually our clients because we can put aside some of the differences to have a meal together at these events,” said White.
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January/February 2024 I 45
Selling Short: Governmental and Planned Community Regulation of Short-Term Rentals By Emeline L. K. Diener
Slice of Life, which most people would have expected to reduce the prevalence of short-term rentals, in practice has had a paradoxical effect. 46 I The Pennsylvania Lawyer
S
“
ummer’s lease hath all too short a date,” mused William Shakespeare. Now, five centuries on, his observation is still controversial, no matter the season.
A fairly ubiquitous bumper sticker, affixed to many a beat-up truck up here on the Pocono Plateau, only about a quarter century ago, read, “If this is tourist season, why can’t we shoot ’em?” (If it doesn’t strike you as funny, you aren’t from an area where the passage of the year is primarily measured according to what animal may be hunted at the time: deer season, bear season, turkey season, etc. But, please, rest assured, no actual tourists were ever harmed.) Natives had a love-hate relationship with the seasonal tourists, the second-home summer people, the skiers. The transient dwellers needed the owners of those well-used trucks to do their lawn work, remove dead trees, suck out their cesspools, plow snow — and the natives needed the money.
For as long as I can remember, a truce of necessity was maintained for everyone’s benefit. But about a decade ago a funny thing happened. The natives started sleeping with the enemy. And I mean that literally: sharing their homes, even bedrooms, with tourists. Where it began, I can’t begin to know it (as Neil Diamond would say). Our little shelf of Appalachia is in part a vacation home area. In the older, more expensive “second home” communities, owners routinely rented out their homes when they weren’t using them, and the financial terms they demanded seem to have guaranteed a certain level of decorum on the part of the transients. It was private, person-to-person; Airbnb was still off in the distant and unimaginable future, and there was no internet making the information instantly and universally accessible. In those not-so-distant days — take my word for it — the idea that we native
“Plateaunians” and the city-folk tourists would occupy the same premises, even serially, was inconceivable. But, a few years ago, as short-term use became more widespread, zealous zoning officers started sweeping the internet to find out who was operating these tourist rests in residential zones. (Most of them will deny this if you ask in person or on cross-examination, insisting they only act upon complaints received.) And our courts took up the issues of “transience” and “family,” which they hadn’t revisited since Albert v. ZHB of North Abington Twp, 578 Pa. 439, 854 A.2d 401 (2004), denying permission for an addiction recovery “halfway house” in an R-1 zone. The first case was Marchenko v. ZHB of Pocono Township, (Pa. Cmwlth. 2016) 147 A.3d 947, wherein the owner was renting out part of her single-family-zoned home for short stays, while also residing there herself. The Monroe County Court of Common Pleas had affirmed the zoning board’s denial of the use. The Commonwealth Court reversed, holding that owner was not operating a prohibited “lodge,” the primary purpose of which, as defined, was to provide a base for renters’ outdoor activities. Marchenko’s own residential use was the primary purpose to which her home was put. She was permitted to rent part of it out to defray her expenses. Next came Shvekh v. ZHB of Stroud Township, (Pa. Cmwlth. 2017) 154 A.3d 408. This property was not located in a single-family residential district, and “vacation rental” was neither prohibited nor permitted in the ordinance. The Commonwealth Court reversed the zoning hearing board and the Monroe County court, which had both denied the use, agreeing that the ordinance had to be
given the most liberal construction in favor of the owner. The Commonwealth Court got around Albert, supra, by explaining that the owning family themselves also used the residence, although not at the same time as their short-term renters, who always leased the entire building. Primary residence use by the owner in Marchenko, supra, was not, after all, the controlling factor. Since the ordinance’s definition of “tourist home” described rental of “rooms” rather than rental of the entire dwelling, the Shvekhs’ use did not meet the definition of a prohibited “tourist home.” (On a personal note: you might say Pennsylvania law on short-term rentals was born in Monroe County — as was I, your rusticated correspondent!) Things were looking good for property rights. I think most zoning law practitioners thought the Pennsylvania Supreme Court would come down on the same side when the issue eventually came before it. But, as you undoubtedly know if you’ve read this far, the axe fell on the short-term rental party in Slice of Life, LLC v. Hamilton Twp ZHB, 652 Pa. 224, 207 A.3d 886 (2019). The zoning hearing board and the Monroe County court had denied the use. The facts were that the owner had purchased the property in a residential zone solely as a short-term rental property and had no pretensions to residing in it himself. The Commonwealth Court reversed, relying on Section 603.1 of the Municipal Planning Code, which requires that zoning ordinances be narrowly construed “in favor of the property owner and against any implied extension of the restriction” and long-established case law requiring that any ambiguity be resolved in favor of the landowner. A township was free to amend its ordinance
to address the relatively new possible uses of single-family dwellings for short-term rental, but they could not “shoehorn” a short-term rental use into a definition of a prohibited use, which does not by its language apply. Slice of Life LLC v. Hamilton Twp ZHB (Pa. Cmwlth. 2017) 164 A.3d 633, at 642, citing Shvekh, supra. More importantly, and correctly, in this writer’s opinion, the Commonwealth Court dealt with the neighbors’ complaints about noise, outdoor urination, trash accumulation, bonfires, nudity, lewd conduct and overflowing sewage (the sewage complaint turned out to be completely unfounded in connection with the property at issue), noting that these same issues could, and often do, occur at single-family owneroccupied residences, as well as at properties rented for long-term use. It can be colorably argued that this is in accord with the well-established principle that zoning is to be concerned solely with use of the land and may not draw distinctions on the basis of the form of ownership or the commercial vs. noncommercial character of an otherwise permitted use, nor with the ownership rights of the property. Keener v. Rapho Twp. ZHB, Lancaster County (Pa. Cmwlth. 2013) 79 A.3d 1205, County of Fayette v. Cossell, 430 A.2d 1226 (Pa. Cmwlth. 1981). By the time the Pennsylvania Supreme Court granted discretionary appeal in Slice of Life, the original owner, Val Kleyman of Brooklyn, New York, had given up and sold the property. But the Supreme Court declined to dismiss the discretionary appeal as moot, in general because the issue was capable of repetition but evading review, and because Pennsylvania municipalities had been forced to make case-by-case determinations concerning burgeoning short-term rental use. The Supreme Court gratuitously impugned the former owner
January/February 2024 I 47
Like most popularly received “knowledge,” the public perception is generally erroneous.
as having a “potential manipulation motive for the discontinuance request [which is] heightened by Appellees’ refusal to participate in the appeal before this Court.” 652 Pa. at 242, 207 A.3d 897. Perhaps the result would have been different if he had continued with the appeal. But since the landowner’s seat was empty, the nuisance complaints prevailed. Our Supreme Court rebuked the Commonwealth Court for its rulings in Marchenko and Shvekh, wherein it had leaned toward the principle that a use not expressly prohibited by a zoning ordinance is permitted, holding that the ubiquitous phrase “single housekeeping unit,” although it does not by its terms prohibit transient use, will henceforward be defined to preclude “purely transient” use, citing to
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its decision in Albert, supra (the only case in which the court had previously mentioned “transience”). Slice of Life is one of those cases that has entered the popular consciousness, especially in those areas of our scenic commonwealth where people traditionally spend holidays. And like most popularly received “knowledge,” the public perception is generally erroneous. Overheard at a HOA meeting, irate owner speaking: “How can the board even be considering licensing short-term rentals when the Supreme Court has said it’s illegal?” Overheard at a meeting of township supervisors concerning proposed short-term rental ordinance, supervisor reproving an unruly citizen: “Hey, we aren’t doing this because we want to; we’re doing it because the Pennsylvania Supreme Court says we have to!” Strictly speaking, the Supreme Court didn’t say either of those things. Short-term rentals aren’t illegal per se, only in zones where the ordinance limits residential uses to the definition the Supreme Court construed: “single housekeeping unit.” Context is all in zoning, as the Commonwealth Court, shaking off the effects of the Supreme Court’s stern reprimand, in Leinberger v. Stellar as trustee of Deborah E Stellar
Revocable trust, (Pa. Cmwlth. 2020) 240 A.3d 673(Table), Unreported memorandum opinion, held: short-term rental use is not prohibited on a large property lying in part in a nature preservation zone and in part in an agricultural preservation zone. And, municipalities aren’t required to adopt a new ordinance: Hamilton Township, the pie from which Slice of Life was served up, rests on its victory: Short-term rentals are not allowed in single-family residential districts, unless the owner can obtain a use variance. In this writer’s opinion, the voluminous immigration of people from the nations of the former USSR, starved for land ownership long abolished under Communism, may have contributed to the sea change in attitudes toward the nature of home ownership. Once upon a time, buying a “starter home” was every American’s ticket of admission to a peaceful, quiet, spacious utopia. Case in point: Village of Euclid Ohio vs. Ambler Realty Co., 272 U. S. 365, 394, 47 S. Ct 114 (1926). It was an investment, one you wouldn’t expect to monetize except, reliably, in the long term. But, when our township held a public hearing on adoption of its short-term rental ordinance, it was like Ellis Island in there. “I come here, to America, for FREEDOM! And now you tell me I cannot do what I want
Will our Legislature be content with simply collecting sales tax and hotel tax on short-term rentals or will it eventually regulate them at the state level? with my own house, I cannot rent it out to 30 people every weekend? America, ‘land of the free’? Pah!” (OK … welcome, comrade! We see your point, but let us introduce you to a little concept we like to call “ordered liberty” … )
Municipalities Come to the Table Slice of Life, which most people would have expected to reduce the prevalence of short-term rentals, in practice has had a paradoxical effect. As soon as the decision in Slice of Life came down, municipalities got a whiff of tantalizing licensing and inspection fees and began enacting ordinances concerning short-term rentals. Monroe County developed a model short-term rental ordinance a few months later, and at last count, only three of the 20 municipalities within the county had not adopted some form of regulation. Three had done so before 2019, possibly in response to the Marchenko and Shvekh cases. Municipalities have adopted varied regulations concerning length of stay, minimum age for renters (usually 25 years), number of occupants, limiting the short-term rental use to certain districts, requiring a local “property manager” or person in charge so that irate citizens won’t be calling elected officials in the wee hours, imposing requirements for large commercial insurance policies — but they all have one thing in common: license fees and recurring inspection fees. This is a huge source of previously untapped revenue for local governments, and they have not been slow to realize it. The county model ordinance and some, but not all, of the municipal ordinances,
would prohibit entrepreneurs from getting into the action by “rental arbitrage,” where you, the entrepreneur, take a long-term lease on a dwelling and then lease it out on a short-term basis. So, if you or a client is a landlord/owner, craft the lease to make sure the original long-term tenants cannot do this, or at least, to make sure the landowner/lessor would get a cut if they did. And sort out the premises liability issues concerning portions of the dwelling like hallways and staircases, which might become “common areas” in the event individual rooms were being let.
Going by the Boards Homeowners’ associations, catching a whiff of the tantalizing fee banquet, are scrambling for a place at the table. In the older covenant communities, many of which started out as religious retreats (like Lutherland), people had been discretely letting their homes to other families, often the same parties year after year; it was all mostly sub rosa. And the decision in Slice of Life didn’t really have to change that. But since the case resulted, ironically, in a widespread legalization of short-term rentals, the use began to proliferate. People buying into the planned communities never intending to live in the home was something the declaration of covenants and restrictions often didn’t explicitly deal with. So, when homeowner associations (HOAs) began receiving the occasional complaint, they panicked because they realized they had no control. In a well-reasoned opinion predating Slice of Life, President Judge Roger Nanovic of Monroe County’s neighbor Carbon County
held that a planned community deed restriction limiting use of lots to “residential purposes only” did not prohibit rentals, long-term no short-term. Whether long- or short-term, all occupying tenants used the lots in question for “residential purposes”; residential tenancies for short terms were still “residential” use, not commercial use, contrary to the plaintiffs’ contention. (And note that Slice of Life, supra, does not turn on a residential vs. commercial distinction, either). “The development is located in the Poconos with many of the homes being second homes used as vacation properties by their owners. Common sense dictates that the right to lease these homes, especially on a short-term basis, is important. To relinquish this right by covenant requires an express clear statement that the right does not exist. … To do so by zoning is prohibited as a matter of law since the regulation of the exercise of ownership rights is distinct from the regulation of how property is used.” Dawson v. Holiday Pocono Civic Ass’n, 36 Pa. D&C 5th 449 (2014.) HOAs need at least a 67% vote to amend the declaration of covenants. 68 Pa. C.S.A. 5219. Some are trying now to amend the declaration to allow only a limited number of short-term rentals within the community. Some are trying to amend to require a longer length of stay. Or a shorter length of stay. To limit the number of people. To limit the number of times per year a homeowner can let the property. Strict financial penalties on the owners if their renters commit any violations of the bylaws or regulations. And, in at least one extremely contentious case, an open-ended power conferred on
January/February 2024 I 49
wherein the issue was whether a planned community could enforce a deed restriction prohibiting sex offenders from residing therein. The court fearlessly jumped atop that notoriously “unruly horse,” public policy, to hold that where the Pennsylvania Legislature has enacted an elaborate and comprehensive scheme concerning residency of sex offenders, private covenants will not be permitted to override it.
Municipalities have adopted varied regulations concerning length of stay, minimum age for renters, number of occupants, requiring a local “property manager” …
the HOA board to expand on regulation of short-term rentals however it sees fit. Whatever the HOA boards do, it angers either the members of the community who bought the homes with the objective of renting either long- or short-term, or those who idealistically contemplated a Euclidian paradise surrounded by lifelong neighbors. Emotions are engaged — and so are counsel, on both sides. Cease and desist letters are hissing to and fro in our salubrious mountain air like ravening locusts. But regulation gives the HOAs a chance to collect licensing and inspection fees,
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which they aren’t going to forgo. Short-term renters in planned communities are, for the foreseeable future, going to be facing the multiple hurdles of license and inspection fees, complaint disposition procedures and taxation from municipal and private authorities. And what about the commonwealth? Will our Legislature be content with simply collecting sales taxes and hotel taxes on shortterm rentals or will it eventually regulate them at the state level? There are certain generalized effects that the commonwealth might feel it necessary to address: A study by the University of Pennsylvania found that short-term rental increase in a given market led to rent and property values increases, and decreased the total supply of long-term rental units. The Effect of Home-Sharing on House Prices and Rents: Evidence from Airbnb, Barron, Kung and Proserpio, University of Pennsylvania Wharton School, March 2020. (I can personally attest that where Airbnbs proliferate, housecleaning service prices reach astronomical levels, but I’m sure you don’t want to hear about that.) If the commonwealth ever does adopt a regulatory scheme concerning short-term rentals, in addition to preempting local ordinances, the statute will probably abrogate the private covenants of the planned communities as well. See Lake Naomi Club v. Rosado, (Pa.Cmwlth. 2022) 285 A.3d 1,
I note that, hardy as the short-term rental phenomenon seems as of this writing, there are intimations that it may have peaked. As private and public regulation increases, the practice is becoming more burdensome for hosts and more expensive for guests. See “‘Airbnbust’ Proves the Wild West Days of Online Vacation Rental are Over” (Business Insider, March 22, 2023, Rodriguez and Latu).
Community or Commodity? Does the monetization of our dwellings represent a new and expansive phase of American capitalism? Most of us own or rent a home and other assets that we don’t inhabit or use every day. We’re even renting out our own private cars: Check out Turo. com and HyreCar.com. Instead of paying for your empty rooms or idle auto, why not put them to work for you? Or is the short-term rental phenomenon evidence of a grassroots, socialistic trend toward a “sharing economy,” where even people’s homes are seen less as their private little piece of a community and more as a fungible commodity wherein, as some have put it, housing morphs from being a product to being a service? Are we seeing the fulfilment of the World Economic Forum’s now infamous prophecy: Welcome to 2030: I Own Nothing, Have No Privacy And Life Has Never Been Better (Ida Auken, 2016)?
Well — as folks around here might say, “How’d it get so late so early?” 2030 is right around the corner now, so I reckon we’ll find out. ⚖ ____________________________________ Emeline L. K. Diener is an attorney in Pocono Lake, Monroe County. She is of counsel with MHK Attorneys, Pocono Summit. She can be reached at elkdesq@aol.com. If you would like to comment on this article for publication in our next issue, please send an email to editor@pabar.org.
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www.stevenslee.com January/February 2024 I 51
THE EFFECTIVE LAWYER Exercising Your Brain By Robert Angelo Creo
_______________________________________ Humans create their cognitive powers by creating the environments in which they exercise those powers. — Edwin Hutchins, professor of cognitive science _______________________________________
“
Lawyers have always faced the challenge of mental fatigue.
”
E
arlier columns addressed the lawyer’s reputation, professional growth, persuasion skills, navigating emotions and the importance of perpetual learning, as well as provided insight into best practices for competency, contentment and professional development. (PBA members can refer to previous columns using their member login at https:// www.pabar.org/site/News-and-Publications/ Pennsylvania-Lawyer-Magazine.) Judgment and decision-making theory and practice are best understood when read in the context of the series. Recent columns offered specific best practices that can be integrated easily into the practice of law, regardless of individual employment. This current series explores decision-making in the context of cognitive biases that affect choices and how attorneys counsel clients, including the escalation of commitment; primacy, halo effects and anchoring; regret aversion; overconfidence and its opposite, imposter syndrome; the Dunning-Kruger Effect and decision-making fatigue. We now explore the role of cognitive endurance in effective representation.
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As a young lawyer in the late 1970s, I marveled at how my colleagues working for large law firms, (now called “Big Law”) could work at least 12 hours per day for at least four days a week and then some on weekends. My observation was that they were often physically and mentally exhausted as they plodded along to meet the mandates of the billable hour. Some boasted that they averaged less than five or so hours a night of sleep without any loss of ability. Hmmm, I thought, as I politely did not contest the point — they were making the big bucks and had solid academic and other credentials. They were smart people in the prime of their lives. This was before the onslaught of technology changed the way we worked. Our daily tasks were mostly reading and writing on yellow legal pads and some telephone and meeting time. I did not believe that a lawyer could achieve optimal performance with the mind forced to focus and concentrate on a marathon legal march. I once said to a Big Law colleague that he was like a record player, alternating at mental speeds of 33, 45 or 78 revolutions per minute with just small pauses as the records were changed. Fast-forwarding to the 21st century, how we work has been transformed beyond my wildest imagination. We have evolved to where lawyers, and most people, work and live each day facing screens of various sizes. We exercise
Our biology, including the brain itself, is central to all matters cognitive. Each day scientists learn more about the wiring of the brain and how the trillions of neurons interact on a chemical and electrical basis. The cerebellum, occupying only about 10% of the brain’s volume, hosts over 50% of its total neurons and is central to understanding and optimizing brain function and cognition. Scientists contend that it is essential to engage both hemispheres of the brain to achieve a cognitive balance and efficiency. This requires active participation, exploration and a commitment to lifelong learning within the three-dimensional world, as opposed to passive interactions with flat screens. visual and motor skills as much if not more than mental acuity, as our muscle memory dances across our keyboards more than our dance floors and bike paths. Lawyers have always faced the challenge of mental fatigue. This affects our decision-making efficacy and capacity. Our ability to engage in sustained critical thinking in a world of electronic dependency and distraction is integral to success in our chosen business. In a previous column, I wrote about how even in a single day, the decision-making quality can deteriorate or be negatively impacted by fatigue where the brain defaults to the easier path of accepting the status quo or taking shortcuts to conserve energy. See “The Effective Lawyer, Making Decisions: Decision Fatigue,” Pa. Lawyer (May/June 2023). I now expand this concept by exploring cognitive endurance, a branch of cognitive science that involves mental stamina, focusing on serial decision-making, and takes a broader perspective on cognitive health.
The Science of Cognitive Endurance Cognitive endurance is commonly described as the capacity to sustain mentally
demanding tasks over an extended duration on a continual, if not continuous, basis. Cognitive endurance is critical to lifelong brain health, optimizing productivity and performing at your best. Cognitive researchers consider a variety of topics related to thinking processes. Some of these include: • Attention: ability to process information while filtering out irrelevant details. • Choice-based behavior: actions driven by choosing among various possibilities. • Information processing: how humans process information (like how computers handle data). • Memory: related to the encoding, storage, and retrieval of information. • Speech perception: how we process spoken language and understand what others are saying. • Visual perception: how the world is perceived and interpreted, and stimuli processed. All are integral to explaining and enhancing decision-making and cognitive endurance.
____________________________________ We must never become too busy sawing to take time to sharpen the saw. — Dr. Stephen R. Covey ____________________________________
Problems and Challenges When lawyers have too much work to do in too little time or travel or engage in remote meetings when they should be sleeping because of clients in different time zones, the deleterious effect may be significant over both the short and long haul. Professor Yuka Sasaki of the Department of Cognitive, Linguistic and Psychological Sciences at Brown University contends that sleep is not an unproductive use of time and serves as an intensive process for the brain to consolidate learning. Research by her team suggests that brain reorganization may benefit from sleep due to increased energy availability or reduced distractions and new inputs. This is supported by the distinct roles played by two brainwave oscillations: Delta oscillations govern changes in the connectivity of the supplementary motor area (SMA) with other regions of the cortex, while fast-sigma oscillations relate
January/February 2024 I 53
THE EFFECTIVE LAWYER your busy life that allows you to prioritize the new — and “unnecessary” — activity. Practice so that the learning sticks as the brain creates new neural pathways in its natural course of adaptation. Taking classes, especially cultural, craft or art classes has positive effects. Structured learning with kind mentors is beneficial. Sparking creativity is helpful and should carry over into the problem-solving skills necessary to be an effective representative. Of course, if you perform poorly and become frustrated and lose self-confidence, stop and move onto something else. It is advisable to focus on only one new pursuit at a time. Remember, the goal is your own personal best and not a competition with others — even in a competitive activity. to changes within the SMA itself. Although I do not fully comprehend what this means, I do accept that it means our brains are active and doing important things during sleep to restore and, perhaps, improve our functioning. Although lawyers cannot bill for sleepy time, it is central to effective representation not to discount it. Physical activity is also critically important. In a study published in 2013 by Professor Christopher Bergland, researchers at Boston University School of Medicine found that specific hormones that increase during exercise correlate to memory enhancement. This impact on long-term memory is in addition to all the well-documented positive impacts of regular exercise on physical and mental health. Downtime, “chilling” and relaxing are not only restorative but may promote brain health and cognitive endurance. Unfortunately with smartphones, lawyers are always on call, with clients and colleagues expecting immediate engagement to any communication. The reality is that efficiency often trumps rest because it is so easy to respond with an email or text during
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“idle” time such as that spent in traffic, waiting in line or when watching television. Many times, work tasks are more engaging than present company when we find ourselves not really wanting to be there. Confess silently; how many of you reading this reached for your smartphone because of an important, cannot-wait matter or simply because you were bored?
What to Do There is research indicating that our brains have the capacity to never stagnate, with perpetual learning being the norm as they are stimulated with new information and knowledge. Novelty works wonders for improving brain health and cognitive endurance. Foster brain growth by continually challenging yourself with new activities, forcing your brain to learn and adapt. Cognitive development may also be improved by upping your game on existing interests by improving your skills until they plateau. Complex tasks promote mental well-being, provided you are still progressing to your personal best. Consistency and engagement are integral to improving cognitive functioning. Create a routine within
The jury is still out on any long-term impact on mental stimulations from word/language, math and spatial puzzles, such as crosswords, Wordle, Sudoku and all the other wonders readily available on our smartphones. I love my daily Wordle, but not Spelling Bee or Connections since they are too hard and feel like work! The activity should be fun, refreshing and provide a sense of mental competence and satisfaction, not frequent failure. Professor Denise Park, the lead researcher in a 2013 study on aging, states: “Merely engaging in activities is insufficient; the key is to engage in unfamiliar and mentally challenging activities that offer comprehensive mental and social stimulation. When you remain within your comfort zone, you might miss out on opportunities for enhancement.” Perhaps the Mount Everest of the climb for cognitive stamina is music. Neuroscientists have long known that musical practice enhances the functionality and connectivity of various brain regions while also enhancing cognitive abilities. Playing a musical instrument may have profound effects, including gains in brain volume and strengthening communication between
different brain regions. Musical training, especially in young children, can fundamentally transform how the brain perceives and integrates a variety of sensory information. My “deaf ears” precluded me from embarking on any musical path. When I was in elementary school, my uncle, Danny Conn, a legendary Western Pennsylvania jazz trumpeter, attempted to teach me to play the trumpet. Then other brass instruments. Then any instrument. We failed. “Bobby,” he said, “you just can’t blow — take up chess.” I did with modest success. But in some wistful moments alone, I envision me belting it out on the horn for all to hear. ______________________________________ Pittsburgh attorney Robert Angelo Creo 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 MLB, a grievance arbitrator for the NFL and a hearing officer for the U.S. Senate Select Committee on Ethics. He is the editor-in-chief of Elkouri & Elkouri How Arbitration Works 2022 update. He has been on the mediator roster of the Court of Arbitration for Sports, Lausanne, Switzerland, which provides ADR services for international sports, including the Olympics. He served as adjunct professor at Duquesne University School of Law and at the University of Pittsburgh School of Law. He is a recipient of the PBA ADR Committee Sir Francis Bacon Alternative Dispute Resolution Award. He is annually named as a Superlawyer and included in Best Lawyers in America, where he was recognized as a mediator of the year and for arbitration, Pittsburgh. He has a passion for storytelling, is the principal of Steel City Storytellers LLC (www.steelcitystorytellers. com), has coproduced a 2022 Emmy-nominated television pilot and is working on a television special of storytellers. He researches and presents on lawyer contentment and is the principal of Happy! Effective Lawyer LLC (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.
Sources and Additional Reading Bergland, Christopher, “Can physical activities improve fluid intelligence?” Psychology Today, https://tinyurl.com/fjubjhae Cherry, Kendra, “What Is Cognitive Psychology? The Science of How We Think,” Verywell Mind, (2022), https://www.verywellmind.com/ cognitive-psychology-4157181. Hutchins, Edwin, Cognition in the Wild, MIT Press, 1996. Park, Lodi-Smith, Drew, Habe, Hebrank, Bischof and Aamodt, “The Impact of Sustained Engagement on Cognitive Function in Older Adults: The Synapse Project,” Psychol Sci. 2014 Jan; 25(1):103-12. Tamaki and Sasaki, “SleepDependent Facilitation of Visual Perceptual Learning Is Consistent with a Learning-Dependent Model,” J. Neurosci. 2022 March 2; 42(9):1777-1790.
Takeaways • Strive for personal best, not competition. • It’s never too late to learn. • Sharpen your saws. • Sleep more. • Think better.
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January/February 2024 I 55
ETHICS DIGEST
2023-020 Lawyer’s Communications With Third Persons Company X entered into a contract with a school district to perform construction services. After the contract was executed, disputes arose between Company X and the school district and Company X retained inquirer to sue the school district for breach of contract. Five seats on the school board were on the ballot in the upcoming general election. Inquirer asked whether it was ethically permissible to send a letter to the candidates running for the open seats to inform the candidates of the status of the litigation, relay the company’s belief that the school district may soon be ordered to make a large payment to the company, and provide the candidates with pleadings, expert reports and other documents related to the litigation. Citing Rule 1.6 (Confidentiality of Information), the opinion stated that, subject to limited exceptions, all information relating to the representation of a client is confidential and cannot be disclosed without the client’s informed consent. “[I]nformation about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6.” ABA Formal Ethics Opinion 480 (2018). Given a lawyer’s general obligation not to reveal information relating to a representation including matters of public record, Rule 1.6 would prohibit inquirer from sending the proposed letter to the candidates running for the open seats without the client’s informed consent. The opinion also advised that even though the candidates were not inquirer’s clients,
56 I The Pennsylvania Lawyer
inquirer still owed certain ethical duties to them as third persons. First, under Rule 4.1(a), a lawyer is prohibited from making “a false statement of material fact or law to a third person.” Because the inquirer would be sending a letter to third persons as counsel for Company X, inquirer would be prohibited from making a representation inquirer knew to be false, including partially true but misleading statements or omissions. Second, because the candidates were presumably unrepresented individuals, Rule 4.3 would require inquirer to identify Company X as a client, explain that Company X has interests opposed to the school board, and refrain from providing legal advice to the candidates. Third, under Rule 4.4(a), inquirer would be barred from using means that have no substantial purpose other than to embarrass, delay or burden a third person.
2023-023 Use of Public Official’s Name in Firm Name Inquirer was an associate at Doe Law PC. Attorney Doe was president, vice-president, secretary and treasurer of the firm. He also served as first assistant district attorney in the county. It was anticipated that Doe, as first assistant district attorney, would be appointed to fill a vacancy for the district attorney, during which time, he would be prohibited by statute from continuing the private practice of law or deriving income from Doe Law PC. Doe was also running for county district attorney. If he lost the election in November, his tenure as district attorney would end on Jan. 3, 2024, and he would return to Doe Law PC. Given this backdrop, inquirer asked: (1) whether it was permissible to temporarily operate Doe Law PC until the end of 2023 without violating Rule 7.5; and (2) whether it was permissible to continue > page 58
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January/February 2024 I 57
ETHICS DIGEST > from page 56
to use letterhead with Doe Law PC so long as all communications would indicate that Doe was completely disassociated with the firm during this temporary period. The opinion cited Rule 7.1 and Rule 7.5 of the Pennsylvania Rules of Professional Conduct, which state in relevant part: Rule 7.1 Communications Concerning a Lawyer’s Services A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
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 hard-won 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.
58 I The Pennsylvania Lawyer
Rule 7.5 Firm Names and Letterheads (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. (c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. Under Rule 7.5, the continued use of the name of a lawyer holding a public office in the name of a firm is prohibited during any substantial period in which the lawyer is not actively and regularly practicing with the firm. To continue to use the name of such a lawyer who is not actively and regularly practicing with the firm is misleading under Rule 7.1. Inquirer was advised that if Doe were sworn in as DA [at the time of the inquiry], the nine weeks until Jan. 3 arguably was not a substantial enough period to require him to remove his name from the firm name or firm communications, provided he would be “actively and regularly practicing with the
firm” during the other 43 weeks of the year should he lose the election. The opinion therefore concluded that Doe’s name may be used in the name of the firm and in communications on its behalf during this interim period so long as he was entirely screened off and proper precautions were taken to ensure the public knew that he was not participating in the firm’s affairs. However, if Doe won the election, he could not allow his name to be used in the firm name or in communications on its behalf because he would no longer be actively and regularly practicing with the firm. See PBA Informal Opinion 2019-034 (Name of lawyer who becomes district attorney may not remain on firm letterhead) and PBA Informal Opinion 2007-021 (Purchasing lawyer may not continue to use the name of the elected district attorney in the firm name). ⚖ ______________________________________ 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 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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ON THE HILL I love the Pennsylvania Bar Association By Fredrick Cabell Jr. Where I grew up, attorneys were the pillar of the community and were held in high regard. My mom, who had to attend night school late in life to receive her high school diploma, had me pegged as a future lawyer quite young despite the fact that no one in my family had ever attended college, let alone become an attorney. (Her prophecy was based on the fact that my mouth never stopped moving!) Thus, I have viewed representing over 20,000 attorneys on the Hill as a solemn responsibility.
“
The PBA’s role legislatively, the thing that legislators look to us for, is our expertise as lawyers.
”
T
he word “love” in the English language, as many commentators have pointed out, is so broad that it can mean just about anything. So, while it might sound inappropriate to say that I love the PBA, it is the best word I could find to describe my feelings. “Like,” “admire” and “appreciate” don’t quite cut it. Why this expression of affection? When you read this, I will have departed the Pennsylvania Bar Association after 11 years to assume an elected position as magisterial district judge for District 41-3-04 in Perry County. My affection is born from my experience being your lobbyist. The PBA has been a joyful and important part of my life. It has sustained my family and me. It has given me great purpose in my work life. It has allowed me to meet and work with many interesting and nice people. Being the PBA legislative director has been a wonderful experience. Not unlike the feeling I have now with regard to my pending duties on the bench, I felt a great weight of responsibility when I first took the position. I grew up relatively poor in what felt like a small town.
60 I The Pennsylvania Lawyer
I never considered becoming a lawyer until my junior year in college. I was a business major because my concept of college was very utilitarian: The purpose of the degree was to get a job and most jobs are in business. When I started to look at good MBA programs, I realized you need to have proficiency in higher math, something I still struggle with. A friend, noting my despair, suggested law school. The rest is history. I practiced law for 10 years. Some experiences were great: clerking for a federal judge and being a deputy attorney general, and some were not: working at a large law firm in D.C. I never quite enjoyed the practice of law. I was a civil litigator and could never emotionally adjust to the constant deadlines. When I arrived in Harrisburg, an opportunity presented itself. I realized I could use my law degree and marry it to my love for politics and public policy, and I became a lobbyist. I have greatly enjoyed serving the PBA’s members. Again and again, our members have expressed their gratitude for the work of the legislative department. I look with great pride on the many successes we achieved. I had some great people along with me — all very integral to the success of the PBA legislative department over the years. After leaving
the PBA, some have gone back to the law working for county government, the commonwealth or, recently, as director of policy and legislative affairs for a nonprofit; one went on to become a nurse. I am deeply grateful for all of them. They did great work as lobbyists. I have high hopes for the PBA’s former legislative counsel and now legislative director, Anna Malcein King! The entire PBA legislative team has always been deeply dedicated to doing the very best for our members. Of course, that means striving to be great lobbyists and all that entails. But here is something you probably never thought about with regard to lobbying. Part of the commitment to excellence is protecting the entity you represent from harming itself; every lobbyist I have ever known, and I know many, has worked for an entity that sometimes wants to stray from its core mission and get mixed up in legislative matters that are not at the heart of its purpose. When this happens, the entity can bleed political capital, and this hurts its agenda in the long run. There are many organizations covering a great number of issues. Don’t confuse your membership in, or sympathy for, any of those organizations with your membership in the PBA. Lawyers are bright people and thus have a healthy opinion of their views beyond the law. But the PBA’s role legislatively, the thing that legislators look to us for, is our expertise as lawyers, not political philosophers or crusaders for justice in the substantive sense. If we are being honest, there are many conceptions of “justice,” and one-person’s justice is another person’s injustice. We are on mission when we do things no one else can do. The PBA legislative department has had staff with different opinions on many legislative issues. But we all knew what the PBA
mission was and we were sure to guard that on the Hill and maintain a reputation as a nonpartisan organization with unique expertise, one that could be trusted to not get caught up in the ideological battles of the day. On the Hill, it is all business. There are legislators I would not vote for, but as a lobbyist I have great respect and even affection for them. Some of the people I would vehemently disagree with are legislators that I most admire in my capacity as a lobbyist. I am sure some feel the same about me. The Hill is a unique place and unless you experience it from the inside, it is hard to comprehend. I am going to remain a PBA member. The PBA has a lot to offer me now that I am getting back into the world of law. I hope to see many of you at various functions. However, I do not want to see you in my courtroom, so mind your manners on Routes 322 and 11/15 in Perry County. ⚖ ______________________________________ Fredrick Cabell Jr. left the PBA as director of legislative affairs in December 2023. For additional information on the PBA’s legislative program, contact the PBA Legislative Relations Department at 800-932-0311, ext. 2207, or email anna.king@pabar.org.
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f you’re a PBA member and you want the legal community to know about your appointment, promotion, recent speaking event or other law-related news, why not submit your announcement to run as a “People” item? The most frequent types of “People” announcements we run are for appointments/ elections, awards/honors, being published, firm moves and speaking engagements. We run items on recipients of county bar awards, but we do not list county bar committee and section appointments. We do not run prospective notices, particularly for speaking or meeting events, as these are subject to change, and we do not include lawyer and law-firm “best of” announcements. Given the PBA’s large member base, we also monitor for how frequently individuals are listed in the column. Photos are welcome. If provided electronically, photos should be high resolution. Most electronic photos we receive are as JPEG files. The editors reserve the right to reject “People” submissions and to edit for style and length of announcement. Accepted announcements will appear in either the PBA’s Pennsylvania Lawyer magazine or Pennsylvania Bar News tabloid, depending on when notices are received in the editorial cycle. Email “People” column notices to editor@pabar.org or mail to the Pennsylvania Bar Association, Attn. People Column, 100 South St., P.O. Box 186, Harrisburg, Pa. 17108-0186.
January/February 2024 I 61
Also Find PBA Classified and Lawyer Display Ads Online The PBA posts all Lawyer magazine and Pennsylvania Bar News classified ads and Lawyer magazine display ads on the website, www.pabar. org. As a bonus to advertisers, all email and web addresses posted in the online classified ads and display ad index appear as live links — so those potential customers and clients are just a click away from contacting you! For more information, contact the PBA Communications Department at 800-9320311, ext. 2226.
It Pays to Advertise in the Marketplace Line Rates • PBA member — $35* • Non-PBA member — $40* (*first 30 words; each additional word $1.50) _________________________
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Box Number (Blind) Ads Processing surcharge $25 (no fee for job seekers)
Legal Marketplace Pennsylvania Bar Association 100 South Street, P.O. Box 186 Harrisburg, Pa. 17108-0186 Call the PBA Communications Department, 800-932-0311, ext. 2226.
62 I The Pennsylvania Lawyer
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True Tales of Trying Times Legal Fables for Today By Professor Bob Rains Forewarning Discerning readers, here’s the gist: Webster’s says a “fabulist” Is a person who is able To concoct a clever fable, Someone we might all admire Were he also not a liar.
The Guy and the Stud*
O
nce upon a time in the land of Indiana, there was a doll named Brenna Guy whose erratic driving came to the attention of a certain Officer Shaffer. This fine member of the constabulary pulled Ms. Guy’s car over and gave her three field sobriety tests. Guy flunked them, one, two, three. The kindly officer asked Guy if she would take a chemical breath test, and, being a nice Guy, she agreed. Following oral protocol, Officer Shaffer examined the inside of Guy’s mouth for foreign substances. All he found were a tongue and a tongue stud. Without further ado, he gave Guy the breathalyzer test, and, true to form, she flunked. On appeal, the court agreed with Guy that a tongue stud — no matter where manufactured — is a foreign substance which must be removed so as not to taint breathalyzer results. Ergo, the blown breathalyzer had to be suppressed.
Moral: Whatever women think of men, A stud is handy now and then. ⚖ *Guy v. State, 805 N.E.2d 835 (Ind. App. 2004). _________________________________ True Tales of Trying Times (Willow Crossing Press, printed in the U.K. by Cambridge University Press, 2007). Text © 2007 by Robert E. Rains; Illustrations © 2007 by E. A. Jacobsen. Reprinted with permission.
Online Access to the Lawyer Magazine PBA members have online access to the award-winning Pennsylvania Lawyer magazine in PDF and e-dition format. Misplaced your copy of a back issue of the magazine? Retrieve it using your member login to the PBA website, www.pabar.org.
64 I The Pennsylvania Lawyer
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