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The next day, we had meetings with staff from the offices of Rep. Glenn Thompson (R-15th), Sen. Pat Toomey, Rep. Scott Perry (R-10th), Rep. Conor Lamb (D-17th) and Rep. Brian Fitzpatrick (R-1st). These meetings were a coordinated effort to obtain more funding for the Legal Services Corp. and the many legal aid service providers in Pennsylvania that are managed by PLAN. We were able to tell these legislators of the desperate need for additional funding for legal services. We had to inform them that our legal service providers have staffing and funding to provide services for only one in five people who walk through their doors. The other four who need and are qualified to receive legal services are turned away. How sad a commentary is this? Four in five people who qualify for legal aid are unable to obtain the legal services they need. Four in five people who want a lawyer have no one to guide them through the legal minefield. Four in five people may be entering our courtrooms without a lawyer by their side. We can do
> page 8 Jay
Relationships and Representation
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Inbetter.terms of doing better, not only do legal ser vice providers need more funding, our court systems could probably be more user friendly. Too often, court rules and procedures are created for lawyers who understand and have experienced the system. There are, however, more and more litigants who are trying to wind their way through the court system without legal counsel and without the knowledge and understanding that is required. Can we create a simpler system? During our meetings with the congressional representatives and their staff, we also had an opportunity to discuss House Resolution 546, the Effective Assistance of Counsel in the Digital Era Act (EACDEA). This bill would protect an attorney’s ability to confidentially communicate via email with a client who is incarcerated. Unfortunately, since 2005, the Federal Bureau of Prisons has conditioned prisoners’ access to email service upon their waiver of the attorney-client privilege. By con trast, other forms of prisoner communication with attorneys, such as snail mail, phone calls and in-person meetings, are properly protect ed by the privilege. The EACDEA would fix this problem by prohibiting law enforcement offi cers from accessing the contents of prisoners’ privileged emails. This bill has overwhelmingly passed the House in a bipartisan vote and is awaiting action in the Senate. We also discussed HR 6577, the Real Courts, Rule of Law Act, which would move the admin istration of immigration courts and the judges who preside therein from the Department of Justice to an independent Article I immigra tion court system. Such a move would ensure complete judicial independence and avoid the clear conflicts that result from having ”“Four in five people who qualify for legal aid are unable to obtain the legal services they need. Four in five people who want a lawyer have no one to guide them through the minefield.legal N. Silberblatt
Afew weeks before I officially took office as PBA president, I participated in four separate Zoom conferences set up by PBA Director of Legislative Affairs Fred Cabell, Legislative Counsel Ashley Murphy and Legislative Coordinator Logan Stover. Accompanied by Max Laun, interim executive director of the Pennsylvania Legal Aid Network (PLAN), and then-PBA President Kathleen Wilkinson, I met with several staffers for Pennsylvania congressional legislators. First, we met with Ashlee Bierworth, a staffer for Rep. Guy Reschenthaler (R-14th), then with Lauran Pauley, senior legislative counsel to Rep. Dwight Evans (D-3rd). Next, we met with Matthew Perricone, legislative assistant to Rep. Dan Meuser (R-9th). Finally, we met directly with my representative and neighbor, Mike Doyle (D-18th), and one of his staffers, Joe Telano.
2 I The Pennsylvania Lawyer
July/August 2022 I 3 ON THE COVER The ‘Darwinian’ Evolution of Animal Law 20 What lawyers need to know about progress in this field By Mária Zulick Nucci Out of the Pandemic and Into the Profession 30 Impacts on the law school experience and first steps into practice By Kelly A. Mroz and Karly Bowen What are Your Chances of Being Audited 36 by the IRS? Threats to fairness and collected revenue By Phyllis Horn Epstein All Around the Campfire 46 How a college experience fostered the care and keeping of clients By David C. Hamilton 63 Ad Index 10 Discipline 56 Ethics Digest 6 Letters 62 Marketplace 60 On the Hill 8 PBA Dates 4 People 2 Side Bar 52 The Effective Lawyer 64 To Wit 18 Your PBA Departments 20 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 © 2022 The Pennsylvania Bar Association and the individual authors. All rights reserved. Feature articles, columns and related material available to PBA members online at www.pabar.org.ISSUE 4 CassidyKellyCoverWWW.PABAR.ORGJuly/August2022Art:DesignbyCassidy-VanekCommunications, cassidycommunications.comInc. 30 36 46
Gregory Gilston has joined as an associate at the Law Offices of Jennifer J. Riley, Blue Bell.
J. Andrew Crompton, Dauphin County, named chair, and Kristen W. Brown, Celebration, Fla., vice-chair, Appellate Court Procedural Rules Committee; Kathleen D. Bruder, Dauphin County, named chair, and Maureen Murphy McBride, Chester County, vice-chair, Civil Procedural Rules Committee; Laura E. Ellsworth, Allegheny County, named to the Disciplinary Board; retired Superior Court President Judge Emeritus Susan Peikes Gantman, Montgomery County, appointed, Judicial Conduct Board; Magisterial District Judge Douglas McCall Bell, Somerset County, named vice chair, Minor Judiciary Education Board; and Lawrence J. Moran Sr., Lackawanna County, reappointed, Pennsylvania Board of Law Examiners.
At offices of Eckert Seamans Cherin & Mellott LLC: Michael McAuliffe Miller, named member-in-charge of the Harrisburg office; Nicholas F. Borsuk , Pittsburgh; Samuel M. Franklin, Philadelphia; and Tricia S. Springer, Harrisburg, named partners. New Jersey-based Porzio, Bromberg & Newman PC has opened an office in Philadelphia. ⚖
Michelle A. Ross has joined as counsel in the estates and trusts practice group at the Pittsburgh office of Leech Tishman Fuscaldo & Lampl LLC. Jenna L. Franks, named a partner at Steinbacher, Goodall & Yurchak, State College.
Jennifer S. Park, Dentons Cohen & Grigsby PC, Pittsburgh, elected a member, International Association of Defense Counsel. Judge Royce L. Morris, Dauphin County, to serve a second two-year term as jurist-in-res idence at Widener University Commonwealth Law AWARDS/HONORSSchool.
Avery J. Quiles has joined in the transportation practice group at the Philadelphia office of Goldberg Segalla.
FIRM MOVES
CourtCourtOnAPPOINTED/ELECTEDboardsandcommitteesoftheSupremeofPennsylvania:formerCommonwealthJudge
Dennis E. Boyle of the Harrisburg office of Boyle & Jasari, named a public arbitrator for the Financial Industry Regulatory Authority.
Amanda M.V. Grant of Unruh Turner Burke & Frees, West Chester, recipient of the Chester County Bar Association 2021 John McKenna Access to Justice Award. Senior Judge D. Brooks Smith of the U.S. Court of Appeals for the Third Circuit of Pennsylvania, recipient of the Pennsylvanians for Modern Courts Judge Justin Johnson Award, recognizing his “passionate support of judicial independence.”
Patrick J. Gallo, MacElree Harvey Ltd.; Katherine E. LaDow, Lamb McErlane PC; and Charles Patrick Maloney IV, Goldberg, Goldberg & Maloney, all of West Chester, named to the list of 2022 VISTA Millennial Superstars “who are breaking down walls and reshaping Chester County through their talent, persistence and determination.”
Maria L. Panichelli has joined as a partner in the government contracts practice group at the Philadelphia office of McCarter & English LLP.
Elaine T. Yandrisevits, named a partner at Antheil Maslow & MacMinn LLP, Doylestown.
Ellsworth PEOPLE Boyle Mixell Morris Grant LaDow Maloney Quiles Ross Yandrisevits Gilston Springer
4 I The Pennsylvania Lawyer
Sara A. Moyer has joined as an associate in the litigation, medical malpractice defense and criminal defense practice groups at Gross McGinley LLP, Allentown.
Michael L. Mixell of the Reading office of Barley Snyder named to the board, Counsel Trust Co.
July/August 2022 I 5 USI Affinity Where Lawyers Go For Protection. Business Insurance: Lawyers Professional Liability Cyber Liability EPLI A Full Suite of Insurance Solutions. For You, Your Family, and Your Practice. As the endorsed insurance program of the PBA, we of fer a complete range of insurance solutions covering all of your business and personal needs, while providing exclusive insurance and benefit solutions not available to the general public. Call today for more information on the insurance products available to Pennsylvania Bar Association members, including a PBA professional membership credit. 1.855.USI.0100https://www.mybarinsurance.com/pba/ FLY_0549_0222_PBA Personal Insurance: Life & Disability Student Loan Refinancing Long Term Care Auto, Travel, Pet Dental & Vision 1.855.874.0141
The More Things Change ... Editor’s note: The following message was emailed to PBA Director of Legislative Affairs Fred Cabell regarding the “On the Hill” column in the May/June 2022 issue. It appears here with the letter writer’s permission. Just read Logan [Stover]’s piece in this [is sue of The Pennsylvania Lawyer]. Nice job. I know Bob Butera a bit. One of his closest friends helped me throughout my political Howcareer.else must it be different from back then — social media, money — let me count the ways, but I bet there is more similar than different, because, well, the system is designed to slow ideas down in their tracks, and that has always been so.
Warren E. Kampf West Chester Editor’s Note: The writer served in the Pennsylvania House of Representatives from 2011-2018.
6 I The Pennsylvania Lawyer
Article on Housing Misleads
We write to dispute some contentions of facts and law in “Deed Men Walkin’: Can HOAs Save Single-Family Dwelling Districts?” [by Emeline L.K. Diener] from The Pennsylvania Lawyer’s [May/June 2022 issue]. While we support diverse perspectives including this article’s general topics, it contained misleading claims about housing in America and federal and local law and governmental First,implementation.theauthor conflates a couple of opinions about single-family zoning with a “trend” where “the only people allowed to live in ‘single-family’ detached dwell ings will be people without families …” while alleging that the “(e)limination of single-family zoning districts in cities is well underway.” As evidence, she cites the current administration’s embrace of “affir matively further fair housing,” inclusionary zoning measures, and bizarrely, an analogy between past race-based deed covenants and supposed single-family restrictions of the future. This leads the author to twice speculate that private ownership of land could be abolished, akin to Soviet-era TheCommunism.article’sreferences to the law and mu nicipal zoning misinform. The Fair Housing Act’s “affirmatively furthering fair housing” provision is not a political position but rath er language in the law, designed to actively promote equality and not merely respond to only the most blatant discrimination
LETTERS
DEATHS Beaver County Joseph J. Liberati,* 84 Aliquippa McKean County B. Earnest Long,* 92 Smethport, a past president of the Westmoreland Bar Association Montgomery County Slade H. McLaughlin, 65 AllenVillanovaK.Tomlinson,* 88 East Greenville Westmoreland County Aaron M. Kress,* 88 Lower Burrell, a past president of the county bar association *PBA 50-year member
Jeffrey A. Gingerich Patricia M. Graybill Executive Editor Editor
July/August 2022 I 7 claims. Rather than harm cities, inclusion ary zoning serves as a modest tool for city neighborhoods to increase affordable housing and promote social and econom ic integration, and each jurisdiction can uniquely tailor such zoning to local needs and market conditions. As to the references to race, where do we start? We should not entertain tenuous comparisons between racial covenants and baseless conjecture of family covenants, and the article goes even further to claim that “(t)he suburbs are, by everyone’s reckoning, between 41% and 45% racially integrated.” This faulty, confusing data apparently derives from “Gated Community News,” and — the author fails to note — includes public housing projects. We owe it to each other to be more responsible with the facts and law underlying our assertions to fellow Pennsylvania lawyers. Brian V. Gorman Southwestern Pennsylvania Legal WashingtonAid Dina Schlossberg Regional Housing Legal Services Glenside Marielle Macher Community Justice Project
Several Faces Editor’s note: The following message was emailed to author Emeline L.K. Diener regarding her article,“Deed Men Walkin’: Can HOAs Save Single-Family Dwelling Districts,” in the May/June 2022 issue. It appears here with the letter writer’s permission. I just read with interest your article in the most recent edition of The Pennsylvania Lawyer magazine. This is a subject that has concerned me for many years as an individual, as a lawyer and particularly as a longtime member and currently the chairman of the Luzerne County Planning ICommission.enjoyedreading your subject matter and the writing style of your presentation. Very nice job. N. Brian Caverly Shickshinny More About on the May/June Cover Editor’s Note: PBA President Jay Silberblatt wrote that he received several inquiries about the mural in the background on the cover of the May/June issue and passed along this information from the Allegheny County Courts about the painting.
The 36-foot by 9-foot mural, “Modern Justice,” in Courtroom 11 in the City-County Building was painted by prominent artist Harry W. Scheuch (1906-1978) as a project of the Works Progress Administration and was unveiled on Nov. 18, 1940. Instead of showing the traditional figure of Justice — a blindfolded woman holding a set of scales — Scheuch painted a muscular man with his eyes open. In an interview with the Pittsburgh Press, he explained, “Judges and juries aren’t blindfolded. Why blindfold Justice?” Scheuch is also known for his paintings of the construction of the University of Pittsburgh Cathedral of Learning and a mural in the historic post office in Scottdale, Westmoreland County. A Fresh Look Our readers will notice something new about this issue of The Pennsylvania Lawyer. We’ve updated the design of your member magazine, which was given its last refresh in We2014.set out to develop a look that improves accessibility and one that is more vibrant and reader-friendly. And we think the new layout by designer Kelly Vanek of Cassidy Communications Inc., Bethlehem, who has worked with us for more than 15 years, delivers on these goals. We hope you agree! Many thanks to Bernadette M. Hohenadel, chair of the PBA Editorial Committee, and the members of the committee for their support of the magazine and of us and our work. Thanks, too, to our regular contributors. All are listed in column three on page 9. Finally, and as always, we encourage you, our PBA-member readers, to become a part of your Pennsylvania Lawyer magazine. Mail or email a letter to the editor if you feel moved to do so; propose something you want to write about and get the writer guide lines (https://www.pabar.org/members/PALawyer/lawyerwriterguide.pdf) — we’re as close and convenient as an email to editor@pabar.org.
InterestingHarrisburgon
July 21-22, Philadelphia and via webcast and Small Section
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8 I
Think of it more like an insurance policy for our profession. Fred, Ashley and Logan are always on the lookout for legislation that could be harmful to the practice of law.
July 14-17, Newport, Rhode Island Young Lawyer Summer Summit
The Pennsylvania Lawyer > from page 2 advocates and judges accountable to the same bureaucracy. This bill does not change substantive immigration law or provide any expanded benefits; it simply as sures litigants a fair and impartial adjudica tive process not subject to partisan politics. The opportunity to meet with our legislators is only possible because of the excellent work performed by our PBA Legislative Department and the relationships they have developed with legislators and their staffs. Having these relationships is import ant for our access to justice initiatives and to provide input into the legislative process. Advocacy for our profession and for our clients, particularly our most vulnerable clients, is something that is at the core of the PBA mission, and our PBA Legislative Department does a great job of it. Fred, Ashley and Logan have their fingers on the pulse of the state Capitol. They know when legislation is moving, and they have relationships with Pennsylvania legislators and their staff members that allow them to advocate for the PBA. They alert our PBA sections and committees about legislation that could affect our practice areas and make certain that our positions and our policies are known to the Pennsylvania General Assembly and Senate. Prospective and current PBA members often wonder about the benefits of a PBA membership. Although our Legislative Department is touted as a member benefit, it is, admittedly, not a tangible one like a free CLE course, a drink ticket for a PBA re ception or a discount on office equipment.
Section Annual Retreat
Sept. 9, via Zoom Administrative Law Section Commonwealth Court Practicum Sept. 13, Harrisburg Board of Governors Meeting Sept. 14, Mechanicsburg Medical Marijuana & Hemp Law Symposium Sept. 14 and 15, Philadelphia and webcast
Profession Virtual Wellness Lunch
The PBA could not fulfill its commitment to you — our members — without their fine work. ⚖ Jay N. Silberblatt PBA President Women in the
Commission on Women in the Profession Virtual Wellness Lunch
Section Summer
SIDE BAR DATES Commission on
July 20-22, Seven Springs Elder Law Institute
Conference
July 8, via Zoom Family Law Meeting
July 27-29, Bedford Springs Real Property, Probate and Trust Law
Diversity Summit Oct. 7, via teleconference Worker’s Compensation Fall Section Meeting Oct. 13-14, Hershey Federal Practice Institute Oct. 21, Pittsburgh Oil & Gas Law Conference Oct. 26, Pittsburgh and webcast Civil Rights Symposium Oct. 27, Philadelphia and webcast Please check the PBA calendar at www.pabar.org/site/Calendar for the most current meetings and events information.
Solo
Aug. 3-5, Pittsburgh Animal Law Conference Aug. 18, Philadelphia and webcast Annual Contracts Workshop Aug. 23, Philadelphia and webcast
PBI.ORG | 800-932-4637 Elder Law Institute Jul y 21-22 | 10 sub/2 ethics
The Institute is the premier event of the year for everyone practicing in the elder law field. You’ll be updated on all the newest developments, including proposed guardianship legislation, special needs trusts, and home and community-based services waivers.
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.
EDITORIAL COMMITTEE Chair: Bernadette M. Hohenadel; Vice Chair: Judge William I. Arbuckle III; Members: Emeline L.K. Diener, Mary Wagner Fox, Richard J. Frumer, Judge Thomas King Kistler, Peter W. Klein, Alyson Tait Landis, Stephanie F. Latimore, Michael J. Molder, Catherine R. O’Donnell, Riley H. Ross III, Cheri A. Sparacino, Jill M. Spott, Ryan W. Sypniewski, Andrij V.R. Szul, Zanita Zacks-Gabriel; Board of Governors Liaison: Jonathan D. Koltash PBA Staff — Executive Director: Barry M. Simpson; Deputy Executive Director: Francis J. O’Rourke; Director of Communications: Jeffrey A. Gingerich; Director of CLE Content Delivery: Erika Bloom; Director of CLE Content Development: Clair A. Papieredin; Director of County Bar Services & Special Projects: Susan E. Etter; Director of Finance: Lisa L. Hogan; Director of Information Technology: Terry Rodgers; Director of Legislative Affairs: Fredrick Cabell Jr.; Director of Meetings: Wendy A. Loranzo; Director of Member Services: Karla Andrews; Director of Western Pennsylvania Services: Bridget M. Gillespie
Views expressed in The Pennsylvania Lawyer do not neces sarily 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.
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July/August 2022 I 9
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xecutive Editor: Jeffrey A. Gingerich Edi tor: Patricia M. Graybill People Editor: Andy M. Andrews
MinorityGOVERNORSGovernor: Rodney R. Akers Minority Governor: Judge Cheryl L. Austin Unit County Governor: Matthew M. Haar Woman Governor: Amy J. Coco Zone 1: Jennifer S. Coatsworth Zone 2: Eric M. Prock Zone 3: Lisa M. Benzie Zone 4: John P. Pietrovito Zone 5: Sean D. McDonough Zone 6: Judge Damon J. Faldowski Zone 7: John F. Alcorn Zone 8: Christopher G. Gvozdich Zone 9: Carolyn R. Mirabile Zone 10: Melissa Merchant-Calvert Zone 11: Adrianne Peters Sipes Zone 12: Lawrence R. Chaban
BOARD OF GOVERNORS
Contributing Writers: Fredrick Cabell Jr., Robert A. Creo, David J. Millstein, Barry M. Simpson, Victoria White, Jay N. Silberblatt, 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: 800-932-0311, ext. 2226.
Animal Law Conference Aug . 18 | 6 sub A day of animal law, including legislative updates, farmed animals, enforcement of animal cruelty laws, and more! The 2022 PBI Animal Law Conference will be of interest to everyone: animal law and general practitioners, advocates, and anyone who cares about animals.
Join our panel of experts and hear about the latest developments in Pennsylvania’s medical marijuana and hemp program. Personal Injury Law Conference Oct. 20 Join us for topics that will include evidentiary and procedural instruction for handling a variety of injury cases, such as automobile accidents, premises liability, and catastrophic injuries. Learn from PA’s best.
Unsolicited manuscripts will not be returned unless accompa nied 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.
OFFICERS President: Jay N. Silberblatt President-elect: Michael J. McDonald Vice President: Nancy Conrad Immediate Past President: Kathleen D. Wilkinson Chair, House of Delegates: Jonathan D. Koltash Secretary: Jacqueline B. Martinez Treasurer: James R. Antoniono YOUNG LAWYERS DIVISION REPRESENTATIVES Chair: Patrice M. Turenne Chair-elect: Jennifer A. Galloway Immediate Past Chair: Paul D. Edger
Medical Marijuana & Hemp Law Sept.Symposium14-15
The court on April 20 ordered Milton E. Raiford subject to a public reprimand on consent, as recommended by a threemember panel of the Disciplinary Board. According to the joint petition in support of discipline, in conjunction with two court proceedings in which he was to appear on behalf of criminal defendants, Raiford was charged with violations of the Rules of Professional Conduct (RPC) involving representing a client if the representation involves a concurrent conflict of interest; asserting an opinion as to the justness of a cause, as to the credibility of a witness, … or as to the guilt or innocence of an accused when appearing before a tribunal; engaging in conduct intended to disrupt a tribunal and engaging in conduct prejudicial to the administration of justice. In aggra vation, the panel considered that Raiford was disbarred in 1997, retroactive to 1994, as a result of his criminal conviction for “obstruction of administration of law or other governmental function, unsworn fal sification to authorities and tampering with public records or other information.” He was subsequently reinstated by order dated April 16, 2010. In mitigation, the panel considered that he accepted responsibility for his misconduct by virtue of his consent to discipline and that the day after the second proceeding, he apologized publicly to his client and the court. The panel noted that Raiford’s conduct in the proceeding stemmed from the public revelation a week earlier that the county district attorney “had instructed his staff not to extend any plea offers to [Raiford’s] clients without special front office approval, in retaliation for [Raiford’s] criticism of the [office] for its failure to address the issue of systemic racism in the Allegheny County criminal justice system. While this does not justify [his] failure to discharge his responsibilities to his client and the Court, it explains and mitigates his misconduct.”
PUBLIC DISCIPLINE April
Pursuant to an Oct. 22, 2021, order of the Supreme Court of Pennsylvania, a three-member panel of the Disciplinary Board on March 4 administered a public reprimand to Stephen G. Bazil. As indicated in court documents, Bazil failed to appear for a hearing in the U.S. District Court for the Eastern District of Pennsylvania related to two IRS summonses, failed to meet with the IRS officer or comply with the sum monses and failed to appear for a hearing to show cause he should not be held in civil contempt of court. He was subsequently arrested and, following his reporting the contempt to the Office of Disciplinary
Feb. 23 through
CHESTER COUNTY
The Supreme Court of Pennsylvania on March 18 ordered Richard S. Ross suspended for two years, as unanimously recommended by the Disciplinary Board. According to the disciplinary report, Ross engaged in a financial relationship with a client that failed to comply with ethical rules. As indicated in the report, the client asked Ross to hold $117,000, a portion of a settlement in his case, and Ross drafted and entered into a security agreement with the client whereby Ross received the funds and then granted the client a security inter est in Ross’ self-directed IRA. As described in the report, Ross did not advise the client to seek the advice of independent legal counsel about the transaction, did not ad vise the client of the risks of the transaction or those associated with Ross’ dual role as both legal advisor and participant in the transaction, nor obtain the client’s written informed consent. The report indicated that subsequent to entering into the security agreement with the client, Ross signed a note promising to pay the client the princi pal sum of $100,000 together with inter est, then later a different note promising to pay the principal sum of $90,000 together with any interest. Then within two years, he stopped making payments to the client altogether and provided the client with ex cuses as to why he did not repay the funds. According to the report, Ross later filed for Chapter 7 bankruptcy, forcing the client to file a claim with the Pennsylvania Lawyers Fund for Client Security. In reaching the recommendation for discipline, the board considered “several weighty aggravating factors,” including Ross’ record of disci pline related to mishandling his IOLTA and misappropriation of the entrusted funds of several clients, which occurred during the same time period as the misconduct in the instant matter; his expression of remorse, which the hearing committee found “lacked credibility”; his failure to address the Client Security Fund debt; the testimony of Ross’ physician, which it determined to be “insuf ficient to establish the causal connection necessary to meet the Braun standard for mitigation” and character evidence the hearing committee gave “little mitigating weight.” The report concluded with the board’s determination that “a two-year suspension is warranted to comply with the guiding decisions reviewed … and to protect the public and maintain the integrity of the profession.”
20, 2022
ALLEGHENY COUNTY
10 I The Pennsylvania Lawyer DISCIPLINE
The Supreme Court of Pennsylvania on April 14 ordered James Harry Turner suspended on consent for two years, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, in the course of his representation of a young adult with learning disabilities before the Social Security Administration, Turner failed to communicate with the client, failed to take any steps to file an appeal or take any additional action on the client’s behalf despite his assurance that he would and lost the client’s information. He then failed to respond to the DB-7 or otherwise com municate with ODC regarding the matter. As indicated in the report, in another client matter, Turner delegated preparation of the client’s bankruptcy petition to a nonlawyer staff member, failed to properly assess the client’s financial status or provide accurate recommendations to her and failed to promptly respond to the client’s questions and requests for calls, causing her to miss a required meeting with creditors. Among the mitigating circumstances, the panel report listed Turner’s admission to engaging in misconduct and violating the charged rules, his cooperation with the ODC, his remorse and his agreement to refund the client fee in the bankruptcy matter. The panel considered as an aggravating factor, Turner’s “very recent history of discipline for similar conduct,” which consisted of an informal admonition “in connection with two separate client matters with a condition to refund $1,000 for incompe tence, delays and communication failures as counsel; [and] failure to respond to two DB-7 Requests for Statement of Respondent’s Position.”
…dealing800-932-0311,Callext.2276Areyouwith…areferralfeedispute?…problemswithinyourfirm?…partnershipdissolution?OffersConfidential,TrainedMediatorsandArbitrators TheBarPennsylvaniaAssociation Lawyer ResolutionDisputeProgram
DAUPHIN COUNTY
CUMBERLAND COUNTY
The board called it “significant that five of the conduct rules [he] violated in the current matter are identical to the rules that [he] violated in the previous matters, signifying an ongoing pattern of client misconduct” that “has increased in breadth and depth, a very troubling pattern.”
LYCOMING COUNTY
The Supreme Court of Pennsylvania on Feb. 11 ordered William D. Hobson suspended for five years, as unanimously recommended by the Disciplinary Board. As indicated in the disciplinary report, Hobson “committed a wide range of serious misconduct in three client matters, including improperly attempting to submit new evidence ex parte; failing to communicate with a client for more than a year, then abandoning that client entirely; failing to timely appear for a trial, falsely telling the client that he had filed an appeal, then lying to the client about the reason she lost the case, and advising the client to sell her property after the judge had ruled against her in the Quiet Title action.”
LUZERNE COUNTY
The Supreme Court of Pennsylvania on Jan. 6 ordered Scott Michael Jocken suspended on consent for one year and one day, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Jocken made 40 unauthorized purchases for personal expenses on his firm credit card, some following the firm’s discovery of the unauthorized use and his promise to cease and to repay the funds. The report indicated that, although he made arrangements to reimburse the firm, he later reneged on the agreement, citing personal financial issues. In reaching the recommendation for discipline, the panel considered in mitigation Jocken’s more than nine years in practice without discipline, and that “after thought and consideration,” [he] admitted his misconduct, accepted responsibility and took corrective action, including restitution to the firm and its insurer and steps to address his alcohol abuse issues, concluding that his “violations reflect serious financial misconduct that calls into question his fitness to practice. … While [he] is on the right path, [he] must prove at a reinstatement hearing that he has maintained sobriety and is fit to practice law.”
The board determined that Hobson’s history of discipline was the “predominant aggravating factor” in the current disciplinary matter and pointed to his criminal conviction in 1998 that arose from his theft of client funds, “an egregious breach of client trust warranting the most severe sanction permitted under Pennsylvania’s disciplinary system,” resulting in disbarment on consent in 1997, as well as, following his reinstatement, an informal admonition in 2016 and a private reprimand in 2018.
PHILADELPHIA
MONTGOMERY COUNTY
Although noting that Hobson “acknowledged his wrongdoing, expressed remorse, and showed cooperation with [the Office of Disciplinary Counsel],” the board gave them little weight “in light of his testimony that demonstrated he has not changed any of the circumstances that he claims
Counsel (ODC), the ODC discovered that Bazil had two previous criminal convictions that he had failed to report.
Pursuant to a Jan. 18 order of the Supreme Court of Pennsylvania, a three-member panel of the Disciplinary Board on March 4 administered a public reprimand to William E. Vinsko Jr. According to court documents, following being retained to represent a cli ent, Vinsko delayed making filings to move forward with litigation despite multiple requests by the client, failed to respond to the client’s attempts at communication on numerous occasions and failed to provide documents and information when request ed. As indicated in the report, following the client retaining new counsel, Vinsko withdrew from the case and refunded and apologized to the client. The panel noted Vinsko’s history of discipline, consisting of a 2019 public reprimand and a 2020 informal admonition, calling his record of discipline “troubling” and noting that “subsequent violations … can only result in further discipline and perhaps more severe sanctions.”
Other aggravating factors considered by the board were Hobson’s outstanding federal and state tax liens and a longoutstanding judgment entered against him in a case brought by a former employer. In mitigation, the board considered the testimony of Hobson’s character witnesses, but concluded, as did the hearing committee, that it was “weakened by the fact that witnesses did not fully understand the current charges and some details of [his] past history.”
July/August 2022 I 11
The Supreme Court of Pennsylvania on Feb. 25 ordered Andrew S. Hurwitz, suspended 11The Pennsylvania Lawyer May/June 2022 concluded with the board’s determination that Lynch’s “reprehensible conduct renders him unfit to continue as a member of the bar and cannot be tolerated by the attorney disciplinary system” and “a prospective suspension is warranted to afford [him] time to consider the gravity of his misconduct and the harm it inflicted upon his victim and the legal profession, and to establish that he is approaching his mental health treatment in a responsible manner and has achieved progress.”
Pursuant to a Dec. 27, 2021, order of the Supreme Court of Pennsylvania, which also placed him on probation for one year, a three-member panel of the Disciplinary Board on March 4 administered a public reprimand to Todd Joseph Leta. According to court documents, Leta failed to report a conviction of “terroristic threats, simple assault, loitering and prowling at nighttime, disorderly conduct, and public drunken ness” following an incident when he was intoxicated and thought he was going to his girlfriend’s residence, but instead “entered the premises of another person at night and when confronted by the owner, became confrontational, displayed a handgun, and threatened to shoot the owner.”
The board also considered Hobson’s physician’s testimony as to his mental health and serious family problems but determined that, although they contributed to his professional misconduct, they did not “satisfy the Braun standard.”
PHILADELPHIA
12 I
The Supreme Court of Pennsylvania on March 4 ordered Daniel Michael Dixon suspended for one year and one day, as unanimously recommended by the Disciplinary Board. According to the disci plinary report, the ODC charged Dixon with multiple violations of the RPC related to his “neglecting to file an appeal on behalf of a client, engaging in multiple misrepresenta tions to conceal the neglect, and filing two false affidavits,” following which he failed to answer the petition for discipline. As indicated in the report, Dixon represented a client in an appeal of a tax assess ment to the Pennsylvania Department of Revenue’s Board of Appeals and when the board denied the appeal, Dixon reviewed the decision and order and billed for it but failed to notify the client of the ruling, failed to timely appeal and, for approximately one year, failed to reply to the client’s inquiries and made misrepresentations to the client, including submitting “false and mislead ing affidavits, one of which he executed himself and the other of which he prepared for his assistant.” In mitigation, the board considered Dixon’s lack of prior discipline, his expression of “genuine contrition,” and his explanation that he was so anxious about losing his job at his firm “that he tried to fix his failure […] and made things worse by his dishonesty” and “was not prepared to take on his position at [the firm] and should have taken time to address his mental health, but unfortunately viewed [those] issues as a weakness that he could handle on his own.” According to the report, the board determined that Dixon’s “seri ous misconduct requires his removal from the practice of law and a reinstatement process to determine his fitness to resume practice at a future date. Imposition of this discipline will ensure that the integrity of the courts is preserved while protecting the public and deterring future misconduct of a similar nature.”
The Pennsylvania Lawyer on consent for six months, as recom mended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Hurwitz, in a petition seeking reinstatement from administrative suspension, acknowledged that he had engaged in law-related activity and held himself out to the public as a licensed attorney, including on his LinkedIn profile, even though he did not have an active Pennsylvania law license. In reaching the recommendation for discipline, the panel considered that Hurwitz accepted responsibility, expressed remorse and took remedial action to revise his LinkedIn profile to indicate that he is a “former attor ney,” concluding that a six-month suspen sion is consistent with discipline imposed in similar cases involving the unauthorized practice of law.
Pursuant to a Jan. 24 order of the Supreme Court of Pennsylvania, a three-member panel of the Disciplinary Board on March 4 administered a public reprimand to Kenneth Scott Saffren. According to court documents, the matter involved Saffren’s “deficient representation in a personal injury case involving a minor child, who sus tained injuries in a ‘slip-and-fall’ accident, wherein [he] failed to timely provide discov ery materials and accepted a settlement offer without informing the client and ob taining consent.” As indicated in the report, Saffren and the client ultimately reached a mutual resolution wherein the client agreed to accept the offer and settle the case in return for Saffren’s agreement to waive all attorney fees and costs and pay the client $20,000 in additional compensation. The panel considered that Saffren expressed re morse, acknowledged his misconduct, and accepted full responsibility, as well as that he “instituted remedial measures in [his] firm and changed office procedures to avoid a recurrence” and fully cooperated with the ODC’s investigation.
Rejecting the Disciplinary Board’s rec ommendation of disbarment, the court on March 16 ordered Jimmie Moore suspended for four years, retroactive to May 13, 2019, the date of his temporary suspension related to his guilty plea in the U.S. District Court for the Eastern District of Pennsylvania to false statements for his “willful filing” of false campaign finance reports with the Federal Election Commission (FEC). Justices Debra Todd, Kevin Dougherty and David Wecht did not participate in the consideration or decision of the case. According to the disciplinary report, “in 2012, [Moore] struck a corrupt deal to withdraw from a Congressional campaign in exchange for $90,000 from his opponent to pay off [Moore’s] cam paign debts”; and “[t]hereafter, to conceal the scheme [Moore] knowingly filed false campaign finance reports with the FEC that failed to disclose his receipt of any funds from Rep. Brady’s campaign, any money that [he] received personally, or the fact that vendors were paid.” As indicated in the report, Moore cooperated with the government and pled guilty. The board considered the mitigating circumstances of Moore’s cooperation with the government and disciplinary authorities, his lack of prior discipline and his record of commu nity service, but found them outweighed by “significant and serious” aggravating factors, including that “he was inconsis tent as to when he knew his conduct was wrong and downplayed his culpability in his submissions to the ODC”; that during the time frame following his criminal conduct, he applied for and was appointed to senior judge status, a position he held for five months during which he did not report to the Administrative Office of Pennsylvania Courts that he was the subject of a criminal investigation, nor did he resign prior to the entry of his guilty plea, as well as his “com plete failure to appreciate and acknowledge that his criminal conduct as a public figure brought disrepute to the legal profession.”>page14
DISCIPLINE
July/August 2022 I 13 Beyond REACH WITH More than 900,000 lawyers nationwide turn to Fastcase to smartly complete their legal research needs. Fastcase proudly partners with over 50 national, state, and county bar associations to provide a comprehensive books, treatises, and journals available to meet their practice needs, along with partner service integrations such as Docket Alarm, HeinOnline, LexBlog, Clio, Courtroom Insight, and TransUnion. See today why Fastcase is a smarter way to legal research. We provide our users with unlimited usage, unlimited service support – all at no additional cost. Questions? Power your law practice with industry-leading of the Pennsylvania Bar Association. Comprehensive Libraries Fastcase puts the whole national law library on any internet connected device with cloud-based access to cases, statutes, regulations, and can be viewed at Fastcase.com/coverage. Sync with Mobile Devices you do on your desktop with your iPad, iPhone, or Android mobile app. Download a tutorial guide now. Tools to make your practice faster and easier: The Complete Law Library at Your Fingertips ysseive • Integrated algorithmic citation analysis • • Automated statutory annotations • motions and orders • Press and publishing partners such as American Bar Association, Littler Mendleson, Wolters Kluwer, American Bankruptcy Institute • • • • TransUnion TLOxp public records • � � �
The board determined that a two-year suspension was commensurate with the facts and circumstances in the matter and consistent with sanctions imposed for similar misconduct.
Pursuant to a Dec. 2, 2021, order of the Supreme Court of Pennsylvania, a three-member panel of the Disciplinary Board on March 4 administered a public reprimand to Edward Walter Wertman OUT OF STATE The Supreme Court of Pennsylvania on Feb. 25 ordered Thomas Joseph Dancison Jr., Lawrenceburg, Tenn., subject to a public reprimand on consent, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in sup port of discipline, Dancison received a pub lic censure from the Board of Professional Responsibility of the Supreme Court of Tennessee on Dec. 30, 2021, following an encounter in his office with a client in which he “lost his patience and berated [her] using blunt, profane, and provocative language and, during the incident, placed his hand on her knee” and “[u]pon realizing that [she] was upset and crying, he apolo gized and hugged her.” As indicated in the report, following the encounter, Dancison pled guilty to one count of assault-offensive touching and promptly reported his conviction to disciplinary authorities in Tennessee and Pennsylvania. In reaching the recommendation for discipline, the panel considered as mitigating circum stances his lack of prior discipline in either state, cooperation with law enforce ment and disciplinary authorities, “sincere expressions of remorse and acceptance of responsibility for his actions” and that a public reprimand is consistent with discipline imposed in Pennsylvania for similar Pursuantmisconduct.toaDec.30, 2021, order of the Supreme Court of Pennsylvania, a three-member panel of the Disciplinary Board on March 4, administered a public reprimand to Michael Frederick Fink ,
14 I The Pennsylvania Lawyer UNION COUNTY Pursuant to a Dec. 27, 2021, order of the Supreme Court of Pennsylvania, a three-member panel of the Disciplinary Board on March 4 administered a public reprimand to Richard G. Scheib. According to court documents, “despite an unambig uous Rule of Professional Conduct,” Scheib improperly drafted a will for an elderly client, naming himself as a testamentary beneficiary of a substantial part of the es tate and his longtime paralegal as a benefi ciary, as well as naming himself as executor and the paralegal as alternate. Scheib’s violations of the rules included, among other things, representing a client when the representation involves a concurrent con flict of interest and soliciting a “substantial gift from a client, including a testamentary gift, or prepar[ing] on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client.”
YORK COUNTY
WASHINGTON COUNTY
> from page 12 DISCIPLINE
The Supreme Court of Pennsylvania on March 4 ordered Thomas Mark Shultz sus pended on consent for one year and one day, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Shultz was retained as counsel in a divorce and custody matter, but for several months took no action to advance the client’s divorce, failed to file a custody order with the court, failed to consult with the client and, when the client ultimately retained another attorney to represent her, failed to provide the attorney with the client’s file and failed to reply to the attorney’s correspondence or otherwise communi cate with her. As indicated in the report, following receipt of the ODC’s DB-7 request for statement of position, Shultz failed to submit an answer. In reaching the recom mendation for discipline, the panel weighed the mitigating circumstances of Shultz’s admission to misconduct and violating the charged rules and his cooperation with the ODC as evidenced by the consent to suspension against the aggravating circum stance of his history of discipline consisting of an informal admonition in 2019 for failing to adequately communicate with his client, promptly provide the client with an accounting and finalized bill and respond to the DB-7 letter in that matter. The panel indicated that a suspension of one year and one day is frequently imposed for discipline in cases involving client neglect and disre gard for the disciplinary system. The court on April 14 ordered Clarence E. Allen suspended for two years, as unani mously recommended by the Disciplinary Board. According to the disciplinary report, the ODC charged Allen with violations of 14 of the RPC related to five separate client matters, misconduct including “incompe tence, neglect, failure to communicate, misrepresentation, pursuing frivolous litigation, conduct prejudicial to the admin istration of justice, and failure to respond to disciplinary authorities.” As an aggravating factor, the board considered that in 2019, he received an informal admonition for misconduct it called “identical.” The board noted Allen’s “egregious pattern of neglect and incompetence, which often times prej udiced the administration of justice,” and which resulted in the filing of a disciplinary complaint by a common pleas court judge. It determined that Allen’s testimony in the disciplinary hearing “expressed little understanding of the scope and nature of his misconduct[,] was devoid of acceptance of responsibility” and “raises a red flag that he will continue his unprofessional practice if his license is not removed, as there is no evidence to establish that he has evaluated his actions and understands the harm he inflicted upon his clients.”
District Court for the Eastern District of Pennsylvania spoke at the section’s Philadelphia Regional Dinner, where I also made remarks. In late April, the PBA held a president’s dinner with presidents, governors and executive directors from PBA zones 1 and 9.
We’re looking for a few good articles … for The LawyerPennsylvaniamagazine. Lawyer
The Pennsylvania
15 May/June 2022
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.
Goodbye and Thank You To all of the members of the PBA and local bars, thank you for participating in the many activities this year. I appreciate your confidence, support and kind words. I have been very proud to serve as the 127th president of the PBA. To the PBA staff, who have worked so hard during the pandemic, I am very grateful and I thank all of you. Special recognition goes to Barry Simpson, Fran O’Rourke, Lisa Hogan, Pamela Kance, Ursula Marks, Wendy Loranzo and Holly Wertz for working together to provide me with the best possible bar experience this year. I thank and send best wishes to incoming PBA President Jay Silberblatt, President-Elect Mike McDonald and Immediate Past President Anne John, who have all been supportive and great colleagues during my presidency, and I welcome incoming Vice President Nancy Conrad as a PBA officer. To my husband and children, Tom, Lindsey, Lauren and Michael, you all have been part of “Team Wilkinson” and have made my year full of joy and fun. ⚖ Kathleen D. Wilkinson PBA President “Team Wilkinson”: Michael, Lindsey, Kathleen, Lauren and Tom at the PBA Midyear Meeting in Bonita Springs, Fla., in February
The Pennsylvania Lawyer is your PBA membership magazine. Our mission is to inform, educate, analyze and provide a forum for comment and discussion.
The court on April 19 ordered Brian Oliver Williams , Port St. Lucie, Fla., suspended on consent for one year and one day, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Williams “exhibited a lack of competence and diligence in a total of 10 client matters over approximately seven months.” The report indicated that Williams stated in correspondence with the ODC that his misconduct coincided with a period when he was struggling with severe anxiety and depression and provided evidence that he received treatment for anxiety, but the board determined the materials did not identify a causal connection between his mental health and his misconduct in order to entitle him to mitigation under Braun. In reaching the recommendation for discipline, the board noted that “the Pennsylvania Supreme Court has indicated that attorneys who repeatedly ignore client matters must lose the privilege of practicing law to protect the public” and determined “a suspension of one-year and one-day is an appropriate disposition of this matter. This is particularly true given that [he …] is consenting to discipline and thereby con serving the disciplinary system’s resources. Moreover, a suspension of one year and one day advances the primary purpose of the disciplinary system to protect the public by requiring [him] to prove his fitness to re sume the practice of law at a reinstatement hearing, at which time any issues regarding his anxiety and depression can be fully explored.”
July/August 2022 I 15 Ocean Ridge, Fla. According to court documents, following voluntarily electing inactive status in 2003, Fink misrepre sented himself as an actively licensed Pennsylvania attorney to a client and before the Norristown Borough Zoning Hearing Board between August and December 2020. The Disciplinary Board indicated that Fink expressed remorse and had no history of Thediscipline.Courton April 1 ordered Milena Mladenovich, Newark, Del., suspended on consent for three years, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in sup port of discipline, Mladenovich, who was also ordered administratively suspended on Aug. 11, 2021, for failing to complete the annual registration requirements while she was incarcerated, committed misconduct raised in two ODC complaint files. As indi cated in the report, the first file concerned her convictions in two separate criminal cases: one case in Delaware County in which she pled guilty to DUI - highest rate of alcohol and a second case in Philadelphia in which she pled guilty to terroristic threats and stalking, related to contact with her former psychiatrist. The second file concerned a case, also in Philadelphia, in which she entered a guilty plea to terroristic threats and harassment, again related to contact with her former psychiatrist, and which occurred while she was on probation in the first Philadelphia matter. In reaching the recommendation for discipline, the panel considered the mitigating factors that Mladenovich had been treated by a licensed psychologist for depression, chronic anxiety, anger issues, impulsivity and panic attacks and had been diagnosed as having bipolar disorder; her admission to misconduct and to violating the rules, her cooperation, remorse and consent to discipline, her having no disciplinary record, and that it was likely that at a disciplinary hearing she would establish that there was a causal connection between her criminal conduct and her diagnosed condition so as to constitute mitigation under Office of Disciplinary Counsel v. Braun. The panel determined that the three-year suspension “will advance the goals of attorney disci pline. Those goals are protecting the public, maintaining the integrity of the courts and the legal profession, and specific and gen eral deterrence.”
The PBA partnered with other bars to celebrate Law Day in May with another student chalk art contest and opportunities for lawyers to speak in schools. Also in May, the U.S. Eastern District Court of Pennsylvania will host a luncheon for leaders from the PBA and local bar associations to discuss the rule of law and the role of the court in community outreach.ThePBA Bar Leadership Institute and other sections and committees are working on attorney wellness. We are conducting a survey with Lawyers Concerned for Lawyers to address PBA member needs.
TEMPORARY SUSPENSION — Rule 214
The court on April 7 granted reinstatement to active status to Jamie McWhirter Zug , Newark, RejectingN.J.the recommendation of the Disciplinary Board, the court denied reinstatement to Brian Joseph Smith, Montgomery County, on March 18. According to the disciplinary report, Smith had been ordered suspended for one year and one day on June 20, 2019, following his having filed a lawsuit in violation of New Jersey’s frivolous litigation statute, failing to respond to the Client Security Fund’s request for an explanation of a shortfall in his IOLTA account and failing to respond to the ODC’s DB-7 requests for statement of position in the matters.
DISCIPLINE
DISBARMENT ON CONSENT — Rule 215
The Supreme Court of Pennsylvania ordered the following attorney disbarred on consent under a rule of disciplinary enforcement pertaining to resignations by attorneys who are being investigated for allegations of misconduct: Stephen Paul Hildebrand, Montgomery County, on March 23. TRANSFER TO DISABILITY INACTIVE STATUS — Rule 301(e) The Supreme Court of Pennsylvania ordered the following attorney transferred to inactive status for an indefinite period under a rule of disciplinary enforcement where, in the course of a disciplinary proceeding, the respondent contends that he or she “is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which makes it impossible for the respondent to prepare an adequate defense”: James W. Zerillo, Montgomery County, on Feb. 25. Justice P. Kevin Brobson did not participate in the consideration or decision of the grantedTheFeb.REINSTATEMENTSmatter.23throughApril20,2022SupremeCourtofPennsylvaniareinstatementto
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: Michael E. Schechterly, Perry County, on March 23.
The recent disciplinary actions of the court are posted at board.org/cases/recent-caseshttps://www.padisciplinary
According to the disciplinary report, Lefkowitz had been ordered suspended for two years on Nov. 15, 2018, reciprocal with a two-year suspension ordered in New York based on a guilty plea there to criminal conduct, “namely the preparation of two subpoenas on behalf of his cousin which were purportedly witnessed by a New York judge.” The board concluded that Lefkowitz “failed to meet his reinstatement burden. [He] lacks the moral qualifications required to practice law because he continually min imized his criminal conduct, and provided false and incredible testimony in reinstate ment hearings held in Pennsylvania and New York. [He] failed to prove that he has the competency to practice law because he submitted reinstatement paperwork con taining misrepresentations and omissions, and failed to comply with post-suspension obligations. [His] lack of moral qualifica tions and competency show that he is unfit, and renders his resumption of practice detrimental to the integrity and standing of the bar or the administration of justice and subversive of the public interest.” ⚖
The court on April 1 denied reinstate ment to Jon Ari Lefkowitz, Monsey, N.Y.
Patrick O’Hare Regan, Allegheny County, on April 1, from a two-year suspension, retroactive to Dec. 21, 2017, as unanimously recommended by the Disciplinary Board. Regan was suspend ed as a result of his guilty plea to conspir acy to commit mail and wire fraud, based on his participation in an illegal scheme to corrupt the process for awarding the City of Allentown’s contract for replacing its streetlights. According to the report, Regan timely reported his conviction, cooperated with the ODC, served his probation without incident, completed all of the terms of his sentence and “fulfilled his community service requirements by speaking to college students about business law and situa tional ethics and sharing his experiences and lessons learned.” The report indicat ed that even though his criminal actions did not involve the practice of law or the court system, he “fully appreciate[d] that his conviction brought disrepute upon the legal profession.” Regan was found to have expressed “credible and sincere remorse,” spent his suspension “reflecting on his wrongdoing,” “made a point to talk about his transgressions with his teenage sons in order to teach them a life lesson that there are consequences when a wrong is commit ted” and engaged in efforts to rehabilitate himself. The board also considered the “credible testimony” of three Pennsylvania lawyers who testified on Regan’s behalf and determined that he “clearly and convincing ly met his reinstatement burden.”
16 I The Pennsylvania Lawyer EMERGENCY TEMPORARY SUSPENSION — Rule 208(f)(5) The Supreme Court of Pennsylvania ordered the following attorney placed on temporary suspension pending further de finitive action by the court: Royce W. Smith, Philadelphia, on April 8.
July/August 2022 I 17 Use code — PBA20 — to get 20% off new job postings. • PLACE your job in front of our highly • SEARCH • MANAGE • LIMIT • EMPLOYERS:FILL ••••PROFESSIONALS:POSTSEARCHSETUPACCESS PABAR-JOBS.CAREERWEBSITE.COM Discount for members: 20% off new job postings.
Much has happened in the last 24 or so years: Email is commonplace and we take smartphones and all that they do for granted. In 1999, 9/11 was still two years away. After it happened, we were never the same again. Levels of security we now encounter in our dai ly lives once would have been thought of as an intrusion and a violation of certain freedoms. We’ve had the Great Recession, then, over time, an unparalleled rise in the stock market and a booming economy. Then the onset of a pandemic that we still don’t see the end of.
In the past 24 years, the PBA grew to its largest size of membership, some 29,000, mirroring the growth in the commonwealth of active attorney license holders. Then we began, like almost all voluntary associations regardless of profession or community orga nization, a decline in membership after the Great Recession. However, now due partially to our efforts on behalf of lawyers during YOUR ”“Due partially to our efforts on behalf of lawyers during the pandemic, as well as our support for lawyers
Barryyears.increasemembershipthehaveremotely,workingweenjoyedfirstinM.Simpson
I am proud to say that, for the most part, what you have read over the last 24 years is what I have authored. That is, with one major caveat: I have always been made to look and read bet ter by the wonderful editing of my work by the editors of this publication. For that, I am deep ly indebted and express my gratitude. I admit that there were a handful of issues when I missed my deadline or turned the column over to someone who was more knowledgeable on the topic at hand and, in a few instances, I had the topic but not the time to write and the editor produced the first draft. This column is a little different. The news, which I announced at the Board of Governors and House of Delegates meetings in May in Hershey, is that I have begun the process of retiring and plan to do so by the end of May 2023. By that time, the search committee — now already formed and underway with their efforts — will have completed their task, a new executive director will be in place and will have “shadowed” me for long enough that he or she will be fully prepared to handle all of the tasks of the position and to bring new leadership. I look forward to the conclusion of that process and then getting underway with my next chapter.
Now the PBA looks more like the rest of the country. When I started at the PBA, the presi dent was the first woman to hold that position. Now we can count among our presidents six women and two minority presidents, one of whom was also a woman.
PBA
The 18th Hole By Barry M. Simpson Back in January 1999, I knew this time would come, I just did not give much thought to when. That January, the then-director of the PBA Communications Department and the editor of The Pennsylvania Lawyer asked me if, as the new PBA executive director, I would write a column for each issue of the magazine. My reaction was to shudder and think “good grief,” for when I began this job, I was in the later months of my term as the Allegheny County Bar Association (ACBA) presi dent and I wrote a monthly president’s column for their publication. I knew it could be chal lenging to come up with a subject, write the column and meet the deadlines. At least then, I could pretty much write on anything I chose about the Allegheny Bar. I did not need to take into account what someone else was writing on. For The Pennsylvania Lawyer, I need to know what the feature articles are, what the president is writing on and what the director of legislative affairs might be writing on. When I hemmed and hawed about saying yes, the communications director tried to mollify me by saying that I did not always need to write about the PBA per se, and if I was really, really stuck, the editor might ghostwrite it for me. I wasn’t confident about that happening, but in any event, I felt I was not in a position to say no.
18 I The Pennsylvania Lawyer
STATEWIDE PENNSYLVANIA MATTERS NO CHARGE FOR INITIAL CONSULTATION • Judge, Court of Judicial Discipline • Former Chairman, Judicial Conduct Board of Pennsylvania • Former Chairman, Disciplinary Board of the Supreme Court of Pennsylvania • Former Chairman, Continuing Legal Education Board of the Supreme Court of Pennsylvania • Former Chairman, Supreme Court of PA Interest on Lawyers Trust Account Board • Former Federal Prosecutor • Selected by his peers as one of the top 100 Super Lawyers in Pennsylvania and the top 100 Super Lawyers in Philadelphia • Named by his peers as Best Lawyers in America 2022 and 2015 Philadelphia “Lawyer of the Year” Ethics and Professional Responsibility Law and Legal Malpractice Law
To all of you members and readers, thank you for permitting me to serve you all of these years, and I do hope to see you in this “last” year ahead. Barry M. Simpson Executive Director www.pbi.org C. Schwartzman, Esq.
July/August 2022 I 19 the pandemic, as well as our support for lawyers working remotely and our offerings by Zoom, which save time and resources for our members and for the association itself, we have enjoyed the first membership increase in years. The fact is much has happened at all levels. In a future column I will detail some of the changes that have happened at the PBA. For now, permit me to say that it has been an honor to be a part of it all: the PBA, and the good deeds and work it does on behalf of the lawyers of Pennsylvania and the clients they serve. Those good deeds and work will continue. The time has come for new leadership and for me, as a continuing PBA member since 1973, to enjoy all the benefits of that membership. While, in golf ing lexicon, I am now teeing up on the 18th hole, I look forward to enjoying the 19th at this time next year and the continuing and welcome collegiality of all lawyers, both PBA members and nonmembers alike. Until then, I have a few more swings to make and strokes to be enjoyed. And finally, I will enjoy this year, as I have for the preceding ones, working with my 70 or so fellow PBA/PBI staff members — some of the most professional and hard-working people with whom I have interacted. They are indeed the best. They are a family that support and look out for each other and who diligently provide the highest services, support and benefits possible. It has been my privilege to be a part of that staff.
| COMPENSATIONPENNSYLVANIA1-800-932-4637WORKERS’ PRACTICE & PROCEDURE 2022 ATTORNEY DISCIPLINARY / ETHICS MATTERS Representation, consultation and expert testimony in disciplinary matters and matters involving ethical issues, bar admissions and the Rules of Professional Conduct (215) 751-2863 James
By Mária Zulick Nucci
The AnimalEvolution‘Darwinian’ofLaw
Traditionally, perhaps stereotypically, animal law was perceived as limited to cruelty, neglect and ingclaims.prosecutionsanimal-fightinganddog-biteHowever,paraphrasDarwin’sterms,anatural selection process is diversifying it, even in these areas. In Pennsylvania, nationwide and worldwide, animal law is increasing the types of conduct toward animals that criminal law penalizes and increasing the penalties. It is also developing new species in areas of significance to attorneys in various areas, such as civil rights, consumer, disability, estate planning, family, farming, insurance, landlord-tenant, municipal, property, veterans, veterinary responsibility and, most recently and perhaps most significantly, legal personhood.
Fortunly reports that 67% of U.S. households own at least one pet; spending on pets has in creased over recent decades and now includes pet insurance, pet valentines and pet sympathy cards. The phrases “pet parent” and “fur baby” are regularly used, as is “nonhuman” instead of “animal”; animal killings are increasingly referred to as “murder”; and legacy and social media coverage of cruelty and neglect cases has increased, with coverage provoking sub stantial, emotional responses. Attorney ethics are thus involved: under Rule of Professional Conduct 2.1, Advisor, attorneys are to give candid advice to clients, including moral and social factors involved. As will be seen, where conduct relating to an animal might be legal, clients should be advised of the moral and so cial facets, in the contemporary venue of 24/7 news cycles, the internet and social media.
July/August 2022 I 21
Attorneys representing clients in these areas must “bone up” on these developments and consider consulting an animal law practitioner when advisable, the better to advocate for the client. This article provides an overview of the diverse areas where practitioners should be come and remain informed on issues potential ly affecting their clients and involving animals. This legal evolution reflects societal change.
It may be said that natural selection is daily and hourly scruti nising, throughout the world, every variation, even the slightest; rejecting that which is bad, preserving and adding up all that is good; silently and insensibly working, whenever and wherever opportunity offers. – Charles Darwin
The keystone of the Keystone State’s animal law development is Libre’s Law, signed by Gov. Tom Wolf in August 2017. It increased the offense level and/or penalties for cruelty, ag gravated cruelty and neglect, and provided civil immunity for veterinarians and humane officers who act in good faith in reporting suspected cruelty and otherwise acting within the scope of their duties. Offenses increased significant ly from 2017 to 2018, but with a noticeable decrease in 2019. Besides amending the law regarding acts commonly regarded as cruelty and neglect, Libre’s Law also sets require ments for tethering dogs, including particular terms when temperatures are below freezing or above 90. Currently, Victoria’s Law, Senate Bill 234/House Bill 1299, is pending. It will pro hibit pet store sales of commercially bred dogs, cats and rabbits to address the puppy mill problem in the commonwealth and require sell ers to disclose identification information. (See
22 I The Pennsylvania Lawyer
Animal issues are also addressed by consumer laws. Pennsylvania is regularly ranked near the top of states with puppy mills, with Lancaster County typically in the lead. In 1968, the state enacted the Dog Purchaser Protection Act, or Puppy Lemon Law, requiring breeders and sellers to post notice of buyer’s rights and to provide var ious information. More recently, consumer laws are increasingly being used to address abusive farming practices, as cruelty and neglect laws typically exempt “normal agri cultural operations” or similar definitions. Consumer laws come into play when farms claim to have “humane” or “sustainable” operations and methods, or claim to comply with animal welfare standards, but under cover investigations reveal poor conditions and even active abuse by employees; claims are made for false and/or deceptive adver tising and consumer fraud. The most noted This evolutionlegal reflects societal change.
“Victoria’s Law: Changing the Direction of Pennsylvania’s Pet Market,” in the May/June 2021 issue of The Pennsylvania Lawyer.)
The legislation is named for Victoria, a German Shepherd forced to breed for 10 years in a Pennsylvania mill. In conjunction with amendments to animal cruelty and neglect laws, several states, starting with Connecticut in 2016, have cre ated courtroom animal advocate programs (CAAP), where law students, under supervi sion, and volunteer attorneys assist in cases involving cruelty or neglect of animals. They do not represent the animals but assist the courts in understanding the legal and other issues involved. Several states, including our neighboring New York, have CAAPs; New Jersey has pending legislation to create one.
Civil rights and municipal liability arise most frequently in cases of police shootings of pet and service dogs, as unreasonable seizures under the Fourth Amendment and Article I, Section 8, of Pennsylvania’s Constitution and as emotional distress and other tort and property claims. A key case is Brown v. Muhlenberg Township where, in 2001, the Third Circuit stated that Fourth Amendment and other claims could be made where a police officer, despite the owner’s pleas, repeatedly shot Immi, a 3-year-old Rottweiler who had escaped her yard, even as she crawled away after the first shot. In Bletz v. Corrie (2020), that court reiterated that liability can arise unless the officer reasonably believes that the dog presents an imminent threat. These incidents have received increasing publicity nationwide in recent years, calling for legis lation and funding, including in Pennsylvania and by law enforcement organizations, for better training and equipping of officers in nonlethal control, and in researching the presence of dogs when preparing for an arrest or search warrant to be executed at a property. Presciently, the court in Brown, more than 20 years ago, noted “community sentiment” and owners’ “emotional invest ment” in pets, such that law enforcement must work toward proper handling of pet situations, given the legal, hence financial, and certainly public relations risks. (At present, the Pennsylvania Animal Response Team is available to assist law enforcement and other first responders.)
agricultural operations exception is not always a defense. The Superior Court, in In re: Private Criminal Complaint Filed by Animal Outlook, (2022), found that Animal Outlook, an advocacy or ganization, presented sufficient evidence to make a prima facie case of neglect, cruelty and aggravated cruelty, outside “normal ag ricultural operations,” against Martin Farms in Franklin County and directed that, on remand, the district attorney was to accept the group’s private complaint and transmit it for prosecution, where the district attor ney and common pleas court had rejected it. Although nonprecedential, Animal Outlook indicates the trend toward protection of farm animals. That trend is reflected in states enacting “ag-gag” laws that restrict or sometimes criminalize undercover investigations, often by persons who get jobs at industrial farms to record conditions. These laws are chal lenged under the First Amendment and can also be challenged under speech provisions of state constitutions. Recently, the U.S. Supreme Court declined to hear the State of Kansas’ appeal in Kelly v. Animal Legal Defense Fund, where the Tenth Circuit struck that state’s law.
Municipal practitioners also need to be aware of state laws prohibiting local ordinances regarding allegedly “dangerous dogs” based on breed. These increased nationally, usually in response to publicized incidents involving “pit bulls,” Rottweilers, German Shepherds and other breeds per ceived as inherently dangerous, regardless
July/August 2022 I 23 of such cases currently are the two class actions against Fairlife LLC and its owners, filed in 2019 in federal court in Illinois for conditions including violence against cows and calves by employees at its dairy farm. In response, particularly as to industrial farms, some states have enacted laws with specified terms for the animals’ housing and other conditions; with interstate meat and dairy sales and federal regulations on farming and animal treatment, these laws have sometimes been challenged by pre emption, supremacy and commerce clause Pennsylvania’sarguments.
Municipal solicitors should also advise their clients of Pennsylvania’s 2018 Motor Vehicle Extreme Heat Protection Act, or “hot car law,” giving law enforcement and other specified persons, under conditions stated in the act, authority and immunity in rescuing dogs and cats from overheated cars, a regrettable continuing problem in the state’s hot, humid summers (As written, the law does not extend to other species.) The law also expanded the types of service dogs entitled to protection in housing and public
24 I The Pennsylvania Lawyer of an individual dog’s behavior. To the con trary, the Dog Law sets forth the criteria for determining and handling a dog as danger ous, based on evidence specific to that dog.
Civil rights issues can arise for persons with disabilities. In 2017, the U.S. Supreme Court, in Fry v. Napoleon Community Schools, remanded for determination wheth er a school district violated the Individuals with Disabilities Education Act by prohibiting a student with cerebral palsy from bringing her service dog to school on the grounds that a human aide in school made the dog superfluous; the case settled. Attorneys representing persons with dis abilities should also be versed in the U.S. Department of Transportation’s (DOT) 2020 regulation under the Air Carrier Access Act Section 7738 of the Decedents, Estates and disability.owner’sofprovideAnimaltheCodeFiduciariesprovidesforcreationofanTrusttoforthecarepetsuponthedeathor
Significantly, contrary to the traditional “one bite rule” taught long ago in tort law class, the conduct of the bite victim preceding the incident and whether he or she was mis treating the canine is now considered.
Solicitorsaccommodations.forsome municipalities might need to apply that famous feline curiosity re garding trap-neuter-release (TNR) programs and related ordinances, where community cats — formerly known as strays — are caught, neutered, perhaps vaccinated, then released to live independently. Funding is usually via private donations, but some organizations provide funds upon a proper application detailing the proposed program and need. Solicitors must recognize that not everyone is a cat lover, so opposition is foreseeable. Attorneys approached by a TNR group, or group planning these activi ties, must consider their requirements and needs in creating and advising the entity.
Also in the criminal law subspecies, so to speak, Pennsylvania law already addressed causing injury or death to a law enforcement animal. Now pending is HB 1570, “Cash’s Law,” which would provide a sentencing enhancement for killing a domestic animal during a burglary or criminal trespass. Estate planning may specifically address pets. Section 7738 of the Decedents, Estates and Fiduciaries Code provides for the creation of an Animal Trust to provide for the care of pets upon the owner’s death or disability. The trust should include terms for appointment of a guardian; power of attor ney; and veterinary care, including potential euthanasia. On the latter, attorneys must remember In re Caper’s Estate, the 1964 Allegheny County case in which the court invalidated will terms for the euthanizing of the testator’s healthy Irish Setters, as not within the Wills Act and against public policy. Such cases have long gotten publicity, and publicity would be clearly greater today. Estate planning should also address the owners’ and pets’ deaths. This may include cremation or burial, where owners and pets may be placed together, consistent with laws regulating these processes and cemeteries. Pets can be involved in divorce actions. Pennsylvania still regards animals as personal property, so a court will not likely
AccessOnlinetothe
Lawyer Magazine PBA members have online access to award-winningthe 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 www.pabar.org.website, Pet insurance is a growing market, leading to potential coverage issues.
Prosecutors and criminal defense practitioners are doubtless aware of Commonwealth v. Purnell, the 2021 deci sion in which our Supreme Court ruled that a vulnerable witness may use a “comfort dog” in court, provided the use passes the balancing test where the likelihood of assisting the witness with providing truthful testimony outweighs the risk of prejudice infringing the defendant’s right to a fair trial.
July/August 2022 I 25 on travel with service animals on commer cial flights. There were inconsistencies in federal laws and numerous reports and complaints of “unusual species,” as phrased in the regulation, being claimed as “emotional support animals,” perhaps most famously Dexter, a peacock. The DOT, after a lengthy rulemaking process, including receipt of about 15,000 comments, promul gated the revised rule in December 2020. The 122-page rule limits service animals to properly trained dogs and provides other terms for taking them on board. The rule does not change the DOT’s or airlines’ rules for taking pets on board as pets. Attorneys should thus be prepared for clients’ questions on traveling with pets, as these issues are typically left to individual airlines to establish requirements, and on their rights if a pet is lost, injured or dies in transit, as in the well-publicized incident where a puppy died after a United Airlines cabin crew made the dog’s owner put him in the overhead storage bin, where he barked for two hours before expiring. Airport counsel should also be apprised of laws for animals at airports, where airports might have areas for animals being transported outside of the passenger cabin; overnight or connecting-flight accommodations; pet relief areas; and pet ambassador programs, with trained dogs to assist children and nervous passengers. These certainly beneficial amenities raise their own litters of potential contract, insurance and tort concerns and civil rights insofar as commercial airports are operated by federal, state or local public entities. Regarding transportation, issues can arise for ground transportation of animals, such as for shows, breeding or personal moves, where the animal does not travel with its owner.
Relatedly, hunters resident in Pennsylvania can be affected by federal and state laws re garding species protection, even for hunting in other nations, like the proposed federal CECIL Act (HR 2245), which would have halted the import of big game “trophies.”
26 I The Pennsylvania Lawyer entertain custody and visitation rights as phrased. Counsel should attempt to negoti ate agreeable terms for a settlement agree ment or prepare well if the matter must un fortunately go to litigation. (For a classic film take, the reader should view The Awful Truth, where Cary Grant and Irene Dunne play a divorcing couple, each seeking custody of their dog, Mr. Smith. Dunne’s character wins by showing Mr. Smith a toy, secreted in her sleeve, while he “testifies”; neither the judge nor Grant’s character notice the witness-in fluencing tactic.)
Hunting law is its own branch of animal law, with respect to statutes, regulations and case law, and efforts to end “guaranteed” or “controlled” hunts, commonly called “canned” hunts, pigeon shoots and coyote hunts, the latter two particularly when they are conducted as contests. Pigeon shoots also invoke laws protecting children, where they are present at the shoots and assist with disposing of dead and injured birds. In addition, hunters are not exempt from cruel ty laws. Readers might recall the 2019 case where two Jefferson County teenagers, be fore its death, repeatedly kicked and twisted the antlers of a deer one of them had shot; they posted video of their actions, engender ing worldwide reaction, and were charged with various offenses, including cruelty.
The bill was named for Cecil, the lion killed in Zimbabwe in 2015 by American dentist Walter Palmer, leading to international an ger. Even without federal legislation, several airlines announced that they will no longer transport this cargo. Insurance practitioners need to track developments. Pennsylvania is one of a very few states that prohibit insurers from denying coverage based solely on “specific breed.” Where a carrier is permitted to do this in other states where it writes cover age, counsel must advise of Pennsylvania’s disallowance of the practice. Relatedly, pet insurance, to cover a pet’s needs, not liability coverage for the owner, is a growing Pennsylvania still regards animals as personal property, so a court will not likely asvisitationcustodyentertainandrightsphrased.
animalreportingcivilprofessionalsotherveterinariansprovidesandveterinaryimmunityforsuspectedabuse.
Wrongful euthanasia claims can also trigger liability and, if performed at a public facility, to a civil rights claim as a wrongful seizure of property. The Superior Court in Miller v. Paraino (1993) disallowed emotional dis tress claims, despite allegations that the veterinarian in the case beat a pet dog to death and other allegations of improp er conduct, including toward the owners.
July/August 2022 I 27 area. Fortunly also reports that, while cur rently only about 2% of the pet population is covered, pet insurance is a growing market, leading to potential coverage issues. Relating to homeowner’s insurance, property issues also arise regarding landlord respon sibility. Although not liable solely because he or she owns the property, a landlord can be liable for a tenant’s dog biting a third party, depending on the particular facts, includ ing if the landlord had notice of the dog’s prior history of aggression. Landlords must be advised of their responsibilities under fair housing laws and the Americans with Disabilities Act regarding tenants and pro spective tenants with service animals: “No Pets” policies could lead to discrimination claims. Counsel for veterinarians should be familiar with laws on liability for malpractice. Although animals remain personal property under Pennsylvania law, so that damages are typically limited to the animal’s value, there is still potential exposure for loss from improper treatment, which could be costly in the case of, for example, a race or show horse or other show animal having a good career, particularly with breeding prospects.
But Miller was 19 years ago: There is a movement toward making such claims which, while not yet a movement courts are upholding, is another reflection of societal changes in our relationship to nonhumans. On the positive side for veterinarians, Libre’s Law provides them, and other veterinary Libre’s Law
28 I The Pennsylvania Lawyer professionals, civil immunity for reporting suspected animal abuse.
Shelters, rescues and public animal-control facilities need to be apprised of potential contract, tort and civil rights issues. Pet surrender and adoption contracts should be well written, and protocols set for intake and holding, to protect against wrongful adoption or wrongful euthanasia if an owner arrives too late to reclaim a lost pet. The adoption issue can arise especially where pets are taken in, locally or from out of state, as rescues from natural disasters. This was a significant issue after Hurricane Katrina, with lawsuits continuing for years.
Zoos and animal exhibitors can be sued under the federal Animal Welfare Act (AWA) and the Endangered Species Act (ESA), as well as state law; on the federal front, the 1900 Lacey Act, an early wildlife-protection act first directed to migratory birds, remains in the U.S. Code. A 2021 suit in the Western District of Pennsylvania under the ESA and Pennsylvania nuisance law challenged conditions and treatment of animals, including Bosco, an aging black bear taken from the wild at four months, big cats and other animals at Pymatuning Deer Park in Jamestown. This year, the park agreed to retire Bosco and rehome him and certain other animals to Colorado’s The Wild Animal Sanctuary; the suit will continue as to other animals, including big cats. Even sharks, perhaps the ultimate unsym pathetic plaintiffs, are gaining protection: pending in Congress is the Shark Fin Sales Elimination Act of 2021 (HR 2811, S 1106); similar legislation was proposed in Pennsylvania in prior terms. Construction projects, especially in previ ously open, unbuilt areas, might need to consider not only the Endangered Species Act but other, similar federal laws. Moreover, there is an uptick in requiring safe passage and wildlife corridor provisions in planning and design, also to be considered. Solar and, far more so, wind farm energy projects have faced challenges for harm to wildlife. Earlier this year, ESI Energy pled guilty to charges arising out of the Migratory Bird Treaty Act and was sentenced to $8 million in fines and restitution and five years’ proba tion for the deaths of over 150 eagles at its wind farms in eight states. Finally, on the most intriguing issue, The Nonhuman Rights Project (NhRP) is advocating for Happy, as stated by NhRP, an elephant taken as a baby in 1971 and eventually placed at the Bronx Zoo. NhRP challenges the conditions of her situation and seeks legal personhood status so that she may be granted habeas relief, based on her fundamental right to bodily liberty, and released to an elephant sanctuary. As of this writing, argument before the New York Court of Appeals, the state’s highest court, is scheduled for May 18, 2022. The con cept is, unfortunately, too often dismissed as saying “animals are people,” similar to the misrepresentation of the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission as saying “corporations are people,” despite the long constitutional and other legal history rec ognizing legal personhood, particularly for litigation purposes, for various nonhumans, such as political, business and organization al NhRPentities.advocated this concept before. In 2018, the New York Court of Appeals de nied review of a habeas request for Tommy and Kiko, chimpanzees kept in cages at a used trailer lot. Concurring, Judge Eugene M. Fahey nonetheless noted the ethical and moral issues raised and stated that the question of legal status will someday need to be addressed. In addition, in 2021, the Southern District of Ohio applied Colombian law, which grants animals standing, and 28 U.S.C. §1782, regarding an “interested person” in a foreign proceeding, to authorize depositions of veterinarians regarding steril ization of hippopotamuses descended from
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July/August 2022 I 29 those acquired illegally by deceased drug dealer Pablo Escobar for his compound in that country; they were named petitioners, as Community of Hippopotamuses Living in the Magdalena River. That decision, too, was mocked as suggesting “hippos are people,” but the decision is interesting reading on comparative law and the inter action of federal and another nation’s law. Other countries, including Austria, France, Germany, India and Switzerland, grant at least some species certain legal status, and Oregon did so in 2014 via state Supreme Court decision, so personhood is a topic to Ironically,follow. and sadly, personhood and stand ing have precedent: Animals were subject to prosecution in ecclesiastical and civil courts dating to ancient Greece, and in countries around the world, usually result ing in gruesome executions. This was in addition to mob justice against an allegedly offending animal, the religious concept of the scapegoat and ritual animal killings for religious or festival purposes and cele brations, which occur today, even in the United States, an issue the Supreme Court addressed in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). Florida continues to have ritual animal killings, often of stolen pets. Beyond Pennsylvania and federal law and other nations’ domestic laws, the American Bar Association addresses animal issues, and animal law invokes several international treaties and conventions, perhaps most notably the Convention on the International Trade in Endangered Species of Wild Fauna and Flora, the Convention on Biological Diversity and the draft Convention on Animal Protection. Our Supreme Court, in Commonwealth v. Cox (2020), quoting the U.S. Supreme Court in Trop v. Dulles (1958), reminded us that law evolves, consistent with “the evolving standards of decency that mark the progress of a maturing society.” Mahatma Gandhi stated that “[t]he greatness of a nation and its moral progress can be judged by the way its animals are treated.” To paraphrase Darwin, animal law is evolving, continuing to scrutinize and work, wherever opportunity offers, in Pennsylvania, the United States and the world. Attorneys prac ticing in many branches of law’s evolution ary tree should study this progress. ⚖ Mária Zulick Nucci is a member of the PBA Animal Law Committee and of several other PBA and American Bar Association groups. Her career has included ap pellate litigation, aviation, space, transportation and First Amendment law, and public contracting. She is a contract attorney with Allerton Bell PC in Douglassville and may be reached at MJNucci58@gmail.com. If you would like to comment on this article for publication in our next issue, please email us at editor@pabar.org.
By Kelly A. Mroz and Karly Bowen
30 I The Pennsylvania Lawyer
OUT OF PROFESSIONINTOPANDEMICTHETHE
The COVID-19 pandemic has influenced every aspect of lawyers’ lives, personal and professional. The educa tional and wereexperiencespreprofessionaloflawstudentslikewiseshapedand challenged in unique ways. Some current law students and recent graduates provided their perceptions of how the pandemic has impacted their law school experience and might influence their first steps into the legal Interestprofession.inlawschool increased during the pandemic. Law school admissions remained stable in 2020, then surged in 2021, with enrollment up by 12% over 2020 levels, according to the American Bar Association Jefferson(ABA). Toro (1L) entered law school as part of the 2021 surge. His reasoning: “One hundred percent, I delayed my applica tion when COVID initially came through be cause of the impact on in-person learning. Even when I applied in 2020 it was a bit of a gamble whether in-person learning would be Unlikeback.”Toro, Karly Bowen (2L), elected not to delay law school after the pandemic hit. She explains: “I had already been accepted and was ready to jump into law school. I wasn’t
The experience of Eli Fields (3L, who uses they/them pronouns) was mixed: “I pros pered with remote learning. Without a com mute, there was extra time to spend reading and studying. I also felt like remote learning
The reality for young lawyers who are entering the profession may be better than these students expect.
The shift to remote learning forced students who were already enrolled in law school to adapt quickly. The challenges they experi enced may advantage young lawyers as they enter the profession. According to Donna Gerson, associate dean, Career Strategies at Drexel University Thomas R. Kline School of Law, “I believe that the pandemic has forced all of us to become more flexible and resilient in the face of constantly chang ing circumstances. It is my hope that law students will draw strength from this difficult time and know that they are capable of overcoming obstacles as they enter the
July/August 2022 I 31 sure what to expect with remote learning but knew that law students and professors had already started the virtual learning process in the spring of 2020.”
Recentworkforce.”graduate Nick Longinotti agrees, “The transition to online learning was an adjustment. But the pandemic helped me learn to be flexible, make changes on the fly and transition quickly. I think these skills will be valuable to me in my career as a lawyer.”
Nick Longinotti University of Pittsburgh, School of Law (Class of 2021) Nick Longinotti majored in history and political science for his undergraduate studies and wasn’t sure what he wanted to do with those early in his college career. But working three years at Gismondi & Associates in Pittsburgh as a document and file clerk sparked his interest in law school. Longinotti notes, “I liked the work they did helping people during a dif ficult time. That stuck with me. I decided to go to law school because I could use that education to advocate for people in tough situations.” In law school, Longinotti discovered an interest for elder law and estate planning through an estates and trusts class taught by a dynamic attorney and through Pitt Law’s Elder Law Clinic. He is now employed as an estates and trusts attorney at Sechler Law Firm in Cranberry Township.
32 I The Pennsylvania Lawyer
Eli Fields, 3L Penn State Law Eli Fields (who uses they/them pro nouns) was motivated to pursue law school when living in Queens, N.Y., when then-President Trump signed an execu tive order banning entry into the U.S. for foreign nationals from seven predominantly Muslim countries. Fields watched as volunteer attorneys rushed out at 3 a.m. to help people on incoming flights impacted by the ban. The event sparked a determination to acquire the skills and knowledge to be able to help individuals facing legal injustices. This passion for advocacy influences their search for a position as a civil rights attorney. “When I’m looking through jobs, I’m specif ically looking for work that aligns with what I believe in. I’m also more inclined to apply to a job posting that conveys that they welcome disabled people, women, nonbinary people and minority applicants.”
Karly Bowen, 2L, Penn State Law Karly Bowen graduated from Merrimack College in North Andover, Massachusetts, with degrees in English and economics. During her undergrad uate career, she spent much of her time volunteering as a program director at a family homeless shelter after school program and as a creative writing teaching assistant in sev eral jails. These volunteer experiences inspired Bowen to go to law school to work on policy issues surrounding education inequities. While in law school, she has focused her law school career on education and is currently a law student ex tern at Penn State’s Student Legal Services and an intern at Penn State Law’s Office of Student Services. She is putting her undergraduate degree in English to work as a co-author of this article.
Jefferson Toro, 1L Drexel University Thomas R. Kline School of JeffersonLaw
Toro is a first-generation college student whose parents both entered the United States as undocumented immi grants. Due to some legal issues his parents were facing, Toro and his mother experienced weeks of homelessness until his fourth-grade teacher offered them a temporary home with her. He remembers his teacher reassuring him that it was all going to be OK. This ignited his interest in the law. “I want to be able to impart this same sense of stability and peace to people who need it.” With undergraduate degrees in mathematics and physics and work experience as a data analyst, he is interested in pursuing patent and immigration law.
Troi Pryor Incoming TroiVanderbiltStudentLawSchoolPryorisscheduled to start her studies at Vanderbilt Law School in August 2022. She graduated from the Pennsylvania State University in 2021 and is currently work ing full time in the legal field. Always drawn to the law, Pryor found her mission in life after being diagnosed with Type 1 diabetes. Her health journey sparked an interest in health care reform. The pandemic reinforced this interest area, as she watched issues in the healthcare system unfold in real time. She hopes to practice at a personal injury firm after graduation, working on catastrophic personal injury cases.
July/August 2022 I 33 allowed for more engagement with profes sors. Open chats invited people to partici pate who would not volunteer as much in an in-person classroom. At the same time, I got less hands-on experience because of the Hands-onpandemic.”experience was at a premium as internships in 2020 shifted from in-person to remote or were cancelled altogether. According to Glassdoor.com, the legal indus try removed 22% of its internship openings in the first months of the pandemic. While this was markedly lower than the decline of 50% across all industries, the change was significant for a profession that relies heavily on internships to bridge the gap between the classroom and practice.
Given the difficulties students have experienced securing internships, it is understandable that they also have concerns about the job market.
http://www.pabar.org/site/militarydocumentsplanningtofirstrespondersandveteransinPennsylvania.Tovolunteer,visitFor-the-Public/Wills-for-Heroes/Volunteer“Thankyou”isnotenough.
The pandemic also made it difficult for Fields to secure hands-on experience in the field. “I think I would have benefitted from an internship during my 1L summer, but those opportunities evaporated when the pandem ic hit. Even fellow students who already had internships all settled [for summer 2020] ended up losing those internships as every thing shut down.”
Longinotti completed an in-person intern ship his 1L year, but the pandemic unfolded right before his 2L summer. He lost the in ternship he had lined up when the employer shuttered the program. He bridged the gap in practical experience by enrolling in an Elder Law Clinic during his third year: “As a student, it was important that I made sure I was getting out in the world, meeting attor neys and seeing different practice areas.”
To balance the lack of in-person internship opportunities, Fields enrolled in an extern ship and also leveraged leadership opportu nities at law school, such as class repre sentative to the Student Bar Association and president of Penn State’s OutLAW organization. In these roles, they were able to advocate for equity and inclusion while acquiring transferrable skills. As a 1L, Toro notes that, even now, “While school life is pretty much back to normal, in internships you still see the remnants of COVID, particularly in how people see themselves being in the office. When I’m looking at internships, I’m wondering, ‘how am I going to fit in at this firm and culture if people are not ready to go back into the office yet?’”
The Wills for Heroes program provides free basic estate
Complicating law students’ job searches is student debt.
34 I The Pennsylvania Lawyer As to Toro’s patent prosecution internship this summer, “Initially the internship was offered as fully remote, but I value in-person connections and think they are important for my career development. I was able to negotiate a hybrid structure.” Given the difficulties students have experi enced securing internships, it is understand able that they also have concerns about the job market. Toro explained that he has “... heard from so many people, ‘the market is saturated, the market is saturated ...’ but there’s always that little phrase, ‘unless you’re a good lawyer.’” The pandemic did impact employment for new lawyers. The ABA reported that 8.3% of the class of 2020 was unemployed as of April 2021, up from 6.4% for the class of 2019. Consistent with the U.S. labor market overall, employment levels have since rebounded. The U.S. Bureau of Labor Statistics reported in its Occupational Outlook Handbook that the job market for lawyers is projected to grow 9% from 20202030, about as fast as average for all Longinotti’soccupations.experience reflects these sta tistics. He passed the bar in October, had no offers for a few months, then suddenly received several offers for positions in February. He accepted a job at a boutique wills, trusts and estates practice. Longinotti shares his perception of the job market, “I heard that it was bad every year no matter who you talk to. I think it is inherently a little difficult. But I was encouraged by how many postings there were for newer graduates. It took a while. I just had to be patient.”
Complicating law students’ job searches is student debt. According to a 2021 ABA Young Lawyer’s Division survey, “Student Debt: The Holistic Impact on Today’s Young Lawyer,” 90% of respondents had accumulated student loan debt, with an average debt load of $130,000. Over 70% of respondents carrying balances of $100,000 to $200,000 reported high or overwhelming stress related to their student debt. Collection on federal student loans has been paused since March 2020 and is not scheduled to restart until August 2022, alleviating some stress for graduates. For Longinotti, “Student loan debt is abso lutely a concern. I have over $150,000 in student loans even though I lived at home during law school to save money. Some of my peers have even more debt. The loan forbearance was helpful while I looked for a job. Debt was a major consideration when I weighed job offers. I can see where people might be discouraged from government or public interest work if they have student loans. I’m just trying to be smart about it, sitting down, making a budget, organizing
One attorney, who retired at age 45, told me that he retired early because he wanted to be there for his children.” This worries Toro, who adds, “I don’t want to have to retire early to achieve work/life balance. I want to help people. I want to work.”
While Toro counts himself fortunate in the financial support he receives from Drexel, he notes that, even without student debt, the financial pressures of law school have influenced his choices, such as prioritizing finding a paid internship for the summer. Even with concerns about the availabili ty of employment and the constraints of debt, achieving work/life balance remains important in students’ career aspirations. It is a priority employers cannot ignore. A 2017 study by Thompson Reuters, “The Generational Shift in Legal Departments,” found that 50% of millennials would change their job for better work/life balance compared to 25% of baby boomers. As Generation Z enters the workforce, employ ers can expect that young employees will value work/life balance even more. Troi Pryor, an incoming student at Vanderbilt Law School, relates that, “In law school I want to prioritize mental health. One of the main reasons I chose Vanderbilt was that it’s rated No. 2 by the Princeton Law Review for quality of life. After law school, I want to be a mom one day and have a family, and I think finding that balance is important.”
editor@pabar.org.Mroz Bowen
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While the experiences and priorities of students who were in law school during the pandemic will surely impact the legal field, the reality for young lawyers who are enter ing the profession may be better than these students expect. For Longinotti, “Work/life balance was something I dwelled on a lot in law school. How much was I willing to devote myself to the profession? I found a small firm with a good balance. Of course, there are days when everyone works a little more, but, overall, it is really nice right now.”
Concern about student loan debt has made the search for a job that aligns with Fields’ career goals more challenging: “Student debt has influenced my job search in a major way. There are some positions that I’m interested in, but I couldn’t afford to pay rent and my student loan debt.”
⚖ Kelly A. Mroz is the director of Student Legal Services and interim director of Off-Campus Student Support for the division of Student Affairs at the Pennsylvania State University.
Karly Bowen earned undergraduate degrees in English and economics at Merrimack College and just completed her 2L year at Penn State Law.
In search of answers to whether his desire to prioritize work/life balance was realistic, Toro only found more questions: “I want to be a lawyer, but, at the end of the day, I am more than a lawyer. When I’ve asked lawyers if work/life balance ever becomes manage able, I haven’t found a concrete answer.
July/August 2022 I 35 finances, and making sure I put a little away for savings even while I pay down the loans.”
What Are the Chances of My Being Audited by the IRS?
By Phyllis Horn Epstein
MLawyery
36 I The Pennsylvania
son’s scariest Halloween costume was a T-shirt bearing the words “IRS Audit Agent.” An audit can be a terrifying experience. The prospect of defending every thing that you have sworn was true on your income tax return and justifying everything you left off is not only disruptive but potentially expensive. So, what — we might ask — are the chances of being audited?
Number of Audits in the U.S. The rate of audit has been in decline for at least a decade. In 2021, the audit rate for all taxpayers was .4%, down from .9% in 2009. To be more specific, in 2021 the total number of audits was 659,003 out of 160,077,451 filed individual returns. However, the audits that do occur do not equally impact all taxpayers. Notably, the audit rate for individuals below the poverty line in 2021 was more than three times the overall average and more than five times the rate for all taxpayers above the poverty line.
July/August 2022 I 37
38 I The Pennsylvania Lawyer
One reason for the disparity of audit rates is that, presently, the IRS is hampered in auditing the returns of higher net worth individuals and corporations because of a lack of resources. Tax issues that gen erate audits for lower income taxpayers are generally more straightforward, less complex and involve eligibility for tax credits. Wealthier taxpayers and corporations have more complex tax returns. According to IRS Commissioner Charles P. Rettig, “The num ber of examining revenue agents, who han dle complex enforcement cases, fell by 35%, and field collection revenue officers, who manage difficult collections cases, dropped by 48%.” Testifying before the House Ways and Means Committee in March 2022, Commissioner Rettig virtually waved a white flag of defeat in the face of corporate audits. He admitted that the IRS is “outgunned” in being able to audit a “respectable percent age of large corporations” that “can afford to spend large amounts on legal counsel, drag out proceedings and bury the govern ment in paper.”
In recent years, the IRS has relied impactoccurTheaudits.correspondenceonauditsthatdodonotequallyalltaxpayers.
In recent years, the IRS has relied on corre spondence audits, those conducted solely by mail, as they require fewer IRS resources. In 2021, 85% of all tax audits were corre spondence audits and more than half of those were against taxpayers with less than $25,000 in income claiming the earned income tax credit (EITC). Simply put, auditing low-income taxpayers by correspondence audit is cheaper and easier for the IRS. The IRS has reported that most correspondence audits can be performed in under five hours, without human intervention and at a cost of just $150. To increase tax enforcement at other income levels, the IRS created the Office of Fraud Enforcement in 2020 and has set about hiring additional agents to turn around the decline in revenue agents experienced in the last 10 years. Unfortunately, more tax examiners than revenue agents have been hired in recent years. Tax examiners are gen erally less experienced and less capable of handling complex audits — the type of audits that apply to higher net worth taxpayers.
• Related Examinations. You may get pulled into an audit if, for example, your business partner is undergoing one. The transactions that tie you to other taxpayers may suddenly involve you in a wider-scale investigation. Investors in tax shelters may wind up in an audit where the shelter itself is under review.
• Random Selection and DIF Scores Sometimes returns are selected based solely on a statistical formula. With an eye toward greater computerization, the IRS de veloped formulas, known as UI-DIF, short for Unreported Income Discriminant Function, to evaluate which returns should be selected for audit. The IRS does not have to disclose how it figures which cases to audit, and the actual criteria for generating a DIF score remains an IRS secret. However, the factors used to score a return generally mirror a tax return so that the IRS can rate, in retrospect, what issues are best placed under exam. Underlying this seemingly random method of selection is the process of comparing certain “norms” or expectations to a random sample of returns.
• High Income and High Net Worth Nonfilers. In 2020, the IRS began to focus on taxpayers who had more than $100,000 in income and had not filed a tax return before 2019. Since then, more revenue agents have been tasked to bring these nonfilers into compliance. Depending upon the situation, these cases may be referred to the Office of Fraud Enforcement within the Small Business/Self-Employed Division of the IRS or the IRS Criminal Investigation Division for Tax Evasion and Tax Fraud. Overall, those who had a positive income of more than $1 million were audited at a rate of 2.2% in 2021. Statistics from 2018 show that those earning more than $10 million annually were audited at a rate of 5.3%. The IRS commissioner assert ed in his testimony that he has targeted this demographic with 6,500 trained agents and that the high income net worth taxpay ers in this group make up a large percent age of the 4.2 million complex partnership returns filed in 2021 that compel audit Onattention.theother hand, in 2021, there were nearly 9 million taxpayers with positive income between $200,000 and $1 million, and fewer than 40,000 of these returns were audited — or .45%. Similar to the general trend, the audit rate for this group of taxpayers has declined since 2010 when it was 2.9%. The lower audit rate for this group has been explained by Commissioner Rettig as being caused by the increased informa tion reporting for these taxpayers through
What Can Increase Your Risk for Being Audited?
• Frivolous Returns. The IRS classifies certain tax return positions as “frivolous” and can assess extra related penalties. The list of frivolous positions is published and extensive, so if you claim that the tax system is unconstitutional and the government has no tax collecting authority, prepare to be audited and have penalties assessed.
• Income at the Poverty Level. As noted earlier, the odds of being audited increase for those with an annual income under $25,000. These taxpayers typically claim the EITC anti-poverty credit, which makes them more susceptible to review. And contrary to the trend of a decline in audit rates, for those with adjusted gross income between $1-$24,999, the audit rate per centage has increased.
July/August 2022 I 39 Today, the likelihood of being audited is not very great, but some taxpayers are more at risk of audit than others, based upon income, geography and issue reporting.
Selection for an audit does not always suggest there’s a problem. There are several reasons why your tax return may stand out and become one of the thousands open to audit scrutiny.
On the other hand, a National Bureau of Economic Research study showed that 85-90% of EITC audits result in a change, either because of circumstances relating to taxpayer eligibility or more often by default because of the inadequacies of correspon dence audits resulting in undelivered mail or a lack of response.
40 I The Pennsylvania Lawyer 1099 and W-2 forms, which allow for more computer matching of income and reporting rather than personal audit.
• Virtual Currency. The IRS, through its Criminal Investigation Cyber Crimes Unit, is focused on tax avoidance through virtual currency and related crimes. The IRS has targeted darknets, which provide web anonymity, for child exploitation operations, international money laundering operations and virtual currency theft and terrorism financing sites maintained on behalf of al-Qaida and Hamas, for example. A new question appears on the tax forms 1040, 1040-SR and 1040-NR this year asking you to disclose whether you received sold, exchanged or otherwise disposed of any financial interest in virtual currency. Failure to check the box in answer to this question will cause a return to be either rejected if e-filed or will result in a written request for correction if filed by mail.
• Failure to File. The IRS can track nonfilers by collecting information from various third-party sources, including 1099s and W-2s. In addition, the IRS may gather infor mation from its whistleblower program, from U.S. Attorney offices, from investigations by other law enforcement, from individual tips and from tax treaties. Eric Hylton, then-com missioner for the IRS Small Business/SelfEmployed division, was quoted as stating: “[R]est assured, we will continue to identify and contact noncompliant taxpayers, offer payment options and hold those who refuse to comply accountable.”
Approximately 330,000 EITC returns are au dited annually. In defense of increased au diting, the IRS Commissioner has noted that 50% of EITC claims have errors and result in billions of dollars of improper payments.
• Claiming the EITC Credit. The EITC is a refundable credit and an anti-poverty measure for working families introduced by the Tax Reduction Act of 1975. The credit is claimed on the income tax returns of those who are eligible based upon earned income. While the average credit is $2,500, the high est credit for 2021 is $6,728 for working taxpayers with three or more children. Use of the credit does not require documenta tion or proof of eligibility on a tax return and, as a result, most EITC audits are primarily focused on Statistically,eligibility.moreEITC audits are conducted in Southern states. The top three impact ed states are Mississippi, Louisiana and Alabama, with more than 2% of all EITC claims subject to exam. The IRS claims that geography is not an audit triggering factor, and it reasons that populations in those named states “may be disproportionately low-income and minority.”
• Claiming a Refund. The IRS website asserts that “a refund is not necessarily a > page 42
• Filing an Amended Return. Filing an amended return increases the opportunities for audit but doesn’t seem to trigger audit selection. As noted on the IRS website: “[F]iling an amended return does not affect the selection process of the original return. However, amended returns also go through a screening process and the amended return may be selected for audit.”
By all accounts and available testimony before Congress, nearly all EITC audits are correspondence audits and most correspon dence audits are because of claims for EITC.
July/August 2022 I 41 Win clients with Ruby. WHEN POTENTIAL CLIENTS TRY TO REACH YOU, ARE YOU THERE TO ANSWER? Ruby’s live virtual receptionist and chat services deliver next-level client experiences—helping you capture new clientswhile reclaiming your time for billable work. Plus, we are proud to offer PBA members an 10% discount. Learn more at www.ruby.com/pba or better yet, give us a call at 855-340-7829 and use the promo code PBA! LIVE VIRTUAL RECEPTIONISTS • Receptionists sound in-house • Live call transferring • Intake collection • Bilingual service • Outbound calling & meeting scheduling LIVE CHAT SERVICES • Answer website visitor questions • Gather lead contact info • Connect calls directly to your team • Receive notifications via text or email • 100% response rate to chats • 40% increase in online conversions Two ways to wow your clients with Ruby. Ruby’s friendly, US-based receptionists and chat specialists answer all calls and chat 100% live and tailored to your practice, 24/7. Additional features include: t. uby. pecialistsyour PBA members save 10% on Ruby’s live virtual receptionist and online chat services!
• Large Partnership Audits. The new Large Partnership Compliance Pilot Program is an indication that the IRS intends to bring new audit attention to large partnerships in excess of $10 million in assets as a result of the new centralized audit process enacted as part of the Bipartisan Budget Act of 2017 (BBA). The BBA gave the IRS more leeway to assess and collect tax from partners rather than their partnerships.
Specific Areas of Interest to the IRS. Many new IRS compliance initiatives are issue oriented rather than taxpayer centric, with “a focus on those issues that have been determined to present significant risk of noncompliance.” There are 53 current, active, issue-oriented campaigns within various divisions of the IRS. New cam paigns are announced each year. On Feb. 7, the IRS Large Business and International Division added a new campaign focused on Partnership Losses in Excess of Partner’s Basis Campaign. For the full list of audit campaigns, check out the IRS website.
•“necessarily”!
42 I The Pennsylvania Lawyer > from page 40 trigger for an audit.” Emphasis on the word
• Compensation of Officers in S-corporations. Another new focus of IRS audits is the compensation of officers of S-corporations. The issue of compensation can arise during an exam of the corporate tax return (Form 1120-S), an employment tax audit or because of IRS Compliance Initiative Projects. Often, officers of S-corporations fail to take a salary to avoid
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• Math Errors. The IRS will cross-check each return against third-party reporting to be certain, for example, that income report ed as wages on a return matches income reported on an employer’s Form W-2. This is done through the Automated Underreporter Program. According to the IRS: “Math errors include a variety of conditions such as computational errors, incorrectly transcribed values, omitted entries, failure to meet eligibility requirements, claims that exceed statutory limits and insufficiently support ed claims, which are identified during the processing of tax returns.” This is a fairly comprehensive list of misdeeds that stall the smooth processing of a tax return. In 2020, the IRS issued 1.2 million math error notices. Math Error Avoidance. The IRS has set out in IR-2022-62 “Easy Steps” to avoid math errors on a return.
The IRS will sometimes reject a tax return as filed or set aside a return where the num bers entered conflict with other third-party information reports. For example, if your 1099 interest statement from your bank shows $150 of interest earned and you report only $75, your return will be open for review. Sometimes a form is missing, or you may misstate your filing status. Not everyone is of the view that this cross-checking is the same as a full-blown audit; however, it does initiate a review of someone’s return and can lead to a larger audit investigation. Nina Olson, former National Taxpayer Advocate, characterized these examinations as “unre al” audits because they don’t result in an ex amination of the taxpayer’s records. These types of reviews are based solely upon the reporting on the tax return.
• Audit Guidelines. The IRS publishes several Audit Technique Guides for revenue agents, which is some indication of IRS interest in various taxpayers and issues, including: attorneys, child care providers, nonqualified deferred compensation, real estate property foreclosure and cancellation of debt. Each booklet offers a window into IRS thinking. For example, the Business Consultants Audit Techniques Guide en courages an IRS agent to explore whether the taxpayer has engaged in tax avoidance through bartering. Agents are urged to look for any Forms 1099-B (Proceeds from Broker and Barter Exchange transaction), to check the taxpayer’s website and links, look at memberships, credit cards and achievement awards. A taxpayer’s profile may become a factor in whether there is an audit based upon his or her own activities or activities linked to others who may be subject to audit.
Tax Return Mishaps That Can Result in Rejection or Other Scrutiny
• Tax Shelters. In April 2021, the IRS announced a new Office of Promoter Investigation for the purpose of “continuing our increased focus on promoters of abusive tax avoidance transaction. …” Specifically, according to the IRS commissioner, the IRS intends to pursue those who “promote and make use of abusive tax shelters, and [we] are especially concerned about certain variations, including abusive syndicated conservation easements and micro-captive insurance shelters.”
July/August 2022 I 43 paying employment taxes. The Treasury Inspector General for Tax Administration (TIGTA) issued a report in August 2021 specifically highlighting this problem and urged the IRS to do a better job of auditing these returns. According to the TIGTA report and the IRS Data Book for 2020, fewer than 1% of all S-corporations are selected for examination. Further, between 2016 and 2018, there were 266,095 returns with profits greater than $100,000, a single shareholder and no officer’s compensation that were not selected for a field examina tion, resulting in a multi-billion-dollar loss of employment tax. The TIGTA report suggests that the issue of officer compensation should be mandatory for field examiners and that the IRS should apply the random/auto matic analysis for auditing using DIF scores to all 1120-S returns. In the future, this may become one of those issues that is likely to trigger an audit.
The IRS may review three prior years in an audit, but can go back six years if it finds substantial errors. Communication with an agent will initially be by mail and may evolve into in-person meetings. However, always be alert for fraudulent communications from IRS impersonators who are usually likely to reach out with threatening messages by email, fax or telephone. But that’s another story for another day.
44 I The Pennsylvania Lawyer • File electronically and use tax prepara tion software. • Use the correct filing status. • Answer the virtual currency question. • Report all taxable income. • Include unemployment compensation. • Double-check name, birth date and Social Security number entries. • Double-check routing and account •numbers.Mailpaper returns to the right address. • Sign and date the return.
• Failure to File a Premium Tax Credit Form. Form 8962 is required for taxpayers who secure health insurance on the mar ketplace and pay their premiums using ad vance premium tax credits. For tax returns filed for the year 2021, the IRS will reject tax returns filed electronically without Form 8962. This policy will not apply to returns filed by paper.
Process of Audit
Always be alert for fraudulent communications from IRS impersonators who are usually likely to reach out with threatening messages by email, fax or telephone.
Conclusion Our tax system relies largely upon voluntary compliance bolstered by a sense of inherent fairness. The generally low audit percentage and erratic audit practices of the current system threaten that sense of fairness and the revenue it generates. A fear of audit influences 63% of taxpayers overall in re porting and paying taxes honestly, accord ing to a Comprehensive Taxpayer Attitude Survey of the IRS published November 2020. As the number of audits decline, the corresponding amount of revenue from audits also declines. The IRS collected $28.2 billion from audits in 2010 but only $11.1 billion in 2019. A coherent, fair and equitable system of audit should be the goal of the future. ⚖ Phyllis Horn Epstein is a partner with the Philadelphia law firm of Epstein, Shapiro & Epstein PC, with more than 30 years’ experience in taxation, transactions,corporateandtrusts and estates. She represents clients before the IRS and the Pennsylvania Department of Revenue and in the U.S. Tax Court and the Orphans’ Courts of Pennsylvania. She is a fellow of the American College of Tax Counsel and a recipient of a PBA Special Achievement Award for her three years of service as treasurer of the PBA. Phyllis is tax coun sel to the Huntingdon Valley law firm of Semanoff Ormsby Greenberg & Torchia LLC. If you would like to comment on this article for publication in our next issue, please send an email to editor@pabar.org.
• Failure to Check the Virtual Currency Box. As mentioned above, the IRS will this year reject returns that have failed to answer the question about virtual currency transac tions during the tax year. This list is not comprehensive and, certain ly, where attachments are necessary and where accuracy is paramount, the failure to attach or be accurate will likely lead to either a rejection of the entire return, a request from the IRS for additional information or a request for additional tax payment based upon available information. Preparing for an Audit
For anyone undergoing an audit, it is import ant to be responsive to the IRS letters and inquiries to guarantee having the opportu nity to challenge any changes the IRS may want to make in tax liability. In addition, it is important to maintain detailed books and records, receipts and other proof of any income or deductions to substantiate a position taken on a tax return.
July/August 2022 I 45 is now ODPIntroducingBusiness SolutionsTM TM To register and access your savings, visit: bit.ly/pabaod *Free Delivery: Minimum purchase required after discounts and before taxes. Orders outside our local delivery area and most furniture, oversized, bulk items, cases of bottled water and other beverages and special-order items do not qualify. Non-qualifying orders incur a delivery charge (minimum charge of $9.99). Many orders can be delivered next business day (between 8:30 AM and 5:00 PM) if placed online or via phone by 3:00 PM or via fax by 1:00 PM, local time (In most locations). Other restrictions apply. **Curbside pickup is available in most stores, subject to state and local regulations. Orders must be placed 1 hour before store closing. See odpbusiness.com, call 888.2.OFFICE or ask your Account Manager for details. Your PBA Office Depot® Member Benefits Program has been rebranded to ODP Business Solutions Work has changed and this exciting evolution allows for the program to be more agile and innovative. Whether you’re looking for ink and toner, paper, cleaning products, office or school supplies, count on ODP Business Solutions to be in your corner to help you succeed. Shop online and receive savings of up to 75% on the Best Value List of preferred products with free next-business-day delivery* or pickup your online order via in-store and curbside pickup.**
46 I The Pennsylvania Lawyer
All Around the Campfire
How a College Experience Fostered the Care and Keeping of Clients By David C. Hamilton
If we as attorneys invest no work to better understand the
successfully.representweoppositerealitiesemotionsexperience,andofthegender,willfailtothem
It’s safe to assume that no one is interested in hiring an attorney who only can argue for or understand the male or female position. While men will probably always better understand the male perspective and vice versa with women, if we as attorneys invest no work to better understand the experi ence, emotions and realities of the oppo site gender, we will fail to represent them successfully. As a husband, father, brother, son and family law attorney, I can naturally understand the perspective of my clients who have experiences similar to mine, but it’s critical that I put energy toward better understanding those whose shoes I have not walked in, those of wives, mothers, sis ters and daughters, so that I can effectively advocate on their behalf as well. Though it’s a daunting task, I’ve learned that the best way to gain insight into this unique experi ence is simply to listen, be intentional when asking questions and exhibit a willingness to do what it takes to understand my client’s It’sperspective.alwaysbeen clear to me that while I have a lot of experience with how men think, feel and engage with the world, I have to work hard to better understand those who have had a different experience. I grew up in a household with all boys and, while my moth er was an influential figure in my upbringing, she wasn’t sharing her thoughts, emotions and experiences as a wife and a mother with me. It didn’t help that I then attended an all-boys high school. I didn’t witness girls in their adolescence stage and therefore had no insight into what they were going through or how they were feeling. While my undergraduate and graduate schooling was
All sorts of assumptions about what men do and think were placed on me. Serving as a “representation” of men and seeing how problematic such a role was made me all the more aware of and admiring of the camp’s goal to cultivate strong, independent Byindividuals.theendof the summer, listening to my fellow counselors, asking questions and hearing experiences told from their perspec tives significantly helped me look at the out liers and differences in my own life. Creating a diverse, tolerant community requires more than putting different people together; one must be willing to acknowledge and step out of the prejudices or assumptions one holds and develop real relationships. For me, that meant not only a better understanding of the female perspective, but it also rein forced just how different it can be from the male, and how important it is to recognize the reality of both.
July/August 2022 I 47 co-ed, I rarely strayed from my comfort zone, maintained friendships with men and didn’t have significant exposure to women and the novel experiences they had until I began forming romantic relationships.
The first time I recognized just how different the female experience is from the male experience was when I became a counselor at an all-girls camp for three summers in a lakeside town in Maine. Why I decided I was equipped for that role, I do not know, but I am thankful I found myself in the position. The campers ranged in ages between 8 and 15, and they spent just over two months canoeing, hiking and tying knots. Growing up in an all-male environment reinforced what I had only ever known: I knew the problems that most boys those ages faced. However, it was during this camp that I witnessed firsthand the problems that young girls encounter during their formative years. For that, I found the summers in camp to be an invaluable experience. In addition, my fellow counselors ranged in age from 18 to 75, and most were women. It was during these summers that I had the opportunity to acknowledge new perspec tives, listen to experiences I would not encounter and implement a new set of ideas about how people should be treated. I’ll be the first to admit I wasn’t the best person for this job at the beginning of my first summer at the camp. I was uncomfortable. In addition, when you are a new person in a place full of people already familiar with each other, they stereotype you. At the first meeting, I wasn’t David the counselor, but a male counselor — a stand-in for my gender.
48 I The Pennsylvania Lawyer
When I sat for the bar with a plan to practice family law, almost a decade had passed since those summers as a camp counselor. By that time, I had a better understanding of myself and the person I wanted to be. Most importantly, I knew I still had a lot to learn when it came to the experiences of those whose shoes I never walked in, particularly, wives and mothers. The experiences of husband and father were more familiar, but it wasn’t until I stepped into those roles myself that I developed a deeper under standing of them. Interestingly enough, my first day as a practicing family law attorney was 10 days after I took on the new role of husband. It was sometimes unsettling to begin my marriage as I helped other people settle the end of theirs, but working on my marriage allowed me to gain insight into the complexities of the union, the different roles that partners play and the different emotions and complexities involved. Being a husband gave me a window into one ex perience, and watching my wife navigate her own experience and the emotions involved helped me gain a better understanding of that unique role as well. More than anything, it reinforced how important it is for me to ask questions and never assume that I know what a person is going through. I have found that the more personal experience I have with the roles my clients hold, the more successful I have become at my craft. While there is no substitute for personal experi ence, I cannot wait for years to toll for me to properly represent my clients. With that, I understand the importance of investing and expending energy to understand my clients’ perspectives and the logic behind what they are fighting for. At camp, the particular environment made honesty all the more possible. Phones were banished, and the internet was inaccessi ble. Everyone — male and female alike — wore the same uniform of navy shorts and a light blue T-shirt. In the place of typical teenage activities, we canoed or hiked. It was idyllic. For two months, the campers, counselors and I were closed off from the outside world and given the chance to scru tinize our thoughts and opinions on how we wanted to be treated and, in turn, foster a better community among each other. As a family law attorney, I do my best to create an environment where my clients are comfortable such that they are willing to share their unfettered opinions. While that may not mean unplugging from the outside world or canoeing on a lake for two hours, it does mean leaving my cellphone in my office At the first meeting, I wasn’t David the counselor, but a male counselor — a stand-in for my gender.
As a member, you should be receiving routine PBA emails, including the PBA e-brief and important updates such as details about the PBA advocacy for lawyers
My most recent learning experience came when my wife and I became parents in January. Once again, I found that stepping into the role gave me a more intimate understanding of what my clients were going through as parents. Feeling the intense emotions of a father, watching my wife take on the important role of a mother and recognizing the different relationships that form between a mother, father and newborn child helped reinforce just how important it is to appreciate the complex realities and emotions around a family structure when I
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July/August 2022 I 49 or turning it off for the time we are talking. It also means maintaining eye contact and gently digging into areas of interest where my client might not be as open or willing to share. Once my clients realize how willing I am to listen, I have found that the lines of communication are much more open and effective. As a lawyer, I do my best to stay away from labeling anything as a “women’s issue” or “men’s problem.” Such terms and labels may seem harmless, but that line of thinking is where stereotypes or prejudices are most insidious.
50 I
The Pennsylvania Lawyer am working through a divorce or custody battle with a client. Before fatherhood, I al ways thought I had sufficient understanding of the motives behind custody battles, but now I recognize there are often more layers to these stories that I need to break down. From working with campers and counselors to now working with mothers and fathers or husbands and wives, I have learned that those titles should not define how I view a person or represent them. I try to leave the label at the door since I do not want to perpetuate any old bias. For instance, if I represent a mother in a custody battle, I believe the old archetype that a child needs his or her mother should not be the basis of my argument. However, I will argue that if the child has lived solely or primarily with the mother since birth, then every effort should be made to maintain the status quo. The basis of the argument has nothing to do with the mother and the traditional role of the caregiver. Instead, I highlight the need for stability and continuity in the child’s life. I convey that my client is more likely to maintain a loving, stable, consistent and nurturing relationship with the child. While the previous sentence may lean on the stereotypical gender roles that continue to plague mothers and wives, I cannot lose sight of what the client is fighting for. The time spent investing and expending energy into understanding my client’s perspective pays dividends if and when the matter must be presented at trial.
I have found that the more myImoreclientswithexperiencepersonalIhavetherolesmyhold,thesuccessfulhavebecomeatcraft.
ment on this article for publication in our next issue, please send an email to editor@pabar.org.
Another example of the unfortunate use of stereotypes that are prevalent in the family law field surrounds fathers as primary care givers. In my practice, I had a father who wanted to share physical custody of his ado lescent daughter. In speaking with opposing counsel about the matter, a surprising trope was perpetuated. Opposing counsel indicated that my client was a 50-year-old man and he should not be living with his adolescent daughter. I was dumbfounded by this line of thinking. While my client may have lacked personal experience about girls’ coming-of-age years, it does not mean such backward-thinking views should still exist. As a counselor, my role was to accompany the campers on their journey and impart respect and dignity. As an attorney, my title has changed but my role remains the same. I safeguard the interests of children through assisting my clients unwind a marriage or determine a fair custody arrangement. And though it always feels like there is never enough time to do anything, if we as attor neys can recognize that we might not know as much as we think we do, especially about those with whom we have little in common, and take the time to listen to and learn more about our client’s experience rather than making assumptions, our arguments will be stronger and we can do a better job representing them. As attorneys, we should aim to shatter the presumptions that we hold and, in their place, aim for an equal, just society that nurtures and dignifies each person. My months in camp those summers gave me a deeper understanding that a diverse, inclusive community isn’t manufactured, but is a process unto itself where each person’s experience and outlook must be acknowl edged, examined and reevaluated in light of the whole. ⚖ David Hamilton is a fam ily law attorney in Bucks County at Williams Family Law. Learn more about his practice by visiting Ifbucksfamilylawyers.com.www.youwouldliketocom
July/August 2022 I 51 LAWYER REFERRAL SERVICE PENNSYLVANIA BAR ASSOCIATION Your Other Partner Expand your potential client base The Lawyer Referral Service (LRS), exclusively for PBA members, makes connecting with potential clients easier. Looking for the opportunity to grow your practice? Join the PBA Lawyer Referral Service (LRS). The LRS receives more than 10,000 inquiries each year from individuals seeking legal help. Referrals are made exclusively to participating PBA members. And making connections with potential clients is now easier than ever thanks to the online LRS platform, available 24/7/365. Find more details and sign up Referral-Servicewww.pabar.org/site/For-Lawyers/Lawyer-here:
Early columns addressed the law yer’s reputation, self-awareness, professional growth, persuasion skills, navigating emotions and the importance of perpetual learning. Previous columns provided in sight into best practices for competency and contentment. (PBA members can refer to columns published in previous issues using their member login at
1. Endowment Effect: A person de velops an attachment to an object after owning it for even a brief period of time. This results in a disparity as to how the object is viewed from the perspective of seller and buyer. The person in posses sion, the seller, usually places a higher fair market value on the object than the buyer or an independent, objective observer based on the fact of possession. This can extend to ab stract claims such as occur on a daily basis in the practice of law. In short, possession “endows” a subjective higher value to the holder than may be warranted based upon benchmarks and other neutral criteria.
Lawyers must be counselor.astheanddetoursobstaclespaththepushforcesofRecognitioncisionmitigatetocognitiveawareconstantlyofbiasavoidordeerror.thementalthatusalongplanneddespiteandispartparceloflawyer’sroleadviserand
howdefectsdecision-makingemployment.ofthatjudgmentaddressedthepracticeJudgmentPennsylvania-Lawyer-Magazine.)pabar.org/site/News-and-Publications/https://www.anddecision-makingtheoryandarebestunderstoodwhenreadincontextoftheseries.Recentcolumnshowtoreduce“noise”toimprovebyofferingspecificbestpracticescanbeintegratedeasilyintothepracticelaw,regardlessofthenatureofindividualThiscurrentseriesexploresinthecontextofcognitiveandbiasesthataffectchoicesandattorneyscounselclients.
When you find yourself in a hole, the best thing to do is stop digging. — Warren Buffet How people think and make choices is studied in academia under the broad categorization of “decision sciences” and “behavioral econom ics,” which include the neuroscience of the hard-wiring of the brain and cognitive bias in volved in judgment, negotiation, advocacy and conflict resolution. There are several related concepts, commonly called cognitive biases, that are critical to the effective representation of clients. Let us define and consider endow ment effect, loss aversion, status quo, sunk costs and escalation of commitment. Decision Error and Cognition Bias
Making Decisions: Never Give Up? By Robert A. Creo THE EFFECTIVE LAWYER ”“
2. Loss Aversion: It is well known that humans value the avoidance of loss more than the benefit of gain. The psychological impact and response are stron ger for losses than for corresponding or equal gains. This rebuts the classical economic theory, which dominated for centuries, that humans make objective and rational choices to maximize gain. It has often been thought of as the seminal finding launching the field of behavioral economics. A classic example is our reluctance to sell a stock or item that has
52 I The Pennsylvania Lawyer
3. Status Quo : When faced with uncertainty, there is a tendency to default to the status quo rather than make a “risky” decision.
5. Escalation of Commitment: Closely related to sunk costs and considered by some behavioral scientists as the same cognitive fallacy, the irrational escalation of commitment is often present in litigation or bargaining. An individual or group not obtaining its goals or facing increasing challenges from a decision, action or investment continues the actions instead of altering course and maintains behaviors that are irrational yet consistent and aligned with previous de cisions and actions. In common parlance, the phrase “doubling down” from the card game blackjack represents an accelera tion of resources dedicated to the desired outcome. Other common phrases are “Throwing good money after bad” or “In for a penny, in for a pound.” These heuristics are shortcuts and alternatives to reflective and critical thinking. My experience as an attorney and medi ator has found these five elements to be present in the overwhelming majority of transactions and cases. As I embarked on shifting my professional focus to mediation in the late 1980s, I sought cross-disci plinary exposure involving the psychology of human behavior. This thirst for knowl edge and insight came from the realization that the traditional legal education and framework grounded in the paradigm of adjudicatory advocacy was restricting my growth as a mediator and problem-solver. My discovery of cognitive bias was my exposure to research and literature in the early 1990s, including to the first edition of the book Judgment in Managerial Decision Making by Max H. Bazerman. What was happening in the mediation room started to make sense after my first exposure to cognitive bias and irrational decision-making based upon how humans think and behave, particularly under uncertainty.
Negotiation Behavior
July/August 2022 I 53 gone down in value, since that makes the loss irreversible.
4. Sunk Costs: This is what is spent already and is unlikely to be reimbursed or recoverable as a separate line item. A decision or course of action is continued based on the cumulative prior investment (sunk cost) despite new evidence suggesting that the future cost of continuing the behavior out weighs the expected benefit. It can be the transactional expense of investigation and preparation and usually includes lawyers’ fees if the matter is not on a contingent fee basis.
Lawyers must be constantly aware of cognitive bias to avoid or mitigate decision error. Recognition of the mental forces that push us along the planned path despite obstacles and detours is part and parcel of the lawyer’s role as adviser and counselor. Here are some strategies and methods to consider to lead to better decisions.
The combined effect of loss aversion, sta tus quo bias and endowment effects work against sellers, including claim holders, being able to make deals. Sunk costs and the irrational escalation of commitment af fect all parties to a transaction or claim by holding them back from making decisions based upon the future rather than the past. In common parlance, letting go is rarely easy. Negotiators are reluctant to make concessions if they perceive an impasse is likely. Any experienced negotiator knows that once a new number or position is expressed, or even hinted at by the client, it is out there and rarely can be successfully withdrawn to resolve the matter at a more favorable proposal. All demands and offers have nine lives. Lawyers expect reciprocity and steadfastly refuse to bid against them selves. Many lawyers view negotiations as a competitive game where hard-nosed tactics are the norm. Regardless of whether a lawyer has a competitive-transactional versus a cooperative-relational orientation toward the practice of law, these heuristics exist in both counsel and clients. Both have goals and expectations set at the beginning of the representation, which have often only been reinforced by the suspect cognitive twins of overconfidence and confirmation bias. See the previous column, “Overconfidence” (May/June 2022).
What To Do?
• Assume the other side is as intelligent and as reasonable as you are.
• Engage a formal or informal focus Thesisgroup. Defense Change the context of how you are address ing with the matter.
• Pretend that if you lose that you will have to justify your decisions to a
THE EFFECTIVE LAWYER
• Review with attorneys from other de partments or colleagues.
• Engage with client personnel who were not involved in the previous decision.
The Golden Rule Place yourself in the other counsel’s position. After all, all is a matter of fortune, good or bad, that resulted in your repre senting this client at this point in time. You can do any or all of the following to “de-bias” by switching sides.
• Draft the strongest argument in favor of the other side’s position. You may want to do this slowly and deliberately on a yellow pad in black ink and not on the ISecondscreen.Opinionshavewrittenaboutand advocated for fresh starts and independent review. See “Making Decisions: Navigating the Noise” (November/December 2021). Some ac tions to consider:
•superior.Imagine it is months in the future, after you have lost, and write down why. Challenge — Principals or WhatPrincipleshasalways stuck out to me is how cli ents focus on concepts of right and wrong and justice in what are usually economic disputes between private parties. Although a written decision by the court may encom pass equity and justice by the language and expression of the rationale or application of the law, a verdict in most commercial, tort, employment or other civil claims rarely involves more than economic damages. Clients have been harmed, or perceive injury, and enter the legal system seeking justice and recompense. I recall an expe rienced plaintiff’s lawyer telling me that he said to all new clients that he could get them money, but he could not undo what happened to them or achieve their vision of justice. Organizational changes regularly oc cur as a result of claims and harm caused to the public. My own experience is that this generally happens because of review of the circumstances by risk managers and other professionals rather than in response to a court verdict. In mediation, there have been cases where noneconomic terms and conditions, including apologies and retaining of personnel, have been integral to the negotiated resolution. An effective lawyer must always have a discussion with clients on the expectations and goals of jus tice and diffuse unrealistic perspectives of what the courts can do in the case. I have faced this dynamic in numerous mediation caucus sessions where counsel or a client will say it is not about the money but the “principles” at stake. Counsel usually allies with settlement once the final economic proposals are reasonable and deemed to be within an acceptable range. My query to the client is often very simple and com pelling: If you lost, would you change your beliefs, accept that you are wrong and that the other side was the one that reached justice? I do not recall anyone saying this would Lawyershappen.needto probe these abstract concepts with clients during representa tion on routine litigation and transactional bargaining.
54 I The Pennsylvania Lawyer
• Retain former judges, mediators or outside counsel to evaluate the case.
• Prior decisions that were not optimal should not dictate next steps.
People to People
• Create internal protocols and methods when considering the terms of resolution.
Takeaways
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.
• Humans are hard-wired not to fold.
Summary You got to know when to hold ’em, know when to fold ’em. Know when to walk away, know when to run. You don’t ever count your money while you’re sittin’ at the table. There’ll be time enough for countin’ when the dealin’ is done.
“The Gambler,” Johnny Cash (and Kenny Rogers, of course) ⚖ Pittsburgh attorney Robert Angelo Creo practiced as an in-house corporate lawyer and a solo and small firm general practitioner before becoming a full-time neutral. He has mediated and arbitrated thousands of cases, including as a salary arbitrator for MLB, a grievance arbitrator for the NFL and a hearing officer for the U.S. Senate Select Committee on Ethics. He is the editor-in-chief of the 2022 update of How Arbitration Works, Elkouri & Elkouri. He has been on the mediator roster of the Court of Arbitration for Sports, Lausanne, Switzerland, which provides ADR services for international sports, including the Olympics. He serves as adjunct professor at Duquesne University School of Law and was an adjunct for many years at the University of Pittsburgh School of Law. He is the 2018 recipi ent of the PBA ADR Committee Sir Francis Bacon Alternative Dispute Resolution Award. He is annu ally named as a Superlawyer and included in Best Lawyers in America where he was recognized at the mediator of the year in 2014 and 2017, and for arbitration for 2021 for Pittsburgh. He has a passion for storytelling and is the principal of Steel City Storytellers LLC (www.steelcitystory tellers.com). He is also the principal of Happy! Effective Lawyer LLC (happyeffectivelawyer.org). His website is www.robertcreo.com. If you have a story to share on this subject or other practice topics, please email racreo@gmail.com.
Taya R. Cohen, Erik G. Helzer, E.G., & Robert A. Creo, “Honesty among lawyers: Moral character, game framing, and honest disclosures in negotiations.” Negotiation Journal David(2022).A. Hoffman and Richard N. Wolman, “The Psychology of Mediation,” Cardozo Journal of Conflict Resolution, 759 (2013). Daniel Kahneman, Jack L. Knetsch and Richard H. Thaler, “Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias,” 5 Journal of Economic Perspectives 193 (1991). If 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 commit tee and section appointments. We do not run prospective notices, particularly for speaking or meeting events, as these are subject to change, and we do not include lawyer and law-firm “best of” announcements. Given the PBA’s large member base, we also monitor for how frequently individuals are listed in the column. Photos are welcome. If provided elec tronically, photos should be high resolution. Most electronic photos we receive are as JPEG files.
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.
July/August 2022 I 55
Sources AdditionalandReading
The opinion stated that if a Pennsylvania lawyer provides coverage opinions from the lawyer’s office in Pennsylvania, the lawyer does not violate Rule 5.5(a). The Restatement (Third) of the Law Governing Lawyers (2000) § 3 Jurisdictional Scope of Practice of Law by Lawyer, Comment e, provides: Some [transactional] activities are clearly permissible. Thus, a lawyer conducting activities in the lawyer’s home state may advise a client about the law of another state, a proceeding in another state or a transaction there, including conducting research in the law of the other state, advising the client about the application of that law, and drafting legal documents intended to have legal effect there. There is no per se bar against such a lawyer giving a formal opinion based in whole or in part on the law of another jurisdiction, but a lawyer should do so only if the lawyer has adequate familiarity with the relevant law. It is also clearly permis sible for a lawyer from a home-state office to direct communications to persons and organizations in other states (in which the lawyer is not separately admitted), by letter, telephone, telecopier or other forms of electronic communication. On the other hand, as with litigation, it would be imper missible for a lawyer to set up an office for the general practice of nonlitigation law in a jurisdiction in which the lawyer is not admitted. (emphasis added).
56 I The Pennsylvania Lawyer ETHICS DIGEST
However, if a Pennsylvania lawyer provides coverage opinions or takes statements un der oath in a jurisdiction in which the lawyer is not licensed, the lawyer may run afoul of Rule 5.5(a) of the Pennsylvania Rules of Professional Conduct and Rule 5.5(c) of the other jurisdiction’s professional conduct rules unless the lawyer’s activities fall within an exception to the rules of the other Rulejurisdiction.5.5(c)(4) permits a lawyer admitted to practice law in another jurisdiction to provide legal services on a “temporary basis” in this jurisdiction “that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”
In the absence of sufficient information as to what inquirer’s practice entailed, the opinion could not draw a definitive con clusion whether the proposed activities “arise out of or are reasonably related to
Providing2022-013Legal Services in Jurisdictions in Which the Lawyer is Not Licensed Inquirer posed the following question: Assuming jurisdictions outside of Pennsylvania have adopted a version of American Bar Association Model Rule 5.5, would a Pennsylvania licensed lawyer retained by insurance companies throughout the country to take statements under oath or provide coverage opinions on policies that are written in jurisdictions where the lawyer is not admitted fall within the exception to Rule 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice Of Law), which permits an out-of-state lawyer to provide legal services on a “temporary basis” in another jurisdiction “that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice”? In the past, this committee has opined that a Pennsylvania lawyer may provide to a client within or outside of Pennsylvania legal services such as advising the client about the law of another state, conduct ing research of the law of another state, advising the client about the application of a law of another state and drafting legal documents that have legal effect in another state. See PBA Informal Op. 2001-62 (Sept. 11, 2001) (subject to certain caveats, it was permissible for a Pennsylvania lawyer to provide advice to franchisees of a com mon franchisor concerning certain common issues in real estate leases to be execut ed in other jurisdictions); PBA Informal Op. 2016-013 (Pennsylvania lawyer who provides legal services within Pennsylvania does not violate Rule 5.5(a) even though the recipient of those services will be outside of Pennsylvania); Joint Formal Op. 2015-100 (the provision of legal services by a Pennsylvania licensed attorney within Pennsylvania to recipients outside of Pennsylvania does not violate Rule 5.5); PBA Formal Op. 90-2 (out-of-state law firm may prepare loan documents from offices in Washington, D.C., that are governed by the law other jurisdictions, so long as the lawyer states that any opinion rendered with respect to the instruments covers only the laws of those jurisdictions in which the firm has members licensed to practice. Any disclaimer notwithstanding, a lawyer must possess the requisite level of competence to render an opinion). However, a lawyer licensed in Pennsylvania would violate PA RPC 5.5 if the lawyer were to practice law in another jurisdiction in vio lation of that jurisdiction’s rules of profes sional conduct or unauthorized practice of law statutes unless any exceptions to that jurisdiction’s general prohibition on out-ofstate practice apply.
FOR
• Updates on the Rules, ABA recommendations, ghostwriting, protecting confidentiality in electronic communications and the cloud, and the requirement of familiarity with technology to maintain competence
FIFTH EDITION
July/August 2022 I 57 the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”
Safeguard your practice
ALSO
The opinion noted that although Rule 5.5 does not define “reasonably related,” the Comments to the rule suggest that a matter is reasonably related if there is an ongoing relationship with a client; the client has “substantial contacts” with the jurisdiction where the lawyer is admitted; or the lawyer has developed a recognized expertise in matters involving a particular body of federal, foreign or otherwise nationally uniform law.
• Amended Rule 1.2, providing guidance for representing clients in the medical marijuana industry
. Edited by Michael L. Temin and Thomas G. Wilkinson, Jr., with invaluable input from Victoria L. White and members of the PBA Committee on Legal Ethics and Professional Responsibility, this book features ethics opinions, case law, articles, and practical guidance for addressing everyday questions and problems. The cost is $99.
… e) As used in this Rule, the term “matter” includes:(1)any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and, (2) any other matter covered by the conflict of interest rules of the appropriate government agency. Inquirer was advised that Rule 1.11(a) would apply to a former ADA. Under that provision, inquirer would be prohibited from HANDBOOK MORE INFO AND TO PURCHASE: www.pbi.org AVAILABLE AS AN e BOOK
PENNSYLVANIA
Protect yourself and your clients by owning the Pennsylvania Ethics Handbook
ETHICS
Former2022-014Assistant District Attorney Serving as Co-counsel on Same Matter Attorney InquirerProsecutedformerly served as an assistant district attorney (ADA). As an ADA, inquirer prosecuted several sexual misconduct cases involving several different victims against the same defendant, who was an employee of a local school district at the time of the offenses. A jury trial subse quently occurred on these matters and the defendant was convicted of all counts and later sentenced. After leaving the DA’s office, inquirer start ed practicing civil law on a part-time basis with Attorney A, who was representing one of the victims from the sexual misconduct cases in a civil suit against the same defen dant and the school district. Another attor ney, Attorney B, was representing several other victims from the sexual misconduct cases in related civil lawsuits against the defendant and the school district. Inquirer asked whether a conflict of interest existed if inquirer were to serve as co-coun sel and/or consulting expert in these civil cases provided that inquirer did not obtain confidential governmental infor mation about the defendant or the school district and the district attorney would give informed consent.
• Amended Rule 1.17, allowing lawyers and law firms to buy/sell a single area of practice, and the possible impact on succession planning
Your guide to professional responsibility
The opinion cited Rule 1.11, (Special Conflicts of Interest for Former and Current Government Officers and Employees) which provides in relevant part as follows: (a) Except as law may otherwise express ly permit, a lawyer who has formerly served as a public officer or employee of the government:(1)issubject to Rule 1.9(c); and, (2) shall not otherwise represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or em ployee, unless the appropriate government agency gives its informed consent to the representation.
DIGEST
The opinion cited to Rule 1.9 (Duties to Former Clients)(b), which states: (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had ac quired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed andconsent.1.9(c), which states: (c) A lawyer who has formerly represent ed a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
The Pennsylvania Lawyer using or revealing confidential information to the disadvantage of inquirer’s former client, the Commonwealth of Pennsylvania. Further, inquirer would be prohibited from representing a private client in connection with a matter in which inquirer participated personally and substantially as a public offi cer or employee, unless the Commonwealth gave informed consent.
The opinion determined that if inquirer were to serve as co-counsel or consulting expert on behalf of the victims in civil cases against the defendant, inquirer would be representing a private client in connection with the same “matter” inquirer personally prosecuted as an ADA. However, because inquirer would be advocating on behalf of a client on the same side as the Commonwealth, which would give informed consent, there would be no ethical imped iments to inquirer’s proposed involvement under Rules 1.11 or caseconflictTheindividualInquirerer’srepresentedcodefendant/witness/victimInquirerthetermdefenseRecently,ticeoffice,years.defender’sInquirerDefenseDefenderFormer2022-0171.9.AssistantPublicWorkingasCriminalConflictCounselwasemployedatthecountypublicofficeforapproximatelytwoAfterleavingthepublicdefender’sinquirerstartedaprivatelawpracfocusingmainlyoncriminaldefense.thecounty,inneedofcriminalattorneys,offeredinquirerashort-contracttoworkasconflictcounselincounty.wasassignedacasewherethehadbeenbythecountypublicdefendofficeinthepastinaseparatematter.neverpersonallyrepresentedthatasanassistantpublicdefender.casetowhichinquirerwasassignedascounselhadnofactualnexustotheinwhichthepublicdefender’soffice
asked whether previous employ ment at the public defender’s office pre cluded representation of the new client.
Rule 1.9(b) addresses lawyers moving between firms and focuses on the moving lawyer, rather than the lawyer’s firm, which is addressed by Rule 1.10(b). Under Rule 1.9(b), a lawyer is prohibited from knowing ly representing a person in the same or a substantially related matter in which a firm in which the lawyer formerly was associated had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired confidential information that is material to the matter, unless the former client gives informed consent. Matters are substantially related if they involve the same transaction or legal dispute or the lawyer might have acquired information in the prior representation that could be used to the detriment of the former client in the subsequent matter.
Based on inquirer’s statement that there was no factual nexus between the prior and current matters, the opinion concluded that inquirer would not have a disqualifying conflict of interest under Rule 1.9(b) in rep resenting the new client as conflict counsel because the matters were not the same or substantially related. Further, Rule 1.9(c) would not present an ethical impediment because inquirer did not possess informa tion relating to the representation of the former public defender client that would be relevant to the currentThismatter.material has been compiled by Victoria White, PBA ethics counsel, and edited by Thomas G. Wilkinson Jr., a past presi dent of the PBA and a past chair of the PBA Legal Ethics and Professional Responsibility Committee. The opinions of the committee are advisory only and are not binding on the Disciplinary Board of the Supreme Court of Pennsylvania or on any court. The opinions carry such weight as an appropriate reviewing authority may choose to give them. References to rule num bers 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.
ETHICS
58 I
represented the codefendant/witness/ Inquirervictim.
July/August 2022 I 59 Mediation and ADR Solutions provided by The Honorable Thomas I. Vanaskie (Ret.) • 24 years on the Federal bench (Third Circuit Court of Appeals and Middle District of Pennsylvania) • Unmatched credentials and experience makes him uniquely qualified to assist parties resolve disputes with guidance that is informed, impartial, fair and objective • Available to resolve disputes in business and commercial, class action and mass tort, employment, ERISA, insurance, antitrust, securities, intellectual property, civil rights and personal injury cases • Serves as a Special Master in complex litigation and is highly experienced in the area of e-discovery and privilege review Hon. Thomas I. Vanaskie (Ret.) 425 Biden Street, Suite 300, Scranton, PA 18503 • 570.969.5360 • tiv@stevenslee.com www.stevenslee.com
ON THE HILL ”“… the defendant.—fitmustinsuchinsistedandcivilationLitigationCivilSecrepresentsbigtentoflitigatorsthusitthatachangethelawbeneanypartyplaintiffor
Point Proven
On occasion, I have heard PBA Executive Director Barry Simpson say that when it comes to de veloping public policy positions, the PBA is a bottom-up, not a top-down organization. I can only assume that he mentions this from time to time to dispel any notion that it could be otherwise. In other words, the PBA membership, not its top leaders, decide what the PBA stands for and against. An interesting story illustrates the truth of that statement in a dramatic fashion. Carol Shelly is a small firm practitioner in Doylestown who focuses on personal injury and wrongful death actions. She is also a proud PBA member. As you can imagine, some of her caseload includes accidents that involve investigations by law enforcement officials. Automobile accidents, in particular, are often subject to at least a preliminary Carolinvestigation.grewfrustrated knowing that some law enforcement officials would share investigative materials with litigants and some would not. The rationale for not sharing is a law titled the Criminal History Record Information Act, also referred to as CHRIA. In her frustration, she turned to the PBA and contacted me. A quick review of the law revealed that the law enforcement officials withholding the informa tion were most likely interpreting it properly. I asked Carol if she would like to pursue the PBA attempting to amend the law. She said yes, so I encouraged her to bring the issue to the Civil Litigation Section. The section re viewed the issue and determined that it could be helpful, in the interest of civil justice, for such information to be available. However, the Civil Litigation Section represents a big tent of civil litigators and thus it insisted that such a change in the law must benefit any party — plaintiff or defendant. A report and recommendation were drafted, voted upon and adopted by the Civil Litigation Section Council (sections are governed by councils), circulated to sections and commit tees for comment and then sent to the PBA Board of Governors for review. The board approved the report and recommendation, and then the matter was set before the PBA House of Delegates for its consideration. It is the House of Delegates that is the primary policy-making body of the PBA. It consists of about 400 attorneys from around the Thecommonwealth.Houseunanimously approved the report and recommendation, and it became the official policy of the PBA. At that point, as with every position adopted by the PBA, it then became the duty of the PBA president (in consultation with the executive director and the legislative director) to determine how and when to purse the policy goals adopted by the PBAHouse.hasalot of policy goals — well over 200 have been adopted in the last 12 years! So, as you can imagine, we are not able to pursue all policy goals at the same time, and even the ones we can pursue may not get the same degree of attention. It is a matter By Fredrick Cabell Jr.
60 I The Pennsylvania Lawyer
July/August 2022 I 61 of both resources and opportunity. As a professional lobbyist, it is my duty to offer my best judgement as to what is possible at any given time. As Otto van Bismark, the famed politician and diplomat, once stated: “Politics is the art of the possible, the attainable — the art of the next best.” Oh, how I wish more people involved in the legislative process understood and applied that nugget of wisdom! But I digress. Sometimes, by design of the framers of our constitutional republic, the legislative process can be quite slow. For several years the PBA has pursued, on and off again, legislation to amend CHRIA and bring to fruition the goal of the PBA and our member, Carol Shelly. I am glad to report that legislation on this topic, House Bill 2525, whose prime sponsor is Rep. Aaron Kaufer (R-120), also a PBA member, has passed the House of Representatives and is now in the Senate Judiciary Committee. The Legislative Department will do its best to get this bill passed into law. And to think it all started with one PBA member. So, Mr. Simpson’s point has been proven in spades! If you have an idea that you think will improve the practice of law, I encourage you to bring it to a section or committee. It is just another way we seek to serve our membership. 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. YOU ARE NOT Overwhelmed?Depressed?ALONE.Stressed?Anxious? LCL CONFIDENTIAL HELPLINE 1-888-999-1941 www.lclpa.org TRADEMARK Copyright & Patent Searches for attorneys worldwide” FEDERAL SERVICES & RESEARCH: Attorney directed projects at all Federal agencies in Washington, DC, including: USDA, TTB, EPA, Customs, FDA, INS, FCC, ICC, SEC, USPTO, and many others. Freedom of Information Act requests, copyright deposits, document legalization @ State Dept. & Embassies, complete trademark, copyright, patent and TTAB COMPREHENSIVE: U.S. Federal, State, Common Law and Design searches, INTERNATIONAL SEARCHING EXPERTS: Our professionals average over 25 years experience each FAST: Normal 2-day turnaround with 24-hour and 4-hour service available GOVERNMENT LIAISON SERVICES, INC. 200 N. Glebe Rd., Suite 321 Arlington, VA 22203 Ph: 703-524-8200, Fax: 703-525-8451 Minutes from USPTO & Washington, DC TOLL www.GovernmentLiaison.comFREE:1-800-642-6564info@GovernmentLiaison.com
62 I The Pennsylvania Lawyer EXPERT SERVICES REAL ESTATE LAW EXPERT — William F. Hoffmeyer, Esq. — AV rated Attorney/Educator/ Author — Expert analysis and testimony on matters involving Real Estate Law and issues pertaining to attorney and title insurance agent liability. Owner of York’s oldest title searching and title insurance agency. Licensed Title Insurance Agent for almost 50 years and author of the Abstractor’s Bible. For full CV, go to 30www.hoffsemm.com.N.GeorgeStreet,York, Pa. 17401. 717-846-8846 Email: info@hoffsemm.com REAL ESTATE LAW EXPERT — Richard W. Stewart; Former Chair, Disciplinary Board of The Supreme Court; Former Vice Chair, Pennsylvania Board of Law Examiners; Over 15,000 titles examined; AV rated. Licensed Title Agent and Real Estate Broker, 301 Market Street, Lemoyne, Pa. 17043. 717-761-4540, ext. 288. RWS@JDSW.COM TITLE SEARCHES, LIEN SEARCHES AND TITLE INSURANCE FOR CENTRAL PENNSYLVANIA — York Abstracting Company, LLC (Y.A.C.O.) 717846-8846, William F. Hoffmeyer, President FOR SALE THE ABSTRACTOR’S BIBLE, 4th Edition (2015) — A Complete System for Searching a Real Estate Title and Analyzing Court House Real Estate Records. Includes a searchable CD-ROM. By William F. Hoffmeyer, Esq. — Cherry Lane Publishing. 717-846-8846publishing@cherrylanepublishing.com LEGAL RESOURCES BOB DAVIS JR. — LICENSE DEFENSE AND ETHICS GUIDANCE — Access to 49 years of experience is as near as your phone, email or FaceTime. Contact Robert Davis Jr. — New Contacts:practice.Cell/FaceTime Email:717-580-8941bobsethics45@gmail.com MARKETPLACE Also Find PBA Classified and Lawyer Display Ads Online The PBA posts all Lawyer magazine and Pennsylvania Bar News classified ads and Lawyer magazine display ads on the website, www.pabar. org. As a bonus to advertisers, all email and web addresses posted in the online classi fied ads and display ad index appear as live links — so those potential customers and cli ents are just a click away from contacting you! For more information, contact the PBA 0311,DepartmentCommunicationsat800-932-ext.2226. It Pays to Advertise in the Marketplace Line Rates • PBA member — $35* • Non-PBA member — $40* (*first 30 words; each additional word $1.50) Box Ad Rates Size of PBA Non-PBA of Ad Member Member 1 col. x 1” $ 6 5 $ 8 0 1 col. x 2” $115 $145 1 col. x 3” $165 $205 2 col. x 2” $215 $270 Employment Ads • PBA member — $25* • Non-PBA member — $40* (*first 30 words; each additional word $1.50) Box Number (Blind) Ads Processing surcharge $10 (no fee for job seekers) Legal 800-932-0311,Department,theHarrisburg,100PennsylvaniaMarketplaceBarAssociationSouthStreet,P.O.Box186Pa.17108-0186CallPBACommunicationsext.2226. It Pays to Advertise in the Marketplace
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2. “All Fall Down” — The slip-and-fall show in which contestants compete for prize money by strolling down the Walk of Pain, tossing themselves at the various holes, construction sites, icy patches, dirt mounds and puddles they encounter along the way. Prizes are awarded based on the success and frequency with which contestants break various bodily parts — femur, $2,500; fibula, $3,000; etc. — with bonuses for repeat injuries. But be careful. One defense verdict and you’re immediately dragged off the set, whether you’ve healed or not, and you have to give back all the complimentary
4.contestants.“TheRear-Enders”
ByReally!S.Sponte,Esq.
3.meds.“Who’s Your Daddy?” — A family law game show in which the participants com pete to win a DNA paternity test so they can pay child support for 18 years. Production will have to wait until the producers can come up with a way to include female
5. “Escape from Mandamus” — Something a bit on the more cerebral side, designed primarily to appeal to the typical PBS viewer. The show takes the mundane, an elected official who abuses his or her office, ignoring both law and the commonweal, and combines it with, get this, an outraged electorate tired of being flamboozled and finally willing to do something about it. Ratings should be spectacular, provided the show can get clearance from the Office of Homeland Criticism. Well, there you have it, five sure winners in this new age of reality television. You know, it’s at times like this that I really think I missed my true calling. The law is fun, sure, we all know that, but gee, I just bet I could make it big in the TV biz. I just bet I could be a rich, successful, television producer, if only I could figure out a way to shed these accursed mantles of taste, ethics and morality. And then of course there’s that intellect thing I’d have to learn to ignore. Damn my luck.
Editor’s Note: We are pleased to provide you with another classic from the “To Wit” column vault. “Really!” originally appeared in the May/June 2003 issue of The Pennsylvania Lawyer. If there’s one thing I’ve learned over the years I’ve spent lawyering, it’s that clients are often tasteless, greedy and narcissistic. This explains, for instance, why to clients a matter of profound principle so frequently becomes a matter of raving capital at settlement time, and why the dearest and closest of siblings tear each other’s throats out over probate. And now, thanks to the miracle of reality television, I’ve been, oh, so pleased to discover that the rest, residue and remain der of humankind is apparently similarly Itencumbered.reallydoesn’t surprise me that such reality shows as “So You Want To Marry a Millionaire” and “Joe Millionaire” are popular. I mean, come on, put sex, money and greed together in one package and you could sell welts to lepers. But when it comes to such shows as “Escape From the Island of Gorgeous Women,” I seriously question the whole concept of the phrase “reality.” In the first place, there is no “reality” that I’d ever find myself in that situation, and in the second place, if I ever did, trust me, I wouldn’t be looking to escape anytime Butsoon.taste, ethics and morality aside, the concept seems sound. Audiences are watching these reality shows in droves. In herds. In colonies. And I see here yet anoth er opportunity for our profession to engage in some much needed image enhancement simply by getting on this ship before it starts to sink. After all, who better knows the foibles of humankind than we do, huh? Greed, hate, jealousy, rage, promiscuity, lying, cheat ing, stealing — hey, we see it all every day, sometimes even before we leave the house. Put them all together and they spell reality show, you betcha. So, in keeping with my lifelong ambition to better the profession at every turn, I have come up with a few of my own ideas for law-based reality shows. It can only help our cause, and for that reason I invite you to submit your own ideas. I especially look forward to input from the family law practi tioners. For them this is a natural.
— A raucous, noisy demolition derby show in which both rearenders and rear-endees team up to cause as much vehicular damage and bodily injury to fellow team members in as short a time as possible. Winning teams share 65 percent of the damages, 60 percent if it goes to trial.
64 I The Pennsylvania Lawyer TO WIT
1. “I Don’t”
— A hilarious combination of “Divorce Court” and “Beat the Clock” in which the contestants vie to establish the absolute quickest time between “I now pronounce you husband and wife” and the granting of a divorce decree. Extra points awarded for spousal abuse, alienation of children, extramarital affairs, nondisclo sure of marital assets and the passage of any recently acquired sexually transmitted disease between contestants.
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