The Pennsylvania Lawyer Magazine by Kelly Vanek

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SIDE BAR

Graceful Growth

he changes that we experience as we progress from law school to practice and beyond are approached differently by each of us. Here in Pennsylvania, we are very fortunate to have nine outstanding law schools that prepare our young lawyers to enter this profession equipped with knowledge and vigor. New graduates hit the ground running, armed with a full arsenal of tools that includes such things as clinical experience, law school awards and honors, internships, and firm and family support. Once practice has begun, new opportunities arise or are sought. Changes of mind, life situations or a search for a new work environment lead us to look for those opportunities. Then, later in our career, a different type of change often occurs, and whether through the graceful assistance of our colleagues or through our own decision to make a change, we reach the decision that it’s time for yet another transformation of profession. I’m seasoned enough at this point to have seen all of those stages, either in myself or in colleagues, and it’s remarkable to observe them from this side of the road. We have so many different ways of navigating these changes; each of us has a story to tell. The profession has opportunities for those hanging out the proverbial (and actual) shingle, those being welcomed into a firm or corporate family and for our public servants who dedicate themselves to providing service to those in need and to advising our governing bodies. The formula for the productive use of our education and experience is different for each of us, and, as we progress through our lives, we all add different ingredients to the mix. As we change and grow, so do our practices. Family law might be the perfect fit at one stage; corporate law might present an opportunity at another. Clerking for a wise judge provides invaluable experience at one stage; joining a firm might be another step. Even the practice of law itself changes as time moves on. I’ve heard some lament the dearth of civil jury trials today. Many new lawyers may not be familiar with the phrase that I learned so early in my practice: “if the scales tip ever so slightly.”

As our career and work lives change, we can be comfortable knowing that we don’t need to go it alone. The Pennsylvania Bar Association has many invaluable resources to assist us throughout these changes. I can still see my brother standing in front of a jury many years ago, and watching as he balanced his hands to display that ever-so-slight tipping of the scales of justice. But with that decline, as any, comes the growth of another practice area. Because while jury trials may be fewer, mediation has grown and become a new norm for resolving disputes between our clients. And while the young lawyer may not have observed the jury arguments in the same way as I did, the litigator in me has adapted to the mediation forum. All of these changes occur over time, and we handle them with grace and intellectual support from other practitioners, jurists, mediators and colleagues. Our clients benefit from both worlds, and we grow through the process. The change and growth we experience in our personal lives is intertwined with that of our profession. The transitions in our personal lives often occur without our noticing the time, as we watch our children grow, not understanding how they went from giggling toddler to reticent teenager and on to capable young adult so quickly that we wonder when we blinked. As they grow, we watch, complain about, then miss the time we spent at their band concerts, dance recitals and soccer games, but the process of growth mandates that we adapt and adjust. So we do. And we do so again with grace and with the support of our family, friends and colleagues. So it is in our professional lives. As our career and work lives change, we can be comfortable knowing that we don’t need to go it alone. The Pennsylvania Bar Association has many invaluable  page 7

The Pennsylvania Lawyer

March/April 2020

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Features

On the Cover

20 Drone Crimes What defense lawyers need to know By Corey A. Bauer and Victor S. Kustra

26 Intestate Succession and Equitable Adoption

34 Improving Outcomes in Family Law

Supporting an informally adopted child’s right to inherit

It’s time to enact the Uniform Family Law Arbitration Act

By John B. Spitzer

By Carolyn Moran Zack

41 Judgeless Jury Selections

Departments

A troublesome trend By Daniel E. Cummins

48 Supersedeas and Stays Guidance for the appellate practitioner By Virginia Hinrichs McMichael

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

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

The Pennsylvania Lawyer

March/April 2020

63 8 56 62 60 6 4 2 14 64 54 18

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

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PEOPLE

APPOINTED/ELECTED

Mazaheri

Huerta

Elliott

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DEATHS

Anastasi

On boards and committees of the Supreme Court of Pennsylvania: Judge Ida K. Chen, Philadelphia, Judge Kathryn M. Hens-Greco, Allegheny County, Judge Terrence R. Nealon, Lackawanna County, and Judge Karen Y. Simmons, Philadelphia, reappointed, Continuing Education Board of Judges; Brandon P. Ging, Allegheny County, appointed, Appellate Court Procedural Rules Committee; Dusty Elias Kirk, Jason E. Matzus and Jay N. Silberblatt, all of Allegheny County, reappointed, Continuing Legal Education Board; Judge Marc F. Lovecchio, Lycoming County, appointed, Criminal Procedural Rules Committee; Thomas J. Farrell, Allegheny County, named Chief Disciplinary Counsel, Disciplinary Board; Diane C. Magee, Bucks County, Kendra D. McGuire, Lancaster County, Judge Lawrence J. O’Toole Jr., Allegheny County, and Shabrei M. Parker, Philadelphia, appointed, Orphans’ Court Procedural Rules Committee; and Rhonda Hill Wilson, Philadelphia, and Lucille Marsh, Lackawanna County, reappointed, Interbranch Commission for Gender, Racial and Ethnic Fairness. From offices of Barley Snyder: Salvatore Anastasi, Malvern, named treasurer and board member, American Intellectual Property Association; Maria Di Stravolo Elliott, Lancaster, named to the board, Venture Lititz. Ryan P. Siney of the Lemoyne office of Tucker Arensberg PC, designated a Certified Information Privacy Professional by the International Association of Privacy Professionals.

The Pennsylvania Lawyer

Gerald N. Ziskind,* 100 Pittsburgh Butler County Henry C. Herchenroether Jr., 99 Cranberry Township Cumberland County Jefferson J. Shipman, 57 Mechanicsburg Delaware County Arthur Levy,* 89 Media Erie County Edward Orton,* 85 North East Lycoming County Kristine L. Waltz, 62 Montoursville Mercer County Joann M. Jofrey, 66 Wheatland Washington County Thomas G. Gladden, 87 Washington, a former senior judge, Washington and Allegheny county courts of common pleas, and a former president judge, Washington County Court of Common Pleas

HONORS/AWARDS Tina Mazaheri, Mazaheri Law LLC, Doylestown, recipient of the Bucks County Bar Association’s Mark E. Goldberg Award, which recognizes “continuing commitment to community service outside the legal profession.” Pittsburgh-based K&L Gates and associates Jessica Moran and Hudson M. Stoner, receiving a Pro Bono Achievement Award from the Animal Legal Defense Fund, “recognizing their significant and successful pro bono efforts to advance the interests of animals, including the prosecution of animal abuse cases through the legal system.” Philadelphia-based Marshall Dennehey Warner Coleman & Goggin PC, recipient of a Liberty

Allegheny County William B. Dixon, 90 Pittsburgh

*PBA 50-year member

Mutual Insurance Co. 2019 Diversity and Inclusion Award.

FIRM MOVES PBA Zone 3 Governor Jonathan M. Huerta, named partner at King, Spry, Herman, Freund & Faul LLC, Bethlehem.  page 6

March/April 2020

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March/April 2020

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PEOPLE  from page 4

Janick

Brooks

Maschi

Somach

Sheriff

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LETTERS

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.

Statewide High School Mock Trial Competition Finals March 27-28, Harrisburg Commission on Women in the Profession Spring Conference March 30, Philadelphia Environmental Law Forum April 1-2, Harrisburg Civil Rights Symposium April 6, Philadelphia Administrative Law Section Commonwealth Court Practicum April 21, Harrisburg Civil Litigation Section Retreat April 24-26, Cape May, N.J.

SPEAKING OUT

Hofstein

Committee/Section Day March 26, Camp Hill

PBA DATES

Hutter

Cory S. Winter, elected partner at the Harrisburg office of Saul Ewing Arnstein & Lehr LLP. Andrew R. Varcoe, formerly a partner at Boyden Gray & Associates PLLC, Washington, D.C., named special assistant to the president and associate White House counsel. Michael J. Hutter has joined as an associate at Frank, Gale, Bails, Murcko & Pocrass PC, Pittsburgh. Daniel L. Maschi has joined as an associate in the real estate, municipal and business practice groups at Hamburg, Rubin, Mullin, Maxwell & Lupin PC, Lansdale. John L. Janick has joined the Malvern office of Barley Snyder. Van Blunk Law LLC has moved to 57 S. Main Street, Suite 204, Yardley. Pittsburgh-based Welch, Gold, Siegel & Fiffik PC has been renamed Fiffik Law Group PC, and has moved to 661 Andersen Drive, Suite 315.

For the Pennsylvania Bar Institute (PBI): Speaking at the 2019 PBI Real Estate Institute, Philadelphia: Mark S. Cappuccio, Marc D. Jonas, Michael E. Peters, Joan Righter Price and Robert R. Watson of Eastburn and Gray PC; and Richard B. Somach of Norris McLaughlin PA, Allentown; and at the 2019 PBI Exceptional Children Conference, Philadelphia: Amy T. Brooks and Ahmer H. Sheriff of Wisler Pearlstine LLP, Blue Bell. David N. Hofstein, Hofstein Weiner & Meyer PC, Philadelphia, coordinator and panelist, Ethics in Family Law webinar, sponsored by the American Academy of Matrimonial Lawyers. At Hamburg, Rubin: Steven A. Hann, speaking at the 2019 Pennsylvania Municipal Authorities Association’s 77th Annual Conference and Trade Show, Pocono Mountain; Carl L. Weiner, providing testimony before the Pennsylvania Senate Urban Affairs committee on improving community association data transparency. ⚖

Minority and Women Lawyers Business Development Forum April 28, Pittsburgh Children’s Rights Committee Current Issues for Child Advocates April 30, Mechanicsburg Board of Governors Meeting May 6, Philadelphia Annual Meeting May 6-8, Philadelphia Commission on Women in the Profession Annual Conference May 7, Philadelphia House of Delegates Meeting May 8, Philadelphia For more information on these and other PBA meetings, visit the PBA website at www.pabar.org.

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The Pennsylvania Lawyer

March/April 2020

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SIDE BAR

The Pennsylvania Bar Association

 from page 2 resources to assist us throughout these changes, including the Young Lawyers Division, the Solo and Small Firm Section, substantive committees and sections too numerous to mention and our newlycreated Legal Career Transitions Committee. So get involved. Join a committee or section, read our print and electronic publications, consult our ethics opinions or law practice management resources and/or

attend an upcoming event. Visit our website at www.pabar.org. The PBA truly is your other partner, and it stands ready to help each of you grow gracefully and enjoy all of the progressions of your career. ⚖

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March/April 2020

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DISCIPLINE

PUBLIC DISCIPLINE October 25 through December 13, 2019 ALLEGHENY COUNTY The Supreme Court of Pennsylvania on Nov. 6 ordered Jeffrey Marc Robinson subject to a public reprimand. According to court documents, Robinson violated the Rules of Professional Conduct, including that he “filed a frivolous writ of certiorari from the judgment of a magisterial district justice against his client, as well as a frivolous appeal to the Superior Court of Pennsylvania of the denial of the writ, which resulted in $25,745.54 in sanctions being levied against [his] clients.” The record noted that “[he] has a history of discipline. By Order dated Oct. 2, 2000, [he] was disbarred on consent for conduct involving, inter alia, failure to diligently represent clients, misrepresentations to clients, misappropriation of entrusted funds, and forgery of client signatures, as well as the signatures of others. [He] was reinstated to practice by Supreme Court order dated Jan. 22, 2016.” The court on Nov. 26 ordered Anthony Charles Mengine suspended for two years, with nine months to be served, the remaining 15 months stayed, and with Mengine placed on probation for 15 months, subject to conditions including that he maintain the services of a qualified professional to manage bookkeeping responsibilities, and maintain books and records accessible for review by and submit quarterly reports to the Office of Disciplinary Counsel (ODC), as unanimously recommended by the Disciplinary Board, which rejected the hearing committee’s majority recommendation of a fouryear stayed suspension with probation and the ODC’s recommendation of disbarment. Justice David N. Wecht did not participate in the consideration or decision of the matter. According to the disciplinary report, “[Mengine’s] ethical misconduct spanned a period of nearly two years and involved 13 separate client matters [wherein he] failed to hold client funds separate; failed to promptly deliver funds to clients and third parties; failed to promptly distribute funds; failed to properly maintain an IOLTA account; engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; and failed to disclose on his attorney registration form all accounts holding entrusted funds. Generally … after depositing settlement checks into his IOLTA

The Pennsylvania Lawyer

account, [he] improperly disbursed entrusted funds to non-IOLTA accounts and used those funds for … business-related obligations [he] needed to meet but was unable to meet, resulting in his decision to use entrusted funds, in violation of his ethical responsibilities.” The report also indicated, however, that “[i]n every case, all clients and lien holders were timely notified of the receipt of settlement funds, all clients were fully paid their share of the settlement proceeds, and all lien holders were paid in reasonably prompt fashion.” The board called the mitigating evidence “weighty and meaningful,” noting that “[e]ven before [the ODC’s] involvement, [Mengine] took affirmative steps to cease his misconduct and make his clients and third parties whole”; the character testimony “significant”; and Mengine’s own testimony “sincere and genuine, in that he is truly chastened by his experience, takes responsibility for his wrongdoing, and feels great remorse and shame for his actions.” The report noted that “[Mengine’s] concerted efforts to organize his new law firm to provide oversight and accountability of financial matters underscore[d] his remorse, recognition of wrongdoing and intent to avoid wrongdoing in the future. [He] exhibited a full understanding of the steps he needed to take to align his conduct with professional standards.” The board concluded that “the appropriate sanction to address [his] misconduct must require him to serve a portion of his suspension, in recognition of the seriousness of the misconduct and the unacceptability of [his] actions” and his “mitigation supports a period of probation, which will enable [him] to practice law subject to his ability to meet certain conditions.” LEHIGH COUNTY The Supreme Court of Pennsylvania on Dec. 3, on the recommendation of a three-member panel of the Disciplinary Board, ordered Douglas M. Marinos suspended on consent for four years, retroactive to May 3, 2018, the effective date of his temporary suspension on consent under a rule of disciplinary enforcement pertaining to attorneys convicted of a crime. According to the joint petition in support of discipline, Marinos entered a guilty plea on Jan. 18, 2018, for willful failure to collect and pay over withheld payroll taxes, a felony that resulted in a sentence of imprisonment and supervised release. In reaching the recommendation for discipline, the panel consid-

March/April 2020

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PENNSYLVANIA BAR ASSOCIATION

1895-2020

YEARS STRONG

ered mitigating factors that included his admission to misconduct, remorse, lack of prior discipline, payment of restitution and “significant character support,” and concluded that “[a] four-year suspension would necessitate the filing of a petition for reinstatement and would coincide approximately with the time when [his] term of supervision is scheduled to end.” MONTGOMERY COUNTY The Supreme Court of Pennsylvania on Nov. 15 ordered Glenn D. DeSantis disbarred, as unanimously recommended by the Disciplinary Board. According to the report, the ODC charged DeSantis with violations of the rules arising out of allegations that he engaged in the unauthorized practice of law and failed to respond to the Petition for Discipline. The report indicated that DeSantis had been ordered suspended in New Jersey in October 1996 and suspended for three years in Pennsylvania in June 1997, based on his criminal conviction in 1995 on one count of mail fraud. Following the period of his suspension, DeSantis was reinstated in New Jersey, but “[t]o date, [he] remains suspended in the Commonwealth and is prohibited from engaging in the practice of law. During his suspension, [he] engaged in serious professional misconduct by representing [his client,] a Pennsylvania resident, in a Pennsylvania real estate matter,” and he “deceived his client by failing to inform the client that [he] was not permitted to practice law. [His] representation fell short of ethical standards, as he failed to respond to his client, failed to return an unauthorized fee and failed to return client property.” Noting that “by failing to respond or appear, [DeSantis] waived his opportunity to show remorse and did not give the Committee the opportunity to assess [his] fitness to practice law,” the board recommended “disbarment as the most appropriate sanction to protect the public and maintain the integrity of the courts and the legal profession.” NORTHUMBERLAND COUNTY The Supreme Court of Pennsylvania on Oct. 31 ordered Jason Michael Purcell

disbarred, as unanimously recommended by the Disciplinary Board. The disciplinary report indicated that on Dec. 1, 2002, Purcell was ordered placed on administrative suspension for failure to pay his annual attorney registration fee, remains administratively suspended and has been prohibited from engaging in the practice of law since his suspension. According to the report, “he continue[d] to hold himself out as an attorney on his social media outlets”; claimed on his LinkedIn page that he was also licensed to practice in New York, California, Maryland and the District of Columbia but “was never licensed to practice law in any capacity in those listed jurisdictions”; “concocted a falsified legal work history … listing numerous organizations with which he was never employed”; appeared in court as counsel in at least four matters and prepared court filings in another matter and “falsely and outrageously misrepresented his license status to a hearing officer and to the court in separate matters.” As indicated in the report, “[His] contemptuous attitude towards his professional responsibilities carried forward to [the] disciplinary proceedings, as he failed to respond to any correspondence from [the ODC], failed to answer the charges against him, failed to appear at the prehearing conference and failed to appear at the disciplinary hearing. … [His] lack of participation evidences his dismissive and disinterested attitude towards his ability to practice law and his disrespect for disciplinary authority and constitutes an aggravating factor in the imposition of discipline.” As noted in the report, “The manner in which [Purcell] has conducted his private life further exemplifies his intolerance for abiding by rules and procedures and submitting to authority … [He] has been twice convicted of Driving Under the Influence of Alcohol. In September 2006, [he] was charged with his third DUI offense ... but most egregiously, [he] failed to appear in court and a bench warrant was issued for his arrest. To date, more than 11 years later, the arrest warrant remains outstanding.” The board found “ … no mitigating factors present in this matter. Although [Purcell] has no prior disciplinary

The Pennsylvania Lawyer

March/April 2020

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

Contributing Writers: Fredrick Cabell Jr., Robert A. Creo, Anne N. John, David J. Millstein, Barry M. Simpson, Victoria White, Nancy H. Wilkes, Thomas G. Wilkinson Jr. Design: Kelly Cassidy Vanek Cassidy Communications Inc.; www.cassidycomm.com; Bethlehem, Pa. Display Advertising: PBA Communications Department Phone: 800-932-0311, ext. 2226. Classified Advertising: PBA Communications Department; Phone: 800-9320311, 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 reserved the right to select letters to be published. Letters may be edited for length and style. Editorial items and correspondence should be mailed to the Pennsylvania Bar Association, Attn. Lawyer Magazine Editor, 100 South Street, P.O. Box 186, Harrisburg, Pa. 17108-0186. Telephone: 800-932-0311. Email address: editor@pabar.org. Unsolicited manuscripts will not be returned unless accompanied by a self-addressed, stamped envelope. The Pennsylvania Lawyer is distributed to all PBA members as a membership benefit. Subscription is $30 per year. To join the PBA, call 800-932-0311. The Pennsylvania Lawyer is underwritten in part by the Pennsylvania Bar Insurance Fund. Soy-based inks used in printing. BOARD OF GOVERNORS OFFICERS President: Anne N. John President-elect: David E. Schwager Vice President: Kathleen D. Wilkinson Immediate Past President: Charles Eppolito III Chair, House of Delegates: Kim Denise Morton Secretary: Beverly H. Rampaul Treasurer: Terry D. Weiler

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

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

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

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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.

DISCIPLINE

record, his misconduct commenced a short time after his admission to the bar and has endured for nearly two decades; therefore, mitigation for lack of prior disciplinary record is not appropriate.” PHILADELPHIA The Supreme Court of Pennsylvania on Nov. 26 ordered Lewis P. Hannah III suspended on consent for three years, as recommended by a three-member panel of the Disciplinary Board. According to factual admissions filed in the matter, “[Hannah] misappropriated funds belonging to [a client] by using [his] authority as [the client’s] agent under two separate power of attorney forms, which allowed [him] to gain access to and exercise control over [the client’s] bank and retirement accounts,” he repeatedly comingled his funds with funds belonging to the client and “failed to maintain complete records that would show [his] receipt, maintenance, and disposition of the funds.” The report also detailed instances where Hannah failed to respond to his client’s letters. As noted in the report, the panel took into account as an aggravating factor Hannah’s failure to make restitution to the client. As mitigating circumstances,

the report listed his admission to misconduct and to violating the rules, his cooperation with the ODC, his remorse and consent to discipline and his lack of prior discipline since his admission to practice 30 years prior. The report concluded that “a suspension of three years is sufficiently lengthy to advance the goals of attorney discipline.” Rejecting a hearing committee’s recommendation for a nine-month suspension, the court on Dec. 11 ordered Craig B. Sokolow suspended for two years, as unanimously recommended by the Disciplinary Board. Justices Max Baer and Debra Todd dissented from the court’s order in favor of disbarment. According to the disciplinary report, Sokolow was charged with violating the New York Rules of Professional Conduct arising out of allegations that, in the course of his representation of a client in a civil matter, he knowingly made false statements to a judge, and with violating the Pennsylvania Rules of Professional Conduct by making false statements to the ODC. As indicated in the report, “[Sokolow] offered testimony at the disciplinary hearing that was internally inconsistent, contradicted by other  page 12

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

The Pennsylvania Lawyer

March/April 2020

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

DISCIPLINE

ď&#x192;&#x153; from page 10 evidence, and simply incredible. By the Boardâ&#x20AC;&#x2122;s tally, [he] made at least 12 different contradictory statements about his actions in this matter. [His] testimony cannot be relied upon to ascertain his intent when he appeared before [the judge in the civil case] for the oral argument, what he claims he filed in the lawsuit, and what he claims is contained in documents that he prepared.â&#x20AC;? The board considered Sokolowâ&#x20AC;&#x2122;s prior disciplinary history of a disbarment on consent ordered in 1997 arising from his criminal conviction for 107 counts of mail fraud, 17 counts of money laundering and one count of criminal forfeiture, and a 2013 Informal Admonition related to his including in a court pleading the false statement that an attorney, the opposing party in proceeding, had been censured by the Ethics Board. The board determined that the discipline was warranted in that â&#x20AC;&#x153;[his] false representations to [the judiciary and the ODC] were designed to frustrate the truth-determining process in civil and disciplinary proceedings. [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.â&#x20AC;? OUT OF STATE The Supreme Court of Pennsylvania ordered Michael Joseph Savona, Portland, Maine, suspended on consent for five years, retroactive to April 9, 2018, the date of his temporary suspension under a rule of disciplinary enforcement pertaining to attorneys convicted of a crime, as recommended by a three-member panel of the Disciplinary Board. As described in the joint petition in support of discipline, Savona â&#x20AC;&#x153;knowingly and willfully made false statements to the FBIâ&#x20AC;? related to a bribery scheme for an outdoor sign project in Lower Southampton Township [Bucks County, Pa.]. While the board considered as an aggravating factor that Savonaâ&#x20AC;&#x2122;s efforts aided â&#x20AC;&#x153;corrupt public officials,â&#x20AC;? it

The Pennsylvania Lawyer

March/April 2020

also took into account a variety of mitigating factors in reaching the recommendation for discipline, including that he â&#x20AC;&#x153;showed remorse and acceptance of responsibility by waiving prosecution by indictment and by pleading guilty to his crime,â&#x20AC;? that he provided significant cooperation to the government, his admission to misconduct and to violating the charged rules, and his lack of prior discipline and lack of prior criminal history. TEMPORARY SUSPENSION The Supreme Court of Pennsylvania ordered the following attorney placed on temporary suspension: James Kevin Reed, Funkstown, Md., on Nov. 26. EMERGENCY TEMPORARY SUSPENSION â&#x20AC;&#x201D; Rule 208(f)(1) The Supreme Court of Pennsylvania ordered the following attorneys placed on emergency temporary suspension: David W. Harris III, Lackawanna County, on Nov. 8; Timothy Robert Hough, Philadelphia, on Nov. 22. TEMPORARY SUSPENSION â&#x20AC;&#x201D; Rule 214 The Supreme Court of Pennsylvania ordered the following attorney placed on temporary suspension under a rule of disciplinary enforcement pertaining to attorneys convicted of a crime: Neil I. Mittin, Montgomery County, on Nov. 8. DISBARMENT ON CONSENT â&#x20AC;&#x201D; Rule 215 The Supreme Court of Pennsylvania ordered the following attorneys disbarred on consent under a rule of disciplinary enforcement pertaining to resignations by attorneys who are being investigated for allegations of misconduct: Robert Charles Cordaro, Lackawanna County, on Nov. 1; Mark T. Pilon, Aurora, Or., on Nov. 8; Craig Cohen, Montgomery County, on Dec. 12, retroactive to April 4, 2019; J. Michael Farrell, Philadelphia, on Dec. 4, retroactive to March 10, 2017.

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RECIPROCAL DISCIPLINE The Supreme Court of Pennsylvania imposed reciprocal discipline on the following attorneys: Jeffrey Marc Benjamin, Forest Hills, N.Y., suspended for six months, on Oct. 31, following like discipline imposed by the Supreme Court of New Jersey; Cheri S. Williams Robinson, Montgomery County, suspended for one year, on Nov. 8, following like discipline imposed by the Supreme Court of New Jersey; Jeffrey S. Lisabeth, Lloyd Harbor, N.Y., suspended on consent for two years, on Dec. 4, reciprocal with the Supreme Court of the State of New York, Appellate Division, Second Judicial Department; Neal J. Blaher, Orlando, Fla., disbarred, on Dec. 6, following like discipline imposed by the Supreme Court of Florida.

REINSTATEMENTS October 25 through December 13, 2019 ALLEGHENY COUNTY The Supreme Court of Pennsylvania granted reinstatement to Peter C. Ibe, Silver Spring, Md., on Dec. 3, as unanimously recommended by the Disciplinary Board, from a suspension of two and a half years on consent, ordered June 18, 2015. According to the reinstatement report, Ibe was suspended following a criminal conviction for “receiving stolen property, multiple counts of furnishing liquor or malt or brewed beverages to minors, and other summary offenses,” for which he was sentenced to five years of probation. According to the report, Ibe “apologized profusely and sincerely to the Committee and the profession for his misconduct. [He] did not minimize his misconduct and described his shame and embarrassment for engaging in the behavior that led to his conviction. He acknowledged that his alcohol consumption played a significant role in his misconduct, and as a result,

[he] determined of his own volition to refrain from consuming alcohol.” The board was persuaded that “the conduct that caused his suspension is not characteristic of the person he is, and his prior wrongdoing will not be repeated in the future.” The court granted reinstatement to Robert Toland II, Chester County, on Dec. 3, as unanimously recommended by the Disciplinary Board, from a suspension of three years on consent, ordered Nov. 20, 2014, retroactive to Nov. 30, 2007. According to the board’s report, Toland was arrested several times for DUI, resulting in “an extensive disciplinary history.” The report indicated that he admitted his alcoholism, has been sober and in recovery since 2011, and “actively maintains his sobriety by attending twice weekly AA meetings, one of which he runs with his sponsor.” Finding that Toland “has accepted responsibility for his actions, demonstrated commitment to long-term recovery from alcoholism, and maintained his sobriety,” the board concluded that he “has successfully met his reinstatement burden … and is morally qualified, competent and learned in the law. His reinstatement will not be detrimental to the public or to the profession.” The court, upon verification of compliance by the Disciplinary Board, granted reinstatement and a return to administrative suspension status to Catherine Ann Muldoon, Philadelphia, on Nov. 4, from a six-month suspension on consent ordered March 22, 2019, as then recommended by a three-member panel of the Disciplinary Board. According to the board’s report, Muldoon was suspended for engaging in the unauthorized practice of law after being administratively suspended, effective April 9, 2015, for failing to comply with continuing legal education requirements.⚖

The Pennsylvania Lawyer

March/April 2020

“Thank you” is not enough. The Wills for Heroes program provides free basic estate planning documents to first responders and military veterans in Pennsylvania.

To volunteer, visit http://www.pabar.org/site/ For-the-Public/Wills-forHeroes/Volunteer

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THE EFFECTIVE LAWYER

Our Chosen Business: Beyond Civility to a Culture of Collegiality By Robert A. Creo Editor’s note: Due to an editing error, the headline for the January/February 2020 Effective Lawyer column was incorrect. The themes of previous columns are correctly indicated below.

revious columns have addressed the lawyer’s reputation, self-awareness, professional growth, the art of persuasion, navigating emotions and the importance of perpetual learning. The current series explores the importance of soft skills for peak performance and well-being. Earlier in the series, I addressed the core competencies of affiliation/association [September/October 2019], autonomy/accountability [November/December 2019] and actualization/achievement [January/ February 2020]. My goal is to assist lawyers gain insight into best practices for competency, contentment and professional development. This column explores the ethics and benefits of cooperation with opposing counsel. We do not see things as they are. We see things as we are. – Anais Nin What Do We Do? A number of years ago, a friend of mine asked for my opinion on whether she acted wisely in how she handled a disagreement with her own divorce lawyer from a small, western Pennsylvania county. She was in a bitter battle with her spouse when he asked for an extension to file a pleading. She instructed her lawyer to refuse to extend the deadline by even one day. The lawyer responded that he valued his relationship with his colleagues more than his relationship with her, so they would have to terminate the representation if she did not authorize an extension. She immediately terminated the lawyer’s services, noting that she “makes the decisions” and her review of the Rules of Professional Conduct indicated that lawyers should represent their clients zealously. Although I explained to her that it is common — and expected — for lawyers to reasonably extend deadlines, she was having none of it.

The Pennsylvania Lawyer

This issue of competition and structural dictates defaulting to an expectation of noncooperation has arisen time and time again in my reflections and decision-making as a lawyer and mediator. I struggle with this conundrum frequently, and often frame it as our Pennsylvania Bar Association colleague Emeline L.K. Diener did in an article in the March/April 2014 issue of The Pennsylvania Lawyer, “Who exactly is clamoring for ‘civility’? … It’s not the clients.” Recently, when I presented an ethics CLE at the Lawrence County Bar Association, I raised my friend’s scenario with the 40 lawyers in attendance. Their responses ranged from declining the extension and advising the opposition to file for it in court to withdrawing from representation. Contrary to what might be a common perception among both lawyers and clients, Rule 1.2 of the Rules of Professional Conduct, Scope of Representation and Allocation of Authority Between Client and Lawyer, does, indeed, place all decision-making authority in the client. It states, in part, in

March/April 2020

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Although this resolves many of these types of issues that arise during the typical course of representation and seems well within the scope of Rule 1.2, it does not cure the basic tension between zealous advocacy and what may be the benefits of cooperation with the opposition. These structural issues were set forth in my January/February 2019 column, which noted that the practice of law is one of the few professions where there is usually someone actively trying to impede and derail your efforts and work.

Comment [2]: Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Some lawyers indicate that they address many issues in the initial engagement letter, where the matters of procedure or strategy must either be a joint decision or solely within the discretion of the lawyer. One sample clause from a retainer agreement is as follows: Scope: I retain control over decisions that involve legal strategy or otherwise affect my reputation for professionalism, such as whether to extend deadlines for opposing counsel, the level of cooperation with opposing counsel on scheduling or similar matters, and how matters should be presented and argued in correspondence, pleadings or in meetings.

The Rules of Professional Conduct Pennsylvania originally adopted the ethical rules, effective April 1, 1988, and has amended them from time to time. Here are some excerpts: Preamble: A Lawyer’s Responsibilities [2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others. [7] Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.

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March/April 2020

[8] A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. … [9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. Scope [15] … The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law. Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other consider-

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THE EFFECTIVE LAWYER

ations such as moral, economic, social and political factors, that may be relevant to the client’s situation. The term “zealous” may have been too strong and used to excuse rude conduct. It was eliminated from the black-letter of ABA Model Rule of Professional Conduct 1.1 in 1983. The word now only appears in the ABA Model and the Pa. Code three times, all in the Preamble (2, 8 and 9 above). Although the concept still dominates the approach of many lawyers, there are numerous checks and balances articulated in the rules on the nature and extent of zealous advocacy. It is improper to extend the usage of these words to mean that lawyers must be zealots who follow the choices made by a client religiously. When I think of a zealot, I conjure an image of a wild-eyed person who has no respect for anything except furthering the mission and ends by any means. Lawyers should not fall into this image-trap. The preamble, rules and comments contain numerous brakes and guardrails, including considerations of civility, respect and approbation of peers. Judicial Code of Civility In his article “ ’Tis the Season to Be Civil,” in the November/December 2014 issue of The Pennsylvania Lawyer, author Daniel E. Cummins noted, “The Rules of Professional Conduct have no teeth in regulating civility among lawyers, and judges often ignore the consternation caused by bullying and unreasonable attorneys, not wanting to be bothered with the tedium of maintaining decorum among the attorneys inside or outside of their courtrooms. In the end, ignoring the misconduct of these attorneys ultimately reflects poorly on these particular courts.” The Pennsylvania courts responded to growing concerns about the lack of civility among lawyers by promulgating a Code of Civility in 2000, which was amended once in 2005. This code expressly has “no teeth” and is only aspirational. It states, in part, in § 99.1. Preamble: The hallmark of an enlightened and effective system of justice is the adherence to standards of professional responsibility and civility. Judges and

lawyers must always be mindful of the appearance of justice as well as its dispensation. The following principles are designed to assist judges and lawyers in how to conduct themselves in a manner that preserves the dignity and honor of the judiciary and the legal profession. These principles are intended to encourage lawyers, judges and court personnel to practice civility and decorum and to confirm the legal profession’s status as an honorable and respected profession where courtesy and civility are observed as a matter of course. The code does have admonitions on lawyers acting improperly. It states in part in § 99.3. The Lawyers Duty to the Court and to Other Lawyers: 2. A lawyer should speak and write in a civil and respectful manner in all communications with the court, court personnel, and other lawyers. 3. A lawyer should not engage in any conduct which diminishes the decorum or dignity of the courtroom. Although I question the efficacy of having an advisory-only code of behavior in the judicial statues, I am in full agreement with the purpose and content. Reading not only the letter of the Rules of Professional Conduct and the Code of Civility, but also the intent and spirit, leads me to conclude that reasonable cooperation can often be as effective a strategy as constant opposition and never yielding an inch of ground to opposing counsel and clients. There is a legitimate orientation that it is advisable for lawyers to always say no and to make the opposition fight for everything. This works in theory and may yield some advantages in a particular case, but often at great cost to clients and the psyche of the lawyer. Lawyers do suffer cognitive dissonance and discontent when they are inauthentic, mislead, communicate half-truths or omissions or engage in avoidance strategies. When your thinking is taken over by opposition and negativity, it does seep over into how you view the world and yourself. Although many lawyers are very successful at compartmentalizing, it takes a toll and may lead to depression and burnout. I, and many others, do not believe it has to be this way.

The Pennsylvania Lawyer

March/April 2020

Pennsylvania Bar Association Resources Under the leadership of current Pennsylvania Bar Association President Anne N. John, a new committee was formed and a corresponding section added to the PBA website focusing on civility and the relationship among lawyers. See https:// www.pabar.org/site/For-Lawyers/ Committees-Commissions/Civility-in-theProfession/Resources. The Resources tab contains articles from PBA publications, including those mentioned in this article, as well as resources from the American Bar Association and other states. Dignity and Respect There are many Pennsylvania lawyers practicing not only with civility but with collegiality. My observations over my 40 years as an attorney, arbitrator and mediator are that these lawyers are not limited to the smaller counties. I have mediated hundreds of cases in the Philadelphia area, including numerous death and catastrophic loss claims, where all counsel have been forthright, authentic and gracious while providing superb representation for their clients. Rarely have I witnessed bullying or disrespectful behavior of counsel to each other or their opposing clients. Perhaps this is because of the nature of ADR versus courtroom litigation, but I doubt that is the sole explanation. Most lawyers come to the realization that cooperation is not always a bad thing. Attorney Cummins in his 2014 article concludes that, “In the end, when going toe-to-toe with opposing counsel in discovery or at trial, listen to your gut instinct and refrain from succumbing to the pressures of ‘dares’ or tactics that might take your case in the wrong direction.” Philadelphia-area medical malpractice defense lawyer Heather Hansen last year published a book titled The Elegant Warrior, which advocates a number of strategies and tactics for winning cases and maintaining a healthy attitude while living and working elegantly. Here is one of the many insights she shares in her excellent book of lessons and stories from the courtroom. I have to show respect for the other side, because otherwise I’d lose respect

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TA K E A W AY S for myself. And if in fighting the war, you lose self-respect — you lose your elegance — have you really won? Whether you apply these lessons from lawsuits to the courtroom, bedroom, or the boardroom, I hope you start and end with respect and dignity. And if you don’t respect yourself, you lose a piece of your dignity. … Respect and dignity are paramount, and we need to learn how to give and demand it. If you win your trial but lose respect, your own or that of your opponents, the long-term result may be a loss. Although lawyer billboard and media ads emphasize pugnacity over cooperation, perhaps the concept of an elegant warrior will make it into the public domain. What We Do Returning to our colleague, attorney Diener, she articulates what may be the dominant view of our role and reality as advocates. She states, “I’m not advocating that we lawyers be any ruder than or even go on being as rude as we’ve been in the past. But … I would respectfully submit that the lack of civility is not new but traditional, and, further, it is the very least of our present problems as a profession.” Although I receive her message as if she was speaking to me, saying, “Get over it and move on,” I cannot surrender in even the little moments of battle since I have always played the long game. After I started my own solo practice in 1979, the evolution of my thinking was to try to envision any opposing counsel as a colleague and my mission to find common ground in as amicable a manner as possible. This involves the soft skills of communication and negotiation. I quickly learned that no one wanted to talk to nasty or negative people, and especially not to “zealots.” Ah, but the rules are not as strict as they seem — the preamble cited earlier does not use the word “zealous” for the role of a negotiator and instead speaks in terms of “honest dealings with others.” This authenticity has served me well. In an excellent and comprehensive article on civility during depositions in the

July 2013 issue of The Pennsylvania Bar Quarterly, Pennsylvania ethics maven Tom Wilkinson and his colleague Jordan Fox scrutinized the rules and case law on lawyer behavior during depositions, including sanctions imposed by courts or ethics committees for misconduct based upon language used by counsel. This deep dive into the subject is worth the read and should help each lawyer develop guidelines that are authentic to his or her own values and style without compromising the ability to represent clients. I do believe we see things as we are, so I believe I engage in peak performance when I align my core values and competencies with who I am — someone who wants to avoid conflict and fighting in favor of resolution. Although I may toggle between cooperation and competition, I will always recommend cooperation first and, only if that fails, then competition carried out with dignity, respect and — sometimes — even elegance. ⚖ •••••

• Ethical rules do not mandate that clients make each and every decision. • Ethical rules do not require the lawyer to be a zealot. • Ethical rules accommodate cooperation with opposing counsel. • Cognitive dissonance impedes peak performance. • Collegiality works — Try it!

Sources and Additional Reading Heidi K. Brown, We can be smart, ambitious and accomplished members of the legal profession without being jerks, ABA Journal Online, Nov. 1, 2019. http://www.aba journal.com/magazine/article/we-can-besmart-ambitious-and-accomplishedmembers-of-the-legal-profession-withoutbeing-jerks.

Pittsburgh attorney Robert A. Creo has practiced as an in-house corporate lawyer and a solo and small firm general practitioner before becoming a full-time neutral. He has mediated and arbitrated thousands of cases, including as a salary arbitrator for Major League Baseball, a grievance arbitrator for the National Football League and a hearing officer for the U.S. Senate Select Committee on Ethics. He has been on the mediator roster of the Court of Arbitration for Sports in Lausanne, Switzerland, which provides ADR services for international sports, including the Olympics. He has served as adjunct professor at Duquesne University School of Law and the University of Pittsburgh School of Law. He is the 2018 recipient of the PBA ADR Committee Sir Francis Bacon Alternative Dispute Resolution Award. He is annually included in Best Lawyers in America and named as a Superlawyer. He has a passion for storytelling and is a frequent presenter at The Moth. He is the principal of Happy! Effective Lawyer LLC (www.happy.lawyer) and author of The Effective Lawyer blog (happyeffectivelawyer.org/). His website is www.robertcreo.com.

Pa. Code of Civility, 204 Pa. Code § 99, available at https://www.pabar.org/pdf/ 2020/Code-of-Civility.pdf

If you have a story to share on this subject or other practice topics, please email racreo@gmail.com.

Thomas G. Wilkinson & Jordan Fox, Encouraging Attorney Civility During Depositions: The Enduring Impact of Hall v. Clifton Precision, Pennsylvania Bar Association Quarterly, Vol. LXXXIV, No. 3, July 2013.

The Pennsylvania Lawyer

March/April 2020

Daniel E. Cummins, ’Tis the Season to be Civil, Lessons from “A Christmas Story,” The Pennsylvania Lawyer, November/December 2014. Emeline L. K. Diener, If I May: A Few (More) Thoughts on Civility at the Bar, The Pennsylvania Lawyer, March/April 2014. Heather Hansen, The Elegant Warrior: How to Win Life’s Trials Without Losing Yourself (Page Two Books, 2019). Eric B. Miller, Note: Lawyers Gone Wild: Are Depositions Still a “Civil” Procedure? 42 Conn. L. Rev. 1527, 1558 (2010).

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YOUR PBA

Works in Progress By Barry M. Simpson

s the wise philosopher Beyoncé sings, “Who run the world? Girls!” In March we celebrate Women’s History Month. As you think of how far we’ve come since women earned the right to vote (100 years this August!), consider this: My two granddaughters, ages 1 and 3, are growing up in a world where: • The 2016 Democratic nominee for president of the United States was a woman; six women entered the 2020 presidential race. • Three women serve as justices on the Supreme Court of the United States. • There are a record number of women serving in Congress and in the Pennsylvania Legislature. • There have been five women presidents of the Pennsylvania Bar Association (Leslie Anne Miller, 1998-99; Gretchen A. Mundorff, 201011; Sarah A. Austin, 2016-2017; Sharon R. López, 2017-18; and Anne N. John, 2019-2020); and of the four most recent PBA presidents, three are women. The professional landscape for women lawyers has changed since my wife started practicing law as an assistant district attorney in Allegheny County in 1978, and I am proud that the PBA has helped play a role in that. When it was created in 1993, the membership of the PBA Commission on Women in the Profession (WIP) was 60. Today it is the largest committee within the PBA, standing at more than 700 members strong! Past President Sara Austin remarked in the 2019 WIP Report Card that the “WIP has grown and changed with the times … It presents programs and projects for women, by women, from which residents throughout the entire commonwealth, and all lawyers, benefit. WIP makes a difference to its members and far beyond.” Still, there is work to be done. As Past President Leslie Miller wrote in the same publication, many of the issues that the WIP has worked on since it began — equal pay, flexible work schedules and maternity leave — are still very much works in progress. On the membership front, we are proud that women represent nearly a third of the member-

The Pennsylvania Lawyer

Maggie and Tatum

When it was created in 1993, the membership of the PBA Commission on Women in the Profession (WIP) was 60. Today it is the largest committee within the PBA, standing at more than 700 members strong! ship in the PBA, but we know that number can grow. And as that number grows, we will have a stronger, more diverse PBA. I am the proud grandfather of four: Ford, Brock, Tatum and Magnolia (and grandfather of Magnolia’s dog, Tucker). The girls, indeed, run each house. By the time Maggie and Tatum enter the workforce, the landscape will be completely different. I hope it’s one for the better — and that maybe we will have another future lawyer to carry on the family name. But for now, they can focus on talking and preschool. ⚖

March/April 2020

Barry M. Simpson Executive Director

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March/April 2020

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What You Need to Know About Pennsylvania Drone Crimes By Corey A. Bauer and Victor S. Kustra

The Pennsylvania Lawyer

March/April 2020

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ennsylvania has a new type of crime. It’s a crime that can be committed anonymously from the sky, sometimes miles away from the crime scene and with the help of advanced yet easily accessible technology — even obtained via a click on Amazon — that requires little to no training. I’m talking about Unmanned Aerial Vehicles (UAV), more commonly known as drones, and how these seemingly innocent aircraft can land the average American in criminal court.

There is no question that drone use has drastically increased in recent years. The average American citizen can now purchase a drone (until recently thought to be only a military vehicle) and use it as a mechanism by which to commit a crime. The Pennsylvania Legislature has responded with Act 78, which, among other things, makes it a crime for anyone to use a drone intentionally or knowingly to 1) conduct surveillance of another person in a private place or 2) operate in a manner that places another person in reasonable fear of bodily injury. The language of Act 78 seems simple enough to understand. But what about other criminal statutes not intended for the regulation of drone behavior? How will they be enforced in light of Act 78? And what issues should today’s Pennsylvania criminal defense attorney be prepared to address? Last year, a Northampton County man was accused of “dropping bombs” from a drone onto his ex-girlfriend’s house. More recently, the first drone-related felony jury trial in Pennsylvania took place in Mercer County. In that case, the accused was acquitted of all charges except an underlying summary offense of disorderly conduct. However, the mere fact of a trial tells us that drone crimes have arrived. The commercial availability of drones, coupled with budding legal

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The average American citizen can now purchase a drone and use it to commit a crime.

challenges to their use, points to more trials to come. We can deduce that as these trials come to fruition, drones and their associated technology will undoubtedly become subject to the same legal minutiae afforded technologies like cellphones and thermal imaging scanners. These first drone cases and the recently enacted Act 78 raise new issues that criminal defense lawyers and their clients will face with regard to the unlawful use of drones, and attorneys should be prepared to answer several questions. What conduct will likely result in a conviction under Act 78? An obvious question that is raised by the enactment of any new criminal statute is how hard will it be to get a conviction? We must look beyond the plain language of Act 78 to make a prediction here. Unfortunately, there has not yet been precedent established under Act 78 to guide us. That being said, upon interpretation, there are numerous situations and possible scenarios that may result in charges — and even a conviction — under Act 78. For example, let’s look at a scenario involving the recreational use of drones: An individual purchases a drone and flies it around

The Pennsylvania Lawyer

March/April 2020

the perimeter of his house. Unbeknownst to him, his elderly neighbor, who is napping at the time (and is a light sleeper), is awoken by the sound of his two dogs barking frantically. The neighbor jumps out of bed, looks out of his window and sees the drone hovering over his lawn. He has never seen a drone and is unsure about what is happening. At this point, his dogs are jumping at the window in an attempt to bite the drone. One of the dogs bites its owner on the hand out of confusion and fear, causing injury. The neighbor calls the police in response to the presence of the drone. The drone user, who never flew the drone off of his own property, is subsequently charged under Sections 3505(1) and (2) of Act 78. Sound a little far-fetched? Maybe. But when it comes to Act 78 and drone use, we don’t know what we don’t know. As lawyers, we must be prepared for anything. How likely is it that the drone user will be convicted in this scenario? What defenses can be raised? Even if the drone never left the pilot’s property, would a reasonable person believe that he or she was under surveillance? Would a reasonable person in that situation be fearful of bodily injury? We have to remember that not everyone is familiar with drones, despite their commercial availability, and we can’t assume that

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the average person would feel safe with a drone hovering outside of his or her window. What about the dogs? Does the fact that the neighbor’s dogs reacted fearfully support the prosecution’s case that the drone user intended to cause fear of bodily injury in the neighbor? Can the violent reaction by the dogs be used to prove intent? Would it matter if the drone user had knowledge that the neighbor owned dogs and was aware of their propensity to act in a violent and fearful manner? This statute juxtaposes the perception of the alleged victim against the intent of the defendant — similar to many criminal statutes. However, many people’s unfamiliarity and ignorance regarding drones will lead to the assumption that a potential defendant is attempting to intentionally invade privacy rather than merely enjoying

recreational drone use. California v. Ciraolo told us that people do not have a reasonable expectation of privacy from those using the navigable airspace above, but when a person calls the police and says that the neighbor has been “spying” on them with a drone, that neighbor is likely to be charged by the responding officer, regardless of the facts. These are just a few of the issues that defense lawyers and their clients would have to resolve after charges are filed under Act 78. If you think that trial court opinions and appellate decisions will solve these issues, you may be wrong. The penalty for violations under Sections 3505(1) and (2) is a fine of up to $300. Many individuals who are charged under those Sections of Act 78 will likely plead guilty because the cost of hiring a lawyer and fighting the charges greatly outweighs the financial punishment. Thus, while the number of

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Drones will undoubtedly become subject to the same legal minutiae aﬀorded to technologies like cellphones and thermal imaging scanners.

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When a person says that the neighbor has been “spying” on them with a drone, that neighbor is likely to be charged by the responding oﬃcer, regardless of the facts.

guilty pleas under Act 78 may be very high, lawyers who are retained to represent the accused will be left with little guidance on how to argue the issues involved. Act 78 is not the only statute under which drone users will be charged. In 2016, a Drexel University student was charged with aggravated assault, causing/ risking a catastrophe, simple assault and recklessly endangering another person for operating his drone above a protest. He was flying above 1,000 feet and within restricted airspace marked for hospital helipads. What’s more, he nearly hit a police helicopter with officers on board. At the time, this could have been viewed by lawyers as a one-off. Nonetheless, as stated above, there were already two major felony cases in Pennsylvania involving drones last year. In the first, a Northampton County man was indicted in the Western District of Pennsylvania in June 2019 for crimes including allegedly “dropping bombs” from a drone onto his ex-girlfriend’s house.

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The other case, originally charged in 2017, resulted in a week-long jury trial in October 2019. The defendant was charged with ecoterrorism, taunting police animals, harassment and disorderly conduct. He was acquitted of all misdemeanor and felony counts by the jury, but convicted of an underlying summary offense of disorderly conduct. Considering questions posed by the jury during deliberations, the most likely reasoning behind this lone guilty verdict was his recklessness in failing to follow Federal Aviation Administration (FAA) regulations. Indeed, the jury used a federal regulation to hold the defendant accountable for a state criminal statute, and this will more than likely not be the last time a jury does so. Drone users are susceptible to crimes that require a showing of recklessness. It is easiest for a prosecutor to prove this level of intent, especially to a jury that is unfamiliar with drones, when he or she points out that the defendant failed to follow FAA regulations, which are quite literally outlined for each drone pilot on the drone registration. However, regardless of

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Drone users are susceptible to crimes that require a showing of recklessness.

the charges, lawyers can rest assured that there is a standard, universal practice that must be followed for all drone cases: reviewing the drone data. Retrieving this data should be the first step to every defense of a drone case. All major drone manufacturers have their drones record individual flight data on an internal SD card (a “memory card”) every four-tenths of a second. The data is provided both by instruments in the drone itself and by numerous GPS satellites. It details the altitude, location, speed, flight path and other relevant pieces of information of the drone at each .4-second interval. You can find this data on the phone used to control the drone and on the internal SD card, and it can also potentially be subpoenaed from the drone manufacturer servers. When taken directly from the internal SD card, the data is almost impossible to alter without decryption software. Imagine if a firearm used in a crime had such a feature. The passage of Act 78 and these premier cases are indicative of the not-so-distant

future of drone law challenges in Pennsylvania. Drones and the regulations regarding their use are something that Pennsylvania criminal defense lawyers are going to need to understand, including what charges to expect, how to address the underlying issues and how to prove their client’s defense. ⚖ •

•

Corey A. Bauer is an associate at Gaitens, Tucceri & Nicholas PC, Pittsburgh, and focuses his practice in criminal defense, plaintiff’s personal injury and general litigation. He may be contacted via email at cbauer@gtnlaw.com. Victor S. Kustra is an associate at Gaitens, Tucceri & Nicholas PC, Pittsburgh, and focuses his practice in general litigation, plaintiff’s personal injury and criminal defense. He may be contacted via email at vkustra@gtnlaw.com. If you would like to comment on this article for publication in our next issue, please email us at editor@pabar.org.

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Intestate Succession: Adoption by Estoppel and Adoption by Contract in Pennsylvania By John B. Spitzer

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quitable adoption is a term of art that means different things in different states. Some courts have used the terms virtual adoption, adoption by estoppel or equitable inheritance as synonyms for equitable adoption. What all of these terms have in common is that they refer to a situation in which a putative adoptive parent dies intestate and the right of the putatively or informally adopted person to inherit from the intestate parent is challenged.

There is authority that Pennsylvania courts do not recognize the validity of an adoption for intestate succession purposes unless there is formal compliance with statutory procedures. Benson v. Nicholas, 246 Pa. 229, 92 A. 139 (Pa. 1914) (rejecting validity of an oral adoption, citing In re Carroll’s Estate, 68 A. 1038, 219 Pa. 440 (Pa. 1908)). Nevertheless, Pennsylvania courts have recognized and applied the concept of equitable inheritance in different contexts. This article describes four theories that attorneys could use in Pennsylvania courts in support of an informally adopted child’s equitable right to inherit through intestate succession: 1) adoption by estoppel, 2) adoption by contract, 3) equitable estoppel and 4) application of another state’s law — under conflicts of law principles — if the child was informally adopted in another state that recognizes the doctrine of equitable adoption.

Adoption by Estoppel The strongest case for applying the doctrine of equitable inheritance in Pennsylvania occurs when a putative heir challenges the right of the intestate’s child to inherit from the decedent’s estate on the basis that an adoption decree was invalid. In Appeal of Wolf, 13 A. 760 (Pa. 1888), the Pennsylvania Supreme Court held that putative heirs of a decedent’s estate could not invalidate the adoption decree that their late brother received to gain custody of his daughter. Implying that the siblings were challenging the validity of the daughter’s adoption decree to prevent the decedent’s daughter from

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March/April 2020

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Pennsylvania courts have recognized and applied the concept of equitable inheritance in diﬀerent contexts.

inheriting from her adoptive father’s estate, the court said that the siblings’ attorney, as administrator of the decedent’s estate, could not act to the detriment of the decedent’s daughter. In Wolf, Samuel Sankey, a California resident temporarily residing in Pennsylvania adopted the daughter of his deceased brother and received a decree of adoption. After Sankey died, his siblings sought to invalidate the decree of adoption on jurisdictional grounds. The siblings argued that the orphans’ court that issued the adoption decree had no jurisdiction because the petitioner, Sankey, did not comply with a statute requiring that the petitioner be a resident of the county where the petition was presented. Rejecting the siblings’ argument, the court said that Sankey’s wrongful conduct could not be used to prejudice the daughter’s right to inherit. The court noted that Sankey resided with his adopted daughter in California until his death, which occurred seven years after the adoption.

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Other Pennsylvania courts, in discussing paternity by estoppel, have cited Wolf for the proposition that Pennsylvania recognizes the doctrine of adoption by estoppel. Ruth F. v. Robert B. Jr., 456 Pa. Super. 398 (Pa. Super. Ct. 1997); Comm. ex rel. Goldman v. Goldman, 199 Pa. Super. 274, 184 A.2d 351 (Pa. Super. Ct. 1962). Those courts have analogized paternity by estoppel with adoption by estoppel and have concluded that it could be inequitable to allow a challenge to the paternity of a child where the parents of the child held the child out as their own. Adoption by Contract The second strongest argument for allowing an equitable inheritance is that there is evidence of a written contract to adopt the child. At least three Pennsylvania cases have applied contract principles to conclude that a child who was adopted pursuant to a written agreement but without a formal adoption proceeding may inherit through intestate succession.

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In Kilby, the infant’s biological mother signed a contract at the time she gave the Ohio-born infant to its new parents, giving up her child to the Kilbys for purposes of adoption. The adoptive parents cared for and supported the adopted girl as their own. The adoptive parents also gave the adopted girl their surname and held her out to the world as their adopted daughter. The adopted child benefited from her adoptive father’s insurance and was claimed as a “daughter” on her adoptive parents’ income tax return. In Kilby, there was a reason why the adoption process was not completed despite the Kilby’s written agreement to adopt the child as soon as doing so was legally permitted: The adoptive father died before the adoption proceedings were completed.

Where a written contract to adopt exists and a transfer of custody has occurred, but an adoption has for some reason not been finalized, the Pennsylvania courts have recognized the right of the child to inherit under the provisions of the intestacy statute. McDaniel’s Estate, 156 A. 338 (Pa. 1931); Estate of Susman, 45 Pitt. Legal J., 97, 101 (Allegheny County Orphans’ Ct. 1897). Applying these precedents, and citing the first Restatement of Contracts, the 3rd U.S. Circuit Court of Appeals has held that contractually adopted children have the right to inherit through intestate succession. Kilby v. Folsom, 238 F.2d 699 (3d. Cir. 1956). In Kilby, a Social Security benefits case, the court concluded that a combination of factors supported the conclusion that the child would have been able to inherit through intestate succession: 1) the child was taken from her birth mother pursuant to a written adoption contract and 2) the subsequent action of the parents suggested that they intended to treat the child as their own.

Pennsylvania courts have adopted the Restatement of Contracts principle that the conduct of contracting parties may demonstrate the agreement of the parties to specific contract terms. Kilby stated this principle in interpreting an adoption contract: “The rule concerning the subsequent action of parties as a criterion of interpretation of their agreement is thus stated in the Restatement, Contracts, Section 235(e) (1932): ‘(e) If the conduct of the parties subsequent to a manifestation of intention indicates that all the parties placed a particular interpretation upon it, that meaning is adopted if a reasonable person could attach it to the manifestation.’ ” Kilby, supra, at 701. Applying that principle, the Kilby court concluded that “the fair interpretation of what was said and what was done is that the foster parents agreed to and did treat this little girl as their own, fully as much as if she had been their natural, legitimate child.” Id. Like Kilby, McDaniel’s Estate, 156 A. 338 (Pa. 1931), is a case involving a contract to adopt where the adoption process was not completed. In McDaniel, the Pennsylvania

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March/April 2020

There is authority that Pennsylvania courts do not recognize the validity of an adoption for intestate succession purposes unless there is formal compliance with statutory procedures.

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Courts have analogized paternity by estoppel with adoption by estoppel.

Supreme Court concluded that the child, a third-party beneficiary of the contract, was a beneficiary for intestate succession purposes. In reaching this conclusion, the court applied contract law principles. In Estate of Susman, 45 Pitt. Legal J., 97, 101 (Allegheny County Orphans’ Ct. 1897), a written document executed by the adoptive parents and the custodian of the adopted child in Belgium stated that the adoptive parents would provide for the child as if she were their own child. The court found that there was at least an implied contract that the child was to be her adoptive parents’ heir. Accordingly, the adopted child was entitled to participate in the distribution of her adoptive father’s estate. Equitable Estoppel

A child brought into Pennsylvania from another state or country pursuant to a written adoption contract may be recognized as a beneﬁciary of an intestate’s estate.

The third argument for equitable inheritance is that the putatively adoptive parents or their heirs should be estopped to challenge the right of the informally adopted child to inherit for equitable reasons. The author has found no Pennsylvania cases that have applied equitable estoppel to permit an informally adopted child to inherit from an intestate adoptive parent. Equitable estoppel requires 1) an inducement and 2) justifiable reliance on that inducement. Novelty Knitting Mills v. Siskind, 500 Pa. 432, 457 A.2d 502 (Pa. 1983). The Superior Court has held that equitable estoppel applied in the intestate succession context to prevent a parent from arguing that her former husband was not the father of their child where the father and mother had held themselves out as the parents of the child and the father had supported the child during the marriage. In re Estate of Simmons-Carton, 434 Pa. Super. 641, 644 A.2d 791 (Pa. Super. Ct. 1994). Without discussing the elements of equitable estoppel, the court held that fairness required holding both parents responsible for their conduct during the marriage regarding the paternity of the child.

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Applying equitable estoppel to the adoption context, if the prospective adopting parents induce the biological parents to turn over their child for purposes of adoption, there may be inducement for estoppel purposes. The biological parents may have been induced to turn over their child with the expectation that their child would have all the rights of a formally adopted child or a biological child. In this example, if the adoptive parents promised to adopt the child, the biological parents may have justifiably relied on that promise in the sense that they reasonably could have expected that their child would have the same right to inherit from her adoptive parents if they died intestate as a formally adopted or biological child would have. The child may have relied on her adoptive parents’ promise to adopt in the sense that the child, when she became an adult, would be justified in believing that she had the same intestate inheritance rights as a formally adopted or biological child. If the adoptive parents later challenge the adopted child’s right to inherit because they themselves never completed the adoption process, a court could hold that the surviving parent is estopped from seeking a declaratory judgment challenging the child’s right to inherit through intestate succession from the estate of a parent who died intestate: Having held the child out as his or her own, and having failed to formally adopt the child despite a promise to adopt the child, the surviving parent and the representative of the deceased parent’s estate should not be able to challenge the child’s right to a share of the adoptive parent’s intestate estate. Equitable Adoption Effected in Another State Applying the Susman and Kilby precedents, it is clear that Pennsylvania law supports a finding that a child brought into Pennsylvania from another state or country for purposes of adoption pursuant to a written  page 32

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 from page 30 adoption contract may be recognized as a beneficiary of an intestate’s estate. Based on the Restatement of Conflict of Laws, which Pennsylvania courts follow, Pennsylvania courts will recognize another state’s equitable adoption in the same way Pennsylvania courts recognize another state’s adoption decree: The Restatement of Conflict of Laws provides that “[a] state will usually give the same incidents to a foreign adoption that it gives to an adoption granted by its own courts.” Restatement, Second, Conflicts of Laws, Section 290 (1971) cmt. b. See also Rader v. Celebrezze, 253 F. Supp. 325 (E.D. Ky. 1966) (stating that Kentucky would recognize an Ohio equitable adoption for intestate succession purposes). Applying the restatement conflict of laws analysis, as the court did in Rader, supra, Pennsylvania courts may conclude that a child who is informally adopted pursuant to a contract executed in a state that recognizes equitable adoption — who is then brought to Pennsylvania and raised by Pennsylvania parents — has the same intestate inheritance rights as a child who was legally adopted in Pennsylvania. Simply put, Pennsylvania courts could hold that a child who was equitably adopted in another state has the same “incidents of that status” for Pennsylvania intestate succession purposes as those of a child who was formally adopted in another state and then brought to Pennsylvania. Those “incidents” include her right to inherit through intestate succession pursuant to 20 Pa. C.S. Section 2108. Conclusion When Pennsylvania residents die without a will, their issue have a right to a share of their estate. 20 Pa. C.S. Section 2103. And adopted children have the right to inherit from their adoptive parents under 20 Pa. C.S. Section 2108. Children who were never formally adopted may also be able to inherit through intestate succession under the doctrines of adoption by estoppel and

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MEDICAL MARIJUANA AND HEMP LAW SYMPOSIUM adoption by contract. A child brought to Pennsylvania from another state or country that recognizes equitable adoption pursuant to a written adoption contract may also have the right to inherit from their Pennsylvania adoptive parents if they die intestate. ⚖ •

•

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John B. Spitzer practices law in Merion Station, and published Screen Shots and Family Feuds (Scribe Inc., 2017). This estate planning book provides practical guidance concerning ways to avoid disputes involving digital and other assets. He also works for Scribe Inc., which offers editorial and production services to a wide range of legal, religious and association publishers.

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The cost of a divorce may not have any rational relationship with the objectives one party hopes to achieve.

Itâ&#x20AC;&#x2122;s Time for Pennsylvania to Adopt the Uniform Family Law Arbitration Act By Carolyn Moran Zack

The Pennsylvania Lawyer

March/April 2020

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n the 40 years since the adoption of Pennsylvania’s Divorce Code, family law practice has become more costly and less efficient. Parties with more than just a house and a bank account now typically hire experts to identify and/or value their assets and determine their net income available for support. Unless the parties agree on joint experts, each party has separate experts or sets of experts testifying on these issues. The parties, attorneys, and sometimes their experts, first appear before a master for at least one settlement conference on divorcerelated claims, such as equitable distribution, alimony and counsel fees, and then, in the absence of an agreement, at a hearing that (depending on the county) will be on- or off-the-record. In counties with off-

the-record hearings, the parties may file for a de novo hearing before the court, and the case must be presented again from the beginning. In most counties, a different master will address a party’s claims for child support, spousal support/alimony pendente lite and custody. These claims move along at varying paces depending on the master’s schedule and the court calendar. Claims related to the same family may ultimately end up before the same judge under the “one judge-one family” system, but this could take months, or years, if the case is particularly litigious. This scenario is exacerbated by the increasing number of unrepresented parties who may not know how to pursue or settle their cases and thus require the extra time and attention of court personnel.

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With divorce litigation in particular, there are many moving parts, and it is hard enough to coordinate a four- or five-way meeting, if not a day on which the master and all parties and experts are available for a settlement conference or trial. Due to the volume of cases, if trial is necessary, it may be scheduled months after the parties have submitted comprehensive memoranda, including appraisals, for a settlement conference. Thus, before the trial commences, the attorneys must obtain new appraisals, obtain and exchange updated statements and other financial documents and have their experts prepare updated reports. This is a cumbersome and time-consuming process. Getting divorced, in the absence of a settlement along the way, can cost thousands — if not tens of thousands of dollars. The cost may not have any rational

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Conducting family law arbitration within the rubric of the RUAA is like trying to ﬁt a square peg in a round hole.

The statute simply does not contemplate the unique considerations applicable to the arbitration of family law disputes.

relationship with the objectives one party hopes to achieve (especially with a recalcitrant or difficult party on the other side), and the courts do not typically award counsel fees or expert fees to either party absent significant need or other compelling circumstances. Family law arbitration is an appealing solution to this dilemma. The parties have a private forum, rather than a public courtroom, in which to “have their day in court.” The parties choose the person who will arbitrate the matter — typically an experienced family lawyer who has at least as much knowledge and experience in analyzing and resolving the issues as most family court masters or judges. The parties decide on the scope of the arbitration, which can include the economic claims as well as other claims, such as child support and child custody, with some caveats as explained below. The parties decide on the rules that apply to the arbitration. They decide where the arbitration will be held and the days on which the hearing or hearings will take place. The rules of procedure are somewhat more relaxed, and the arbitrator can work through the issues, with the input of the parties and experts, at a

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much quicker pace. The arbitrator’s decision is made shortly after the hearing concludes, and the right of appeal is limited only to major defects in the process that would undermine the fundamental fairness of the award. Thus, there is finality in the result. The costs of preparation and appearing at the arbitration, even including the payment for the arbitrator, pale in comparison to the costs of litigation. The overall expediency of arbitration promotes client satisfaction with the process. It is a winwin for clients and their attorneys. However, to date, Pennsylvania has no statute specifically authorizing or regulating family law arbitration. The Pennsylvania Revised Uniform Arbitration Act As of July 1, 2019, arbitration in Pennsylvania is governed by the Revised Statutory Arbitration Act, 42 Pa.C.S.A. § 7321.1 et seq., based on the Revised Uniform Arbitration Act (RUAA). The Pennsylvania RUAA is a welcome improvement in the arbitration law. The express objective of the new act is to make the proceedings fair, expeditious and cost effective. Among other things, the statute provides rules to

fairly resolve their disputes. Among other things, there is no statutory roadmap for the arbitration of child-related issues, which is permitted under the Superior Court’s holding in Miller v. Miller, 620 A.2d 1161 (Pa. Super 1993), subject to the court’s power to closely scrutinize and set aside the award.

decide the arbitrability of disputes; allows the court or the arbitrator to enter provisional remedies; requires disclosure by the arbitrator of facts that a “reasonable person” would consider likely to affect his or her impartiality; immunizes the arbitrator from civil liability to the same extent as a judge acting in a judicial capacity; gives the arbitrator broad authority to issue subpoenas, to order or limit discovery and enforce discovery orders; allows for the arbitrator to award reasonable attorneys’ fees and expenses as authorized by law or by the parties’ agreement and any other remedies the arbitrator deems just and appropriate under the circumstances and specifically sets forth the limited grounds on which an award can be modified or vacated. However, conducting family law arbitration within the rubric of the RUAA is like trying to fit a square peg in a round hole. The statute simply does not contemplate the unique considerations applicable to the arbitration of family law disputes. As a result, there are gaps in the current arbitration law as applied to family law claims and, consequently, lingering questions among parties and practitioners about whether arbitration can adequately and

The RUAA also fails to provide needed guidance on family law issues such as the scope of the arbitrator’s authority on potential family law claims; which state’s substantive law will apply to the arbitration; whether predispute arbitration clauses will be upheld; what special considerations, if any, should be given to parties who are victims of domestic violence; whether the arbitrator has the power to meet with a child, appoint a representative for the child and impose procedures to protect a party or child from risk of harm; and whether the arbitrator can sanction bad faith conduct of a party or award a remedy other than in accordance with the law. The Uniform Family Law Arbitration Act (UFLAA), which was approved and recommended by the Uniform Law Commission (ULC) in 2016, would fill in these gaps and promote the use of arbitration to achieve a fair and expeditious resolution of family law issues in this state. The Uniform Family Law Arbitration Act The ULC addressed the key question of whether child custody and child support should be subject to arbitration and concluded that, while some states disagree, most states permit arbitration of these issues provided that meaningful judicial review is preserved. Courts in at least one state (i.e., New Jersey) have held that parents have a constitutional right to resolve their custody disputes by arbitration. The ULC recognized that a minority of states disallowed arbitration of some or all childrelated issues by statute or case law. In order to accommodate the states that do not allow child-related issues to be arbi-

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PEOPLE TO PEOPLE

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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, black and white or color. 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.

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trated, the UFLAA presumptively applies to child-related disputes but includes an opt-out provision. The UFLAA includes safeguards to preserve the parens patriae power of the court to protect children. For example, Section 14 requires that all arbitration proceedings, including child-related disputes, must be recorded; Section 15 requires that any award determining a child-related dispute must state the reasons on which it is based, unless otherwise agreed to by the parties; Section 16 requires that the court find child-related awards are in the child’s best interest and comport with the law before confirming the award. Further, Section 12 provides for protection of a child in requiring that the arbitrator terminate the arbitration of a child-related dispute and report suspected abuse or neglect of a child who is the subject of the proceeding. Pennsylvania should be an “opt-in” state for purposes of this provision, subject to the built-in safeguards. The UFLAA properly restricts an arbitrator from granting a legal separation, divorce or annulment; terminating parental rights; granting an adoption or guardianship of a child or determining a child is dependent. The UFLAA also properly requires that, in determining the merits of the dispute, the arbitrator applies the laws of the state, including its choice of law rules. The ULC noted that this provision allows the parties to define the decision-making criteria for a given family law dispute — for example, pet custody, which is of interest to many clients — in their arbitration agreement so long as it does not violate the state’s choice of law rules. The UFLAA also permits parties to agree to arbitrate disputes that may arise in the future, except that, as to any child-related dispute, the parties must affirm the agreement after the dispute arises unless it was approved by the court and entered as an order in the proceeding. The UFLAA has several provisions aimed at providing protections for victims of

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domestic violence. If an arbitrator has not already been chosen by the parties in their agreement, the default requirements for an arbitrator who is appointed include that he or she is a lawyer in good standing admitted to practice (or on inactive status or a judge on retired status), with training in recognizing intimate-partner and child abuse. In addition, a party has an absolute right to be accompanied by an individual who will not be called as a witness or act as an advocate. Further, if a party is subject to an order of protection or if the arbitrator finds that the party’s safety or ability to participate effectively in the arbitration is at risk, the arbitration must be suspended unless the party who is at risk reaffirms a desire to arbitrate and the court allows it. Thus, the UFLAA emphasizes the arbitrator’s need to be sensitive to issues related to domestic violence and seeks to ensure that each party freely and voluntarily chooses to participate in the process. Finally, the UFLAA expressly gives the arbitrator broad powers to select the rules for the arbitration, conduct prehearing conferences and the hearing, administer oaths to the parties and witnesses, allow prehearing discovery, determine the admissibility of evidence, subpoena witnesses or documents on his or her own initiative or at the request of a party and impose sanctions on a party for bad faith or misconduct during the arbitration (as would be available in a family law proceeding). These provisions buttress the litigants’ ability to obtain full disclosure of information that is necessary to effectively prepare and pursue their economic claims. The UFLAA also gives the arbitrator certain family-law specific powers, such as the ability to meet with a child, appoint a representative for a child and impose procedures to protect a party or child from risk of harm, harassment or intimidation. The arbitrator does not have the power to alter the parties’ arbitration agreement or to award a remedy not authorized by law. The UFLAA also expressly provides that the parties may proceed on requests for modification of a confirmed award

either with arbitration, if provided for in the award, or in court if they choose not to pursue arbitration. Conclusion The UFLAA was approved by the American Bar Association in 2017 and, to date, has been enacted in three states: Arizona, Hawaii and, effective Aug. 1, 2019, North Dakota. Family law arbitration is on the rise in Pennsylvania but has not yet gained the recognition that it should. Many litigants and practitioners are unfamiliar with the benefits of arbitration and with the arbitration process itself, which under the current law, may vary widely from county to county and among individual arbitrators. The UFLAA’s adoption in Pennsylva-

Adoption of the UFLAA in Pennsylvania would promote consistency and predictability in arbitration awards.

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The UFLAA includes safeguards to preserve the parens patriae power of the court to protect children. Depressed? Stressed? Anxious? Overwhelmed?

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nia would provide much-needed guidance as to the best practices and procedures for arbitration in the family law context and thereby promote consistency and predictability in arbitration awards. Enactment of the UFLAA would also establish family law arbitration as a favored and reliable method of alternative dispute resolution in Pennsylvania. Improved outcomes — in terms of cost-efficiency, expediency and sometimes even overall result — will make for more satisfied clients and, therefore, happier and more successful family lawyers. ⚖ •

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Carolyn Moran Zack is a partner at Momjian Anderer LLC, a Philadelphia-based law firm focusing exclusively on family law. Her practice includes family law litigation, arbitration, mediation and parenting coordination. She can be contacted at 267-546-3700 or czack@momjiananderer.com. If you would like to comment on this article for publication in our next issue, please email us at editor@pabar.org.

Ju d ge le ss J ury S ele ction s : A Trouble s o m e Tre n d By Daniel E. Cummins

ne of the most important duties of a judge is to preside over a jury trial and ensure that all parties involved are provided with a level playing field and a fair trial. One of the most important parts of a jury trial is jury selection. Shouldnâ&#x20AC;&#x2122;t it then necessarily follow that a judge should be on the bench and presiding over voir dire as it occurs?

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One of the most important parts of a jury trial is jury selection. A recent trend in at least the state courts of Pennsylvania involves judges leaving the bench and going back to their chambers while the litigating attorneys take over the process of voir dire. As a result, there have been a few cases that have gone up the appellate ladder involving issues raised due to the absence of the trial court judge from the bench during the selection of the jury at the trial below. One of these cases, Trigg v. Children’s Hospital of Pittsburgh, is poised to be decided by the Pennsylvania Supreme Court. A Judge’s Firsthand Viewing of a Juror is Essential In the case of Trigg v. Children’s Hospital of Pittsburgh, 187 A.3d 1013 (Pa. Super. May 14, 2018 Bowes, J., Olson, J., and Kunselman, J.)(Op. by Kunselman, J.), appeal granted, 201 A.3d 145 (Pa. 2019), the Pennsylvania Superior Court reversed a trial court’s denial of post-trial motions in

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March/April 2020

a medical malpractice case regarding, in part, jury selection issues. According to the opinion, in certain trials in Allegheny County, only a court clerk presides over voir dire. Any issues raised during the course of questioning a potential juror would require the litigating attorneys and the clerk to go to another office to meet with the absent trial judge for a decision on whether to strike a juror. As such, in deciding whether or not to strike the juror, the trial court judge would not have any firsthand perception of a juror’s demeanor in response to questions posed by the attorneys during jury selection. Rather, that judge would have to rely upon the attorneys’ secondhand and potentially biased recitation of the questions and answers exchanged with the juror. The Superior Court in Trigg ruled that, given the fact that a firsthand perception of a juror’s demeanor is the basis for the appli-

cation of the palpable error deference standard of review on appeal for voir dire issues, decisions on jury strikes made by judges who do not attend jury selection should not be afforded that higher type of deference by the Superior Court on appeal. The Superior Court in Trigg ruled in this fashion after noting that the alleged demeanor of a prospective juror cannot be reconstructed after the fact by attorneys attempting to relay the same to the formerly absent trial judge. The Superior Court ruled that “a judge personally witnessing the original voir dire is essential, because it justifies our — and the losing party’s — faith in the trial court’s rulings on challenges for cause.” Id. at p. 1018.

The Superior Court’s decision in Trigg is in line with the Pennsylvania Supreme Court’s previous jury selection decision in the case of Shinal v. Toms, 162 A.3d 429 (Pa. 2017). In Shinal, the Pennsylvania Supreme Court ruled that whether a juror is to be stricken during voir dire is dependent upon the trial judge’s firsthand assessment of the juror’s demeanor and the juror’s answers to the questions posed regarding whether the juror is capable of putting aside any biases so as to be able serve in a fair and impartial manner. For example, the Supreme Court in Shinal noted that a trial court judge’s personal viewing of any “[h]esitation, doubt, and nervousness indicating an unsettled mind” on the part of a potential juror is important to the analysis on whether that juror

The alleged demeanor of a prospective juror cannot be reconstructed after the fact.

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March/April 2020

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Jurors may become confused and nervous when a judge leaves the bench.

is being open and honest about his or her ability to be fair and impartial if selected to sit in judgment of the parties on the case presented. Awaiting the Supreme Court’s Take The Trigg case has continued up the appellate ladder. In an order handed down on Jan. 23, 2019, the Pennsylvania Supreme Court granted allocatur on the appeal of this case. In its brief order granting allocatur, the Supreme Court agreed to hear argument on issues that included: “a. Whether the Superior Court’s decision conflicted with the jurisprudence of this Honorable Court and other Superior Court decisions by failing to apply the ‘palpable error’ abuse of discretion standard of review and properly defer to the trial court? b. Whether the Superior Court’s holding directly conflicts with Shinal v. Toms, 162 A.3d 429 (Pa. 2017), which requires the denial of a strike

for cause of a prospective juror when the prospective juror is willing and able to eliminate influences and render a verdict according to the evidence? c. Whether the Superior Court improperly considered arguments regarding juror demeanor when those arguments were waived?” According to the docket, oral arguments took place before the Pennsylvania Supreme Court in the Trigg case on Oct. 15, 2019. At the time this article went to press, the court had not handed down a decision. The Issue Revisited In the meantime, the Superior Court addressed this issue again in the case of Smith v. Cordero, 2019 Pa. Super. 340 (Pa. Super. Nov. 15, 2019 Panella, P.J., Stabile, J., McLaughlin, J.) (Op. by McLaughlin, J.). In Smith v. Cordero, which also began in Allegheny County, the Superior Court ruled that a trial court

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erred in denying an estate’s motions to strike two jurors in a medical malpractice case for cause where the jury selection was conducted by a court clerk and where the jurors had expressed the view that medical malpractice lawsuits had affected the cost and availability of medical services. In light of this ruling, the Superior Court vacated the judgment in the underlying case. Interestingly, the Superior Court in Smith v. Cordero noted that the previous decision in the case of Trigg v. Children’s Hospital of Pittsburgh, supra, did not serve to impose a requirement that a trial court judge be present during voir dire, but rather only held that a different appellate standard of review on a jury selection issue must be applied where a trial judge did not participate in the voir dire.

Given that the jurors’ answers expressed the “slightest ground of prejudice” required for their dismissal from the jury pool, the Superior Court judges in Smith v. Cordero stated that the trial court should have granted the motions to strike the jurors for cause. As such, while it appears under the Smith v. Cordero case that a trial court judge may not be required to be on the bench at the time of jury selection, the Pennsylvania Superior Court has again strongly suggested that it is the better practice for a judge to be present during voir dire to assess the demeanor and testimony of a potential juror when that juror is first questioned regarding his or her ability to be fair and impartial to with respect to the parties involved. The Better Practice

The Superior Court in the Smith case held under the less deferential standard of review that, while the two jurors at issue stated that they could still follow the judge’s instructions and be fair and impartial, the trial court judge was not present to hear the jurors’ tone of voice or to address their demeanor when they provided this information. As such, the Superior Court found that the trial court judge could not know whether the jurors could really be fair and impartial.

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It remains to be seen whether the Pennsylvania Supreme Court in its anticipated decision on the Trigg case will vocalize an admonition to trial court judges to stay on the bench for jury selection to avoid these issues or, instead, take the approach of the Superior Court judges in the Smith v. Cordero case and simply note that, if a trial court judge chooses to leave the bench for voir dire, then a different standard of review on that issue will be applied on appeal.

be shy about granting the appellant a new trial based, in part, on the fact that the judge did not preside over the voir dire in the case below. The vacating of the judgments in those cases caused those two medical malpractice cases to be tried all over again. As such, the interest of judicial economy would be served by trial court judges remaining on the bench in order to prevent the granting of a new trial on this simply avoidable issue. ⚖

Obviously, the better practice is for a trial court judge to remain on the bench for jury selection to avoid this issue altogether. As stated at the outset, one of the most fundamental job duties of a judge is to ensure that the parties are given a fair trial and one of the most important parts of a trial is the selection of a jury. Also, the lay people who serve as jurors expect that the judges they elect to the bench will do their jobs and be on the bench during the entire trial. Jurors, who see judges presiding over jury selection whenever it is depicted on television or in the movies, may be confused and perhaps even more nervous when a judge leaves the bench and they are left with the litigating attorneys, some of whom can be aggressive with their voir dire questioning of the jurors.

•

Lastly, by staying on the bench and overseeing the voir dire process, the trial court judge can eradicate the recurring appellate issue caused by the absence of the judge. As the Trigg case and the Smith v. Cordero case both confirm, the appellate court may not

•

Daniel E. Cummins is managing attorney at the Clarks Summit law firm of Cummins Law. He focuses his practice on motor vehicle accident liability cases, uninsured and underinsured motorist arbitration matters, and product liability and premises liability cases and also serves as a mediator in these types of cases. He is also the sole creator and writer of the Tort Talk Blog at www.TortTalk.com. He can be reached at dancummins@CumminsLaw.net. If you would like to comment on this article for publication in our next issue, please email us at editor@pabar.org.

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A party seeking to suspend the enforcement of a trial court order during an appeal must obtain a supersedeas.

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Supersedeas and Stays Following Appeals from Pennsylvania Trial Courts to the Appellate Courts By Virginia Hinrichs McMichael

ne of the more confusing areas of Pennsylvania appellate practice involves the scope of a trial court’s power after the filing of a notice of appeal. The general rule is that once an appeal is taken, the trial court may no longer proceed further with the matter. Pa.R.A.P. 1701(a); Rosen v. Rosen, 549 A.2d 561, 564 (Pa. 1988). There are, however, a number of important exceptions to the general rule.

Trial court’s powers after filing notice of appeal While an appeal is pending, the trial court may, among other things, take action to preserve the status quo, correct formal errors, cause the record to be transcribed, grant leave to appeal in forma pauperis and grant supersedeas. Pa.R.A.P. 1701(b)(1). The court may also grant reconsideration, authorize the taking of depositions, take actions authorized by an appellate court or proceed further in any matter in which a nonappealable interlocutory order has been entered. Pa.R.A.P. 1701(b). A trial court also retains the power to add prejudgment interest and attorneys’ fees. See TruServ Corp. v. Morgan’s Tool & Supply Co., Inc. 39 A.3d 253, 264 (Pa. 2012) (prejudgment interest); Samuel-Bassett v. Kia Motors Am., Inc. 34 A.3d 1, 48 (Pa. 2011) (attorneys’ fees). An appeal or petition for review proceeding, however, only operates to prevent the trial court or other governmental unit from proceeding further with the same “item, claim, or assessment.” Pa.R.A.P. 1701(c). The limita-

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The federal rules, unlike the Pennsylvania rules, do not specify the amount and conditions of a supersedeas bond.

tion to the same “item, claim, or assessment” prevents appeals of collateral issues from delaying resolution of the case where the proceeding below can proceed without prejudicing the appellant’s rights. Rosen, 549 A.2d at 564. See Beasley v. Beasley, 518 A.2d 545, 548-49 (Pa. Super. 1986) (appeal of appraisal order did not stay proceedings in underlying divorce case). A trial court retains the power to enforce its order Absent a supersedeas, a trial court retains the inherent power to enforce its orders after the filing of a notice of appeal. Pa.R.A.P. 1701(b)(2); Brocker v. Brocker, 241 A.2d 336, 337 (Pa. 1968). The power to enforce an order, however, does not include the power to make substantive changes. Pennsylvania. Indus. Energy Coalition v. Pennsylvania PUC, 653 A.2d 1336, 1344-46 (Pa. Cmwlth. 1995), aff ’d 670 A.2d 1152 (1996). Where a trial court’s Rule 1925 opinion acknowledges a substantive error, rather than proceed with the appeal, counsel should file with the appel-

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late court an application to remand the case to allow the trial court to correct the error. See Pa.R.A.P. 123. Supersedeas vs. stay A party seeking to suspend the enforcement of a trial court order during an appeal must obtain a supersedeas. In civil actions, some governmental entities are entitled to an automatic supersedeas upon the filing of a notice of appeal or petition for allowance of appeal (but not a petition for review). Pa.R.A.P. 1736(b), 1781. Although the terms stay and supersedeas are often used interchangeably, a stay is not the same as a supersedeas. A stay stops the proceedings from going forward and prevents the court from taking action prospectively. A supersedeas operates retroactively and supersedes the effect of the order during the pendency of the appeal. The parties are therefore returned to the status that existed before the trial court entered the order on appeal. See A.S.C. v. N.B.C., 747 WDA 2018, 2019 Pa. Super. Unpub.

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LEXIS 3296 (Aug. 28, 2019) (trial court order granted stay but noted that court’s order was “in place until further Order of Court” so there was no supersedeas). A supersedeas order is not an appellate ruling on the merits of the judgment below and does not open, strike off or vacate the judgment, remove the judgment from the record or otherwise render it invalid. Goodstein v. Goodstein, 619 A.2d 703, 706 (Pa. Super. 1992), app. dismissed, 639 A.2d 1180 (Pa. 1994). Rather, “a supersedeas order is an auxiliary process designed to supersede or hold in abeyance the enforcement of the judgment of an inferior tribunal.” Id. Supersedeas of an order for the payment of money Pennsylvania Appellate Rule 1731(a) provides that the posting of security will result in an automatic supersedeas of an order for the payment of money. Payment is often made by means of a supersedeas bond, which is a contract in which the

surety obligates itself to pay a final judgment rendered against the principal. N. Coventry Twp. v. Tripodi, 64 A.3d 1128, 1134 (Pa. Cmwlth. 2013). The bond is designed to “supersede” the enforcement of the trial court’s judgment. Id. Security is defined as “120% of the amount found due by the lower court and remaining unpaid” plus interest, costs and delay damages, but not other amounts appellant may owe that are not part of the judgment in question. Pa.R.A.P. 1731(a); N. Coventry Twp., 64 A.3d at 1134. The bond or other security must be paid within 30 days from the entry of the order appealed from and must be filed with the clerk of the lower court. Pa.R.A.P. 1731(a), 1735(a). Payment of less than 120% will not result in a supersedeas. See Decatur Contracting v. Belin, Belin & Naddeo, 898 F.2d 339, 345, n.6 (3d Cir. 1990) (applying Pennsylvania law). But “where the amount is payable over a period of time, the amount found

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The trial court has broad discretion to grant or deny a stay pending appeal.

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due for the purpose of this rule shall be the aggregate amount payable within 18 months after entry of the order.” Pa.R.A.P. 1731(a). In domestic relations matters, supersedeas of an order awarding child support, spousal support, alimony, alimony pendente lite, equitable distribution or counsel fees requires the posting of security, with the amount and terms of security to be determined by the trial court. Pa.R.A.P. 1731(b).

Failure to obtain a supersedeas or stay may also render an appeal moot.

The trial court has the power to “order otherwise.” Pa.R.A.P. 1731(a). The court may order that payment of money will not result in an automatic supersedeas. Pa.R.A.P. 1737. It may also deny supersedeas to a political subdivision entitled to an automatic supersedeas under Pa.R.A.P. 1736(a). Pa.R.A.P. 1737(a)(1); School Dist. of Borough of Aliquippa v. Pa. State Educ. Ass’n., 381 A.2d 1005 (Pa. Cmwlth. 1977) (denying appellant school district’s application for supersedeas of order enjoining a teachers’ strike). The trial court may also eliminate security completely or order that security be modified to be greater than or less than 120%. Pa.R.A.P. 1737. The court may “impose such terms and conditions as it deems just” and may require specific performance as well as a monetary payment. Rule 1733(a); Linde v. Linde, 217 A.3d 416 (Pa. Super. Unpub. May 21, 2019) (trial court did not abuse discretion when it approved supersedeas bond conditioned on appellant also executing documents held in escrow). A stay of execution on a judgment also stays discovery in aid of execution. Linde, 217 A.3d 416. Federal Rule 62 In the federal courts, F.R.C.P. 62 governs the stay of proceedings to enforce a judgment. Stays of money judgments during the pendency of an appeal are governed by Rules 62(d) and 62(f ). Rule 62(f ) provides that “if a judgment is a lien on the judgment debtor’s property under the law of the state where the court is located, the judgment debtor is entitled to the same

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March/April 2020

stay of execution the state court would give.” If the judgment debtor is able to satisfy the requirements of Rule 62(f ), the district court must grant the stay. Rule 62(d) automatically stays a monetary judgment upon the posting of a supersedeas bond. As in state court practice, an appellant may appeal without posting a bond, but the filing of the notice of appeal will not stay execution on the judgment. The federal rules, unlike the Pennsylvania rules, do not specify the amount and conditions of a supersedeas bond, but leave it to the discretion of the court. What is appropriate security? Rule 1734(a) defines “appropriate security” to include U.S. legal tender, U.S. Treasury bills and certificates of deposit from a Federal Deposit Insurance Corp. (FDIC)-insured bank or savings and loan with offices in the commonwealth. Pa.R.A.P. 1734(a)(1); 1734(a)(2). Security may also be in the form of a bond executed by a surety company qualified under Section 664 of the Insurance Company Law of 1921 (40 P.S. § 835) in the county from which the appeal is taken. Pa.R.A.P. 1734(a)(3). Alternatively, the bond may be one approved by the court. Pa.R.A.P. 1734(a)(4). Rule 1734 sets forth the requirements of the bond and the scope of liability of sureties. Pa.R.A.P. 1734(c). The Process Gas criteria Orders not requiring the payment of money can only be superseded or stayed upon the filing of an application with the trial court. Pa.R.A.P. 1732(a). The trial court has broad discretion to grant or deny a stay pending appeal. In re Estate of Hartman, 582 A.2d 648, 653 (Pa. Super. 1990). The court also has the power to impose conditions. See Linde, 217 A.3d 416. In 2019, the Pennsylvania Supreme Court amended the official notes to Pa.R.A.P.

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1732 to formally acknowledge that the Pennsylvania courts apply the criteria set forth in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983) to evaluate a request for a stay pending appeal. Under Process Gas, a stay pending appeal is warranted if: 1) the petitioner has made a strong showing that it is likely to prevail on the merits of the appeal; 2) the petitioner has shown that without such relief, it will suffer irreparable injury; 3) the issuance of a stay will not substantially harm other parties interested in the proceedings and 4) the issuance of a stay will not adversely affect the public interest. Process Gas, 467 A.2d at 808-09.

an appellate court is moot if in ruling on it the court cannot enter an order that has any legal force or effect. Commonwealth v. T.J.W., 114 A.3d 1098, 1102 (Pa. Super. 2015). In a mortgage foreclosure action, for example, the failure to obtain a supersedeas will allow the property to proceed to a sheriff sale. Once the property is sold and the deed transferred, the appeal becomes moot because the appellate court can no longer grant relief. See Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574, 577-78 (Pa. Super. 2005) (dismissing appeal as moot).

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Consequences of compliance with order in lieu of obtaining supersedeas Although obtaining a supersedeas can be cumbersome and costly, and the failure to obtain a supersedeas or stay may render an appeal moot, counsel should be wary of the alternative, which is to comply with the order.

Since Process Gas was decided, the Pennsylvania courts have applied its criteria as a balancing of the equities, without giving any one criterion more weight than another. See, e.g., Reading Anthracite Co. v. Rich, 577 A.2d 881 (Pa. 1990). Process Gas applies to criminal as well as civil matters. Com. v. Melvin, 79 A.3d 1195, 1199-2000 (Pa. Super. 2013), Pa.R.A.P. 1764 (Explanatory Comment — 1976). If the trial court does not grant relief, the procedure is to file an application with the appellate court. Pa.R.A.P. 1732(b). In the case of a petition for allowance of appeal to the Supreme Court, application for relief under Rule 1732(a) should be made to the intermediate appellate court. Consequences of failing to obtain supersedeas or stay Where a party does not obtain a supersedeas, a court may impose contempt sanctions for the party’s failure to comply with the order. See Tanglwood Lakes Cmty. Ass’n. v. Laskowski, 616 A.2d 37, 39 (Pa. Super. 1992); Glynn v. Glynn, 789 A.2d 242, 245 n. 4 (Pa. Super. 2001) (trial court had power to enforce alimony order and impose contempt sanctions where husband appealed but did not obtain supersedeas). Failure to obtain a supersedeas or stay may also render an appeal moot. An issue before

Pa.R.A.P. 501 provides that only aggrieved parties have standing to appeal. A party who consents to or acquiesces in the underlying order is not “aggrieved” and lacks standing to appeal. See Miller v. Miller, 744 A.2d 778, 783 (Pa. Super. 1999). An appeal by a party who is not aggrieved will be quashed. See Miller v. Bd. of Property Assessment, Appeals & Review of Allegheny County, 703 A.2d 733, 736 (Pa. Cmwlth. 1997). As helpful as this review may be, there is, of course, no substitute for a careful reading of the rules and case law in this important and sometimes confusing area of appellate practice. ⚖ •

•

Virginia Hinrichs McMichael is managing attorney of Appellate Law Group LLC, a WBENC-certified woman-owned appellate law boutique based in Radnor; www.appellatelawpa.com. If you would like to comment on this article for publication in our next issue, please email us at editor@pabar.org.

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Tell Us Your Favorite ‘War Story’

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

‘WAR STORIES’

You have the right to remain silent …

y 74-year-old client was that guy every defense attorney talks about as never having had a parking ticket. He was charged with driving under the influence of alcohol. I had been a licensed Pennsylvania attorney for all of one month when I introduced myself as his public defender, appointed to represent him at his preliminary hearing. “I have to tell the judge what happened,” were his first words. “No,” I countered, “you should not say anything. The prosecutor and his witnesses have to tell the judge what happened.” “You don’t understand,” said my client. “I have to tell the judge it was an accident.” “Sir, I cannot do my job for you if you don’t follow my advice,” I again cautioned. “Now promise me you won’t say a word unless I ask you to speak, OK?” “OK,” he relented. The commonwealth’s witness, a bus driver, said he had stopped his bus at a red light when he felt a

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jolt from behind the bus. He looked into both side view mirrors, but saw nothing. Being sure that something had struck the rear of the bus, he moved the gear shift into park, engaged the parking brake, and then exited the bus through the right front door. He briskly walked to the rear of the bus where he saw a sedan crashed into the bus, the driver’s door wide open, and my client leaning against the trunk of the car, appearing to be quite intoxicated. To either side of the road were dense woods. “How long did it take from the time you felt the impact until the time you saw the car and my client,” I asked, “30, 45 seconds?” “No,” said the bus driver, “probably more like 20-30 seconds.” “So,” I went on, “during the 20-30 seconds when you couldn’t see anything, you have no way of knowing whether someone else was driving that car and then jumped out of the car through that wide-open door and ran into the woods, do you?” From slightly behind me I heard, as did everyone else, “There was no one in that car but me.” The usually stoic magistrate could not hold back a smile as she ruled, “Well, with a little help from our friend, held for court.” Judge Anthony M. Mariani Pittsburgh

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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.

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ETHICS DIGEST

PBA Legal Ethics and Professional Responsibility Committee Formal Opinion 2019-100 Ethical Considerations Relating to Compensation of Fact Witnesses Summary Pennsylvania Rules of Professional Conduct (RPC) 3.4 (Fairness to Opposing Party and Counsel), paragraphs (b)(1) and (2), expressly authorize a lawyer to pay “reasonable” compensation to a fact witness for time devoted to attending and testifying at a proceeding and expenses incurred in connection therewith. There is nothing in the RPCs that prohibits a lawyer from paying reasonable compensation to a fact witness for time devoted to preparing to testify or expenses incurred in connection therewith. What is “reasonable” compensation or reimbursement will vary depending upon the unique circumstances of each case, subject, however, to RPC 3.4(b)’s express prohibition against payment of compensation that is “contingent upon the content of the witness’ testimony or the outcome of the case.” The compensation and reimbursement arrangement must necessarily be transparent, as it will potentially be subject to disclosure, either during the discovery process or during cross-examination. Discussion Pennsylvania RPC 3.4(b), which addresses compensation of a fact witness for loss of time and reimbursement of expenses incurred in attending or testifying at a proceeding as well as compensation and reimbursement of expenses of an expert witness for professional services, provides as follows: A lawyer shall not: … (b) falsify evidence, counsel or assist a witness to testify falsely, pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’ testimony or the outcome of the case; but a lawyer may pay, cause to be paid, guarantee or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for the witness’ loss of time in attending or testifying, and (3) a reasonable fee for the professional services of an expert witness. The topic of witness compensation is also addressed in Comment [3] to RPC 3.4, which provides: With regard to paragraph (b), it is not

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improper to pay a witness’s expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee. This opinion addresses the question of whether the RPCs permit a lawyer to pay compensation to a fact witness for time devoted to preparing to give testimony or reimbursement of expenses incurred in connection therewith. “One of the most fundamental rules used when determining the meaning of a statute or rule is that the court must begin with the plain meaning of the language used in that statute or rule.” Ludmer v. Nernberg, 699 A.2d 764, 765 (Pa. Super. 1997). Based upon the plain meaning of its language, RPC 3.4(b) does not preclude a lawyer from paying reasonable compensation to a fact witness for time devoted to preparing for testimony or reasonable expenses incurred in connection therewith so long as such compensation is not “contingent upon the content of the witness’ testimony or the outcome of the case.” This is true notwithstanding the language of RPC 3.4(b)(1) and (2), which expressly state that a lawyer may pay reasonable compensation to a witness for the witness’s loss of time and expenses incurred in “attending or testifying” but do not

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expressly state that compensation may be paid to a witness for loss of time or expenses incurred in preparing to testify. Nor does Comment 3 to RPC 3.4, quoted above, override the plain language of the rule. Notwithstanding the plain meaning interpretation noted above, some authorities have found RPC 3.4(b) to be ambiguous on the permissibility of paying compensation to a fact witness for time spent preparing to testify. This ambiguity purportedly arises from the fact that, while RPC 3.4(b)(1) and (2) expressly authorize the payment of compensation to a witness (including a fact witness) for the witness’s loss of time and reimbursement of expenses incurred in “attending or testifying,” the rule does not expressly refer to time spent or expenses incurred in “preparing to testify.” Accordingly, the rule of statutory interpretation expressio unius est exclusio alterius (expression of one thing is the exclusion of others not expressed) would lead to the conclusion that compensation for time spent and expenses incurred in trial preparation is not authorized. However, even if RPC 3.4(b) is found to be ambiguous, we believe that a fair interpretation of the rule does not preclude the payment compensation to a fact witness for time devoted to trial preparation or reimbursement of expenses incurred in connection therewith. First, the differing text applicable to fact and expert witnesses should be noted. Section (b)(3), relating to expert witnesses, uses a term “fee for services,” not used in relation to fact witnesses. A fact witness is treated completely differently — a fact witness gets no “fee” but only (1) reimbursement for out-of-pocket expenses or (2) compensation for time lost. That difference is appropriate, as an expert is acting as a professional service provider. The role of a fact witness is solely to recount facts. Both sections (b)(1) and (b)(2) express that it is ethically permissible to compensate a fact witness for expenses and time spent “in” testifying or attending. Neither uses a term such as “while” testifying. The committee believes that interpreting the

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sections as though they mean “while” places an unduly limiting construction on their meaning. Moreover, interpreting RPC 3.4 to allow payment of compensation to fact witnesses for time devoted and reimbursement of expenses incurred in trial preparation is also consistent with the obligations of a lawyer under other Rules of Professional Conduct. Pursuant to RPC 1.1, lawyers must provide “competent” representation to each client — using the “ … skill, thoroughness and preparation reasonably necessary for the representation.” Lawyers must also provide “diligent” representation to each client “ … with commitment and dedication to interests of the client and with zeal in advocacy upon the client’s behalf. …” [RPC 1.3]. These obligations of competence, thoroughness and diligence arguably include, when appropriate, locating and preparing

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March/April 2020

the appropriate witnesses to provide accurate testimony, including document review and discussions with counsel. It would hinder such thorough preparation to prohibit an attorney from compensating a witness for expenses or time spent in preparing to testify accurately. The facts in Philadelphia Bar Association Professional Guidance Committee Opinion 2014-2 (Philadelphia Guidance Opinion 2014-2) illustrate this issue. There, the witness needed to review documents and refresh recollection — otherwise, the witness’s trial testimony would be limited to “I do not remember.” Philadelphia Guidance Opinion 2014-2 therefore concluded that reasonable, transparent compensation for witness preparation time was permitted under RPC 3.4(b). The discussion of RPCs 1.1 and 1.3 above supports our conclusion that RPC

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ETHICS DIGEST

3.4 does not preclude a lawyer from providing compensation or reimbursement of expenses to a fact witness for trial preparation in an appropriate case. The committee expresses no opinion, however, on whether fulfillment of a lawyer’s duty of competence under RPC 1.1 or duty of diligence under RPC 1.3 would require that the lawyer pay the expenses of or compensation to any witness in any particular case. Our conclusion that RPC 3.4 does not preclude providing compensation or reimbursement of expenses to fact witnesses for trial preparation is consistent with Formal Opinion 96-402 of the ABA Standing Committee on Ethics and Professional Responsibility (ABA F.O. 96-402), which states: “The committee also sees no reason to draw a distinction between (a) compensating a witness for the time spent in actually attending a deposition or a trial and (b) compensating the witness for time spent in pretrial interviews with the lawyer in preparation for testifying, as long as the lawyer makes it clear to the witness that the payment is not being made for the substance (or efficacy) of the witness’s testimony or as an inducement to ‘tell the truth.’ The committee is further of the view that the witness may also be compensated for time spent in reviewing and researching records that are germane to his or her testimony, provided, of course, that such compensation is not barred by local law … the amount of such compensation must be reasonable, so as to avoid affecting, even unintentionally, the content of a witness’s testimony.” In response to Inquiry No. 95-126A, a member of this committee noted that RPC 3.4(b) contained no express prohibition against compensating a fact witness for time spent preparing to testify but nevertheless suggested that the absence of express authorization for such payment in the RPCs or in the Pennsylvania witness compensation statute (42 Pa. C.S.A. § 5903) could lead to the inference that such payment was “disfavored,” and that it could not be stated “with certainty that

compensating a nonexpert for preparation time is not without risk of disciplinary enforcement action.” For the reasons discussed above, the committee now disavows the views expressed in response to Inquiry No. 95-126(A). The committee’s conclusion is informed and supported by numerous ethics opinions, including not only ABA F.O. 96-402 and Philadelphia Guidance Opinion 20142, referenced above, but also from numerous other states. California State Bar Standing Committee on Professional Responsibility and Conduct, Opinion 1997149, 1997 WL 197243 (“Since rule 5-310(B)’s three numbered subparagraphs [the same as RPC 3.4] are arguably neither conclusive nor comprehensive but serve as examples of payments to witnesses that are not prohibited by the rule, the committee believes that a witness may be compensated under other circumstances which are not specified in the numbered paragraphs.”) Illinois State Bar Association Advisory Opinion 87-5, 1988 WL 525079; South Carolina Bar Ethics Advisory Committee Opinion 02-10, 2002 WL 1999948; New York State Bar Association Ethics Opinion 547, 1982 WL 31701; West Virginia Lawyer Disciplinary Board Opinion 2017-01; see also, Restatement (Third) of the Law Governing Lawyers, § 117, Comment b. The Restatement (Third) of the Law Governing Lawyers § 117, Cmt. b interpreted subsection (1) of RPC 3.4 to permit such payments. The RPCs offer no guidance as to what is “reasonable” beyond the overarching command in RPC 3.4(b) that compensation not be “contingent upon the content of the witness’ testimony or the outcome of the case.” Different standards will apply in assessing what is “reasonable” compensation for a fact witness, as compared to an expert witness. What is reasonable or appropriate expert compensation will largely be driven by market factors, such as the expert’s particular field of specialization, the expert’s credentials and reputation in that field, as well as what competing experts in

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the field charge. On the other hand, with a fact witness, the focus must be on what that particular witness is “losing” by devoting time to attending and testifying, or preparing to testify. The assessment of what is “reasonable” compensation for a fact witness will hinge upon the particular circumstances of the witness, such as whether the witness is a wage earner or a professional service provider, businessperson or retiree. Whether the witness is a fact or an expert witness, the compensation and expense reimbursement arrangement will be subject to disclosure, either in response to discovery requests or on cross-examination. While not the sole determinant of what is “reasonable” under RPC 3.4(b), it would certainly be relevant if the amount of compensation is so large that it casts doubt on the veracity of the witness. The risk that exorbitant compensation might discredit a lawyer’s own witness and thus the client’s case should have the salutary effect of ensuring that compensation is “reasonable” as required by RPC 3.4(b). ⚖ Editor’s note: Formal Opinion 2019-100 appears here slightly revised and edited for space. The opinion as issued is available on the PBA website, www.pabar.org. •

•

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 Wilkinson 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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PBA Preservation Walk Be Part of a Very Special Project!

or more than 60 years the PBA has been the proud owner of the Maclay Mansion. Built in 1791 by William Maclay, Pennsylvania’s first U.S. senator, this historic Harrisburg property is maintained by generous member donations to the PBA Sustaining Fund. The fund is dedicated to the maintenance and preservation of the PBA “campus,” which includes the mansion on the corner of South and Front Streets, the Fleming Building facing South Street and the Chancery Building fronting on State Street. Linking our Harrisburg properties is the beautiful walkway — designated the Preservation Walk — that connects the buildings and is seen and used daily by attorneys, judges, legislators, members of other associations and our many other visitors.

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Barry M. Simpson, Esq. Executive Director

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ON THE HILL

Reflections on Politics, Public Policy and Civility By Frederick Cabell Jr.

ecause the General Assembly was on a holiday break and when they returned they entered into budget hearings and because you received an email update on the PBA’s legislative activity — including news about a possible sales tax on legal services — before this issue of The Pennsylvania Lawyer arrived in your mailbox, I thought I would break from the traditional update nature of this column and provide you with some of my own musings on politics, public policy and civility. I graduated from high school in 1980. That was also the year I first became interested in politics. Although politics is not exactly the correct word. I became interested in public policy, which is the fruit, so to speak, of politics. I was not interested in the mechanism by which individuals got elected or the sports-like enthusiasm of ranking and following winners and losers, which I consider politics. Rather, I was focused on the ideas and plans that politicians offered regarding what they would do once they were elected. People often confuse them, but politics and public policy are two different things. There are individuals who work every day in think tanks, academic institutions, legislatures and even some sitting at home who do not pay a lot of attention to politics and politicians but care deeply about public policy. Public policy is the ideas that form the raw material of the final product that becomes law. Of course policy wonks vote for the individual most likely to advance their beliefs, but that is a means to an end. Strangely, from my perspective, I know some people who seem more interested in who wins or loses rather than what policies they are going to advance. I started my young adult life as a policy wonk and I have always found policy to be interesting. Not only are public policy and politics different things, but then there is a third category: legislative politics, which are the relationships and strategies within the Legislature that help determine how things get done in the Capitol. As a lobbyist, it is best to have knowledge of all three because they all work together. Of the three, the least interesting to me is politics and the most important is legislative politics. I have very little to

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do with public policy, at least professionally, as it is the PBA’s committees and sections that develop what may become, if adopted by the House of Delegates, the PBA’s policies. Strangely, at least by today’s standards, I became interested in public policy by watching and listening to politicians. In today’s culture, politics, at least as presented in the various forms of media, is almost devoid of deep public policy discussions. There is more talking (noise, really) than ever in my lifetime, but very little putting forth of public policy ideas and the defense of those ideas. Alas, it was not always this way. Before I write about how it was, at least from my perspective, let’s spend a moment on how it is. It isn’t good. In fact, it is terrible. Most of us lament the lack of civility in public discourse. As someone focused on Harrisburg rather than Washington, D.C. (thank goodness!), I don’t witness nearly the level of a lack of civility that is at the current heart of our national politics. The credit goes to the leadership, both Republican and Democratic, in both the House and the Senate. Even if you drugged me with Sodium Pentothal and put me under oath, I really could not name a major leader in either chamber who isn’t a pretty nice person and mostly works respectfully with the other leaders. Of course they disagree. Even vehemently so, at times. But they don’t engage in the name-calling and bald-faced, frequent lying that you see in Washington. If you tune into PCN or a local television Sunday morning “politics” program, you will probably get a good snooze as the guests discuss public policy. Turn on cable news, which I rarely ever do, and you will suddenly become quite alert as you would if someone suddenly blasted music. Everyone is so histrionic! Yuck! And if you watch different channels, you will think you are tuning in to different realities. Social media is no different. But how about those golden years when I was first cutting my teeth on politics and public policy? The first politician who drew my attention was Rep. John B. Anderson. In 1980, this Republican congressman from Illinois was running for president of the United States. Anderson termed his run as a “campaign of ideas,” and he sure

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could crank out ideas and facts and in a very articulate fashion. This was very appealing to me as a young person. Some people have strong feelings about President Reagan. Many probably don’t think of him as much of a policy wonk. Compared to Anderson, he was not. I suggest you go on YouTube and search for the Anderson/Reagan debate of 1980. I think you will be surprised at the level of the discourse. At one point it reminded me of my college macroeconomics class. The first thing that likely will surprise you is the civility and formality (in a good sense) of the debate. Rewatching that debate recently, it struck me that it was the civility of the participants that made the discussion of public policy possible. No oxygen was wasted on name-calling or attacking the other person. They were actually talking about ideas! Their thoughts were well organized and filled with facts. Civility for civility’s sake is nice: I don’t like to watch anyone shouting and being angry and generally acting in a way that would get my children a time-out. But the most important purpose of civility is to make possible an environment in which public policy can be fairly debated.

President Carter begged off the first debate of the 1980 campaign because he would not enter a debate with Anderson; he later joined Reagan at a second debate. (CNN did do this odd version of the debate where Anderson participated remotely.) You might think to yourself: “Sure, the Anderson/Reagan debate was civil. They were both Republicans. But probably once President Carter was matched with Reagan, the gloves came off.” You would be wrong. Civility also prevailed in the second debate. In fact, the least civil moment, which you may not even notice, was early in the debate when Reagan referred to Carter as “Mr. Carter” rather than “President Carter.” It is not clear whether that was

intentional, because during the rest of the debate, Reagan did refer to Carter as President Carter. I know there is little chance that civility — and therefore ideas — will reign during the 2020 presidential campaign. We can hope that Pennsylvania politicians will not follow suit. But if they do, just go to YouTube and watch the old debates. Then you might be stimulated by ideas the way I was in 1980. ⚖ •

•

Fredrick Cabell Jr. is PBA director of legislative affairs. For additional information on the PBA’s legislative program, contact the PBA Legislative Relations Department at 800-932-0311, ext. 2232, or email fredrick.cabell@pabar.org.

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‘WAR STORIES’ TO WIT

The Company You Keep By S. Sponte, Esq.

ven though I don’t practice much anymore, from time to time I inexplicably yearn for the companionship of my fellow lawyers. I’m not sure I understand this longing for the company of folks whose innards I was once paid to eviscerate; it’s probably because hanging out with them lets me forget for the moment that I no longer practice the profession I have loved for 50 years and, concomitantly, that I am way past no longer young. It’s a peculiar compulsion, kind of like picking one’s toenails; one is embarrassed to be seen doing it and it can lead to infection. But it was precisely on that account that I recently made my way back to Sans Merci, for many years my favorite noontime eatery. The food is dismal but at least the portions are small, and as it is near the courthouse, it’s always full of lawyers at lunch. I felt the need to be there once again, and the risk of dysentery seemed like a small enough price to pay. Because neither judges nor clients control my schedule anymore, I was able to arrive early, a recommended practice, as it affords one sufficient time to peruse the daily specials and research them on the various poison websites. As I sat alone near the rear, I began to notice my colleagues as they drifted in, and something struck me for the first time. It seems that they were clumping together at the larger tables where other colleagues of their same specialty had already sat down. I mean that the municipal law practitioners were sitting at one table, the personal injury lawyers at another table, the bankruptcy folks at yet another. Only the family law practitioners weren’t doing that; rather they were getting their repasts to go, as it has long been their caution to take lunch back to the office

where they can have their secretaries sample the first bite. I’m certain this odd dance has been going on for a long time and that I just never noticed it before. Perhaps when one is fully engaged in practice, this sort of ritual seems unremarkable, but now that I’ve been away from it for a while, it strikes me as quite peculiar. Now I am nothing if not inquisitive, and I immediately resolved to investigate further. I began by sauntering around the restaurant under the guise of saying hello to colleagues I hadn’t seen for a while. As it turned out, that was not a good idea, as they all jumped back when I extended my hand. One of them clutched a file to his chest and turned his back on me; yet another grabbed a butter knife and held it pointedly at my midsection. I guess I haven’t been away from the practice long enough yet for their memories to have faded. Determined to understand this phenomenon, the next day I called a longtime dear friend and colleague to get her take on the matter. After we exchanged our typically warm preliminary greetings (“Hiya, sweetheart, how are you?” “Who’s this?”), I put the question to her. She thought a bit and then replied, “I dunno, but I’d guess it has something to do with the heard instinct.” “You mean like cows,” I said. “No, no, heard, as in hearing. You gotta remember that this is a profession of uncertainty, it’s the only profession where you can be completely right and still be wrong.” “I don’t get it,” I said, feeling more obtuse than usual. “Judges,” she responded, “judges. Remember them? You can be perfectly right in your legal argument and still lose because the judge doesn’t get it.”

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March/April 2020

“Ah yes, there is that,” I said, instantly recalling every case I had ever lost. “Yep,” she went on, “that’s what makes all of us so uncertain, and that’s why we ‘heard’ together. Who else can hear you talk personal injury law but a fellow specialist? Or municipal law or bankruptcy? How else can you confirm your understanding of a tricky issue or readjust your thinking if need be? Who else do you lick your wounds with other than someone who knows what you’re talking about?” “And family law too, huh,” I offered. “Well, maybe,” she replied, “but I was thinking more about those areas where the law and the facts actually help determine the outcome.” I think she was spot on. While I was pleased to come to grips with the conundrum, I was a bit disappointed I couldn’t figure it out on my own; I’m usually pretty clever that way. Perhaps I might have grasped it unaided if I had specialized myself, and perhaps that’s my comeuppance for excelling in all areas of the law. I know what you’re thinking, that this is all just a bunch of poppycock. Well, let’s conduct an experiment, shall we? Take yourself to Sans Merci for lunch, arrive early and sit at one of the large tables by yourself. As the crowd trickles in, note how they self-segregate into tables of specialists, how those who have devoted their careers to acquiring a specific expertise, who are respected far and wide for their particular acumen, for their unparalleled judgment, all gravitate toward each other. You will see that I am right. You will also eat lunch alone. ⚖ •

•

“To Wit” is satirical fiction and should not be regarded as necessarily reflecting the official views of the PBA. If, for any inexplicable reason, anyone wants to contact the author, he can be reached at ssponte@gmail.com. © 2020, S. Sponte, Esq.

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March/April 2016

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