TOTAL: $1,500.00 New Case Reference **** **** **** 9995 *** Trust Payment IOLTA Deposit YOUR FIRM L OGO HERE PAY AT TO RNEY PO W ERED BY EY
September/October 2022 I 1 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 • � � �
Public access to our court dockets is an essential part of our judicial system. We have learned, now, of course, that there are safe and efficient ways to have access that do not involve a trip into the courthouse.
The PBA also formed a Joint Task Force on the Continuity of Delivery of Legal Services. Judge Thomas Vanaskie, retired from U.S. Court of Appeals for the 3rd Circuit, was appointed chair. The work of this task force over the ensuing months culminated in the release of a comprehensive report with numerous recommendations on maintaining our system of justice. One of those recommendations was that “a joint task force involving the Legislature, the courts, the organized Bar and the general public should be formed to find a way to establish a uniform electronic case filing system for Pennsylvania.”
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SIDE BAR
A new PBA task force has been created to study and develop a way that Pennsylvania might develop a statewide electronic filing and retrieval system. This new PBA Task Force on Statewide Electronic Filing and Retrieval is co-chaired by PBA Past President Sara Austin and Judge Carl Solano, who is retired from the Superior Court.
2 I The Pennsylvania Lawyer Underway I
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t was March 16, 2020, and Gov. Tom Wolf had just issued an order that nonessential businesses must close, including law offices. Like most of us, my law partner and I were stunned and unsure what to do next. Panic ensued among us and our staff. Our office in downtown Pittsburgh would be closed to us and to our clients. Questions raced through our minds. What do we do about our clients’ cases, the mail, our files and our office equipment? How will we conduct our day-to-day business? Can we conduct our day-to-day business? How will we file court documents? We packed up some boxes of files and essential supplies, pulled our cars around to the front of our office building, loaded up and drove home. We set up our home offices and wondered how long this would last. We equipped our office staff with laptop comput ers and hobbled our way forward. After a few days of home office work, I decided to “go incognito” to retrieve our mail. I dressed incon spicuously, jumped into my car and drove into downtown Pittsburgh. The highway was empty. Grant Street was empty. In the middle of a weekday afternoon, I was able to do some thing very unusual — I parked on the street di rectly in front of the Gulf Tower on 7th Avenue, downtown. I entered the empty building, took the elevator to the 17th floor, collected our mail and immediately left. I was relieved to have the mail in hand but still plenty worried about how we would complete the work clients had put their trust in us to handle. Soon, the PBA formed its COVID-19 Task Force and began to circulate information about new court rules and guidelines. There were plenty of tips for conducting remote law yering and lots of guidance about weathering the COVID storm.
If you practice law in Texas or in Michigan, you can sit at your computer and have access to court dockets and file
Jay N. Silberblatt
FayetteneighboringdocketsthecannotCounty,WestmorelandareButelectronically.papersifyousittinginyouaccesscourtinCounty.
If you handle litigation in our federal courts, you can sit at your computer and have access to court dockets across the country. If you practice law in Texas or in Michigan, you can sit at your computer and have access to court dockets and file papers electronically. But if you are sitting in Westmoreland County, you cannot access the court dockets in neighbor ing Fayette County.
In Pennsylvania, our 60 judicial districts represent 60 individual fiefdoms. They are not unified. They are not operating the way a 21st century unified judicial system ought to Let’soperate.change that. Let’s move Pennsylvania’s courts of common pleas into the 21st century.
September/October 2022 I 3 ON THE COVER Abraham Lincoln 18 Lessons in Civility, Professionalism and Equality By Thomas G. Wilkinson Jr. FEATURES Disinheriting Pennsylvania’s Children 28 England’s abandoned common law rule carries over to the 21st century By Robert E. Rains Parental Alienation Reconsidered 34 A roadmap for effective representation By Jill M. Scheidt Five Techniques to Strengthen Your Legal Writing 40 Tools for effective persuasion By Philip J. UntanglingSeaver-HallPrivate Roads in Pennsylvania 46 Who has the responsibility of repair and how to calculate? By Anna Marie Sossong 63 Ad Index 10 Discipline 54 Ethics Digest 62 Marketplace 60 On the Hill 6 PBA Dates 4 People 2 Side Bar 50 The Effective Lawyer 64 To Wit 53 ‘War Stories’ 16 Your PBA Departments 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 5 CassidyKellyCoverSeptember/October2022WWW.PABAR.ORGArt:DesignbyCassidy-VanekCommunications, cassidycommunications.comInc. 1834 28 40 46
Antoinette C. Oliver, Meyer, Unkovic & Scott LLP, Pittsburgh, elected a member, Academy of Trial Lawyers of Allegheny County.
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Gerard M. Karam, Scranton, nominated by President Joe Biden and confirmed by the U.S. Senate as U.S. attorney for the Middle District of Pennsylvania.
Kimberly A. Brown, Allegheny County, appointed, Civil Procedural Rules Committee; Robert L. Sachs Jr., Philadelphia, appointed, Pennsylvania Board of Law Examiners; Vanessa Garrett-Harley, Philadelphia, named chair, Kay Kyungsun Yu, Philadelphia, reappointed and named vice chair, and David R. Fine, Dauphin County, reappointed, Pennsylvania Interest on Lawyers Trust Account board.
Daniel T. Desmond of the Lancaster office of Barley Snyder, named to the board, Lancaster Safety Coalition. Pennsylvania Public Utility Commission Chair
4 I The Pennsylvania Lawyer
RetiredfromStump,AtAWARDS/HONORSCommissioners.theLancasterofficeofSaxtonandthefollowingreceivedawardstheLancasterBarAssociation(LBA):Judge Lawrence F. Stengel, 2020 Achievement Award, in recognition of “his long and distinguished career as an LBA member,” and Jaskirat K. Chhatwal, Lance D. Greene and Kiandra D. Steffy, President’s Award, recognizing their work on a continuing legal education project, “The History of Slavery and NamedDiscrimination.”tothelist of Central Penn Business Journal Women of Influence 2022: Susan E. Bruce of the Harrisburg office of McNees Wallace, Lindsey M. Cook and Maria Di Stravolo Elliott of the Lancaster office of Barley Snyder, and Leigh E. Dalton, Stock and Leader, FIRMYork.MOVES
CourtOnAPPOINTED/ELECTEDboardsandcommitteesoftheSupremeofPennsylvania:
Brian F. Jackson of the Harrisburg office of McNees Wallace & Nurick LLP, elected board co-chair, Team Pennsylvania Foundation, a “public-private partnership that initiates and supports innovative programs to improve Pennsylvania’s competitiveness and economic prosperity.”
Gladys Brown Dutrieuille, Harrisburg, elect ed president, Mid-Atlantic Conference of Regulatory Utilities
Daniel J. Grossman, named a partner at Plymouth Meeting-based Horst Krekstein & Runyon LLC. Zachary R. Morano and Franqui-Ann J. Raffaele have joined as associates at Hamburg, Rubin, Mullin, Maxwell & Lupin PC, Lansdale. Desmond Dutrieuille Grossman page 6
Sachs PEOPLE Jackson Carlson
Alfred J. Carlson, Martin Law LLC, Philadelphia, named president-elect, Philadelphia Trial Lawyers Association.
DEATHS Bucks County Joseph Flum,* 97 Newtown Cambria County Richard T. Williams Sr., 77 Johnstown Luzerne County Harold Rosenn,* 104 Kingston Montgomery County Daniel I. Murphy,* 95 Haverford Northumberland County James A. Zurick, 64 Paxinos Philadelphia Joseph C. Murray, 74 Philadelphia Schuylkill County Stanley J. Burke Sr.,* 95 Port Carbon *PBA 50-year member Morano Raffaele
September/October 2022 I 5 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 offer 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_0550_0222_PBA USI Affinity We Can’t Predict the Future, But We Can Insure It Personal Insurance: Life & LongStudentDisabilityLoanRefinancingTermCare Auto, Travel, Pet Dental & Vision 1.855.874.0141
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Current Issues for Child Advocates Sept. 23, Mechanicsburg and webcast Diversity Summit Oct. 7, via teleconference Workers’ Compensation Fall Section Meeting Oct. 13-14, Hershey Exceptional Children Conference Oct. 14, Mechanicsburg and via webcast Federal Practice Institute Oct. 21, Pittsburgh Oil & Gas Law Conference Oct. 26, Pittsburgh and webcast Civil Rights Symposium Oct. 27, Philadelphia and webcast
Grace M. Deon, Eastburn and Gray PC, Doylestown, facilitating a panel discussion on the Bucks County justice system for the Central Bucks Chamber of Commerce Executive Leadership Program.
DATESPEOPLE
Moore Munley Krepps Faust
via Zoom Administrative Law Section Commonwealth Court Practicum Sept. 13, Harrisburg Board of Governors Meeting Sept. 14,
SPEAKING OUT Marion K. Munley, Munley Law, Scranton, pre senting “Auto Law Update and the Impact of New Joint and Several Liability Case Law, Plus Using Electronic Evidence to Prove Your Case,” Northeast PA Trial Lawyers Association’s Personal Injury Seminar, Wilkes-Barre.
Symposium Sept. 14
Hemp
6 I The Pennsylvania Lawyer > from page 4 Kevin A. Moore of the Wyomissing office of Barley Snyder, named chair of the firm’s labor law practice group. Gerard A. Hornby has joined as an associate at the Pittsburgh office of Eckert Seamans Cherin & Mellott LLC. Hudson L. Voltz PC, Downingtown, has merged with Gawthrop Greenwood PC. Charleston, S.C.-based Spitz & Neville has merged with Saxton & Stump and will do busi ness under the Saxton & Stump name.
Commission Women in the Profession Wellness 9, Mechanicsburg Medical & Law and
Lunch Sept.
Marijuana
Virtual
Commission on Women in the Profession Fall Retreat Nov. 4-5, Hershey Business Law Institute Nov. 15-16, Philadelphia and webcast Board of Governors Meeting Nov. 16, Harrisburg Committee/Section Day Nov. 17, Harrisburg Pennsylvania Bar Foundation Night Out Nov. 17, Harrisburg House of Delegates Meeting Nov. 18, Harrisburg Please check the PBA calendar at www.pabar.org/site/Calendar for the most current meetings and events information.
Paul D. Krepps of the Pittsburgh office of Marshall Dennehey Warner Coleman & Goggin PC, on the “Impact of Protection from Abuse Orders: A Case Study” at the Allegheny County Bar Association CLE “Law Against Violence” program.
15, Philadelphia and webcast Civil Litigation Section Erie Regional Dinner Sept. 20, Erie
Andrew E. Faust , Sweet, Stevens, Katz & Williams LLP, New Britain, presenting “You Be the Judge: Dueling Attorneys, the Facts and the Law,” Lehigh University Special Education Law Symposium. ⚖
September/October 2022 I 7 Your membership in the Pennsylvania Bar Association gives you access to top-shelf product and ser vice providers that help you manage and grow your practice. To learn more about your Preferred Par tners go to www.pabar.org/site/For-Lawyers/Benefits. PartnerPREFERREDPennsylvaniaBarAssociation Join us in recognizing our Preferred Par tners for their commitment to the legal profession and Pennsylvania Bar memberAssociations.
Given the technological complexity, the funding requirements and the political ob stacles that this task force will face, it may take a while. But we are committed to the task, we have a goal in sight and we have a committed group of PBA lawyers and judges working hard to move Pennsylvania forward by making our courthouse dockets electronically available and accessible.
SIDE BAR 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
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Let’s spread the Teen Screen program and our PBA volunteers throughout our Pennsylvania high schools. Contact your local high school and have them get in touch with Teen Screen at filmpittsburgh.org/pages/teen-screenhttps:// to schedule a screening of Youth v. Gov. Then stay tuned for updates on the electronic filing initiative, our partnership with Teen Screen and other PBA programs.
PBA lawyers and judges, including those from the Environmental Law Section and the Civil Litigation Section, are volunteering for the Teen Screen program, teaching future generations about our civil justice system and stressing the importance of an independent judiciary as an essential tool to maintain our democracy.
Jay N. Silberblatt PBA President
8 I The Pennsylvania Lawyer > from page 2
Recently, Teen Screen obtained the rights to the documentary film Youth v. Gov (https://www.youthvgovfilm.com). This film chronicles the federal case of Juliana v. United States of America, a lawsuit brought by high school students in Oregon claiming that the federal government’s actions over the last 60 years have contributed to cli mate change. The case has wound its way from the district court to the 9th Circuit to the U.S. Supreme Court. The film presents an opportunity for volunteers from the PBA to go into the classroom to teach a civics lesson to high school students about the way our civil justice system works.
Another new project involves a partnership between the PBA Law-Related Education Committee and Film Pittsburgh’s Teen Screen Program. The mission of Film Pittsburgh, a nonprofit entity, is to advance independent film as an art form and educa tional tool. Its Teen Screen program curates independent films from around the world that deal with social justice issues. The films are screened for high school students, and specially invited Teen Screen volun teers engage the students in discussion about the film following the screening.
September/October 2022 I 9 Exceptional Children Conference 2022 Oct. 14, 2022 | 5 sub/1 eth Attend the premier education event for child attorneys, school district attorneys, hearing officers and advocates - this year offers both in-person at our Mechanicsburg center or via webcast so that you may stream the program from a location convenient to you. Connect, learn, exchange, and share the passion with other special education professionals and create exceptional education opportunities for exceptional children! A selection of targeted workshops, exposure to leading counsel, and phenomenal networking! Today’s most critical issues are explored by attorneys and professionals who practice in this area every day. Ask questions, challenge concepts, and add your perspective—there is no better way to connect with others who practice in this area! Oil & Gas Oct.ConferenceLaw202226,2022|5sub/1 eth Join PBI for our 2022 Oil & Gas Law Conference, where we offer a progressive meeting ground for legal leaders in the oil and gas industry. Participate in engaging discussions ranging from recent legislative and case law developments to the technological advancements, practices and trends that are shaping the industry. This is the event that will transform your practice. Catch up on the latest developments in legal and regulatory practice: • Caselaw & Regulatory Update • O&G Leasing – trends and pitfalls • Mergers & Acquisitions • Title Litigation • O&G and Solar Coordination • Plus, the ethical issues impacting the O&G law industry Enjoy PA’s best CLE experience online Top experts, timely topics, quality CLE at your fingertips PBI.ORG | 800-932-4637 Learn from PA’s best. Access to over 600 programs from the comfort of your home or office. Executive Editor: Jeffrey A. Gingerich Editor: Patricia M. Graybill People Editor: Andy M. Andrews 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. 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. The Pennsylvania Lawyer welcomes editorial submissions from members of the bar. Letters to the editor from readers on all topics concerning the legal profession are welcome. The publisher reserved the right to select letters to be published. Letters may be edited for length and style. Editorial items and correspondence should be mailed to the Pennsylvania Bar Association, Attn. Lawyer Magazine Editor, 100 South Street, P.O. Box 186, Harrisburg, Pa. 17108-0186. Telephone: 800-932-0311. Email address: editor@pabar.org. Unsolicited manuscripts will not be returned unless 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. BOARD OF GOVERNORS 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 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 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
PHILADELPHIA
Pursuant to a May 3 order of the Supreme Court of Pennsylvania, a three-member panel of Disciplinary Board on June 17 administered a public reprimand to Robert M. Tobia. In addition to the reprimand, the board imposed a condition that Tobia submit to the board prothonotary and dis ciplinary counsel his past three months of reconciliations and underlying documents, including the regular trial balances of indi vidual client ledgers, prepared by a certified public accountant, a condition the report indicated he complied with. According to the disciplinary order, Tobia’s misconduct involved the improper handling of his IOLTA account in 2019. In mitigation, the panel considered his remorse, lack of prior discipline, cooperation with the Office of Disciplinary Counsel (ODC) and measures to assure that his IOLTA will be handled
Toczydlowski self-reported his nolo con tendere plea to the ODC. The panel noted that Toczydlowski has been addressing mental health disorders in treatment with a clinical psychotherapist and “has made substantial improvements in being able to mitigate and control his behaviors that have resulted from these disorders.” In reaching the recommendation for discipline, the panel determined that Toczydlowski, who had practiced for 26 years with no prior dis cipline, admitted to wrongdoing, expressed remorse and cooperated with the ODC, and concluded that a three-year suspension retroactive to the effective date of his tem porary suspension “will adequately address [his] misconduct and allow for him to reflect upon his behavior and maintain the integrity of the legal profession, while also
Theproperly.court on June 23 ordered John E. Toczydlowski suspended for three years on consent, retroactive to March 13, the effective date of his temporary suspension, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Toczydlowski was arrested and charged with unlawful dissemination of intimate images, a second-degree misdemeanor, and harassment, a third-degree mis demeanor, for posting nude or partially unclothed photographs of his then-wife to the internet, photographs that were taken without her knowledge or consent and which included graphic comments he wrote, as well as “personal information that could conceivably lead to discovery of his then-wife’s whereabouts.” As indicated in the report, Toczydlowski acknowledged that his then-wife alleged she was “trauma tized” as a result of his actions, and that “his illegal activity caused her to suspect that someone may be surveilling her, further causing her great fear and anxiety.”
The Supreme Court of Pennsylvania on June 21 ordered Christopher P. Flannery suspended for six months on consent, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Flannery agreed to represent a client in a civil matter, but after filing the complaint, “took no meaningful action over the course of several years to advance or pursue his client’s legal matter.” In reaching the recommendation for discipline, the panel noted that Flannery accepted “full respon sibility for neglecting [the client’s] legal matter, failing to provide competent and diligent representation, misrepresenting to her the actual status of the case, and providing her falsified documents in an at tempt to cover up and conceal his neglect,” and considered as mitigating circumstanc es that Flannery, who is 65 years old, has no record of discipline in over 27 years of practice; that he expressed his willingness to compensate the client for any harm he caused; “recognized he was experienc ing mental health problems during his representation of [the client] that negatively affected his ability to attend to her legal matter and competently represent her. He reached out to [Lawyers Concerned for Lawyers] for help, and has been under the care and treatment of a psychiatrist since 2017. [He] voluntarily took these remedial measures in recognition and response to his misconduct in neglecting [the] case… well before he was reported to disciplinary authorities” and that he “provided evidence indicating that during the relevant time period he experienced a psychiatric illness that contributed to his misconduct, and that he also experienced other personal and family issues that may have affected his actions.” According to the report, the panel determined that since seeking treatment, Flannery continued to competently practice law while under his doctor’s care without further incident, which demonstrates his “fitness to resume the practice of law after serving a six month suspension; dispenses with the need for greater disci pline to be imposed that might otherwise be appropriate given the nature of [his] misconduct; and obviates the necessity of a reinstatement hearing requiring [him] to prove his fitness to return to the practice of law.”
10 I The Pennsylvania Lawyer DISCIPLINE April 21 through June 24, 2022
DELAWARE COUNTY
OUT OF STATE
— Rule 208(f) The Supreme Court of Pennsylvania ordered the following attorneys placed on temporary suspension pending further definitive action by the court: Christopher B. Jones , Lackawanna County, on April 26; Eugene Daniel Lucas , Lackawanna County, on May 6.
DISBARMENT ON CONSENT — Rule 215
The Supreme Court of Pennsylvania imposed reciprocal discipline on the fol lowing attorneys: Stephanie Julia Brown, Williamstown, N.J., disbarred, on May 12, for like discipline imposed by the Supreme Court of New Jersey; Jewel M. Harmon, Washington, D.C., suspended for 60 days, with the suspension stayed in favor of a one-year probation with conditions, on May 12, for like discipline imposed by the District of Columbia Court of Appeals; Susan Ann Lowden, Haddonfield, N.J., disbarred, on May 12, for like discipline imposed by the Supreme Court of New Jersey; John Brian Sogliuzzo, Newark, N.J., disbarred, on May 12, for like discipline im posed by the Supreme Court of New Jersey; Mary Louise Doherty, Delaware County, disbarred, on June 10, for like discipline imposed by the U.S. District Court for the 11
The 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 miscon duct 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.”
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 commit tee, that it was “weakened by the fact that witnesses did not fully understand the current charges and some details of [his] past history.”
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 disci pline, 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 disci pline, and that “after thought and consider ation,” [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 miscon duct that calls into question his fitness to practice.
September/October 2022 I 11 taking into consideration [his] mitigating factors.”
CUMBERLAND 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 seri ous misconduct in three client matters, including improperly attempting to submit new evidence ex parte; failing to communi cate 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.”
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.”
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The Supreme Court of Pennsylvania on April 28 ordered Jay L. Yackow, Westbury, N.Y., subject to a public reprimand on con sent, as recommended by a three-member panel of the Disciplinary Board. According to the joint petition in support of discipline, Yackow, who was not licensed to practice law in Pennsylvania, failed to seek pro hac vice admission prior to submitting a prehearing memorandum on behalf of himself and two New York clients, appeared virtually at the conference as his clients’ counsel and submitted two additional documents related to the litigation in Northumberland County. As indicated in the report, following receipt of the ODC’s request for a statement of position, Yackow denied that he had appeared on behalf of the clients, stated that he was unaware that his submission of papers required pro hac vice admission and, when provided with a transcript that showed he was a par ticipant in the conference, he stated that “the [judge’s] legal secretaries’ willingness to assist him ‘further cemented’ his lack of realization that he was not permitted to serve as counsel in the [clients’] litigation” and that he had forgotten about it because he was caring for his dying brother. The report indicated that Yackow then did not respond to correspondence from the ODC alleging that his earlier statements had been “false and misleading.” In reaching the recommendation for discipline, the board determined that the “limited nature of […] Yackow’s unauthorized practice of law weighs against the imposition of a disci pline greater than a public reprimand” and noted “he did not intend to mislead ODC by his statements in response to the DB-7 letter that turned out to be false, but he acknowledge[d] that the statements were recklessly made because he relied solely on his memory,” as well as his lack of prior disciplinary history, expression of “extreme remorse” and his consent to discipline.
The Supreme Court of Pennsylvania ordered the following attorneys disbarred on consent: Michael E. Schechterly, Perry County, on April 26, following his tempo rary suspension on March 23 under a rule of disciplinary enforcement pertaining to attorneys convicted of a crime; Edward J. O’Brien III, Chester County, retroactive to Sept. 21, 2016.
… 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.”
Although noting that Hobson “acknowl edged 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
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.”
EMERGENCY TEMPORARY SUSPENSION
The board determined that Hobson’s history of disci pline 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
RECIPROCAL DISCIPLINE
The report indicated that Naselsky “accepted his guilt and responsi bility, apologized to the sentencing court, and expressed remorse, regret, and shame for his misconduct. [His] rehabilitation con tinued through his years in prison, during which he held full-time employment,” and he successfully completed a nonresiden tial drug program and participated in an intensive drug and alcohol dependency program that allowed him to engage in cognitive behavioral therapy, which “he testified was the real turning point for him in his efforts to change himself.” The report indicated that Naselsky gave back to the community through sharing his experience in the prison system with college students and volunteering with a reentry program af filiated with the U.S. Probation Department.
“The record established that [he] was suffering from mental health issues during the time frame of his misconduct,” and Crane was found to have “displayed recognition of wrongdoing and acceptance of responsibility by coop erating with ODC” and “refunded unearned fees he took from clients and made full restitution to the Pennsylvania Lawyers Fund for Client Security.” In recommending reinstatement, the board concluded that “the evidence established that [Crane’s] mental health problems that contributed to his suspension are well in control and he is confident that he is mentally competent>page14
The Pennsylvania Lawyer Eastern District of Pennsylvania; Archie Leon Rich, Washington, D.C., disbarred, with the disbarment stayed in lieu of supervised probation for three years, with conditions, on June 15, for like discipline imposed by the District of Columbia Court of grantedTheAprilREINSTATEMENTSAppeals.21throughJune24,2022SupremeCourtofPennsylvaniareinstatementto Sandra Couch Collins , formerly of Philadelphia, on May 4, as unanimously recommended by the Disciplinary Board. Collins was disbarred on consent by order of Nov. 22, 1999, retro active to Nov. 13, 1996, the date of her temporary suspension related to actions in a custody dispute with the father of her daughter, including “crimes of default in required appearance, burglary, criminal trespass, interference with custody of children, concealment of whereabouts of a child, harassment and stalking, escape, and disorderly conduct.” As noted in the reinstatement report, Collins is 69 years of age and has been disbarred for 25 years; “[d]uring her disbarment, [she] did not engage in any other unlawful activi ty. She fulfilled the terms of her criminal sentence by serving time in jail. While in jail, [she] received counseling”; and “[her] employment history demonstrated that she worked steadily and consistently during her disbarment.” The record indicated that she “placed a high priority on financially sup porting her daughter’s needs,” paying child support and for visitation, music lessons and clothing and contributing to college and post-graduate expenses. The board found her testimony that “she waited a long time to apply for reinstatement because she wanted to retain legal representation for the reinstatement process and she was never in a position financially or family-wise to do so until now” credible, and considered testimony from two character witnesses, including her daughter and a Pennsylvania attorney she has known for more than 40 years, concluding, “The record demon strates that the lengthy passage of time has been one of qualitative rehabilitation that has dissipated the impact of [Collins’] original misconduct on the public trust. At this time, [her] reinstatement would not adversely affect the public’s perception of the legal profession.”
12 I
The Court granted reinstatement to Anthony M. Crane, Philadelphia, on May 11, from a three-year suspension on consent ordered Jan. 29, 2015, retroac tive to Aug. 10, 2013, as unanimously recommended by the Disciplinary Board. As indicated in the reinstatement report, Crane’s suspension “was the result of client neglect in numerous matters, com munication deficiencies with clients and others, failing to provide fee agreements, mishandling IOLTA funds, failing to comply with a condition attached to an informal admonition, and failing to respond to ODC’s requests for information.”
The Court granted reinstatement to Charles M. Naselsky, Philadelphia, on May 4, as unanimously recommended by the Disciplinary Board. Naselsky was disbarred on consent by order of Dec. 13, 2012, following his conviction in the U.S. District Court for the Eastern District of Pennsylvania of tax evasion, filing false tax returns, mail fraud and obstruction of jus tice. According to the reinstatement report, Naselsky filed his petition for reinstatement eight years after the effective date of his disbarment, and the evidence demonstrat ed that the period of disbarment and reha bilitation, which “began almost immediately after his conviction in October 2012, when he acknowledged the harm he had done to the legal profession by resigning his license to practice law,” “has been a time of genuine rehabilitation that has dissipated the breach of trust caused by his serious misconduct.”
The report cited “compelling testimony of [ ] trustworthy witnesses” that bolstered his “authentic expressions of remorse and regret and support[ed] the conclusion that he has changed during his disbarment and is currently a fit and moral person.” The report found that as to restitution, Naselsky paid his debt to the IRS in full and estab lished contact with his former firm with his intent to pay that debt. The board detailed at length that the hearing committee erred in recommending denial of Naselsky’s reinstatement and that the committee’s findings were not supported by the record.
DISCIPLINE
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14 I The Pennsylvania Lawyer to resume the practice of law”; that he “met his reinstatement burden by clear and convincing evidence” and he “approached his reinstatement request with thought and deliberation and demonstrated clearly and convincingly that he has rehabilitated himself and is fit to practice law.”
> from page 12 DISCIPLINE have 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
The Court granted reinstatement to John Anthony Costalas , Delaware County, on June 10, from a two-year suspension on consent ordered Nov. 17, 2016, as unani mously recommended by the Disciplinary Board. As indicated in the report, Costalas’ suspension was predicated on two guilty pleas related to his substance abuse. The board determined that Costalas had taken positive measures to address his addiction and stay sober, attending outpatient thera py and participating, including in leadership and peer counselor roles, in Narcotics Anonymous and Lawyers Concerned for Lawyers; noted that he “accepted respon sibility for his actions, displayed sincere contrition, demonstrated commitment to long-term recovery from addiction, main tained his sobriety, maintained stable em ployment, addressed his financial obliga tions, and demonstrated a plan for reentry to the legal profession,” and concluded, “[t]he evidence of record amply demon strates that [he] has successfully met his reinstatement burden … and is morally qualified, competent and learned in the law. His reinstatement will not be detrimental to the public or to the profession.”
The Court granted reinstatement to Joseph A. Gembala III, Philadelphia, on June 21, from a two-year suspension on consent ordered Oct. 25, 2012, as unanimously recommended by the Disciplinary Board. As indicated in the report, Gembala’s suspension was the result of miscon duct that occurred in 2009, “whereby he failed to properly supervise the activity of Security Property Solutions (SPS) mortgage modification company after he was hired as the general counsel”; “failed to oversee the principals [who] then used his law firm name to entice people to use SPS’s ser vices while the principals were misusing the funds” and “allowed fees to be funneled through his attorney escrow account and misrepresented in an advertisement that he was experienced in mortgage modifica tions.” The report indicated that Gembala cooperated with authorities investigating the collapse of SPS, was not charged with any criminal wrongdoing and reported his conduct to ODC. Finding that during his suspension, Gembala rehabilitated himself by reimbursing victims, resolving litigation against him and making good faith efforts to address financial obligations that arose from the many lawsuits associated with the business collapse, the board deter mined that, as to a remaining outstand ing judgment, “reinstatement serves to increase [Gembala’s] ability to earn more income and pay off the judgment. In our view, keeping [him] in a holding pattern to address this last unresolved judgment would be patently unfair, in light of his demonstrated good faith efforts as a whole to address his debts.” In recommending the reinstatement, the board concluded that Gembala’s “resumption of the practice of law … after nearly 10 years on suspension will be neither detrimental to the integrity and standing of the bar or the administra tion of justice nor subversive of the public Theinterest.”Supreme Court of Pennsylvania granted reinstatement to active status to William T. Krzton, Allegheny County, on June 16, from a six-month suspension ordered Aug. 6, 2021. ⚖ The recent disciplinary actions of the court are posted at board.org/cases/recent-caseshttps://www.padisciplinary Association, Attn. Lawyer P.O. Box
September/October 2022 I 15 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.**
Fran offered his understanding when he agreed with me, but also in times when he did not. He could provide me his views so that we could discuss them and generally come to consensus or be comfortable knowing I and — when the time required it — our volunteer leadership, officers and board and chairs of YOUR Barry M.
PBA
FranExecutiveOutgoingSimpsonPBADeputyDirectorO’Rourke
Generally, these trips have started the same way: We meet up and I drive, directed when necessary by the navigation system and some times by Fran. He almost always has a small piece of paper with him, upon which there will inevitably be between eight and 10 business matters to be discussed, mulled over and then a course of action decided. When that’s done, we strategize on the event we are traveling to and when satisfied with that, and of dissecting the weather, we get on to the important stuff.
And while there are plenty of trips I go on alone, and Fran similarly, the ones I enjoy the most are those when he and I are in the car together. Occasionally, we may also have had another staff member in the car with us. He or she likely felt like an outsider, or perhaps even a victim, no matter how hard Fran or I might have tried to conjure the “three musketeers.”
In the early years, it was Fran telling me about the exploits, mostly athletic but ultimately academic, of his three children: Michael, Danny and Katey, as they moved through school, college and careers. He was always, and remains, so proud of them and of what fine people they turned out to be — a credit to his and his wife Sally’s parenting. I enjoyed reveling in their exploits and achievements and, in a way, acquired a second family. I did the same telling about my wife Kathi’s and my children, Brad and Carly, and their progres sions through high school and college and even the romances that led to their marriages. While I can still recite the sports achievements of Fran’s kids, the tables have now turned as in recent years Fran has gotten to hear of the baseball prowess of Ford and Brock, the old est of Kathi’s and my five grandchildren. Fran even got to a game or two and photographed them in action. These PBA trips have been a treasured part of both of our lives and careers. I can also report that Fran usually drove us home and we always got there safely and ready to move on to the next trip. As I write this, I’m feeling a tinge of melan choly, for these trips will soon be coming to an end. Although Fran has agreed to extend his support of the PBA until early December, his official retirement goes into effect Sept. 16, and then my retirement begins at the end of May 2023. I suppose I will have to find another travel companion for a few months!
By Barry M. Simpson
16 I The Pennsylvania Lawyer ‘Another one down.’
All things change, as they should, but I know it won’t be quite the same. What will not change for the PBA is the legacy of Fran’s 32-year PBA career, going back well before I joined the PBA. His mark will be on many, many things at the PBA, including meetings, the work of committees and sec tions and the staff liaisons that he supervised, governance matters and technology, among others. It is fair to say he constantly gave his heart and soul to the PBA. And his loyalty.
Over the last 24 years, PBA Deputy Executive Director Fran O’Rourke and I have taken many a trip together on behalf of the PBA. Most have been by car and within the commonwealth; some have involved air travel. No matter. Whatever or wherever the trip, we long ago fell into the custom of getting out of the car at the end, shaking hands and one or the other of us saying, “Another one down.” Chances were that there was more bar travel just around the corner. But no matter. The just-completed trip was indeed “down,” and we could almost always reflect on a good and successful trip for us and for the PBA.
September/October 2022 I 17 sections and committees, had the benefit of his wisdom, which made us a stronger and better association. I know, just as I did on those trips, that he was always there for me and the PBA and the entire staff. Back in mid-July, the PBA/PBI held an in-person staff meeting. It was our first since March 6, 2020, just before the pandemic forced us to all be remote. PBA President Jay Silberblatt, on his way from Pittsburgh to the Family Law Section meet ing in New England, was able to join us and address the staff. With events like the Family Law Section meeting and vacations, not all staff could be there in person, so, of course, we also provided an opportunity to attend by Zoom. Not surprisingly, Fran took time out of his vacation to participate by Zoom. Jay made heartfelt comments about Fran and his contributions. All of the staff appreciated and concurred with Jay’s comments. Just more recognition of Fran’s Fran,legacy.you will be missed by all of us. But we know where you live and will likely call on you for input from time to time. Somewhat ironically, over the years Fran and Sally and Kathi and I did not socialize much. Fran and Sally, as native central Pennsylvanians, had a large family here and friends within their orbit; Kathi and I were building a family while we established ourselves here after so many years in Pittsburgh. Fran, I hope, as I ultimately join you in retirement, that we will enjoy another trip or two together, with little more to talk about than the successes of our families and the joys of more time. And so, Fran, while there may be a final PBA trip to be “down,” I am hoping it will be a long time until we are “done.”⚖ Barry M. Simpson Executive Director 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
BeforeLegislature.hewaselected president in 1860, Lincoln became known fondly as “Old Abe” and “Honest Abe.” Honesty in itself is, of course, an element of civility and a trait all lawyers and their clients should value.
There is a substantial body of published works focusing on President Abraham Lincoln, who many view as the most impactful and widely admired politician in the history of the United States. In fact, new books concerning Lincoln continue to appear, including a wide array of fictionalized works that draw upon Lincoln’s enduring popularity.
Honesty in the course of representing clients is also made mandatory through Rule of Professional Conduct 4.1 (Truthfulness in Statements to Others).
Civility on the Circuit Lincoln’s professional reputation as an effective trial lawyer developed during the six months he traveled the “circuit” each year from court to court in Illinois, and six months in Springfield, his county’s seat. Wagons would carry the lawyers, judge and occasionally clients and witnesses to each local town court vicinage. Lincoln would pick up clients and controversies while riding the circuit. During the evenings at the local boarding houses and taverns, he could be counted upon to serve up anecdotes and deliver sage wisdom couched in short stories suitable to the occasion. He was the embodiment of the maxim that good storytellers make for good trial lawyers and vice versa.
By Thomas G. Wilkinson Jr.
Abraham Lincoln came from humble begin nings and a very limited formal education to develop a thriving and well-respected law practice in Springfield, Illinois. He developed a well-deserved reputation in his home state for civility and professionalism well before he entered the national political stage, indeed well before he served in the state
Lessons in Civility, Professionalism and Equality
Pictured above: Vintage illustration of Abraham Lincoln’s birthplace in LaRue County, Kentucky,
18 I The Pennsylvania Lawyer
When Lincoln wanted to convey that he had given a matter careful thought, he would often introduce his response with an “I reck on,” which suggested some deliberation, but sometimes it was instead a prelude to an amusing answer designed to lighten matters up or to make a deft point. “As a lawyer, he used jokes and stories to disarm opponents and make serious points, a technique he’d learned around the cracker-barrel, reinforced by his favorite books: Aesop’s Fables, the Bible and Shakespeare’s plays,” wrote John Avlon in Lincoln and the Fight for Peace Horace Greeley, the editor of the influential New York Tribune and ardent supporter of emancipation, observed that Lincoln’s hundreds of efforts in the courtroom left their mark and helped train him to become “the foremost convincer of the day.”
Lincoln drew on an extensive understanding of human nature, having interacted with people at all levels of society through his modest upbringing, work as a clerk in a general store and a post office, mixing daily with the general public, and learning their “concerns, Lincoln developed a well-deserved reputation in his home state for civility and professionalism well before he entered the national political stage, indeed well before he served in the state Legislature.
From 1849 through 1860, Lincoln likely tried more cases than any other lawyer in the Eighth Circuit. He became the acknowl edged leader of the local bar, and his services were constantly in demand. He handled a wide range of cases, from defa mation to the defense of medical malprac tice cases, as well as patent infringement and admiralty cases involving ships on the Mississippi. As railroads expanded their reach, he represented them in at least 72 cases and opposed them in at least 62.
20 I The Pennsylvania Lawyer
During trial, Lincoln would often give up var ious nonessential points to the surprise of his opposing counsel. In Lincoln As I Knew Him, author Harold Holzer quotes Leonard Swett, lawyer and Lincoln political ally, “When the whole thing was unraveled, the adversary would begin to see that what he was so blandly giving away was simply what he couldn’t get and keep. By giving away six points and carrying the seventh, he traded away everything which would give him the least aid in carrying that. Any man who took Lincoln for a simple-minded man would very soon wake up with his back in a ditch.”
Lincoln’s attitude toward due diligence and preparedness was reflected in his famous adage: “Give me six hours to chop down a tree, and I will spend the first four sharpen ing the axe.” When preparing for trial, he would display a keen power of concentration and some times take a walk on the prairie with his son Tad and return with a clear conception of the case and how he would address the more difficult points. In the office, Lincoln would often put a book down and note that the case reminded him of a story that he would tell with great earnestness. He would do the same when encountering friends on the street, starting in with: “By the way, I am just reminded of a story,” and spin the yarn, no matter how unwelcome the weather.
John Littlefield, a law student who studied in the Lincoln-Herndon office in Springfield from 1859 through 1860, remembered that Lincoln appeared at the office at odd hours, often having done a great deal of work at home. He was very industrious and had the ability to “bone down” to hard work.
While Lincoln could convey humorous anecdotes, he was serious, often described as exhibiting a “species of melancholy.” His humor helped to counteract those dark mood swings. He had a remarkable memory and could recall instantly where he had seen people and how he had made their Inacquaintance.court,Lincoln had an earnest and thoughtful manner that conveyed that of an advocate seeking a fair and equita ble outcome. Where most lawyers would announce their objection to the admission of certain evidence, Lincoln would instead note that he “reckoned” it would be fair to admit the truth to be so-and-so even when his adversary could not quite prove what Lincoln knew to be the truth. When he did object, and the court ruled against him, Lincoln would often simply acknowledge, “Well, I reckon I must be wrong.” Those who saw Lincoln try cases admired his analytical ability and “directness of thought.” Even in the most complex cases, he “would disentangle it, and present the turning point in a way so simple and clear that all could understand. Indeed, his state ment [of the case] often rendered argument unnecessary, and often the court would stop him and say, ‘If that is the case, we will hear the other side,’” wrote Isaac N. Arnold in Reminiscences of the Illinois-Bar.
September/October 2022 I 21 struggles, and questions” during his travels on the Eighth Circuit. Many know that Lincoln was a voracious reader, at least in the early days. He would on occasion simply read book excerpts aloud to friends, some perhaps who were never schooled, could not read or simply en joyed being in Lincoln’s company. However, his law partner would tire of hearing Lincoln read aloud from the daily newspapers.
Lincoln Home, Springfield, Illinois
As a lawyer, Lincoln would cut all the “dead wood” out of his opening argument. This could cause the client to be alarmed, thinking that his advocate “had given away so much of the case that he would not have anything left. In making these concessions, he would so establish his position in fair ness and honesty that the lawyer on the op posite side would scarcely have the heart to oppose what he contended for,” according to law student Littlefield in Lincoln As I Knew Him. “He would strain a point to be kind, but he never strained to breaking.” “He was certainly a very poor hater. He never judged men by his like or dislike for them. If any given act was to be performed, he could understand that his enemy could do it just as well as anyone. If a man had maligned him, or been guilty of personal ill-treatment and abuse, and was the fittest man f[or] the place, he would put him in his Cabinet just as soon as he would his friend. I do not think he ever removed a man because he was his enemy, or because he disliked him,” wrote Swett. Lincoln’s “gift for oratory was the key to success,” but one of the pillars of Lincoln’s success in the practice of law was the reputation he had as a thoroughly honest lawyer. Well before he became president, he was known by the sobriquet of “Honest Old Abe,” a nickname he embraced with pride. Even his enemies and adversaries consid ered him to be honest. As a trial lawyer, he had become such a synonym for honesty that everybody was willing to yield assent to nearly every proposition he advanced, either in or out of court.
Lancaster attorney Joe Roda deftly re views Lincoln’s remarkable legal career and outsize skills as a persuasive orator in Abraham Lincoln and Making a Case: The Story of a Master. Lincoln focused on what he called “the nub of the case,” masterfully reducing complex facts and law to one or two simple themes. Roda discusses seven fundamentals that coalesced to make Lincoln “The Great Persuader” — personality and intellect, knowledge of people, prepara tion, timing, credibility, facts, logic and emo tion. Roda concludes with 13 key “lessons” we learn from Lincoln the litigator, who was involved in more than 5,100 cases, tried hundreds of large and small civil cases, and 27 murder cases. Despite his lack of formal education and his small-town provenance, he became the “go-to” lawyer for the big rail roads and was designated the lead lawyer on trial teams despite being the most junior to the bar. Lincoln’s contemporaries uniform ly considered him the best jury lawyer of his day in Illinois. There can be no question that there was a causal connection between Lincoln’s law practice and skill development from 23 intensive years of experience at the bar and his ascension to the presidency. His speeches and writings as a candidate and as president were lawyerly, based in fact and logic, masterful but simple in style and Lincolncontent.gave many memorable speeches in the courtroom and in the public realm before he was elected president. In 1857, after setting his sights on Stephen Douglas’ seat in the U.S. Senate, he gave a series of speeches skillfully dissecting Justice Roger B. Taney’s majority decision in the Dred Scott case. Lincoln reportedly gave 63 speeches in his ultimately unsuccessful campaign against Douglas, but it was their seven debates between Aug. 21 and Oct. 15 of 1858 that received the most notoriety.
Lincoln returned to his law practice for a time, and even tried one last murder case
22 I The Pennsylvania Lawyer
Lincoln’s “House Divided” speech delivered at the Illinois Republican State Convention in 1858 drew from the New Testament in expressing the conviction that “A house divided against itself cannot stand.” He stressed that the “government cannot endure, permanently half slave and half free.” Lincoln offered a vision for the country that would eventually see slavery abolished.
enteredbeforeandtoconstructiveLincolntemperament,hisNotwithstandingmelancholyfoundwaysalleviatesadnessstresswell“wellness”ourlexicon.
Lincoln’s White House secretaries found among his papers handwritten notes that appeared to have been prepared for a law lecture. The notes include various points of sage advice concerning preparation, avoid ing procrastination and several recommen dations that bear on civility and profes sionalism. His “leading rule for the lawyer” was “diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done.”
As victory in the war approached, Lincoln continued to pursue the politics of reconciliation rather than resentment and revenge.
September/October 2022 I 23 in 1859, but the next year he was drafted to stump for Republican candidates and used the platform to vehemently criticize Douglas’ historical arguments in support of slavery. Lincoln impressed even those who fundamentally disagreed with him. His forceful and reasoned attack on slavery led to an important invitation to speak in Brooklyn, New York, where he impressed a large Republican party audience at the Cooper Institute. The prairie lawyer and “rail splitter” drew influential members of society and those curious whether the unprepossessing public man had legitimate national political aspirations. Lincoln’s well-researched and spellbinding speech was a stunning success in making the case that Republicans must stop the expansion of slavery and also established him as a via ble candidate for the nation’s highest office.
Diligence is, of course, an aspect of professionalism in that prompt preparation ensures timeliness on a client’s matters and is more time efficient than taking up an assignment sporadically or awaiting an impending deadline before performing the required work. Thoroughness
The Lincoln notes also wisely counseled law yers to “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
“Discourage litigation. Persuade your neighbor to compromise whenever you can.”
By all andthroughoutprofessionalofhighestdemonstratedLincolnaccounts,thelawyerthelevelpersonalandintegrityhislegalpoliticalcareers.
remarkable book, Team of Rivals: The Political Genius of Abraham Lincoln, Doris Kearns Goodwin explains that after winning the presidency, Lincoln made the remarkable decision to incorporate his prime rivals into his political family, the cabinet, which demonstrated his profound self-confidence and a first indication of his “unexpected greatness.” William Seward would become secretary of state; Salmon Chase secretary of the treasury; and Edward Bates attorney general. Lincoln became the undisputed captain of this unusual cabi net, truly a team of rivals. Seward came to appreciate Lincoln’s remarkable talents and realized the futility of his plan to relegate the president to a figurehead role. Seward soon became Lincoln’s closest adviser and friend in the Kearnsadministration.Goodwinexplains that a key ingredi ent of Lincoln’s political genius included “an extraordinary array of personal qualities that enabled him to form friendships with men who had previously opposed him; to repair injured feelings that, left untended, might have escalated into permanent hostility; to assume responsibility for the failures of subordinates; to share credit with ease; and to learn from mistakes.” Notwithstanding his melancholy temperament, Lincoln found constructive ways to alleviate sadness and stress well before “wellness” entered our lexicon. When compared to colleagues, he had an even-tempered disposition and consistently dispelled his colleagues’ anxiety and sustained their spirits with his gift for storytelling and his “life-affirming sense of humor. He refused to provoke petty griev ances, to submit to jealousy, or to brood over perceived slights.”
24 I The Pennsylvania Lawyer and preparation are also elements of the fundamental duty of competence, which is now ingrained in our Rules of Professional Conduct.
These valuable insights have been proven true with the general trend in favor of courtannexed and private mediation efforts. For various reasons, many contentious controversies reach the courthouse steps with the parties having expended substan tial energy, time and resources that, in retrospect, could have been devoted to a compromise at an earlier stage that would have yielded more favorable results for both Insides.her
Lincoln observed a personal civility code well before state
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Lincoln observed a personal civility code well before state supreme courts estab lished commissions promoting lawyer civility and the Pennsylvania Supreme Court adopted our aspirational Code of Civility in 2000. By all accounts, Lincoln the lawyer demonstrated the highest level of person al and professional integrity throughout his legal and political careers. He could deconstruct an opponent’s arguments and effectively cross-examine a difficult wit ness without making disparaging personal remarks or engaging in acrimonious speech that undermined the dignity or decorum of the courtroom. In The Grace and Power of Civility, a paper for the Center for the Study of the Presidency, David Abshire explains that “The miracle of the Constitutional Convention and of Abraham Lincoln’s presidency is that the leadership qualities of civility and commit ment, coalition building, and inclusiveness coincided at precisely the right moments.” He explained that this critical conversion of leadership qualities did not coalesce during other tipping points in American history, such as in President Wilson’s ineffective, uncompromising foreign policy following World War I.
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Lincoln’s charitable and conciliatory tone was clearly designed to mend fractured relations rather than throwing more wood on the fire and making reconciliation and healing more difficult. Lawyers, mediators and judges frequently face opportunities to heal rather than deepen wounds in strained client relationships and can encourage par ties to move past their differences and find common ground.
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Some of the revered “forefathers” of our country, including Chief Justice John Marshall, have come under increased scru tiny in recent years by reason of their own ership of slaves. The proverbial father of our country, George Washington, recognized the importance of civility an at early age, and lived by the 110 maxims found his Rules of Civility & Decent Behaviour in Company and Conversation. Lincoln’s legacy also has been challenged by some for not more aggres sively pursuing the immediate abolition of slavery, notwithstanding his abiding hatred for the nation’s “peculiar institution” and his consistent public opposition to slavery’s expansion into the territories. He was con cerned that pursuing abolition too aggres sively could cause the border states to flee the Union for the Confederacy; and that legislation abolishing slavery could be struck down in the federal courts, and was deeply concerned that the Supreme Court would reinstate the property-rights argument in the Dred Scott decision if he had tried to outlaw slavery nationwide in the Emancipation AsProclamation.MichaelGerson observed in a 2011 article for the Washington Post, “The Two Paths to Civility,” Martin Luther King Jr. did not oppose segregation because its sup porters were too doctrinaire. He opposed segregation because it was an insult to the nature of human beings. … He sought to convince Americans of a superior moral be lief — to convert them to the ideals of their own founding,” that all men (and women) are truly created equal, and that a society becomes more just and civil as more people
James C. Schwartzman, Esq. Court of Chairman, Chairman, of Court Chairman, of Supreme Court Supreme Court of his peers as one of the the top by his peers as Best Lawyers of the Year” Ethics and Professional Responsibility
On the eve of the Civil War, Lincoln contin ued reaching for common ground, noting, “We are not enemies, but friends. … Though passions may have strained, it must not break our bonds of affection.” And near the war’s end, in his second inaugural address following a four-year bloody conflict, he aimed for the nation to heal and restore civility. He urged a divided America, “With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive to finish the work we are in, to bind up the nation’s wounds[.]”
top 100 Super Lawyers in Pennsylvania and
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Lincoln was a man of peace in a time of war, tough minded but tender hearted. While spurring his generals to be more aggressive on the battlefield, Lincoln em bodied an interpersonal absence of malice. He practiced the politics of the Golden Rule — treating others as he would like to be treated. He did not demonize people he disagreed with, understanding that empathy is a pathway to persuasion. He was uncom monly honest and tried to depolarize bitter debates by using humor, logic and scripture. Balancing moral courage with moderation, Lincoln believed that decency could be the most practical form of politics. But he also understood that people were more inclined to listen to reason when greeted from a position of strength. Well before Lincoln became a public citi zen, the 18th century poet Mary Wortley Montagu wrote that “Civility costs nothing, and buys everything.” In other words, being polite or kind does not cost a thing and may earn a great dividend. Lincoln intuitively understood this maxim and applied it even in adversarial situations. He learned from his successes and his failures and became a masterful leader, politician and orator who applied self-deprecation effectively. “Lincoln had less schooling than all but a couple other presidents, and more wisdom than every one of them.” Among the foremost lessons he learned was the importance and value of exhibiting civility in all aspects of his professional life, from small-town lawyer to president of the United States. ⚖ Thomas G. Wilkinson O’Connor,HeProfessionofandis(twilkinson@cozen.com)Jr.aPBApastpresidentservesasco-chairthePBACivilityintheCommittee.isamemberofCozenPhiladelphia, and concentrates his practice in commercial litigation and lawyer professional responsibility matters. He is a member of the firm’s Legal Profession Services Practice Group. He also serves on the American Bar Association Board of Governors and as its liaison to the ABA Standing Committee on Professionalism. He is a past chair of the PBA Legal Ethics and Professional Responsibility Committee and co-editor of the Pennsylvania Ethics Handbook (5th ed. 2017).
26 I The Pennsylvania Lawyer are converted to this moral belief in human dignity and reflect that conviction in their lives and laws. As Yale Professor Stephen L. Carter explained: “The true genius of Martin Luther King Jr. was not his ability to articulate the pain of an oppressed people — many other preachers did so, but in his ability to inspire those very people to be loving and civil in their dissent.”
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Editor’s note: The full text of this article, including footnotes with links to cited material, is available for members-only access on the PBA website at
gramCivilarticleseptoct/2022/LincolnCivilityFootnotes.pdf.https://www.pabar.org/members/palawyer/ThewaspreparedinconnectionwiththePBALitigationSectionRetreatethicsCLEpropresentedinGettysburginApril2022. 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,
Lincoln and King lived in different fractured times, but they each recognized the critical need to pursue the goal of equality while still maintaining civility, which ultimately is an expression of respect for others. Lincoln had an abiding belief in human dignity and understood that everyone, regardless of skin color, is worthy of respect. He empha sized in the Gettysburg address that the founders of our nation “were dedicated to the proposition that all men are created equal,” drawing from the Declaration of AsIndependence.victoryinthe war approached, Lincoln continued to pursue the politics of reconciliation rather than resentment and revenge. As author John Avlon explains in his recent book, Lincoln and the Fight for Peace, reconciliation “is the action of restoring harmony and friendship, resolving differences.”
September/October 2022 I 27 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:
At least as early as 1876, the Pennsylvania Supreme Court in Cauffman v. Long, 82 Pa. 72, believed it so well established as to not require citation of authority for the propositions that: “No right of the citizen is more valued than the power to dispose of his property by will. … It rarely happens that a man bequeaths his estate to the entire satisfaction of his family or friends. In many instances testamentary dispositions of property seem harsh, if not unjust, the
“But if anyone does not provide for his own, and especially for those of his household, he has denied the faith and is worse than an unbeliever.”
As might be expected, this view of liberty of bequest came to Pennsylvania from the English Common Law. In his Commentaries, Blackstone wrote, “Our law has made no provision to prevent the disinheriting of children by will: leaving every man’s property in his own disposal, upon a principle of liberty in this as every other action; though perhaps it had not been amiss if the parent had been bound to leave to them at least a necessary subsistence.”
28 I The Pennsylvania Lawyer
1 Timothy 5:8 (King James Version) “But the very object of a will is to inequalityproduce…”
By Robert E. Rains
It doesn’t matter whether the child was born in or out of wedlock, is a minor or an adult, is single or married, is employed or capable of self-support or has physical or mental disabilities precluding substantial gainful activi ty, has or lacks assets, has or lacks income, is thankful or thankless. None of that matters in Pennsylvania. The law is clear. Reaffirmed by the Superior Court as recently as 2017 in The Estate of Rothberg, 166 A.3d 378, “a testator with children can disinherit some or all of them for any reason whatsoever.” Indeed, according to the Rothberg court, “It has always been the law of Pennsylvania that a parent does not have to leave any of his property to any of his children.”
ChildrenPennsylvania’sDisinheriting
Pennsylvania is, of course, not alone among the states in allowing disinheritance of chil dren according to the common-law tradition. Nor has this doctrine escaped criticism, of ten harsh criticism. An article written almost a century ago by professor Herbert D. Laube in the Cornell Law Quarterly (now the Cornell Law Review) was pointedly titled “Right of a Testator to Pauperize his Helpless Dependents.” Writing in the Harvard Law Review in 1955, professor Joseph Laufer stated, “The most serious shortcoming of the American law in the field of testamentary succession is its failure to prevent a testator from disinheriting his children.”
Article 1, Sec. 1 (Inherent rights of mankind.) of the Pennsylvania Constitution provides: “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting prop erty and reputation, and of pursuing their own happiness.” It is hardly surprising that life and liberty are listed before property rights. How many of us would willingly forfeit our life or liberty for the right to make a will? Indeed, if no right of the citizen is more valued than the power to dispose of his property by will, then why do the majority of American adults not bother to make one? According to the AARP, as of 2017, 78 percent of millennials (ages 18-36) and 64 percent of Generation Xers (ages 37-52) did not have a will. A 2022 study by Caring.com indicates that the COVID-19 pandemic has led to a significant increase in the number of young adults with a will. Nevertheless, in that survey, just over 33% of American adults reported that they have wills. Compare that to the 56% of American adults who, according to Gallup, own stock, or the 69% who regularly use Facebook, or the 81% who use YouTube.
Among many other cases from multiple jurisdictions, Laube cited a New York deci sion from 1926, Rice v. Andrews, in which the testator left an estate valued at about $30,000 (obviously a very large sum in those days) but disinherited his 7-year-old son. The son was born during the testator’s marriage, which had ended in divorce. The court upheld the will, reasoning that the “child must shift for himself, or be depen dent upon others for his support.” Among other rationalizations, the court opined that, “The duty resting upon the father to support and maintain his child during minority does not rest entirely upon the parental relation. The obligation carries with it the corelative right to the services and society of his offspring. This right the father no longer has.
[A] man’s prejudices are a part of his liberty. He has a right to them; he may be unjust to his children or relatives, …” One may well doubt the court’s assertion that no right of a citizen is more valued than the power to dispose of his property by will.
September/October 2022 I 29 result, perhaps, of prejudice as to some of the testator’s kindred, or undue partiality as to others. … But the very object of a will is to produce inequality, … It is doubtless true that narrow prejudice sometimes interferes with the wisdom of such arrangements. …
In 1914, in In re Phillips’ Estate, the court articulated a similarly high bar to prove undue influence. Proof must be “clear and convincing.” “In order to constitute undue influence sufficient to void a will, there must be imprisonment of the body or mind, … fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery, or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency, and to operate as a present restraint upon him in the making of the will.” The court upheld the trial court’s decision that there was insufficient evidence to submit the issue of undue influence to a jury.
Query: Would a Pennsylvania court today, faced with a similar situation of a disin herited primary-school-aged child, reach the same result based on Pennsylvania’s longstanding “public policy”? There is little reason in the case law to believe otherwise.
30 I The Pennsylvania Lawyer
Over the years, there have been efforts by children and other relatives to set aside Pennsylvania wills on grounds such as lack of mental capacity, undue influence or “insane delusion.” But, the Pennsylvania Supreme Court has repeatedly admonished lower courts against setting aside wills. As the court said in Cauffman v. Long in 1876, “The growing disposition of courts and juries to set aside last wills and testaments, and to substitute in lieu thereof their own notions as to what a testator should do with his property, is not to be encouraged.” The Cauffman court held that it was “serious error” for the trial court to have even sub mitted the issue of testamentary capacity to the jury, given the insufficiency of evidence.
He is not here to enjoy association with his son, nor to profit from his earnings.” The court expressed sympathy for the child, “who, through no fault of his own, has start ed life under a heavy handicap, and is now left, at a tender age, to grow up as best he can …” Yet, the court was “powerless … to interfere with the father’s power to dispose of his estate as he saw fit.” Significantly, the court concluded that “The remedy for such a situation rests with the Legislature and not with the court.”
inheritedPennsylvaniaour strict law of disinheritance from England, but England has long since abandoned the rule.
In short, while it is not impossible to set aside a will in Pennsylvania, under current law it is extremely difficult. There are, of course, other remedies that may be available to some children in some circumstance.
• Depending on the Social Security account of a parent, a child may be eligible for Social Security benefits as a survivor on that parent’s account. Under certain circumstances, those benefits may continue into a disabled child’s adulthood, subject to various restrictions.
• Disabled children in indigent house holds may be eligible for Supplemental Security Income (SSI) administered by the Social Security Administration, which may continue into their adulthood.
• Where the decedent died intestate, the child may be eligible for various shares of the estate, depending on who else survived the decedent, under the rules of intestate succession.•Wherethe decedent had a surviving spouse for whom the decedent’s will makes no adequate provision, the surviving spouse can claim an elective share of the estate. If that surviving spouse has in her (or his) care a surviving child of the decedent, that elec tive share may inure to the indirect benefit of that Obviously,child. there are gaps in this patchwork of remedies. TANF and SSI are only available in situations of indigency and only provide modest support. Moreover, one might well question the public policy of relegating disinherited children to taxpayer-funded programs, such as these, when there is an estate that could have been made available if the law were different than it is. Put anoth er way, why should taxpayers support a child whose parent disinherited that child and left an estate to others? Social Security benefits will only be available if a parent had or has At a
•DependingBriefly:onfamily circumstances, some children in indigent households may get welfare support under the federal Temporary Assistance for Needy Families (TANF) program.
The Wills for Heroes program provides free basic estate http://www.pabar.org/site/militarydocumentsplanningtofirstrespondersandveteransinPennsylvania.Tovolunteer,visitFor-the-Public/Wills-for-Heroes/Volunteer“Thankyou”isnotenough.
September/October 2022 I 31
More recently, in 1962, in Estate of Sommerville, the court reversed a jury verdict that the testatrix was suffering under an insane delusion, i.e., her hatred of her adult daughter who had been born out of wedlock, when she left the daughter only $2,000 out of a residuary estate of approximately $50,000. “It has always been the law of Pennsylvania that a parent does not have to leave any of his property to any of his children, irrespective of whether he likes them or dislikes them, or hates them, and he does not have to disclose his reasons for disinheriting them.”
Like the New York court in Rice v. Andrews, the Estate of Sommerville court declared that, “It may or may not be humane and wise for the legislature to change the law which has existed for several centuries …”
protected.shouldminorminimum,childrenbe
The fact that the law has existed a certain way for “several centuries” should not be a sufficient reason for it to remain unchanged.
By 1955, according to Laufer, “no fewer than 14 other common-law jurisdictions [had] followed New Zealand’s example.”
Under such legislation, certain designated survivors can petition a court for payments out of an estate from which they had either been disinherited or left with what they believe to be inadequate provision. For ex ample, the New Zealand statute at that time stipulated that an application for provision out of the estate of the deceased may be made by any of the following persons: the spouse of the deceased; the children of the deceased whether legitimate or illegitimate; grandchildren of the deceased (under certain circumstances); stepchildren of the deceased (under certain circumstances); and parents of the deceased (under certain Eachcircumstances).claimunder this scheme was to be considered on its merits. Payments were not automatic and might be either periodic or by lump sum. One objection that has been advanced to family maintenance legislation is that it would lead to “an intensive and protracted stream of litigation.” But, as reported by Epstein, this had not been the experience in countries where such legislation had been adopted. Indeed, “of an average of 4,396 wills proved yearly in New Zealand, only an average of 77 (1.77%) were contested” under the law. There is a supreme irony here. Pennsylvania inherited our strict law of disinheritance
One might well question the public policy of programs.todisinheritedrelegatingchildrentaxpayer-funded
32 I The Pennsylvania Lawyer a Social Security account and the child and parent meet various other requirements.
ago, Edwin M. Epstein authored an article in the Temple Law Quarterly titled “Testamentary Capacity, Reasonableness, And Family Maintenance: A Proposal for Meaningful Reform.” He argued that attacks on a testator’s mental capacity are often a pretext to challenge a will where the real underlying issue is that will is perceived as being unfair to the contestants “and they are unhappy with the provisions made in it for them.” Epstein advocated for adoption of “family maintenance legislation,” similar to that first adopted in New Zealand in 1900.
In this regard, it is worth remembering that slavery was legal in the American colonies, then in many American states, from 1619 until the enactment of the 13th Amendment in Sixty1865.years
The elective share option is only available to a surviving spouse who is married to the decedent at the time of death. It is not available if the marriage was terminated or if the survivor was never married to the decedent but nevertheless has a child or children by the decedent. And a surviving child has no direct right to an elective share of a decedent’s estate.
September/October 2022 I 33 from England, but England has long since abandoned the rule. Under the English Inheritance (Family Provision) Act 1938, as amended in 1952, a court was authorized to make provision out of an estate for surviving spouses (until remarriage), former spouses, a son below the age of 21, an unmarried daughter and a son or daughter who by reason of mental or physical disability was incapable of maintaining himself or herself. England expanded the scope of those who can ask a court for “reasonable financial provision” out of an estate in its Inheritance (Provision for Family and Dependants) Act 1975. There is no longer an age limit on children seeking redress. The act even includes “any person … who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.” The act applies both to situa tions of intestacy and where the decedent left a will. As noted by Dr. Mary Welstead, CAP Fellow Harvard Law School and visiting professor in Family Law, University of Buckingham, it should be stressed, however, that it is entirely in the court’s discretion and adult children rarely succeed (unless the evi dence suggests an estoppel or constructive trust-type situation).
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A NEW BOOK by William C. Costopoulos
It’s been said that the law is a jealous mistress. She’s also irresistibly passionate and unpredictably cruel. In every attorney’s life, there comes a day when it’s no longer possible to keep up with her demands. In her wake comes the dreaded question, was it meaningful in the end? Was the love affair worth all the sacrifices and stress, the highs and lows?
There are rather obvious steps the General Assembly could take to ameliorate the harsh results that England’s abandoned common-law rule has carried over to 21st century Pennsylvania. The intestacy law could be expanded to include various survi vors not currently protected. Additional survi vors could be made eligible to seek an elec tive share where a will has made inadequate or no provision for them. At a minimum, minor children should be protected, and serious consideration should be given to protecting adult children who are incapable of self-support because of serious disability. Obviously, any such steps would require careful consideration. What is taken out of an estate by one survivor will necessarily re duce assets available to other survivors. But unless we want to see 7-year-old children disinherited under a centuries-old rule, it is well past time to give serious consideration to such proposals. We would not be “flying blind.” We can study how other countries with common-law traditions have addressed this problem and learn from their experienc es. Surely, if England could abandon its anti quated common-law rule of disinheritance of children, so can Pennsylvania. ⚖ Robert E. Rains is an emeritus professor at Penn State Dickinson Law, Carlisle, and the editor of the Pennsylvania Bar Association Quarterly He can be reached at rer10@psu.edu.
If you would like to comment on this article for publication in our next issue, please email us at editor@pabar.org.
William C. Costopoulos is asked all the time whether he’d do it all over again if he had the chance. A criminal defense attorney takes some serious hits in the combative arena of the courtroom, even in the cases he wins. The stress and anxiety, endemic in the legal profession, is never ending. The anguish that comes with this calling has to stay under wraps so that all the jury sees is a confident fighter. It’s a tough call.
“
About the Author Deemed one of the top lawyers on the east coast of the United States, Costopoulos defended several nationally renowned cases over his career. One More Round is the author’s seventh book.
34 I The Pennsylvania Lawyer Parental ReconsideredAlienation A roadmap for effective representation By Jill M. Scheidt
I have heard judges express the gamut of opinions on the topic, such as, “No parent could be alienated by the other parent without cause,” dismissing the concept altogether, to “You need an expert to prove alienation” and “I find alien ation without experts.” Likewise, parents come armed with their own research, analysis and opinions, driven in large part by an active online community that supports their conclusions, either as the self-diagnosed targeted parent or the falsely labeled, targeting parent. Most lawyers and judges who practice family law hold strong opinions for or against alienation.
In recent years, I have tried several alienation cases. I have learned that those in the mental health community hold differing views than those of us in the legal community. They use different labels, such as “splitting” and “preferred v. non preferred parent dynamic” to identify and define the behaviors, all in the hope of creating a roadmap to mend relationships. As is often the case when engaging experts in litigation, we speak different languages. Most significantly, there is no “diagnosis” of alienation in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, so some will challenge the concept altogether. Our Legislature has steered clear of using the term “alienation” in the factors determining custody in Title 23 or requiring that it be proven. Factor 8 only requires an analysis of “the attempts of a parent to turn the child against the other parent . …” 23 Pa.C.S. 5328(a)(8).
Thankfully, not all custody cases have such a dysfunction. There are many parents who are able to co-parent successfully. Sometimes the emotionality of the separation has to cool first, after which the parents can behave respectfully and set boundaries. Those clients go off into the night and rarely need us again. But the high-conflict cases are apparent from the start and take up most of our energy. Much like the definition of obscenity, we know it when we see it. So how do we identify which high-conflict cases have a possible alienation component? We are looking to fill in the blanks of each family’sparticularpatterns.
September/October 2022 I 35
Iknow what you’re thinking. Another parental alienation article? Haven’t we beaten this dead horse enough already? It’s just the latest catchy buzz word — psychobabble and not a real diagnosis.
Identifying parental alienation in Pennsylvania custody cases is incendiary and challenging. Simply making the suggestion that alienation is occur ring signals a declaration of war. Building the case when representing the alienated parent requires time, skill, patience and a stable of qualified, willing and available experts, along with a receptive, invested judge. Representing the parent accused of alienation is equally challenging.
c. The child appears to be emotionally care taking the preferred parent.
d. One or both parents are discussing the court case with the child.
b. The child calls the preferred parent to re port on the nonpreferred parent’s discipline.
It all starts during intake, which I humbly suggest be driven by the lawyer, not the Alienationclient.
i. The preferred parent will not attend school functions if the other is present.
k. Secrets with and reporting on the activi ties of the other parent by the child.
cases have a similar feel. The child expresses a preference of one parent (preferred parent) over the other parent (nonpreferred parent) without a justifiable basis or history of rejection. The symptoms often include:
a. The child refuses to go to the nonpre ferred parent’s house and the preferred par ent says, “I can’t make him/her go,” “I tell him/her to go,” “What else am I supposed to do?” and “It’s your fault he/she doesn’t want to go.”
High-conflict custody cases impact the entire family and need a roadmap for resolution. The Supreme Court of Pennsylvania Continuing Legal Education Board Have you reviewed your C L E compliance lately? Confirming your compliance with CLE requirements is easy. Go to www.pacle.org and log into your MyPACLE account. www.pacle.org
36 I The Pennsylvania Lawyer
m. The parent shares financial decisions and holds adult discussions with child.
j. The child will ignore the nonpreferred parent when the preferred parent is around.
f. The preferred parent repeatedly insists on the judge speaking with the child — a classic hallmark request of most alienators.
g. The preferred parent and child calling the nonpreferred parent by his/her first name or h.pronoun.Communication is between child and parents rather than parents.
l. Repeated defiance of court orders.
e. The preferred parent is asking you at what age can the child choose the schedule.
n. Refusal of the preferred parent to share judicial orders with mental health o.professionals.“Reporting”
Lauren Marks, an experienced family law practitioner and a member of the Pennsylvania Bar Association Family Law Section, is frequently appointed as a GAL in Berks County in high-conflict custody cases. Upon receipt of her appointment, she begins her process with a review of the docket and frank discussion with counsel.
Custody cases are unique. As the Superior Court in K.D. v. E.D. (267 A.3d Pa.Super. 2021) aptly noted, compared to other legal actions, custody cases are a “special creature,” without a clear beginning, middle and end, since either party can petition for modification. In fact, a classic hallmark of a high-conflict case and alienation is serial litigation, and we can all learn a great deal from simply printing the docket if we are stepping into a case with history. Marks then schedules interviews with the parties and the child and invites counsel to provide documentation they believe is necessary for her investigation. She believes it is imperative to act quickly and aggressively in cases with suspected alienation, whether the preferred parent is acting consciously or unconsciously.
How do we accomplish our jobs effectively? We have to conduct hours of interviews with our clients and sources who are willing and able to share reliable data with us. We need to learn from our clients why the marriage or relationship ended in an attempt to de termine the animus. We need to gather re cords: counseling records, prior evaluations, police reports, CYS reports, veterans’ affairs and Social Security records, Our Family Wizard (an app the parties use for com municating and calendaring appointments and events) communications, criminal sentencing orders and evaluations, judicial transcripts and orders and school records. Who said what to whom? Reviewing emails and text messages is tedious, but there may be a needle in that haystack. And we get a flavor of the tone and content of the com munication. We are limited here by the fact that we cannot conduct discovery without a court order, by the stonewalling of the other party or child, as well as the Mental Health Act and the Health Insurance Portability and Accountability Act. Quite often, we have to seek an order for permission to gather records and obtain releases from reluctant parties or the child. We are looking to fill in the blanks of each particular family’s patterns. For instance, if there is a preferred-nonpreferred parent dy namic, did it exist prior to separation? Was one parent the “fun” parent and the other the “disciplinarian”? Did that continue after separation? One very valuable tool here is to petition the court for the appointment of a guardian ad litem (GAL), who is given authority to gather the records and conduct interviews that we frequently cannot, such as interviewing the child and observing the child with each parent separately. If I believe that alienation is possibly occurring, I often seek the appointment of a GAL rather than going straight to trial. And whether or not my client is the preferred or nonpreferred par ent, I inform him/her at the initial meeting that I will candidly share what I find rather than parrot what he/she wants me to say.
September/October 2022 I 37
“Judges need firm boundaries with parents, exercising control and sanctioning parties accordingly,” Marks said. And attorneys need to be firm with their clients. “A majority of the alienation cases I see are caused by or made worse by the attorneys who allow their clients to run the show.” Marks advises against attorneys interviewing the children, saying “Let the GAL or the court do that.”
p. Alleging bias by judges, lawyers and “the q.system.”Making
Very often, our clients want us to be their cheerleaders, confidantes and “on their side.” If they perceive we are not, they move on.
Children and Youth Services (CYS) reports and protection from abuse filings, and repeated police involvement.
lawyers, judges and mental health professionals to disciplinary bodies.
Our job as custody practitioners is to parachute into a family’s life and take a look around, quite deeply. It is a herculean task. Our clients come to us in a highly emotional state and, rather than adopt the emotionali ty of it, we have to objectively gather a large amount of data, with our clients sometimes being the least likely source of reliable proof.
Another valuable tool is the custody evalua tion route. In an ideal situation, having a GAL and a custody evaluator in a high-conflict case is my preference. But finding and af fording evaluators is easier said than done. The process takes many months, often the better part of a year. Families in limbo awaiting custody trials are in turmoil. The evaluator, who is a licensed mental health Attorneys need to be firm with their clients.
38 I The Pennsylvania Lawyer professional, has the ability to diagnose parties. Frequently, if alienation is occurring, one or both parties have mental health di agnoses or personality disorders, possibly a trauma history or substance abuse problem. But evaluations are limited in that they only capture the family situation in a static point in time. By the time we try the case, the facts and findings can be dated. Both an evaluator and a GAL will offer findings and suggestions to the court for a resolution. Knowing your judge is crucial here. Some judges take the bench with family law experience and others do not, and the level of vitriol in child custody cases can be surprising to judges who never practiced family law. Having a familiarity with the topic and experts to testify will not only support your client’s case but will help educate the court. Counseling is almost always warranted. Changes to the physical custodial schedule is often recommended, and a change of legal custody is sometimes needed to alleviate communication conflicts and obstructionism by the preferred parent.
At any stage of custody litigation, a judge may order that the parties enter into counseling in an attempt to repair the family dynamic. Clinical Social Worker Andrea Karlunas of Berks County has ample experi ence in counseling and works with families
A classic hallmark of a iscasehigh-conflictandalienationseriallitigation.
Ofapproach.particular note is the difficulty in repre senting preferred parents. The last thing they want to hear is that they might be or are the alienator. They actually think they are the superior parent, a victim of the other parent, and “in the right,” simply protecting the child. Given the nature of our role as advocates, most lawyers who represent the alienator feel the need to advance the client’s cause (which is usually to blame the other parent for the estrangement) or to dismiss the psychological concept of alienation and to justify the behavior of their client. Caveat: Alienators surround themselves with professionals who do their bidding, immersed in confirmation bias. And if they do not, the alienator will keep shopping. Robert A. Creo’s article, “Making Decisions: Overconfidence,” in the May/June 2022 issue of The Pennsylvania Lawyer, offers key insight into effective representa tion of clients and how to integrate facts that are contrary to your client’s position and ultimate goals. If you are representing the preferred parent, I suggest using the same roadmap. Gather information and conduct interviews to reach your own objective conclusion. You are free to retain your own expert. But beware that the child does not consider you his/her law yer. Often, the child aligns with the preferred parent who has triangulated the child into the conflict. It is an ethical quagmire.
Sometimes the most extreme remedy is war ranted, which is a period of sequestration so the child and nonpreferred parent have a period of time to reset their damaged relationship and the preferred parent can enter into some individual therapy, after which the court will order that custody with the preferred parent resume in a step-up
⚖ • • •
When Karlunas gets involved in a custody case, she examines the dynamic prior to the breakup of the family: how did the child per ceive that dynamic, how well do the parents support the relationship between the child and the other parent, gatekeeping issues such as domestic violence, mental health issues, drug and alcohol abuse, and who invokes the question of fairness. Karlunas succinctly describes how counseling can be more effective than just an evaluation, saying, “An evaluation is a picture. Therapy is the Whatevermovie.”your position on parental alien ation, high-conflict custody cases impact the entire family and need a roadmap for resolution. Otherwise, there will be contin ued litigation and heartache until the child reaches the age of majority and beyond. For the sake of the child’s current and future mental health, lawyers and judges need to play a significant role with early and impact ful intervention. ⚖
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Jill M. Scheidt is a partner at Masano localtion.familyprimarilywhereWyomissing,Bradley,BerksCounty,shepracticesintheareasoflawandcivillitigaSheisadmittedtoallandappellatecourts of Pennsylvania, U.S District Courts for the Eastern and Middle Districts of Pennsylvania and the U.S. Supreme Court. She served as the woman gover nor on the PBA Board of Governors and is a past president of the Berks County Bar Association. Earlier this year, Scheidt recorded an interview for the PBA Family Law Section Law in the Family pod cast series. A link to “Trying a Parental Alienation Case” can be found at site/For-Lawyers/Sections/Family-Law-Section.https://www.pabar.org/
Logan B. Stover is PBA legislative coordinator. Fredrick Cabell Jr. is PBA director of legislative affairs. For more 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.
September/October 2022 I 39
For more information on the Pennsylva nia House of Representatives Oral History Project visit pa.us/oral-history.https://archives.house.state. •
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PAL-2022 E3 (05-06) P50-64.qxp_Layout 1 6/15/22 4:24 PM Page 61 that have a highly dysfunctional posture. She understands that in her capacity, she will have to testify and speak to lawyers, offering guidance on how to communi cate with our clients on difficult subjects. She requests particular language in her appointment order to ensure that both parties will participate and she can testify.
Italians?” Before Thornburgh could answer, Butera, a first-generation Italian-American himself, stood up and said, “There is no need for that kind of a question in this campaign. It’s inappropriate, and I don’t want him to answer it. I’ll answer it by saying that he is a fair man to all people.” This story is a great reminder that, regardless of their party or policy preferences, there are legislators who rise above politics in the interest of making the commonwealth a better place.
Seaver-Hall September/October 2022 I 41
Five Techniques to Strengthen Your Persuasive Legal Writing
Once the architect’s work is done, the carpenter takes over. He follows the architect’s blueprints, nailing the ideas together in a logical sequence. This is the first Finally,draft. the architect presents the draft to the judge. The judge is highly educated and highly critical. (Her voice even sounds a little like your ninth-grade English teacher.) She knows when writing is garbage and she’s quick to say so. To turn garbage into gold, she focuses on things like grammar, punctuation and tone, poring over each word, phrase, sentence and paragraph to ask honestly whether it’s as good as it could Flowersbe.explains that writer’s block happens when one of these four characters jumps ahead in line. For exam ple, when the judge realizes how awfully imperfect the madman’s ravings are, she interrupts, encouraging us to tear the page in two. If we give in to her, we get stuck. To combat this, Flowers encourages us to tell the judge that we’ll get to her opinion later. Good writing only comes from good prewriting. Good prewriting, in turn, requires us to be patient and let each character take its turn.
I’ll say it: Most legal writing stinks. We lawyers just can’t seem to wrap our big heads around the idea that good writing means easy reading.
The architect helps organize the madman’s ravings. She picks out maybe one tenth of the madman’s brain dump that is relevant or viable. She then arranges the plausible ideas in an outline that might later form the basis for an argument. The architect thinks in broad, organizational, 30,000-foot terms. She doesn’t worry about details like word choice or sentence structure.
1. Think, Plan, Draft, Scrutinize. Too often, writers dive headfirst into their first draft, neglecting prewriting. This is a critical mistake.
Proffered explanations abound. Some have observed that lawyers, being cautious creatures, think that 10 words must surely be safer than four. Others have noted that law firm culture often ensures that senior partners’ habits — both good and bad — are passed down to junior associates. Likewise, many lawyers say that they’re just too busy to focus on well-crafted writing. At the end of the day, however, I think that most lawyers simply haven’t acquired the tools required to write at their full potential. So here are five tools that I hope you’ll find useful in your writing practice.
Professor Betty Flowers offers a brilliant encapsulation of the writing process. She says that the best writers take turns playing four roles — madman, architect, carpenter and judge. The madman is full of ideas, Flowers explains. He writes crazily and sloppily and if he really lets loose, he could churn out 10 pages in an hour.
By Philip J.
Until the last two sentences, did you have any idea why I launched into a discussion of Kisela v. Hughes? And when you got there, did you remember much about what you had just read? I doubt it. Now consider this revision, in which topic and transition sentences are italicized: The U.S. Supreme Court gives extraordi nary deference to police officers accused of excessive force. Indeed, when a prior excessive-force case does not “squarely govern” the precise facts of the pending case, the court almost always says that the constitutional right invoked by the plaintiff was not “clearly established” and dismisses the case on qualified-immunity grounds. Too often, the upshot is that victims of excessive police violence have no legal recourse. How, then, does the court justify this wrongheaded rule? By reasoning that police officers frequently confront fast-moving situations where it is “difficult for [the] officer to determine how the relevant legal doctrine … will apply to the factual situation the officer confronts.”
3. Ditch The Legalese. (I Beg You.)
Does anybody honestly think that these words have ever won a case or helped per suade a judge? And was it really necessary to clarify that “the Plaintiff,” “Mr. Smith” means the Plaintiff, Mr. Smith?
2. Start With a Strong Topic or Transition Sentence.
By starting with strong topic and transition sentences, you increase comprehension. And comprehension is a prerequisite of agreement.
Consider the following paragraph, which lacks topic and transition sentences: In Kisela v. Hughes, the U.S. Supreme Court noted that for qualified-immunity purposes, the factual proximity of a precedent case is “especially important in the Fourth Amendment context, where … it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.”
I am hardly the only one with a hot-blooded impatience for this medieval discourse. In The Winning Brief — which, for litigators, should be canon — Bryan Garner notes that in every state in which judges have been polled, the judges have overwhelmingly said The best writers take turns playing four roles: madman, architect, carpenter and Comprehensionjudge. is a prerequisite of agreement.
42 I The Pennsylvania Lawyer
It may be basic, but it’s a worthwhile reminder: To express your ideas clearly, each and every paragraph needs a strong topic or transition sentence. Topic and transition sentences tell the reader the focus of a paragraph in simple and direct terms. Without these, you risk confusing and boring your reader.
For a statutory or constitutional right to be “clearly established,” the Kisela court said, existing precedent must “squarely govern” the specific facts of the plain tiff’s case. Too often, the upshot of this rule is that victims of excessive police violence have no legal recourse. This is a wrongheaded rule that the Supreme Court should revisit.
“COMES NOW the Plaintiff, John D. Smith (hereinafter referred to as ‘the Plaintiff’ or ‘Mr. Smith’), by and through counsel undersigned, in the above-captioned cause, and files this his Opposition to Defendant’s Brief in Support of Motion for Summary Judgment, stating in support thereof the following …” Is any of this cholesterol really necessary?
“Plaintiff“Wherefore.”“Pursuant“Heretofore.”to.”alleges, inter alia …”
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.
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?
First, word count. Legal writing guru Ross Guberman recommends aiming for an aver age of fewer than 27 words per sentence.
September/October 2022 I 43 that they wish lawyers would stop using legalese. Yet, in the majority of briefs I read, authors still cling to this bloated jargon. To paraphrase high-profile lawyer and writer Gerry Spence, those briefs make me want to throw the brief out the window and jump after it. Do you really want to make the judge — the captive audience member in whose hands your case rests — feel the same way? You may be asking, “But isn’t legalese necessary for legal precision?” I think not — especially not in brief writing. Indeed, le galese often creates ambiguity by relying on archaic words, poor grammar and sentence structure, repetition and surplus language. As The Oxford Guide to Plain English says, “Fog in the law and legal writing is often blamed on the complex topics being tackled. Yet when legal texts are closely examined, their complexity seems to arise far less from this than from unusual language, tortuous sentence construction, and disorder[.]” In almost all cases, we can nix the nonsense. (One caveat to this section: If you know for a fact that your judge is one of those rare few who loves legalese, then go ahead and com mit the lesser evil, anything hereinbefore to the contrary notwithstanding.)
Microsoft Word has a great tool to assess the readability of your writing. Here’s how to turn it on: Go to File > Options. Select Proofing. Under When correcting spelling and grammar in Word, select Show read ability statistics. Return to your document and then select Spelling & Grammar Finally, correct or ignore any spelling or grammar errors, and then Word will open a Readability Statistics window with informa tion about the readability of your document. That window will show the average number of words per sentence, the average number of sentences per paragraph, the percentage of passive-voice sentences, the document’s Flesch Reading Ease score and the docu ment’s Flesch-Kincaid grade level. Let’s go through those and give you some goal metrics for each.
Garner, meanwhile, recommends cutting it down to 20. On this point, I’m with Garner.
People to People
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.
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.
4. Short, Active Sentences. Plain Words. What makes for readability? Clarity and sim plicity. Their recipe? Short, active sentences and plain words. Understand: My point is not that you should omit every possible word. As Professor Joseph Regalia noted in a 2019 post on the Appellate Advocacy Blog, “That is just choppy. Real choppy. Like this. It starts. To get. Annoying.” Instead, take the advice of Strunk and White and “omit needless words.” When you omit needless words, you add by subtracting and your writing becomes more readable.
Third, the Flesch Reading Ease test. The test uses two variables — the average length of your sentences and the average number of syllables per word — to assign a readability metric between 1 and 100. The higher the better. Aim for a score above 50.
Passive: The motion was filed. [Read: The motion was filed by zombies.]
Your statement of facts should make the judge want to rule in your favor, and then is to be strategic about point of view.
factsOnetoolsgiveargumentyourshouldherthelegaltodoso.waytoframepersuasively
Active: Defense counsel filed the motion.
Passive: A sandwich was eaten. [Read: A sandwich was eaten by zombies.]
The judge will have reached a preliminary decision about your case by the time she finishes reading your statement of facts. So don’t wait until the argument section to persuade; frame the facts persuasively, too. Your statement of facts should make the judge want to rule in your favor, and then your argument should give her the legal tools to do so. One way to frame facts persuasively is to be strategic about point of view. Justice Clarence Thomas’ majority opinion in District of Columbia v. Wesby provides a great example. The issue in Wesby was whether five police officers had probable cause to arrest 21 partygoers and, if not, whether the officers were nevertheless entitled to qual ified immunity. Watch how Thomas frames theAroundfacts:
Remember, though, that this is an average measurement. An elegant, long sentence now and then can vary the flow of your writing nicely; it just needs to be punctuated correctly so that your reader doesn’t get lost.
5. When Reciting Facts, Aim to Create the Right Feeling, Not Just the Right Meaning.
Finally, the Flesch-Kincaid Grade Level test. This test uses the same variables as the Flesch Reading Ease test, but it spits out a number showing the difficulty of a piece of text in the form of a U.S. grade level. The New York Times usually clocks in at about an eighth-grade reading level, and Supreme Court opinions usually run in the low teens. In client communications, aim for the for mer; in court filings, aim for the latter. Hit these metrics, and your writing will greatly improve.
Active: Sam ate a sandwich. Guberman says to aim for less than 20% of sentences with passive structure. I gener ally like to aim even lower. That being said, passive voice has its uses — especially, for example, where you want to depersonalize your client’s bad act.
Next, passive voice. Many lawyers talk about it; fewer know what it is. In passive voice, the subject of the clause doesn’t perform the action of the verb. Instead, the sentence has a be-verb (or get) plus a past participle.
After the officers knocked on the front door, they saw a man look out the window and then run upstairs. One of the party goers opened the door, and the officers entered. They immediately observed that the inside of the house “was in disarray” and looked like “a vacant property.” The officers smelled marijuana and saw beer bottles and cups of liquor on the floor. In fact, the floor was so dirty that one of the
To catch most passive sentences, just ask yourself whether you could add the phrase “by zombies” to the sentence, like this:
44 I The Pennsylvania Lawyer
1 a.m. on March 16, 2008, the District’s Metropolitan Police Department received a complaint about loud mu sic and illegal activities at a house in Northeast D.C. The caller, a former neighborhood commissioner, told police that the house had been vacant for several months. When officers arrived at the scene, several neighbors confirmed that the house should have been empty. The officers approached the house and, consistent with the complaint, heard loud music playing inside.
September/October 2022 I 45 partygoers refused to sit on it while being questioned. Although the house had working electricity and plumbing, it had no furniture downstairs other than a few padded metal chairs. Note how Thomas keeps the focus on what the police officers saw, heard, smelled and observed. Thomas could have just as easily written the second paragraph like this: After the officers knocked on the front door, a man looked out the window and ran upstairs. Another partygoer then opened the door and let the police inside. The house had working electricity and plumbing. It was dirty and mostly unfur nished. The air smelled of marijuana, and there were beer bottles and cups of liquor on the floor.
Philip Seaver-Hall is a civil litigation attorney at Knox McLaughlin Gornall & Sennett PC in Erie. He also serves as a contribut ing editor of the Appellate Advocacy Blog. He can be reached at kmgslaw.com.pseaver-hall@ If you would like to comment on this article for publication in our next issue, please email us at editor@pabar.org.
As lawyers, we are professional writers. I encourage you to give these techniques a try and see how your writing improves. Best of luck! ⚖
While just as accurate as Justice Thomas’, the latter version fails to create the right feeling. Justice Thomas puts us in the officers’ shoes, subtly priming us to accept what he later says outright — that “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the de gree of suspicion that attaches to particular types of noncriminal acts.” When the reader steps into the officers’ shoes, it’s hard not to understand why they were suspicious of the partygoers. By being purposeful about point of view, Thomas has primed us to accept his argument before he has even made it. That’s effective persuasion.
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New York. But Pennsylvania also has many private roads, and Pennsylvania attorneys have been dealing with issues relating to private roadways since the beginning of the commonwealth. The state is crisscrossed with old logging roads, abandoned rail lines, old coal roads and settlor trails that used to traverse the wilderness that have, over the last several hundred years, become shared driveways or private roads providing access to private property. There are also uncounted thousands of miles of private roadways, including undedicated roads in subdivisions, condominium develop ments, cooperatives and planned unit Notwithstandingdevelopments. that private roads are common in Pennsylvania, the financing of a home accessed by a private road can present difficulties, especially for the lender. In today’s lending environment, where banks routinely sell their loans on the secondary market, it is important to make sure that the borrower will have continued access to the property and will be able to afford the expense of his/her contributory share of the maintenance and upkeep. The right of access is generally addressed through re corded subdivision plans that show the pri vate road, which creates the recorded right of access. Maintenance and upkeep are a different matter. Condominium and similar housing developments address the issue through recorded declarations enforced by homeowners’ associations. Private farm roads, country lanes and informal subdivi sions do not have such mechanisms. It is the instances of unrecorded maintenance arrangements that present issues for lend ers in evaluating a borrower for purchase of a property on a private road.
46 I The Pennsylvania Lawyer
According to the Federal Highway eastern—maintained250,000PennsylvaniaAdministration,hasovermilesofpubliclyroadwaysmorethananyotherstate,including
By Anna Marie Sossong
Who has the responsibility of repair and how to calculate?
Untangling Private Roads in Pennsylvania
September/October 2022 I 47
The Private Roads Act (36 P.S., Chap. 7), one of Pennsylvania’s older surviving pieces of legislation — originally created in 1836 — provides landowners of landlocked parcels with a mechanism to petition for the creation of an access road to the parcel. The act’s ra tionale is that it is to the benefit of the com monwealth to ensure that all its land is able to be used for the common good — there fore access is required. There have been hundreds of cases since 1836 challenging various aspects of the process outlined in the act for the petition and creation of a private road across another landowner’s property. Most of the cases addressed the determination of a board of view as to the necessity of the proposed private road, its location, its size and its price.
However, once the private road was estab lished, either through the mechanism out lined in the Private Road Act, by a landowner creating a private road as part of a subdivi sion or through development of a parcel on which the private road already exists, the continuing obligation of maintenance was not always clear. Section 2735 of the act addresses repair of private roads and was amended on Oct. 7, 2021 (effective Dec. 6, 2021) to address some concerns from recent court cases and to attempt to add a bit of certainty as to the determination of maintenance obligations.
This new revised legislation provides lenders with more clarity as to how to evaluate the proposed purchase and financing of a parcel that either contains a private road used by others or where access is dependent on a private road where there is no other mainte nance agreement. Generally, lenders require that any loan transaction involving a private road also include a recorded maintenance agreement that clearly outlines the continuing obligations of the landowner and roadway users for all future maintenance expenses. If there is no existing maintenance agreement and the various landowners aren’t willing to enter into one, this lender requirement can kill the proposed purchase/sale.
In this example, the overall length of the private road is 1,000 feet. The distance from the beginning of the private road to the center of the driveway to Parcel A is 200 feet. The distance from the beginning of the private road to the center of the driveway to Parcel B is 600 feet.
Parcel C uses the entire private roadway to access the parcel. Each of the parcels that use the private road are a different size and create different amounts and types of traffic.
The most obvious calculation that you might employ as a way to determine proportionality is to calculate what percentage of the private road length each parcel uses, as follows:
Section 2735 of the Private Road Act has always provided that the person who requested the private road is responsible for its continuing repair (§2735(a)). Section (b) then continues,
“Each property owner that shares a common benefit from a private road shall contribute in proportion to the amount of the private road utilized to the cost of maintaining the private road at the current level of improvement and shall have the right to bring a civil action to enforce the requirement of this section.” This is a slight revision from the former act, which mandated that the obligation for shared maintenance was created whenever “more than one person enjoys a common benefit” without restricting the maintenance to property owners only. Now, only prop erty owners are obligated to participate in maintenance.
48 I The Pennsylvania Lawyer www.pbi.org | COMPENSATIONPENNSYLVANIA1-800-932-4637WORKERS’ PRACTICE & PROCEDURE 2022
If there is no existing purchase/sale.canlenderenteraren’tvariousagreementmaintenanceandthelandownerswillingtointoone,[the]requirementkilltheproposed
1,000-foot private road 200 feet > 600 feet > 1,000 feet > A C
Parcel A – 200′/1,000′ private road length = 20% Parcel B – 400′/1,000′ private road length = 40% (400 feet is the length of the private road after the Parcel A drive) Parcel C – 400′/1,000′ private road length = 40% (400 feet is the length of the private road after the Parcel B drive) This, however, doesn’t consider each parcel’s usage. Remember, Parcels B and C both cross over the 200 feet of private road related to Parcel A, and Parcel C also uses Parcel B’s section of private road. This calculation results in a heavier maintenance obligation for Parcels A and
The calculation of proportionate share isn’t as clear as it may appear. Consider the below:
While the new language does clearly impose the maintenance obligation on property owners, how to determine the cost sharing is not clear — other than the reference to “proportion to the amount of the private road utilized.” In the past, attempts were made to argue that certain property owners were heavier users of the private road and should, therefore, pay more of the maintenance costs. Under this revised language, the only determination is the proportion of private road used by the various contributing property owners.
The act’s rationale is that it is to the benefit of the commonwealth to ensure that all its land is able to be used for the common good.
Parcel C – 1,000′/1,800′ = 55.5% of overall maintenance expense
So, while the recent revisions are helpful in that the maintenance obligation is clearly allocated to the property owners (regardless of whether or not they use the private road for access), which should give lenders a bit more comfort than the prior language, there are still issues not addressed that have historically proven contentious for users of a private Notwithstandingroad. that this maintenance provision is included in the Private Road Act, which provides a method to judicially acquire access across property to a land locked parcel, the provision will apply to all instances of private roadways, regardless of how the roadway was created — except for those that already are covered by a private maintenance agreement, roads within a common interest ownership community or private roads established by a governmental entity. So, the next time that your lender balks at financing a transaction with a private road that does not have a mainte nance agreement, refer the lender to 36 P.S. §2735. Or, when your client calls and presents a disagreement with a neighbor about their private access road or driveway, this provision can be invoked to attempt to resolve the neighborhood dispute. This revision to the Private Roads Act isn’t earthshattering, nor does it completely clear up the many issues with private roads in Pennsylvania, but it does help neighbors understand their obligations to the others who join in their use of private roads abutting their properties.
also provides that all the users of the private road have the inde pendent right to enforce the maintenance obligation via civil action. However, there is no discussion within the Private Road Act as to how to address any change in use of the private road, increase in traffic along the road, commercial vs. residential use or any improvements to the private road that a user may desire (paving, grading, etc.). Based on the language of the act, these issues would only result in a change in maintenance expense, not any change in the propor tionality formula — which is only based on length of road and not volume of traffic.
⚖ Anna Marie Sossong is underwriting counsel for Conestoga Title Insurance Co., a regional under writer headquartered in Lancaster. She has exten sive experience applying real estate law to both commercial and residential transactions. If you would like to comment on this article for publication in our next issue, please email us at editor@pabar.org.
Parcel A – 200′/1,800′ = 11.1% of overall maintenance expense Parcel B – 600′/1,800′ = 33.3% of overall maintenance expense
This method accurately represents the proportionate share of maintenance costs for each user of the private road because it includes within each parcel owner that portion of the private road that is jointly used by others. In other words, it recognizes the Sectionoverlap.2735
September/October 2022 I 49 B and isn’t truly a “proportionate share” as required by the statute. In order to accurately assess maintenance and repair costs, the formula must include all of the various private road distances and must recognize that some property owners’ use overlaps with others. To determine overall proportionality, the first step is to determine the total distance and usage to be maintained. Here, Parcel A has a 200foot drive, B’s drive is 600 feet and C has a 1,000-foot drive. Both B and C should expect to pay some portion of the expenses associated with the first 200 feet (A’s entire driveway length) and C should also expect to pay some part of the cost of that part of the road the leads to B’s driveway. Because of the usage overlap, simply determining the percentage of length, as in the previous example, overstates the obligation of A and B and understates C’s maintenance obli gation. The calculation must recognize the overlap to fairly allocate the expense. To do so, determine the total length of all parcels’ private road access distances = 200′+600′+1,000′ = 1,800′ (Ignore the fact that the actual private road is only 1,000 feet long). This calculation is to determine proportional cost and recognize the overlap in usage. Using the above private road lengths, the proportional maintenance costs for each parcel are as follows:
The Underdog Effect By Robert A. Creo THE EFFECTIVE LAWYER
— Malcolm Gladwell
When you’re an underdog, you’re forced to try things you would never otherwise have attempted.
When I was a novice lawyer in the late 1970s, I was always curious about what other lawyers did and why, so I asked many questions.
”“Most humans get culture.inthataccountabilityandresponsibilityofnarrativestentThisownresultupliftedfortunatewhenreinforcementpositivethoselessareasaoftheirefforts.isconsiswiththepersonalindividualarevaluedAmerican
Some of them came from a lack of experi ence and often confidence in the micro-steps necessary to practice law on a daily basis. One of my Allegheny County Bar Association softball teammates worked for a small and highly successful personal injury firm. Over beer after yet another defeat on the field, he said that he would miss the next few games since he would be in trial. I peppered him with questions and was surprised to learn that he would be in the courtroom alone, with no senior lawyers or paralegals sitting with him at the plaintiff’s table. This was intentional and the philosophy and practice of most personal injury firms. The goal was to create sympathy and play to the natural tendency of humans, especially lay-jurors, to root for the underdog. It was an invaluable lesson that I used throughout my career, especially when tangling with lawyers from Big Law who I found discounted solo practitioners and small firms. I deliberately played the part of the storefront lawyer who had his office in his hometown neighborhood and whose clients were the reg ular folk he knew most of his life. Occasionally, a senior lawyer would give me the stink eye and tell me my “ah, shucks” routine was bull and neither he nor his client would take it easy on me or my client. After a few years, I found surer footing as a solo lawyer, so these types of intimidation tactics were shrugged off with a Mona Lisa smile. My response was typically
50 I The Pennsylvania Lawyer 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 insight into best practices for competency, contentment and professional development. (PBA members can refer to columns published in previous issues using their member login at Underdogcourseflagstheneysandsion-makingemployment.ofthatjudgmentaddressedthepracticeJudgmentPennsylvania-Lawyer-Magazine.)www.pabar.org/site/News-and-Publications/https://anddecision-makingtheoryandarebestunderstoodwhenreadincontextoftheseries.Recentcolumnshowtoreduce“noise”toimprovebyofferingspecificbestpracticescanbeintegratedeasilyintothepracticelaw,regardlessofthenatureofindividualThiscurrentseriesexploresdeciinthecontextofcognitivedefectsbiasesthataffectchoicesandhowattorcounselclients.Thelastcolumnexploredescalationofcommitmentdespiteredandwarningsignssuggestingadifferentofaction.InthisissueweaddresstheEffect.
Ironically, underdogs start out with a form of advantage in the minds of the judges, jurors and other targets of lawyerly persua sion. My experience is that the overwhelm ing majority of clients, both plaintiffs and defendants, genuinely feel wronged and victimized. I believe there is a tendency for lawyers to tune out on these person al and emotional histories. The law has trained generations of lawyers to ignore or suppress emotions in favor of “hard” facts or reasonable legal arguments. Sympathy, empathy and compassion have a home in the courtroom. Trial lawyers often focus on the “likeability” of clients. These people, or corporate representatives, are the face of the conflict. They become the heroes and villains via the spoken word. Effective lawyers create a theory of the case to
Science of the Underdog Effect Definition of underdog 1: a loser or predicted loser in a struggle or contest 2: a victim of injustice or persecution Merriam Webster Online Dictionary Social scientists and researchers find that people quickly label those at a competitive disadvantage as underdogs and often do not hesitate to align themselves with underdogs — a phenomenon called the Underdog Effect that is common in sports, politics, business and law. The focus can be twofold: hoping the top dog fails and/ or motivated by a desire to see the little guy win. The related concept that came in vogue a few decades ago is schaden freude: a psychological reaction involving finding joy in other people’s misfortune or misery. The powerful and mighty get their Underdogscomeuppance.are respected and supported in many cultures. As children, we learn the story of David and Goliath. Robin Hood was a hero, not a criminal, fighting for the poor and weak. A foundational value of the American historical narrative is idealism of the American dream — anyone can prevail by hard work, grit and perseverance. Underdogs are cheered on in sports; we root for the small school most of us never heard of to advance to the Final Four in the annual NCAA March Madness tournament. We like it when underdogs defy expecta tions to win. Most humans get positive reinforcement when those less fortunate are uplifted as a result of their own efforts. This is consistent with the narratives of per sonal responsibility and individual account ability that are valued in American culture. People prefer the stoic who grinds on with determination despite being victimized by the powerful or the system through no fault of his or her own.
September/October 2022 I 51 to thank him for the compliment (it was always a man in the role of alpha dog). I continued my cooperative style of negotia tion and litigation and avoided the attempt to project strength and not to appear weak, whatever that means. I was content to play the role of underdog. As a mediator and arbitrator, I spend many an hour trying to understand the bravado to project strength or the pounding of chests to prove lack of weakness. Litigation is not a physical tug of war or a weightlifting contest. This is true despite the excessive production of documents that accompanies some cases. Preparation, repreparation and effective decision-making processes are the currency of effective legal repre sentation. It was only years later, during my deep dive studying mediation, negotiation and decision-making, that I came across the cultural and scientific underpinning of what social scientists call the Underdog Effect and gained insight into why the underdog narrative is an important dynamic for Culturelawyering.and
In 1962, Hertz was the rental car leader with a market share of 61% compared to 29% for Avis. A New York ad agency of the Mad Men era built its “We Try Harder” ad vertising campaign appeal on the underdog status of Avis. “When you’re only No. 2, you try harder,” was the new tagline, “Or else.”
The Underdog Mystique: What to Do?
“Avis can’t afford not to be nice.” “Avis can’t afford to make you wait.” “Avis can’t afford dirty ashtrays.” The campaign was persua sive, focusing on how the underdog worked harder to please its customers. From 1963 to 1966, Avis’ market share grew to 36% and Hertz’s shrunk to 49%. The global campaign lasted for over 50 years.
EFFECTIVE LAWYERTakeaways
52 I
The Pennsylvania Lawyer promote the underdog. These include sto ries of vulnerability, struggle and personal sacrifice. The narrative highlights your client as the protagonist fighting the good fight regardless of the bad faith, foul play and obstacles to be overcome. Tell your tale of the underdog. ⚖ 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 served as adjunct professor at Duquesne University School of Law (1991-02 and 2014-22) and at the University of Pittsburgh School of Law (2001-12). He is the 2018 recipient of the PBA ADR Committee Sir Francis Bacon Alternative Dispute Resolution Award. He is annually named as a Super Lawyer and included in Best Lawyers in America, where he was rec ognized at the mediator of the year in 2014 and 2017, and for arbitration in 2021 for Pittsburgh. He has a passion for storytelling and is the princi pal of Steel City Storytellers LLC (www.steelcity storytellers.com). He researches and presents on lawyer contentment and is the principal of Happy! Effective Lawyer LLC (happyeffectivelawyer.org). His website is www.robertcreo.com. If you have a story to share on this subject or other practice topics, please email racreo@gmail.com.
• The underdog is the protagonist.
• Tap into schadenfreude when possible.
THE
Sources AdditionalandReading Schmitt-Beck, Rüdiger, “Underdog Effect,” The CommunicationEncyclopediaInternationalofPolitical (January 2016). Keinan, Anat; Avery, Jill; Paharia, Neeru, “Capitalizing on the Underdog Effect,” Harvard Business Review (November JongHan2010). Kim, Scott T. Allison, Dafna Eylon, George R. Goethals, Michael J. Markus, Sheila, M. Hindle, and Heather A. McGuire, “Rooting for (and Then Abandoning) the Underdog,” 38 J. Applied Psychology, #10 (September 2008). Stevenson, Seth, “We’re No. 2, We’re No. 2,” Slate, Aug. 12, 2013, 5:35 a.m. html).made-a-virtue-out-of-second-place.advertising-wars-how-an-ad-firm-business/2013/08/hertz-vs-avis-(https://slate.com/
• Justice is met when a message is sent to the top dog.
• We identify with David and not Goliath.
Iwas picking a jury on a not-too-serious criminal (assault) case where I was representing a fairly high-profile local individual who allegedly “assaulted” a sheriff as my client was being escorted in leg- and handcuffs out of the transport van.
Harrisburg What’s the lawyer story you most love to tell when you bend an elbow with friends after hours? Every lawyer has a favorite “war story” — a tale of a hard-won legal battle, a story with a hilarious twist, an account of an incredible escapade. Pick your best can’t-top-this adventure with a judge, jury, client or col league and write about it for us in 400 words or less. We’ll choose the best of the best to share with our readers in an upcoming issue of The Pennsylvania Lawyer magazine. Email your “war story” to us at editor@pabar.org or mail it to Pennsylvania Bar Association, Attn. Editor, The Pennsylvania Lawyer, P.O. Box 186, Harrisburg, Pa. 17108-0186. Stay Informed. Follow us on @pabarassnonF@pabarassnTwitterindusFacebook Stay Connec ted. Join us on Link nFollow us
edI
Quickest acquittal in my day.
During voir dire, we were going through the usual questioning of the panel to vet out any predisposition and biases. As usual, I surveyed the congregated group of around 50, not recognizing anyone. However, when the panel was asked if anyone was familiar with the defense attorney or prosecutor, a male voice indicated he knew Mr. Krevsky.
September/October 2022 I 53
Sanford A. Krevsky
A Blessing in Disguise
Startled, I approached the prospective juror and asked how he knew me. He responded, “I know you from the YMCA where you work out,” to which I responded, “Oh, I’m sorry, I didn’t recognize you with your clothes on.”
‘WAR STORIES’
on F@pabarassnTwitterindusacebook Stay Connec ted. Stay Connected. Stay www.pabar.orgInformed.
B. Facts Relevant to this Opinion
In matters under the Workers’ Compensation Act, attorneys are per mitted to collect fees for representing injured workers only when the fee arrange ment has been approved by a Workers’ Compensation Judge (WCJ) or the Workers’ Compensation Appeal Board. Generally, at torney’s fees are paid by an injured worker from his or her wage loss benefits.
Some attorneys believe they are required to ask for attorney’s fees to protect the injured worker from having to pay attorney’s fees, even if the WCJ will decline to award them.
Other attorneys believe that an attorney should discuss the option of requesting attorney’s fees with the client and then do as instructed. Finally, other attorneys believe that this is solely a question of litigation tactics regarding the WCJ who is hearing the case and how it may affect that case. Thus, these attorneys believe that there is no need to discuss the issue with a client because it is for the attorney alone to make that decision.
The concern is that if the attorney does not request fees based on his or her judgment, is there a risk under the disciplinary rules
This inquiry raises the following question: What is the duty of a workers’ compensa tion attorney who is representing an injured worker in light of the Pennsylvania Supreme Court decision in Lorino v. Workers’ Comp. Appeal Bd. (Commonwealth), 266 A.3d 487 (Pa. 2021)?
54 I The Pennsylvania Lawyer ETHICS DIGEST PBA Legal Ethics and CompensationSectionRequestAttorney’sOpinionCommitteeResponsibilityProfessionalFormal2022–100ObligationstoCounselFeesUnder440oftheWorkers’Act
In Lorino v. Workers’ Comp. Appeal Bd. (Commonwealth), 266 A.3d 487 (Pa. 2021), the Supreme Court interpreted Section 440 of the Pennsylvania Workers’ Compensation Act regarding when a WCJ can award attorney’s fees, raising questions about the ethical obligations of attorneys representing claimants under Section 440. Consequently, the committee has been asked whether, under the Rules of Professional Conduct (RPC), an attor ney representing an injured worker must request such fees in all cases.
In Lorino, the Supreme Court interpreted Section 440 of the Pennsylvania Workers’ Compensation Act regarding when a WCJ can award attorney’s fees, raising ques tions about the ethical obligations of attor neys representing claimants under Section 440, which states: In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate …, the employee … in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney’s fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.
(emphasis in the case) The Supreme Court focused on the proviso that attorney’s fees “may” be excluded when the employer proves a reasonable basis for the contest in the petition. Prior to Lorino, the Commonwealth Court had always held that a WCJ was not permitted to award attorney’s fees to the claimant’s attorney. The Supreme Court said that this was an incorrect interpretation of the plain language of Section 440, concluding that attorney’s fees are now awarded at the discretion of the WCJ when there is a reasonable basis for contest. The Supreme Court left the standards for such an award up to the discretion of the WCJ. The request for these fees is customarily made during litigation and/or when briefs are filed by the parties in anticipation of the WCJ’s decision, not at the outset of a case.
As outlined below, this opinion concludes that although an attorney is not required to request the fees, at the relevant time during the litigation, an attorney is required to discuss the issue with the client, includ ing whether or not to request the fees, and must abide by the client’s decision whether to seek the award of fees. While not required, it is also best practice to confirm such discussions in writing.
The issue is whether a lawyer represent ing an injured worker must always ask for attorney’s fees in light of Lorino even where there is a reasonable basis for contest.
I. Introduction and Summary
II. A.DiscussionQuestion Presented
with invaluable input
Further,representation.Pa.RPC
Comment [1] to Rule 2.1 states: A client is entitled to straightforward advice express ing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and www.pbi.org guide to professional responsibility Amended Rule 1.2, providing guidance for representing clients in the medical marijuana industry Amended Rule 1.17, allowing lawyers and law firms to buy/sell a single area of practice, and the possible impact on succession planning on the Rules, ABA recommendations, ghostwriting, protecting confidentiality in electronic communications and the cloud, and the requirement of familiarity with technology to maintain competence by Michael L. Temin and Thomas G. Wilkinson, Jr., from Victoria L. White and members of the PBA Committee on Legal Ethics Professional
September/October 2022 I 55 of being found to have violated them should a complaint be filed with the Disciplinary Board.
•
and
Comment [1] to Rule 1.2 states: Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer’s duty to communicate with the client about such decisions. With respect to the means by which the client’s objec tives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the
1.4 (Communication) states in relevant part: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably in formed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
• Updates
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the Finally,representation.Pa.RPC2.1 (Advisor) states: In rep resenting a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
ETHICS HANDBOOK FOR MORE INFO AND TO PURCHASE:
FIFTH EDITION Safeguard your practice Protect yourself and your clients by owning the Pennsylvania Ethics Handbook. Edited
…
C. 1.DiscussionRelevant Rules of Professional Conduct
•
ALSO AVAILABLE AS AN e BOOK PENNSYLVANIA Your
This inquiry falls under Pa.RPC 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), which states in relevant part: (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter.
Responsibility, this book features ethics opinions, case law, articles, and practical guidance for addressing everyday questions and problems. The cost is $99.
I. Introduction and Summary
56 I The Pennsylvania Lawyer alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.
TransactionsforUse2022-200OpinionofAttorneyIOLTAAccountsRealEstateSettlement
Editor’s Note: Joint Formal Opinion 2022-100 appears here slightly revised and edited for space. The opinion as issued is available on the PBA website, www.pabar.org.
A. Pennsylvania Rule of Professional Conduct 1.15 (Safekeeping Property Pa.R.P.C. 1.15 defines the types of funds attorneys must deposit into their IOLTA accounts. The rule states in relevant part: (a) The following definitions are applica ble to Rule 1.15: … (5) Interest On Lawyer Trust Account (IOLTA) Account. An IOLTA Account is an income producing Trust Account from which funds may be withdrawn upon request as soon as permitted by law. Qualified Funds are to be held or deposited in an IOLTA Account. … (7) Non-IOLTA Account. A Non-IOLTA Account is an income producing Trust Account from which funds may be with drawn upon request as soon as permitted by law in which a lawyer deposits Rule 1.15 Funds. Only Nonqualified Funds are to be held or deposited in a Non-IOLTA Account.
II. Discussion IOLTA accounts are “a method of rais ing money for charitable purposes, primarily the provision of civil legal services to indigent persons,” with IOLTA programs currently operating in all 50 states, the District of Columbia, Puerto Rico and the Virgin Islands. Pennsylvania’s IOLTA program was created by a July 17, 1996, order of the Pennsylvania Supreme Court amending RPC 1.15 and directing the IOLTA Board to administer the IOLTA program. Pennsylvania’s IOLTA program “makes grants annually to non-profit organizations, law school clinical programs, and adminis tration of justice projects that provide civil legal services free of charge to the poor and disadvantaged.”
Many attorneys conduct real estate settle ments and closings as a service of their law firms. As part of the settlement process, the attorneys deposit funds received into a bank account from which they disburse the funds to the parties involved in the transaction, as well as to realtors, taxing authorities and numerous other entities.
This opinion focusses upon a litigation decision under Rule 1.2, for which the Pennsylvania Ethics Handbook, Fifth Edition, provides guidance: RPC 1.2 does not state which litigation decisions should be considered to involve “objectives” and which decisions involve “means.” Lawyers generally are viewed as having the authority to act on behalf of a client on procedural matters incident to the litigation or on matters of tactics or trial strategy not involving substantive rights. The lawyer must not only abide by the client’s decisions concerning matters of substance, but the lawyer must also inform the client concerning the need for such decisions. This has most frequently been addressed with respect to settlement RPCoffers.2.1 … provides that a lawyer represent ing a client should exercise independent professional judgment and render candid advice. A lawyer should, however, follow the directives of the client, especially with respect to the goals or ends to be achieved by litigation.
Formal
D. Other Ethical Guidance
This opinion explains that, consistent with Pennsylvania Rule of Professional Conduct (RPC) 1.15, attorneys must deposit any funds received while conducting real estate settlements and related transactions into their Interest on Lawyers’ Trust Accounts (IOLTA) accounts and may not deposit those funds into non-IOLTA accounts unless the funds are nonqualified funds that must be deposited in non-IOLTA accounts.
III. Conclusion Fees that may be awarded under Section 440 implicate a client’s substantive rights. The potential award of fees is a relevant consideration of which a client should be aware, as would be other factors, including but not limited to tactical reasons to do so, tactical reasons not to do so, and the potential impact of the request upon the WCJ’s analysis of the matter. Therefore, in matters involving a potential award of attorney’s fees under Section 440 of the act, an attorney must discuss the issue with a client and must abide by the client’s decision whether to seek the fees.
Thus, although an attorney is not required to request the Section 440 fees, the deci sion to request or decline to request the fees should be made by a client in accor dance with the RPC.
A Non-IOLTA Account shall be established only as:(i) a separate client Trust Account for the particular client or matter on which the net income will be paid to the client or third person; or (ii) a pooled client Trust Account with subaccounting by the Eligible Institution or by the lawyer, which will provide for compu tation of net income earned by each client’s
ETHICS DIGEST
(c) A lawyer who is an owner, con trolling party, employee, agent, or is otherwise affiliated with an entity providing nonlegal services to a recipient is subject to the Rules of Professional Conduct with re spect to the nonlegal services if the lawyer knows or reasonably should know that the recipient might believe that the recipient is receiving the protection of a client-lawyer relationship.(d)Paragraph (b) or (c) does not apply if the lawyer makes reasonable efforts to avoid any misunderstanding by the recipient receiving nonlegal services. Those efforts must include advising the recipient that the services are not legal services and that the protection of a client-lawyer relationship does not exist with respect to the provision of nonlegal services to the recipient.(e)The term “nonlegal services” denotes services that might reasonably be performed in conjunction with and in sub stance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.[8]Paragraphs (b) and (c) specify that the Rules of Professional Conduct apply to a lawyer who directly provides or is other wise involved in the provision of nonlegal services if there is a risk that the recipient might believe that the recipient is receiving the protection of a client-lawyer relation ship. Neither the Rules of Professional Conduct nor paragraphs (b) or (c) will apply, however, if pursuant to paragraph (d), the lawyer takes reasonable efforts to avoid any misunderstanding by the recipient. In this respect, Rule 5.7 is analogous to Rule 4.3(c). … C. IOLTA Board regulations generally require lawyers to deposit real estate settlement-related funds into an IOLTA Account Rule 104(h)(ii) (Rule 1.15 Funds) of the Rules for Interest on Lawyers Trust Accounts states: Conveying accounts/ real estate closings: Funds generated from real estate closings are Rule 1.15 Funds. Generally, these funds will be Qualified Funds, as they are held for a short period of time and are not expected to provide income for the Third Party Owner.
(10) Rule 1.15 Funds. Rule 1.15 Funds are funds which the lawyer receives from a client or third person in connection with a client-lawyer relationship, or as an escrow agent, settlement agent or representative payee, or as a Fiduciary, or receives as an agent, having been designated as such by a client or having been so selected as a result of a client-lawyer relationship or the lawyer’s status as such. … (o) An account shall not be consid ered an IOLTA Account unless the Eligible Institution at which the account is main tained(1)shall:Remit at least quarterly any income earned on the account to the IOLTA Board; (2) Transmit to the IOLTA Board with each remittance and to the lawyer who maintains the IOLTA Account a statement showing at least the name of the account, service charges or fees deducted, if any, the amount of income remitted from the account, and the average daily balance, if available; and (3) Pay a rate of interest or dividends no less than the highest interest rate or dividend generally available from the Eligible Institution to its Non-IOLTA cus tomers when the IOLTA Account meets the same minimum balance or other eligibility qualifications, and comply with the Regulations of the IOLTA Board with respect to service charges, if any. (empha sis supplied)
Comment 1 to Pa.R.P.C. 1.15 states: (1) A lawyer should hold property of oth ers with the care required of a professional fiduciary. The obligations of a lawyer under this Rule apply when the lawyer has come into possession of property of clients or third persons because the lawyer is acting or has acted as a lawyer in a client-lawyer relationship, or when the lawyer is acting as a Fiduciary, or as an escrow agent, a settle ment agent or a representative payee, or as an agent, having been designated as such by a client or having been so selected as a result of a client-lawyer relationship or the lawyer’s status as such. Securities should be appropriately safeguarded.
(a) A lawyer who provides nonlegal services to a recipient that are not distinct from legal services provided to that recipi ent is subject to the Rules of Professional Conduct with respect to the provision of both legal and nonlegal services.
(9) Qualified Funds. Qualified Funds are Rule 1.15 Funds which are nominal in amount or are reasonably expected to be held for such a short period of time that sufficient income will not be generated to justify the expense of administering a segregated account.
(b) A lawyer who provides nonlegal services to a recipient that are distinct from any legal services provided to the recipi ent is subject to the Rules of Professional Conduct with respect to the nonlegal services if the lawyer knows or reason ably should know that the recipient might believe that the recipient is receiving the protection of a client-lawyer relationship.
B. Pennsylvania Rule of Professional Conduct 5.7 (Responsibilities Regarding Nonlegal Services) Pa.R.P.C. 5.7 states in relevant part:
(8) Nonqualified Funds. Nonqualified Funds are Rule 1.15 Funds, whether cash, check, money order or other negotiable instrument, which are not Qualified Funds.
September/October 2022 I 57 or third person’s funds and the payment thereof to the client or third person.
D. Lawyers must normally deposit real estate settlement-related funds received by the lawyers into an IOLTA Account Pa.R.P.C. 1.15 defines “Rule 1.15 Funds”
As outlined above, this committee con cludes that, under the Pa.R.P.C., in con nection with a client-lawyer relationship, or as an escrow agent, settlement agent or representative payee, or as a fiduciary, an attorney must deposit funds received when conducting real estate settlements or closings into accounts designated as IOLTA accounts under the RPC and the IOLTA rules, consistent with Pa.R.P.C. 1.15 and 5.7, and the comments to those rules.
58 I The Pennsylvania Lawyer
ETHICS DIGEST as “funds which the lawyer receives from a client or third person in connection with a client-lawyer relationship, or as an escrow agent, settlement agent or representative payee, or as a Fiduciary, or receives as an agent, having been designated as such by a client or having been so selected as a result of a client-lawyer relationship or the lawyer’s status as such.”
E. When a lawyer provides nonlegal services through a separate entity that are not distinct from legal services provided to a recipient, the lawyer must deposit real estate settlement-related funds into an IOLTA Account unless the lawyer advises the recipient that the protection of a client-lawyer relationship does not exist or reasonably believes that the recipient does not believe that they are protected by a client-lawyer relationship.
III. Conclusion
Consistent with Pa.R.P.C. 1.15, when law yers receive real estate settlement funds, those monies are by definition funds of others. Pa.R.P.C. 1.15 does not distinguish between funds received by an attorney while providing legal services to clients and funds received by an attorney while provid ing real estate settlement services. Pa.R.P.C. 1.15 also does not distinguish between funds received by an attorney as part of the attorney’s relationship with a law firm and funds received by an attorney as part of the attorney’s relationship with a separate business providing real estate settlement services although Rule 5.7 qualifies the attorney’s obligations if the funds are received as part of an attorney’s relationship with a separate business, such as funds handled by the attorney as a title agent or by a title agency owned by the Realattorney.estate settlement funds fall within the plain language of Pa.R.P.C. 1.15, which ap plies to any funds a “lawyer receives” while acting as an escrow agent or a settlement agent. Thus, if a lawyer is an authorized signatory on a bank account into which settlement proceeds are deposited, then the attorney must designate the account as an IOLTA account.
⚖
Pa.R.P.C. 5.7 explains that a lawyer who provides nonlegal services to a recipient that are not distinct from legal services provided to a recipient is subject to the rules with respect to the provision of both legal and nonlegal services. In that circumstance, and to avoid any confusion as to whether the recipient might believe that he or she is receiving the protection of a client-lawyer relationship, the lawyer must make a reasonable effort to avoid any misunderstanding by the recipient.
Pa.R.P.C. 5.7 also states that a lawyer who is an owner, controlling party, employee, agent or is otherwise affiliated with an enti ty providing nonlegal services to a recipient is subject to the RPC with respect to the nonlegal services if the lawyer knows or reasonably should know that the recipient might believe that the recipient is receiving the protection of a client-lawyer relation ship. If the lawyer knows or reasonably should know that the recipient does not believe that the recipient is receiving the protection of a client-lawyer relationship, for example, when the potential customer or client has been carefully advised, pursu ant to Rule 5.7(d), that the services of the lawyer and the entity cannot be regarded as legal services, then the settlement funds do not have to be deposited into an IOLTA account. Consequently, this opinion does not apply to situations when a lawyer is affiliated with a third party and there is no reasonable basis for a recipient to believe or to conclude that he or she is receiving the protection of a client-lawyer Inrelationship.addition,when possession of the closing costs and other expenses of the transac tion have been given to the affiliated third party, and the attorney has an ownership interest in the affiliated third party, but the attorney does not have signatory authority over the affiliated third party’s accounts, the IOLTA requirements are not applicable. If the attorney has signatory authority over those accounts, the IOLTA rules apply.
Editor’s Note: Joint Formal Opinion 2022-200 appears here slightly revised and edited for space. The opinion as issued is available on the PBA website, www. pabar.org. This material has been compiled by Victoria White, PBA ethics counsel, and edited by Thomas G. Wilkinson Jr., a past president of the PBA and a past chair of the PBA Legal Ethics and Professional Responsibility Committee. The opinions of the committee are advisory only and 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.
September/October 2022 I 59 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!
toareaboutinformationtoanveryCapitol,aren’tdoes.DepartmentLegislativethingsimportantthePBAIfweatthewemaywellmissopportunitylearncriticalbillsthatimportantyou.
As a final budget season update, I am happy to report that funding for the judiciary was increased — for the first time in six years! In addition, there was a reauthorization through July 31, 2023, of statutory surcharges, col lectively known as Act 49, which account for 15% of the annual judicial operations budget. Lastly, there was another annual suspension of the $15 million diversion from the Judicial Computer System Fund. Now that you are up to date on recent legislative developments, I want to take this opportunity to say thank you and leave you with some final thoughts. When you read this, I will no longer be legislative counsel/lobbyist for the PBA. I have thoroughly enjoyed my time as part of the PBA Legislative Department, especially my interactions with PBA members. I leave you with three thoughts. First, being present at the Capitol is one of the most im portant things the PBA Legislative Department does. If we aren’t at the Capitol, we may very well miss an opportunity to learn critical infor mation about bills that are important to you.
ON THE HILL ”“
By Ashley P. Murphy
Second, bills don’t move as you might expect. Some bills are introduced but never move; others make it out of one chamber quickly but If not the PBA, then who?
60 I The Pennsylvania Lawyer
This legislative session has been an odd one. In my five and a half years at the PBA, I have never seen a session like it. It started off with a bang in January 2021, and things have not slowed down since. Despite this atypical session, the budget season was pretty typical in that there were plenty of back-andforth negotiations and the completed budget was over a week late. It ultimately included a $45.2 billion spending plan with historic investments in education and public safety, cuts in the state corporate net income tax and an investment in mental health programs, just to name a few. While it is always good to have a completed budget, we in the PBA Legislative Department like budget season for another reason — bills not related to the budget move while the legislators are in Harrisburg working on the budget. An example of one such bill is a PBA initiative, House Bill 2057, which originated in the Business Law Section. As PBA Legislative Director Fred Cabell noted in a prior column, HB 2057 would significantly modernize the Business Corporation Law, as well as amend related provisions of Title 15 of the Pennsylvania Consolidated Statutes. After receiving first consideration in the House in November 2021, the bill passed unanimously in the House in late June of this year. It has now been assigned to the Senate Finance Committee, where we hope it will see move ment when the General Assembly returns in the Anotherfall.
PBA supported bill that saw some movement this budget season is House Bill 2525, which would amend the Criminal History Records Information Act (CHRIA) to permit parties to obtain investigative materials from law enforcement for civil litigation. After having passed the House in April, HB 2525 received first and second consideration in the Senate in June and is now assigned to the Senate Appropriations Committee.
Being present at the Capitol is one of the most
September/October 2022 I 61 never move in the other chamber. Some bills move quickly through both chambers but then are vetoed by the governor. Bottom line: There is little predictability in the leg islative process! And finally, I learned that your PBA Legislative Department is at its strongest when lobbying on lawyer issues. While there are many important issues out there, the General Assembly wants to hear from the PBA on topics of which we have special knowledge or expertise as attor neys. I have found it helpful to consider: If not the PBA, then who? If we are the only likely interest group to lobby on an issue, it becomes imperative that we do so. Indeed, the PBA is often sought out by legislators and legislative staff on legal issues, which is great! We strive to maintain such relation ships on the Hill. It has been a pleasure serving the interests of the PBA through my role as legislative counsel. I plan to stay actively involved as a PBA member, so I can honestly say this is not goodbye, but rather, see you soon! ⚖ Ashley P. Murphy was most recently PBA legislative counsel. Fredrick Cabell Jr. is PBA director of legislative affairs. For more information on the PBA’s legislative program, contact the PBA Legislative Relations Department at 800932-0311, 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 New pro bono opportunity Learn more: Services/Pennsylvania-Free-Legal-Answerswww.pabar.org/site/For-Lawyers/Pro-BonoPENNSYLVANIA BAR ASSOCIATION Your Other Partner Help low-income Pennsylvanians get basic legal advice (without the expectation of long-term representation) through an automated tool developed by the ABA.
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” $ 65 $ 80 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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This is the principal reason cited by mental health experts as to why so many lawyers turn to the palliative cocoon of drink, drugs and marital infidelity, all in addition, of course, to the intrinsic fun factor of such endeavors. Dr. Seymour Hoozis is a noted expert on this subject, and in an effort to learn more about it, I made an appointment to see him. He greeted me with a hug. “Is your health insurance still the same,” he asked me. I told him that’s not why I was there this time. “I was wondering,” I asked him, “do other lawyers have the same night mares I do?”
THE AIRPLANE CRASH DREAM — You are a passenger in an airplane that suddenly nosedives toward the ground. The pilot hastily gets on the horn to thank you for choosing this airline. The plane then hits the ground and explodes, and when you regain consciousness, you realize you are the only survivor. Your joy at surviving this almost certainly negligent tragedy is shortlived, though, when you realize no one is left alive to take one of your cards.
If you have ever had any one of these dreams, even two, don’t fret, you’re per fectly normal. If, however, you have had all three, well, what can I say? Dr. Hoozis is still accepting new patients. ⚖
Iam sitting at counsel’s table while Her Honor finishes up her initial remarks to the jury. When she concludes, I rise and approach the jury box. Not two minutes into my opening, Her Honor says, “Counselor, you may wish to take a short break to attend to your sartorial Horrifyingly,malfunction.”it seems that both my trousers and my briefs have fallen to my ankles, leaving me fully exposed for all the venire men to see; the venirewomen, too. Now I will never get the female jurors to pay attention to the facts of this case. That’s when I wake up; that’s when I always wake up. It’s the same dream I’ve been having for many years. It’s not always exactly the same, but it’s always mortifying. Yes, as in “mortify,” the root word of which means death. These dreams always jolt me awake to sweaty cold bullets, and always cause me to wonder what in the Lord’s name I was thinking when I abandoned my dream of becoming a proctologist in favor of this. Deny it if you wish, but I know you have the same dream, or some variation of it. From the very first moment we step into a court room and find ourselves encircled by the fiercely independent fantasy systems of op posing counsel, judge and jury, we know or sense fear. It’s because adverse outcomes are often something we can neither control nor prevent and, alas, it is simply not possible to endure any such defeat without feeling some sense of failure, a failure of performance or skill or worthiness, a subtle but very real chipping away of our essen tial sense of self. Welcome to the world of sweaty cold bullets.
“Does a bear do doo-doo in the woods,” he Whatreplied.follows then is a brief compendium of a few dreams that he catalogued for me.
”“
64 I The Pennsylvania Lawyer TO WIT
Deny it if you wish, but I know you have the same dream, or some variation of it.
“To Wit” is satirical fiction and should not be re garded as necessarily reflecting the official views of the PBA. If, for any inexplicable reason, anyone wants to contact the author, he can be reached at ssponte@gmail.com.
© 2022 S. Sponte, Esq.
All Fall Down By S. Sponte, Esq.
THE STATUTE OF LIMITATONS DREAM — You bolt upright in bed, terrified that the statute of limitations has passed on your big case. Still wearing your Spiderman pajamas, you are driving to the office at breakneck speed when you hit a cement truck broadside and are shuffled off this mortal coil eo instante The next morning your wife gets the news and weeps tears not of sorrow but of joy be cause your partner will settle the huge case and, at long last, they can now marry.
THE DIRECTED VERDICT DREAM — After two weeks of trial, you rest your case and opposing counsel moves for a directed ver dict. You know your case is airtight, but the judge doesn’t; when he grants the motion, opposing counsel laughs at you, the jury applauds, and the court reporter gestures at you obscenely. Your client leans over and asks who he should hire to sue you.
July/August 2022 I 3 Member-to-Member Connection The PBA’s free online service that allows members to search for other members by specific practice areas and geographic locations has a new addition—LANGUAGES! Let other PBA members know about your proficiency in various languages so they can connect you with potential clients who might need your legal services. Log in to your Member Dashboard and start using Member-to-Member Connection today! Update your information by logging in to your Member Dashboard at www.pabar.org. Click on “Update My Information,” scroll down and check the relevant boxes in “Areas of Practice” and/or “Languages.” Click “Update Profile“ to save your changes.
4 I The Pennsylvania Lawyer Pennsylvania Bar Association 100 South Street, Box 186 Harrisburg, PA 17108 in your ETHICAL DILEMMA FACING an LAW PRACTICE? PBA members can receive free advisory opinions based on the current Rules of Professional Conduct by calling the PBA Ethics PublishedHotline. ethics opinions are available in searchable format in the members-only area of the PBA website at Purchasewww.pabar.org.thePennsylvania Ethics Handbook at www.pbi.org. Contact the PBA Ethics Hotline Ext.800-932-0311,at2214
