November/December 2023 I 1
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2 I The Pennsylvania Lawyer
March/April 2024 I 1
SIDE BAR “No One Can Whistle a Symphony”
A
re you looking forward to the end of long nights and short days, to saying goodbye to cold hands and faces, freezing roads and incessantly dreary weather? So am I. Welcome to the waning days of winter. The sights and sounds of spring are just around the corner!
Michael J. McDonald PBA President
“
…the many different talents of our PBA members’ “orchestra” have combined to achieve strategic PBA goals and thus fulfill our mission to our profession, our communities and the administration of justice.
”
2 I The Pennsylvania Lawyer
At this change of season, I find myself reflecting on how fast time has flown since I was honored to become PBA president last May. The months have passed in a flash. I also find myself reflecting on the wonderful lawyers, judges and PBA staff that I have been privileged to spend time with as they positively impact our justice system, our communities and our clients. Whether it is PBA committees and sections, local bar associations or individual members, so many of you have been very busy making good lawyers better! Before I list some accomplishments and positions of the PBA and PBA members that are especially notable since my last column, please remember these achievements didn’t appear magically from thin air. They all have one common attribute — teamwork — the type of teamwork that involves collaborative efforts during changing times despite individual leadership and membership changes. The hallmarks of this teamwork are mutual respect for
individual opinions, a focus on common goals and old-fashioned hard work. This teamwork has positively enhanced PBA policy in line with our mission, has resulted in impactful laws affecting our communities and has provided consistently highly acclaimed programs that enhance our practice and profession. The level of success is something no one could have accomplished on his or her own. I am reminded of the famous quote of H.E. Luccock, who reflected on the importance of teamwork: “No one can whistle a symphony. It takes a whole orchestra to play it.” Just like in an orchestra, where string, woodwind, brass and percussion instruments contribute to the overall musical composition and unique sound, the many different talents of our PBA members’ “orchestra” have combined to achieve strategic PBA goals and thus fulfill our mission to our profession, our communities and the administration of justice. The sweet sound of our orchestra was heard loud and clear by the legislative and executive branches in Harrisburg, leading up to a crescendo of activity in December 2023. Your PBA “orchestra,” consisting of passionate PBA sections and our premier Legislative Department, now led by Legislative Director Anna Malcein King, spearheaded final passage of several laws advancing longstanding > page 10
ISSUE
2 MARCH/APRIL 2024 WWW.PABAR.ORG
18
Departments
ON THE COVER The Law on Two Wheels Bicycle law in Pennsylvania
18
By Daniel E. Cummins
FEATURES Information Privacy and Cybersecurity
26
Responsibilities, liabilities and strategies for your firm By Jeffrey B. Miller and Anthony Sims
Does Frye Transfer Too Much Power to the Trial Judge?
36
Pretrial expert testimony and the province of juries By John Gismondi
Hiring a New Employee in Pennsylvania?
44
36
26
44
Don’t stumble into a trade secret lawsuit
63
Ad Index
12
Discipline
54
Ethics Digest
16
From the Executive Director’s Desk
8
Letters
62
Marketplace
60
On the Hill
9
PBA Dates
4
People
2
Side Bar
50
The Effective Lawyer
64
True Tales of Trying Times
49
‘War Stories’
By Shane Miller
The Pennsylvania Lawyer (ISSN 01934821) is published six times a year in January, March, May, July, September and November by the Pennsylvania Bar Association, 100 South Street, PO Box 186, Harrisburg, PA 17108-0186. Subscription rates: $40 per year for nonmembers. Periodicals Postage Paid at Harrisburg, PA, and at additional mailing offices. POSTMASTER: Send address changes to The Pennsylvania Lawyer, PO Box 186, Harrisburg, PA 17108-0186
© 2024 The Pennsylvania Bar Association and the individual authors. All rights reserved. Feature articles, columns and related material available to PBA members online at www.pabar.org.
Cover Art: Design by Kelly Cassidy-Vanek Cassidy Communications, Inc. cassidycommunications.com
March/April 2024 I 3
PEOPLE APPOINTED/ELECTED Appointed members of committees of the Supreme Court of Pennsylvania: Judge Daniel J. Anders, Philadelphia, Civil Procedural Rules Committee; and Judge Kelly A. Gaughan, Pike County, Orphans’ Court Procedural Rules Committee.
Anastasi
Siegel
At offices of Barley Snyder: Salvatore Anastasi, Malvern, elected first vice president, American Intellectual Property Law Association; Martin R. Siegel, York, reappointed to the Pennsylvania Department of Environmental Protection Sewage Advisory Committee.
FIRM MOVES Arbogast
Zampogna
Kelly M. Arbogast and Analija M. Zampogna have joined as associates at Anderson & Labovitz LLC, Pittsburgh. Katayoun M. Copeland has joined as of counsel at the Newtown Square office of Lamb McErlane PC.
Copeland
Durkin
Raymond A. Durkin Jr. has joined in the business practice group at the Lancaster office of Barley Snyder. Noel A. Fleming and Kayci D. Petenko, joining as partners at the Philadelphia office of Archer & Greiner PC.
Marra
Taylor
Jesse A. Marra has joined as an associate in the commercial litigation, and employment and labor practice groups at Pietragallo Gordon Alfano Bosick & Raspanti LLP, Pittsburgh. Brian J. Taylor, named chair of the investigations and compliance services team at Bethlehem-based King, Spry, Herman, Freund & Faul LLC. > page 6
DEATHS Allegheny County David B. Wasson,* 81 Fawn Township Berks County Michael C. Boland, 70 Flying Hills Charles A. Haddad, 87 Boyertown Delaware County Mary Ann McGrane Martillotti, 58 Wayne Lackawanna County Jacob I. Nogi,* 81 Clarks Summit Luzerne County Sandor Yelen,* 91 Kingston Montgomery County Michael G. Thistle, 80 Wyndmoor Northampton County U.S. District Court Judge Edward G. Smith, 62 Northampton Washington County Aaron Smith, 44 Venetia Westmoreland County P. Louis DeRose III,* 78 Greensburg Out of State Stephen I. Richman,* 90 Miami Beach, Fla. *PBA 50-year member
4 I The Pennsylvania Lawyer
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March/April 2024 I 5
PEOPLE > from page 4
Sara A. Mohamed has joined in the litigation practice group at Lansdale-based Hamburg, Rubin, Mullin, Maxwell & Lupin PC. Mohamed
Lyttle
People to People
I
f you’re a PBA member and you want the legal community to know about your appointment, promotion, recent speaking event or other law-related news, submit your announcement to run as a “People” item. The most frequent types of “People” announcements we run are for appointments/ elections, awards/honors, being published, firm moves and speaking engagements. We run items on recipients of county bar awards, but we do not list county bar committee and section appointments. We do not run prospective notices, particularly for speaking or meeting events, as these are subject to change, and we do not include lawyer and law-firm “best of” announcements. Given the PBA’s large member base, we also monitor for how frequently individuals are listed in the column. Photos are welcome. If provided electronically, photos should be high resolution. Most electronic photos we receive are as JPEG files. The editors reserve the right to reject “People” submissions and to edit for style and length of announcement. Accepted announcements will appear in either the PBA’s Pennsylvania Lawyer magazine or Pennsylvania Bar News tabloid, depending on when notices are received in the editorial cycle. Email “People” column notices to editor@pabar.org or mail to the Pennsylvania Bar Association, Attn. People Column, 100 South St., P.O. Box 186, Harrisburg, Pa. 17108-0186.
6 I The Pennsylvania Lawyer
Fein
Linnell
Schork
Keim
Hazel
Heller
Snopek
Panepresso
Rebecca A. Lyttle has joined as an assistant small business advocate in the Pennsylvania Office of Small Business Advocate, Harrisburg. Adam J. Fein has joined Cevallos & Wong LLP, Newtown. Megan D. Hazel and Kalani E. Linnell have joined as associates at New Britain-based Sweet, Stevens, Katz & Williams LLP. Gregory B. Heller, Mark A. Schork and Robert J. Snopek Jr., formerly of McLaughlin & Lauricella PC, have joined Philadelphia-based Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig LLP. In the casualty practice group at offices of Marshall Dennehey PC: Stephen G. Keim, King of Prussia, named shareholder and Angeline C. Panepresso, Philadelphia, special counsel. At Lancaster-based Saxton & Stump: Brian S. Dietrich, formerly of Dietrich Law Firm, Blue Bell, has joined as shareholder; Lane E. Brody and Kenneth J. McDermott named shareholders.
Support
Lawyer Brody
McDermott
Advertising, page 63
Executive Editor: Stephanie A. Titzel Editor: Patricia M. Graybill People Editor: Andy M. Andrews Contributing Writers: Robert Angelo Creo, Matthew M. Holliday, Michael J. McDonald, Anna Malcein King, Robert E. Rains, Victoria White, Thomas G. Wilkinson Jr. Design: Kelly Cassidy-Vanek, Cassidy Communications Inc. www.cassidycommunications.com; Bethlehem, Pa. Advertising: PBA Communications Department; Phone: 800-932-0311, ext. 2226.
Katherine M. Fix, elected partner at the Philadelphia office of Robinson+Cole LLP. Gladys Brown Dutrieuille, former Pennsylvania Public Utility Commission chair, has joined as of counsel in the Harrisburg office of the Stevens & Lee Companies.
Fix
Dutrieuille
Lutz
Hann
Ava E. Lutz has joined as an associate at the Philadelphia office of Panitch Schwarze Belisario & Nadel LLP. Timothy E. Davis, named managing partner at Philadelphia-based White and Williams LLP. Joining as associates at offices of Armstrong Teasdale LLP: Nicholas Arbaugh, Philadelphia, and Denisse Guevara, Wilmington, Del.
SPEAKING OUT At Hamburg, Rubin: Steven A. Hann, presenting “How Recent Government PFAS Initiatives Could Impact Your Wastewater Treatment Plant,” Pennsylvania Municipal Authorities Association 81st Annual Conference and Trade Show, Pocono Manor; Lisa B. Shearman, co-presenting “411 on 911: POLST (Portable Medical Orders), Healthcare Power of Attorneys (POAs) & Living Wills,” Pennsylvania Bar Institute Estate Law Institute, Harrisburg. Jessica A. Pritchard and Melanie Jo Wender, Antheil Maslow & MacMinn LLP, Doylestown, presenters at the National Business Institute Pennsylvania Advanced Divorce Law program.
Shearman
Pritchard
Wender
PHILADELPHIA COUNTY DOMESTIC RELATIONS PRACTICE 21st Edition
www.pbi.org | 1-800-932-4637
Views expressed in The Pennsylvania Lawyer do not necessarily reflect the official views or policies of the Pennsylvania Bar Association. The appearance of a product or service advertisement herein does not constitute an endorsement of the product or service by the Pennsylvania Bar Association. The Pennsylvania Lawyer welcomes editorial submissions from members of the bar. Letters to the editor from readers welcome. The publisher reserves the right to select letters to be published and to edit letters for length and style. Mail editorial items and correspondence 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. The Pennsylvania Lawyer is distributed to all PBA members as a membership benefit. Subscription is $40 per year. To join the PBA, call 800-932-0311. The Pennsylvania Lawyer is underwritten in part by the Pennsylvania Bar Insurance Fund. BOARD OF GOVERNORS OFFICERS President: Michael J. McDonald President-elect: Nancy Conrad Vice President: Kristen B. Hamilton Immediate Past President: Jay N. Silberblatt Chair, House of Delegates: James A. Wells Secretary: Jacqueline B. Martinez Treasurer: Kelly R. Mroz YOUNG LAWYERS DIVISION REPRESENTATIVES Chair: Jennifer A. Galloway Chair-elect: Melissa Merchant-Calvert Immediate Past Chair: Alaina C. Koltash GOVERNORS Minority Governor: Judge Cheryl L. Austin Minority Governor: Tyesha C. Miley Unit County Governor: Matthew M. Haar Woman Governor: Amy J. Coco Zone 1: Riley H. Ross III Zone 2: Eric M. Prock Zone 3: Lisa M. Benzie Zone 4: Judge Tiffany L. Cummings Zone 5: Sean P. McDonough Zone 6: Judge Damon J. Faldowski Zone 7: Tina M. Fryling Zone 8: Christopher G. Gvozdich Zone 9: Carolyn R. Mirabile Zone 10: Richard L. Manilla Zone 11: Adrianne Peters Sipes Zone 12: Lawrence R. Chaban EDITORIAL COMMITTEE Chair: Judge William I. Arbuckle III; Vice Chair: Michael J. Molder; Members: Emeline L.K. Diener, Jill E. Durkin, Mary Wagner Fox, Richard J. Frumer, Bernadette M. Hohenadel, Judge Thomas King Kistler, Peter W. Klein, Alyson Tait Landis, Stephanie F. Latimore, Catherine R. O’Donnell, Riley H. Ross III, Hannah M. Schroer, Cheri A. Sparacino, Ryan W. Sypniewski, Andrij V.R. Szul, Zanita Zacks-Gabriel; Board of Governors Liaison: Riley H. Ross II PBA Staff — Executive Director: Matthew M. Holliday; Deputy Executive Director/General Counsel: William R. Christman III; Director of Committees and Sections: Ursula L. Marks; Director of Communications: Stephanie A. Titzel; Director of CLE Content Delivery: Erika Bloom; Director of CLE Content Development: Clair A. Papieredin; Director of County Bar Services & Special Projects: Susan E. Etter; Director of Finance: Lisa L. Hogan; Director of Information Technology: Terry Rodgers; Director of Legislative Affairs: Anna Malcein King; Director of Meetings: Wendy A. Loranzo; Director of Member Services: Karla Andrews; Director of Western Pennsylvania Services: Bridget M. Gillespie; Pennsylvania Bar Foundation Manager: Tameka L. Altadonna
March/April 2024 I 7
LETTERS Better Than Good Editor’s Note: The following message was emailed to PBA leadership regarding the January/February issue. It appears here with the letter writer’s permission. I just read the most recent edition [of The Pennsylvania Lawyer]. Each edition is well done. The January/February 2024 edition may have been one of the more interesting and informative editions I have read in some time. Great content. They are all good, but I found this one even better. Neil T. Dombrowski Paoli
Well Written and Well Received Editor’s Note: The following message was emailed to regular contributor Emeline L. K. Diener regarding her article “Selling Short: Governmental and Planned Community Regulation of Short-Term Rentals” in the January/February issue. It appears here with the letter writer’s permission. I’m not a land use attorney but I enjoyed your article very much. It was very well written. Thanks for publishing it. George W. Porter Hershey
frustrations that I often experience in our unique profession. I look forward to a compilation of Sua Sponte’s greatest hits. Christopher J. Serpico Doylestown Editor’s Note: Here are just a few of the many emails we received in response to the article “Will the Real S. Sponte Please Reveal Yourself?” by Andy Andrews and the notice of the “retirement” of longtime “To Wit” column author David Millstein in the January/February issue. They appear here with the letter writers’ permission.
Accolades for S. Sponte As a member of the PBA for almost 40 years, I can attest that the “To Wit” column was always the first page I turned to whenever I received the latest issue of The Pennsylvania Lawyer. I can’t remember ever reading a column that didn’t make me laugh or offered me relief that at least one other lawyer was experiencing the same
8 I The Pennsylvania Lawyer
I was happy to see the tribute to David Millstein a/k/a S. Sponte, Esq. I’ve emailed him a few times over the years to tell him I particularly liked, or was moved by, one of his pieces, and he always sent a prompt — and funny — reply. The man can make you laugh in 20 words or less! He’s brilliant. Emeline L. K. Diener Pocono Lake The January/February issue arrived today, and I just finished reading the article. Very well done! A fitting tribute to a guy who was an institution. Magistrate Judge William Arbuckle Williamsport
I just received The Pennsylvania Lawyer and read the Andy Andrews article. “Sponte” certainly deserves his time in a T-shirt and blue jeans! Certainly, we will all miss his regular column. I am sitting here thinking about what he said about how everything gets filtered through each individual’s head and how the facts become scrambled. Yes, that is the practice of law … Thank you to David Millstein for his great sense of humor and a writing style that is unparalleled. He has provided all of us with a unique way to view our professional lives. David S. DeRose Greensburg
The email address for letters to the editor of The Pennsylvania Lawyer magazine is editor@ pabar.org. Letters by mail should be sent to the Pennsylvania Bar Association, Attn. Editor, 100 South Street, P.O. Box 186, Harrisburg, Pa. 17108-0186.
Environmental Law Forum April 10-11, Harrisburg
PBA Annual Meeting May 8-10, Hershey
Civil Litigation Section Retreat April 12-14, Baltimore, Md.
PBA Committee/Section Day May 9, Hershey
Medical Marijuana and Hemp Law Symposium April 12, via webcast
Commission on Women in the Profession Annual Meeting May 9, Hershey
Employment Law Institute April 15-16, Philadelphia and via webcast
PBA House of Delegates Meeting May 10, Hershey
Health Law Institute March 12-13, Harrisburg
Current Issues for Child Advocates April 26, Mechanicsburg
Public Utility Law Bench Bar Conference May 28, Harrisburg
Commission on Women in the Profession Virtual Wellness Lunch March 15, via Zoom
Commission on Women in the Profession Virtual Wellness Lunch May 3, via Zoom
Criminal Law Symposium May 30-31, Harrisburg
Statewide High School Mock Trial Competition Finals March 22-23, Harrisburg
PBA Board of Governors Meeting May 8, Hershey
DATES Conference of County Bar Leaders Feb. 29-March 2, Gettysburg Women in the Profession Spring Conference March 7, via Zoom
____________________________________
Please check the PBA calendar at www.pabar.org/site/Calendar for the most current meetings and events information.
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March/April 2024 I 9
SIDE BAR > from page 2
goals of this association. I would like to specifically mention three that resulted from this selfless teamwork. On Dec. 14, 2023, the Fiscal Code Bill, covering 2023-24 general appropriations, was signed by Gov. Josh Shapiro. It included a $7.5 million line item for an Indigent Defense Grant Program, along with an Indigent Defense Advisory Committee. Going forward, the program will be administered by the Pennsylvania Commission on Crime and Delinquency, and grants will be awarded with input from the Defense Advisory Committee. As you know, the costs of funding representation of indigent criminal defendants had previously been funded by individual counties, and this law is a major first step in meeting a critical funding need for our justice system. The Elder Law Section’s tireless efforts over two legislative sessions, coupled with intensive lobbying by the PBA, were instrumental in the passage of Act 61, also on Dec. 14, which amended Title 20, Chapter 55, regarding guardianship proceedings. The new law provides two much needed reforms: mandatory assignment of legal counsel for individuals facing guardianship proceedings and additional protections in the process and judicial review of guardianship appointments. These reforms align with the PBA’s longstanding goals “to support and promote the equal administration of justice for all and that no one on account of poverty be denied their legal rights.” Last, but certainly not least, legislation drafted by the PBA Real Property, Probate and Trust Law Section years ago to confront race-based and other discriminatory deed restrictions was finally signed by the governor on Dec. 14 as Act 54. The act amends Title 68 and, by adding a new chapter,
10 I The Pennsylvania Lawyer
“Repudiation of Discriminatory Real Estate Covenants,” allows Pennsylvania property owners to repudiate historical restrictions by recording a document affirmatively rejecting and negating unlawful restrictive covenants. I can’t begin to state the depth of my sincere gratitude and appreciation to all those passionate professionals who have dedicated their time and talents to making such important advances in the law. To all those, known and unknown, I can only quote Sebastian from Act III, Scene 3, of William Shakespeare’s “Twelfth Night, Or What You Will”: “I can no other answer make, but thanks, and thanks, and ever thanks!” Our PBA “orchestra” is not limited to committees and sections making huge differences in the law of Pennsylvania. The “orchestra” proudly involves the incredible teamwork exhibited by incoming and outgoing leadership teams at local bar associations. It cannot be overstated how important they are to the success of those bar associations and the PBA. It cannot be overstated how their consistently excellent service to their members (and ours) positively impacts the administration of justice across our wonderful state. It cannot be overstated how important it is for the PBA to act with these voluntary local bar associations as “Your Other Partner.” Over the last few months, I’ve been honored to see the incredible service these volunteers are performing and to watch the collegiality, talent and drive these leaders show every day. Watching the seamless transfers of presidential office and hearing the commitment to ongoing plans and actions has been refreshing and inspiring. (I was going to list all the bar events I have been honored to attend, but time and space prohibit it.) From larger county bar associations to smaller ones, everyone
continues to sing from the same song sheet and they never miss a beat. I would be remiss if I didn’t mention the team of conductors for your PBA orchestra. I have had the singular joy of working with our own exceptionally talented and passionate officers, including Presidentelect Nancy Conrad, Vice President Kristen Hamilton and Immediate Past President Jay Silberblatt. And our PBA staff leadership team, including Executive Director Matt Holliday and Deputy Executive Director and General Counsel Bill Christman, leads professional, experienced and talented staff members who continually exceed expectations. While our PBA “orchestra” plays on in unison, we can’t ignore the divisive sounds in our communities that reflect a rising threat to the rule of law, the administration of justice and the foundations of our republic. The increasing proliferation of hate crimes, violence and hate speech, including those involving antisemitism and Islamophobia and ethnic or race-based discrimination, is a poison infecting our social fabric. Your PBA has seriously considered these issues and their ramifications and has spoken out with a clear message. On May 5, 2023, our PBA House of Delegates, the policy-making body of our association, considered, discussed and established a clear policy of this association opposing actions motivated by ill will or hatred. In pertinent part, the policy states the PBA will use its best efforts to “condemn all conduct which is motivated by ill-will and hate against an individual, community or group based upon race or religion, ethnicity, gender, gender identity, sexual orientation, physical or intellectual disability.” The policy also clearly stated it did not diminish or infringe upon a right protected by the First Amendment to the U.S. Constitution or
the Pennsylvania Constitution. This firm statement of the House of Delegates clearly falls exactly within the mission statement of the PBA, including “upholding the honor and dignity of the bar by supporting and promoting civility and professionalism in the practice of law and with the judiciary and community.” Your PBA, through its educational arm, the Pennsylvania Bar Institute, was proud to co-sponsor an important initial seminar in 2023 addressing the issue of hate and specifically addressing its manifestation in antisemitism. The seminar, “Loathing — the History and Tolerance of Antisemitism 2023,” comprised an outstanding faculty,
including Jay Silberblatt and Pennsylvania Supreme Court Justice David N. Wecht. PBI followed up with a robust, three-part series examining the causes and results of hate in all its forms. The program explored various dimensions of hate, antagonism and resentment and suggested how the rule of law, coupled with civil debate and discussion, can be forces for a good and just society. The PBA is committed to continuing education and advocacy in this area consistent with our policy and mission statement. In all matters, your involvement in the PBA is crucial to its success. I thank you all for being part of our PBA team, a team that
values and supports our profession, our communities and the administration of justice. If you are not a member or not involved, please join us. The PBA is a big tent, with many entrances, and plenty of seats at plenty of tables. Be part of a team that makes a difference, an orchestra whose unique sounds are the sounds of freedom, justice and the rule of law. Thank you for making good lawyers better! ⚖
Michael J. McDonald PBA President
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DISCIPLINE Oct. 27 through Dec. 18, 2023 BERKS COUNTY The Supreme Court of Pennsylvania on Dec. 7 ordered John Joseph Grenko suspended for one year and one day on consent, as recommended by a three-member panel of the Disciplinary Board. According to the disciplinary report, following being appointed guardian of a client’s estate, Grenko failed to take the actions directed by the judge on behalf of the estate and then failed to respond or appear for related hearings or file requested reports. As indicated in the report, Grenko was twice found in contempt of court orders related to his failure to take action and twice failed to report to the Office of Disciplinary Counsel (ODC) that he had been found in contempt. According to the report, at some point during the guardianship proceedings, Grenko required treatment for cancer and “suffered from depression as a result of his medical condition and the deterioration of his legal practice and personal finances. While attempting to medicate for his depression, [he] did not engage in further treatment. [His] physical and/or mental condition materially impaired [his] ability to represent the [e]state, yet he failed to withdraw his representation in the matter.” In reaching the recommendation for discipline, the panel considered as aggravating circumstances Grenko’s 2014 informal admonition for neglect of an estate matter and misrepresentations to the client and a 2021 public reprimand for, among other things, failure to diligently administer an estate. In mitigation, the panel considered that Grenko admitted to misconduct and to violating the charged Rules of Professional Conduct and Rules of Disciplinary Enforcement; that he accepted responsibility for his misconduct, was remorseful and that he cooperated with the ODC and consented to discipline and that, “[d]uring the relevant time period,
12 I The Pennsylvania Lawyer
[he] suffered personal difficulties, including poor health,” concluding that the period of suspension is “consistent with the range of sanctions imposed in similar cases involving lack of competence, lack of diligence and contemptuous behavior.” ERIE COUNTY The Supreme Court of Pennsylvania on Nov. 20 ordered James P. Miller suspended for four years, as unanimously recommended by the Disciplinary Board. According to the disciplinary report, “beginning in approximately middle to late 2019 and much more frequently in 2020, the Erie County court system received letters from [Miller’s] clients complaining about his lack of attention to their matters.” The board found “especially disturbing” Miller’s mishandling of two matters involving juvenile defendants, including one matter where the client, “who was incarcerated in adult prison since his arrest at age 15 and awaiting trial as an adult, began sending letters to court system staff seeking assistance because [Miller], his court-appointed counsel, had not communicated with him in any manner … The record established that [Miller] had been [the client’s] appointed counsel for at least 13 months and … had never communicated with him during that time.” The board determined that Miller “acted incompetently” and “failed to act with diligence and promptness … by habitually failing to comply with court orders and deadlines” in six cases detailed in the report. The report indicated that by an “unprecedented” administrative order, the Erie County court removed Miller “from 50 cases and required him to facilitate the transfer of the case files … and assist the counsel in the transition. While [the judge] had expected that the [order] would resolve the problems occasioned by [Miller’s] dilatory behavior …, this did not happen, as [Miller] severely procrastinated in transferring the files to the
appointed counsel” and did so only after he was threatened with contempt and incarceration. The board further determined that Miller’s “proclivity for ignoring court orders … prejudiced the administration of justice … [and] created additional work for the Erie County court system, forcing the court to schedule multiple hearings to address [his] contemptuous behavior. [His] failure to meet his duties extended to his interaction with the [ODC], when [he] failed without explanation to respond to four DB-7 inquiries.” The board indicated that Miller “offered no credible evidence to explain his persistent failure to meet his ethical duties to his clients and to the courts,” and concluded that he “is not fit to practice law. The serious and troubling misconduct established in this record compels a lengthy suspension in order to protect the public, preserve the integrity of the profession and the courts, and deter other practitioners from engaging in similar misconduct.” FRANKLIN COUNTY The Supreme Court of Pennsylvania on Nov. 9 ordered Michael John Csonka suspended for one year on consent, as recommended by a three-member panel of the Disciplinary Board. According to the disciplinary report, “Since 2019, [Csonka had] been the subject of concern to the Office of the United States Trustees (UST) and the Bankruptcy Court for noncompliance with long-established bankruptcy rules and procedures requiring complete, accurate and truthful financial information in filings in multiple bankruptcy cases,” prompting the UST to file three motions for sanctions against him. The ODC subsequently charged Csonka with “delays, errors, and omissions in multiple bankruptcy filings.” As indicated in the report, the panel considered as mitigation Csonka’s admission to violating the charged rules, his cooperation with the UST and agreement to sanctions, his
cooperation with the ODC, and his remorse and consent to discipline and, as aggravation, that he had received an informal admonition in 2020 for failing to properly safeguard and refund a client’s unused bankruptcy filing fee. The report indicated that in reaching the recommendation for discipline, the panel also considered that “the Bankruptcy Court, while acknowledging there must be a consequence for [Csonka’s] conduct, has allowed [him] to continue handling a number of current client cases to completion suggesting there is no concern with [his] general fitness to practice. The parties jointly recommend that a one-year suspension on consent is appropriate discipline.” MONTGOMERY COUNTY Following a determination by a review panel of the Disciplinary Board, the Supreme Court of Pennsylvania on Nov. 2 ordered Craig Thomas Hosay subjected to a public reprimand. WESTMORELAND COUNTY Following review and approval of the joint petition in support of discipline by a three-member panel of the Disciplinary Board, the Supreme Court of Pennsylvania on Nov. 21 ordered David Edward Mulock subjected to a public reprimand on consent. According to the disciplinary report, Mulock had pled guilty to charges of disorderly conduct and public drunkenness following his arrest at a bench-bar conference. In reaching the recommendation for discipline, the panel considered as mitigating circumstances that Mulock expressed sincere remorse, had no prior disciplinary history, that the ODC’s investigation “produced no evidence that [he] poses an ongoing risk of similar behavior,” that he was reinstated to his job as an assistant public defender in Westmoreland County following completion of the court proceedings related to his arrest and that he accepted responsibility
March/April 2024 I 13
DISCIPLINE for his misconduct by virtue of his consent to the imposition of discipline. OUT OF STATE The Supreme Court of Pennsylvania on Nov. 3 ordered Jonathan C. Dunsmoor of New York subjected to a public reprimand. DISBARMENT — Rule 208(f)(9) The Supreme Court of Pennsylvania ordered the following attorney disbarred: Nora F. Blair, Dauphin County, on Dec. 8. TEMPORARY SUSPENSION — Rule 214 The Supreme Court of Pennsylvania ordered the following attorney placed on temporary suspension under a rule of
disciplinary enforcement pertaining to attorneys convicted of a crime: Peter Francis Blust, Philadelphia, on Dec. 8. DISBARMENT ON CONSENT — Rule 215 The Supreme Court of Pennsylvania ordered the following attorney disbarred on consent under a rule of disciplinary enforcement pertaining to resignations by attorneys who are being investigated for allegations of misconduct: Stacey Ellen Barish, Philadelphia, on Dec. 8. TRANSFER TO DISABILITY INACTIVE STATUS — Rule 301(e) The Supreme Court of Pennsylvania
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ordered the following attorney transferred to inactive status for an indefinite period under a rule of disciplinary enforcement where, in the course of a disciplinary proceeding, the respondent contends that he or she “is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which makes it impossible for the respondent to prepare an adequate defense”: Kathleen D. Dautrich, Berks County, on Nov. 3. RECIPROCAL DISCIPLINE The Supreme Court of Pennsylvania imposed reciprocal discipline on the following attorneys: Benjamin Manuel Soto, Washington, D.C., suspended for six months, on Nov. 3, for like discipline imposed by the District of Columbia Court of Appeals; Kenneth L. Blackwell, Capitol Heights, Md., suspended, on Nov. 13, consistent with the opinion and order of the District of Columbia Court of Appeals; Mary Margaret Cowan, Tucson, Ariz., suspended for two years, on Dec. 7, consistent with the decision of the Board of Immigration Appeals; Gemma Marilyn Antoine, aka Gemma Antoine-Belton, Washington, D.C., suspended for 30 days, on Dec. 8, for like discipline imposed by the District of Columbia Court of Appeals.
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14 I The Pennsylvania Lawyer
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The Supreme Court of Pennsylvania granted reinstatement to Charles C. Shainberg, Philadelphia, on Nov. 30, from a one-year suspension.⚖ ——————————————————————————— The recent disciplinary actions of the court are posted at https://www.padisciplinary board.org/cases/recent-cases
PBA Annual Meeting May 8-10, 2024
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March/April 2024 I 15
From the Executive Director’s Desk Every Inch of This Commonwealth
P Matthew M. Holliday
“
Pennsylvanians want to make things better. We are a proud people [and] we are kind, gentle people who want to give back and make a difference. Membership in the PBA helps our attorneys achieve just that.
”
16 I The Pennsylvania Lawyer
ennsylvania is often described as many different states in one. We all know the expression that Pennsylvania is the cities of Philadelphia and Pittsburgh and everything else in between, though I imagine most of us recognize that as being rather reductive and not accurate. My time in this job has proven to me beyond a shadow of a doubt that our great commonwealth is far more varied than I had ever imagined, and yet at the same time, there is so much that binds us together. While we are the fifth most populated state in the union, we rank second among the 50 states in number of local governments, with well over 4,800. As you can imagine, the claims of “my town is better than yours,” become more complicated with that many cities, boroughs and townships in one state. But that expansive patchwork of communities in many ways is what makes Pennsylvania such a special place and proves to me that each corner of our commonwealth has a unique character all its own. I was born and raised in Pennsylvania and only had brief windows (always less than a year) in which I lived elsewhere. I fancied myself somewhat of an expert in what our state had to offer. I can now safely say that I have seen more of this state in the last 14 months than I did in the first 36 and a half years of my life, and I thank many of you for the invitations that have taken me all over the Keystone State. Last year, I spent 114 days on the road traveling for the PBA. In the first two months of 2024, I spent an additional 27 days away from our lovely PBA campus in downtown Harrisburg. While some PBA and American Bar Association events took me outside the state, the overwhelming majority took me to your communities.
Twenty-nine counties have reached out to invite me to their events and, as long as I wasn’t double booked, I accepted every one of those invitations. I went from Adams County to York County (the beginning and end of our counties when listed alphabetically, though geographically they are right next to each other) and many places in between. I did that in part because it’s hard to convey the value of PBA membership without knowing the varied lives and perspectives that impact different attorneys from different regions. However, the main reason I did so was to figure out what unites attorneys from a state as diverse as Pennsylvania and do my best to distill the essence of what motivates an attorney from Philadelphia, Honesdale, Erie or Waynesburg (roughly the four corners) to join a voluntary state bar and, better yet, get and stay involved in it. Something tells me I will need to visit all 67 counties and most of the 4,800+ communities within them before I can truly answer that question, but this far in, I think I am beginning to have an answer: Pennsylvanians want to make things better. We are proud people (being the birthplace of modern democracy will do that to you), but ultimately, we are kind, gentle people who want to give back and make a difference. Membership in the PBA helps our attorneys achieve just that. I met hundreds of lawyers in 2023, starting with my first PBA event on Jan. 9 in Lycoming County and going right through December, when, in a matter of three days, I had events in Franklin, Mercer, Somerset and Philadelphia counties. What I heard from those who were good enough to take a moment to chat with me is that Pennsylvania attorneys want and need the PBA to be a protector of their profession. While they appreciate the thousands of
hours our Legislative Affairs Department puts in year after year on lobbying the Legislature to ensure that the practice of law is made easier and not more difficult, many of the folks I met want us to think even bigger. Access to justice is an issue that is impacting pretty much every community I visited. Whether it was an attorney from Lebanon County telling me that we need more funding for indigent criminal defense (which the PBA did secure for the first time from the governor/Legislature this past year) so that attorneys in his firm wouldn’t be pressed into taking on clients that they couldn’t afford to represent due to a lack of capacity in the county public defenders office or an attorney in Philadelphia telling me that well over half of the family law cases in the county have a pro se litigant on one or both sides, the need to find ways for the public to adjudicate their disputes is at the front of mind for most Pennsylvania attorneys. Many folks I spoke to saw a breakdown in the public’s understanding of the justice system and other pillars of our democracy and they shared their great concern for our state’s future if the public becomes less informed about these important issues. I was proud to relay the many Law-Related Education programs offered by the PBA, ranging from running a statewide mock trial competition to having attorneys and judges reading to children in classrooms across the commonwealth in an effort to raise
awareness about the rule of law and due process. Other members expressed not having enough hours in the day to achieve all that they need to do for their practice and clients. This is something the PBA takes very seriously and, in an effort to help, we offer a myriad of resources including a full-time PBA-employed ethics counsel, a law practice management consultant who is available to you year-round and dozens of vendors who have created solutions to the many daily bugaboos that complicate the running of a business or the practice of law. What I found in every corner of this commonwealth were attorneys who want a state bar association that will be there for them and make the state a better place, not just for them but for their clients as well. Despite all the municipal subdivisions, I found much more that unites us. And if you are wondering if I have made it to your neck of the woods yet, drop me an email and invite me to one of your upcoming local bar events. I would dearly love to meet you and find out what makes your Pennsylvania neighborhood special.
“Thank you” is not enough. The Wills for Heroes program provides free basic estate planning documents to first responders and military veterans in Pennsylvania.
To volunteer, visit
http://www.pabar.org/site/ For-the-Public/Wills-forHeroes/Volunteer
Be kind to one another. ⚖
Matthew M. Holliday
March/April 2024 I 17
The Law on Two Whee Bicycle Law in Pennsy By Daniel E. Cummins
A
s one unknown bike rider once said, “There are two kinds of bike riders: Those who have crashed and those who will.”
While it is lawful to ride a bicycle on a roadway for pleasure, Foote v. American Product Co., 51 A. 364 (Pa. 1902), it is also rife with danger. The Pennsylvania Legislature has thus seen it fit to draft statutory provisions to govern the proper and safe operation of bikes for riders who share the road with motorists. This article provides a review of the laws of Pennsylvania applicable to bicycle riders. Surprisingly, while there are statutes to govern nearly every situation involving the operation of a bicycle on the roadways and sidewalks, there is a dearth of case law. As such, this article may serve as a good primer for the
18 I The Pennsylvania Lawyer
next time you have a personal injury case involving a bicyclist.
The Motor Vehicle Code Definition of a Bicycle Under Pennsylvania law, bicycles are considered to be “vehicles” according to the provisions of the Motor Vehicle Code providing a definition of “vehicles” and “pedalcycles,” which is the odd term selected by legislators to describe bicycles in the code. Under 75 Pa. C.S.A. §102, a “vehicle” is defined, in pertinent part, as “[e]very device in, upon or by which any person or property is or may be transported or drawn upon a highway.” 75 Pa. C.S.A. §102. Under this same definitional section of the Motor Vehicle Code, a “pedalcycle” is defined as “[a] vehicle propelled solely by human-powered pedal or a pedalcycle with electric assist.” Id.
heels: nsylvania
March/April 2024 I 19
The Rules of the Road Apply to Bicyclists
There can be no question that the rules of the road that are applicable to motor vehicles also apply to bicyclists in Pennsylvania.
20 I The Pennsylvania Lawyer
The Pennsylvania Motor Vehicle Code contains provisions that specifically and expressly confirm that the rules of the road in Pennsylvania that are applicable to vehicles also apply to bicycles. Under 75 Pa. C.S.A. §3501 et. seq., it is provided, in pertinent part, that “[e]very person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle. …” 75 Pa.C.S.A. §3501(a). Moreover, under 75 Pa. C.S.A. §3505(a), subject to certain exceptions, it is provided that, “every person operating a pedalcycle upon a highway shall obey the applicable rules of the road as contained in [the Pennsylvania Motor Vehicle Code].” Therefore, there can be no question that the rules of the road that are applicable to motor vehicles equally apply to bicyclists in Pennsylvania.
Bicyclists Must Ride on the Right Side of the Road The provisions of the Vehicle Code provide that bicyclists may ride their bikes on the road but, when doing so, must travel in the same direction as the vehicular traffic. Under 75 Pa. C.S.A. §3505(a), it is provided, in pertinent part, that “a pedalcycle may be operated on the shoulder of a highway and shall be operated in the same direction as required of vehicles operated on the roadway.” As such, when on the road, bikes are required to be ridden on the right side of the road. Under 75 Pa. C.S.A. §3505(c), “Slower than prevailing speeds,” it is provided that “[a] pedalcycle operated at slower than prevailing speed shall be operated in accordance with the provisions of §3301 (relating to driving on right side of roadway) unless it is unsafe to do so.” Similarly, Section 3301 of the Motor Vehicle Code, “Driving on right
PENNS YL
side of roadway,” requires vehicles to be driven upon the right half of the roadway unless certain exceptions apply.
crossing, unless otherwise indicated by official traffic-control devices.” 75 Pa.C.S.A. §3306(a)(2).
In a decision dating back to 1897, one trial court held that a bicyclist who is on the right-hand side of the road is entitled to keep his or her path on the road in response to a vehicle coming up behind him or her. Com. v. Dooley, 19 Pa. D. & C. 367 (C.P. 1897).
The rule is different with regard to one-way roadways. Under 75 Pa. C.S.A. §3505(d), it is provided that, “[a]ny person operating a pedalcycle upon a roadway, which carries traffic in one direction only and has two or more marked traffic lanes, may ride as near the left-hand curb or edge of the roadway as practicable, exercising due care in passing a standing vehicle or one proceeding in the same direction.” This section allows bicycle riders to ride in the left lane of a one-way street that contains two or more lanes. However, this section does not apply to pedalcycles on freeways.
There are certain exceptions to this rule. Under the same §3301, a bicyclist does not need to stay on the right-hand side of the road when overtaking or passing another vehicle proceeding in the same direction, when going around an obstruction in the road, or when the bicyclist is preparing for a left turn at an intersection, an alley, a private road or a driveway. Id. Moreover, a bicyclist need not stay on the right-hand side of the road if that portion of the road is not available due to unsafe surface conditions. Id. Also, where a roadway has a width of not more than one lane of traffic in each direction, the requirement to stay on the right side of the road does not apply. Id. Note that some have read this exception to allow bicyclists to ride in the middle of a street where the road does not have a width of “not more than one lane of traffic in each direction,” such as roadways where there is no shoulder or where a shoulder is taken up by parking spaces. Furthermore, the requirement that bicycles stay on the right side of the road is more important when the bicyclist approaches an intersection. So much so that, under 75 Pa.C.S.A. §3306, “Limitations on driving on left side of roadway,” it is provided in pertinent part that “[n]o vehicle shall be driven on the left side of the roadway under any of the following conditions: … [w]hen approaching within 100 feet of or traversing any intersection or railroad grade
Rather, under 75 Pa. C.S.A. §3511(d), it is provided that, generally speaking, bicycles are not allowed on freeways. See 75 Pa. C.S.A. §3511(a). However, if a permit or other authorization is first secured from the Pennsylvania Department of Transportation for pedalcycle or bicycle access to freeway, such as for a biking event or otherwise, the bicycle is required to be “operated upon the shoulder of that freeway whenever practicable.” 75 Pa. C.S.A. §3511(d).
Making Turns on the Roadway With respect to any turns being made by bicyclists, 75 Pa. C.S.A. §3505(a) provides that “[a]ll turns shall be made in accordance with §3331 (relating to required position and method of turning).” Under §3331, the required positions and the methods of turning with respect to right-hand turns and left-hand turns are stated.
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With regard to a right-hand turn, it is provided that “[t]he driver of a vehicle intending to turn right shall approach the turn and make the turn as close as practicable to
March/April 2024 I 21
It would appear that the use of headphones or earbuds is prohibited with respect to bicyclists.
the right-hand curb or edge of the roadway.” 75 Pa. C.S.A. §3331(a).
paths or parts of roadways set aside for the exclusive use of pedalcycles.
In terms of making a left-hand turn, §3331(b) provides that “[t]he driver of a vehicle intending to turn left shall approach the turn in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of the vehicle. Whenever practicable, the left turn shall be made to the left of the center of the intersection and so as to leave the intersection or location in the extreme left-hand lane lawfully available to traffic moving in the same direction of the vehicle on the roadway being entered.”
Number of People on a Pedalcycle
Bicyclists Riding Together on the Road The Pennsylvania Motor Vehicle Code provisions regarding bicycles also contain specific laws with respect to bicyclists riding next to one another. In this regard, 75 Pa. C.S.A. §3505(e) provides that, “[p]ersons riding pedalcycles upon a roadway shall not ride more than two abreast except on
Riding on the handlebars is illegal on Pennsylvania roadways. Under 75 Pa. C.S.A. §3504, it is provided that a person operating a pedalcycle shall not ride other than upon a permanent and regular seat attached to the pedalcycle. That section also notes, in terms of the number of riders on a bicycle, that “[n]o pedalcycle shall be used to carry more persons at one time than the number for which the pedalcycle is designed and equipped except that an adult rider may transport a child in a pedalcycle or in a child carrier which is securely attached to the pedalcycle or in a trailer which is towed by a pedalcycle.” Id.
Carrying Packages While Riding a Bike Many bicyclists act as delivery persons. There are certain limitations on how a bicyclist may legally transport items on the roadway. Under 75 Pa. C.S.A. §3506, it is provided that “[n]o person operating a pedalcycle shall carry any package, bundle, or article which prevents the driver from keeping at least one hand upon the handlebars.”
Motorists Passing Bicyclists Under Pennsylvania law, the driver of a motor vehicle passing a bicycle traveling in the same direction is required to “pass to the left of the pedalcycle not within less than four feet at a careful and prudent reduced speed.” 75 Pa. C.S.A. §3303. As such, Pennsylvania motorists are required to slow
22 I The Pennsylvania Lawyer
down and give wide berth to bicyclists as they share the roadway.
operating in accordance with” the provisions of the Motor Vehicle Code.
According to some commentators, Pennsylvania is the only state in the nation that has a four-foot passing law that applies to all circumstances. Other states four- and/or six-foot passing laws only apply when certain conditions are met.
Commentators have pointed out that motorists almost never look in their rightside rearview mirror before turning right. It has been indicated that this section of the Motor Vehicle Code has been specifically written to protect bicyclists from the dangers of a right-turning vehicle.
Commentators have also noted that Pennsylvania is also one of only a few states that specifically requires in the Motor Vehicle Code that the passing motor vehicle reduce its speed when passing a bicyclist.
Motorists Encountering Bicyclists at Intersections Under the Pennsylvania Motor Vehicle Code is a provision that specifically requires motorists who are turning to the right to not cross the path of a moving cyclist who is also riding along the right edge of the roadway. Under 75 Pa. C.S.A. §3331, it is provided, in pertinent part, that “[n]o turn by a driver of a motor vehicle shall interfere with a pedalcycle proceeding straight while
Protection From Distracted Drivers Under the Pennsylvania Motor Vehicle Code, it is provided that “no driver shall operate a motor vehicle on a roadway while using an interactive wireless communication device to send, read or write a textbased communication while the vehicle is in motion.” 75 Pa. C.S.A. §3316. The code states that the penalty for violating this law, if convicted, includes a fine of only $50.
The Danger of Car Doors The Pennsylvania Motor Vehicle Code recognizes the dangers associated with an individual opening a car door into an area of traffic.
Driving a bicycle under the influence on a Pennsylvania roadway is prohibited.
March/April 2024 I 23
The code additionally requires that a bicyclist operating a bicycle on a sidewalk must give a signal that is audible 100 feet away before overtaking and passing a pedestrian. 75 Pa. C.S.A. §3508(a). Presumably, that sound could be by one’s voice or by a horn or bell of some sort.
Helmet Law Under Pennsylvania law, any person under the age of 12 must wear a protective bicycle helmet when on a bicycle, either as an operator or a passenger. 75 Pa. C.S.A. §3510. There is no statutory requirement for anyone over the age of 12 to wear a helmet while on a bicycle.
75 Pa. C.S.A. §3705 provides that “[n]o person [shall] open any door on a motor vehicle unless and until it is reasonably safe to do so and can be done without interfering with the movement of other traffic. ...” This law also requires that no person shall leave a vehicle door open on a side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers. Id.
Bicycle Equipment Under the Pennsylvania Motor Vehicle Code, any bicycle being ridden between sunset and sunrise, that is, at night, is required to have a front lamp emitting white light that is “visible from a distance of at least 500 feet to the front.” 75 Pa. C.S.A. §3507. A bike being ridden at night is also required to have a red reflector light on the rear of the bicycle, which must be “visible at least 500 feet to the rear.” Id. The Motor Vehicle Code also requires that amber reflectors are required to be placed on both sides of the bicycle. Id.
24 I The Pennsylvania Lawyer
Notably, this statute also provides that evidence of an injured party’s failure to wear a required helmet is not permitted to be used as evidence in a trial of any personal injury civil action. Id. This statute also provides that a jury in a personal injury civil action is not permitted to be instructed regarding the law requiring helmets or any violation thereof. 75 Pa. C.S.A. §3510. The statute also establishes that the failure to use a helmet may not be considered to be contributory negligence in any personal injury civil action. Id. See also Nykiel v. Heyl, 838 A.2d 808 (Pa. Super. 2003) (Under statute requiring bicyclists to wear helmets, a minor bicyclist’s failure to wear a helmet at the time of an accident with a car was ruled inadmissible in this personal injury lawsuit.).
Headphones/Earbuds Under §3314 of the Motor Vehicle Code, the use of headphones by any vehicle operator is prohibited. This has been held by case law to also apply to motorcyclists wearing earbuds under a helmet. Given that the code provides that all laws applicable to drivers of vehicles are also applicable to riders of bicycles, it would appear that the
use of headphones or earbuds is equally prohibited with respect to bicyclists.
Electric Bikes Under Pennsylvania law, the use of electric bikes is limited to individuals over the age of 16. 75 Pa. C.S.A. §3514.
Biking Under the Influence (BUI) Driving a bicycle under the influence on a Pennsylvania roadway is prohibited. Under the Pennsylvania Vehicle Code, drivers are prohibited from driving vehicles while intoxicated or after using controlled substances. Given that the code also provides that bicycles are defined as vehicles and that the provisions of the code also apply to bicyclists, it follows that bicycles may not be legally operated while the rider is under the influence of alcohol or other controlled substances. See 75 Pa. C.S.A. §3802 (“Driving under influence of alcohol or controlled substance”).
Penalty for Violation of Any Provisions Regarding Pedalcycles (Bicycles) The Pennsylvania Motor Vehicle Code provisions specifically regarding the operation of pedalcycles (bicycles) provide that any violation of the provisions of 75 Pa. C.S.A. §3501, et. seq. will result in a summary offense conviction and a sentence of a fine of $10. 75 Pa. C.S.A §3502.
Liability of Parents Under 75 Pa. C.S.A. §3503, “Responsibility of parent or guardian,” it is provided that “[t]he parent of any child and the guardian of any ward shall not authorize or knowingly permit the child or ward to violate any of
the provisions of this title relating to the operation of pedalcycles.”
Parking of Bicycles Under 75 Pa. C.S.A. §3509, it is provided that a person may park a bicycle on a sidewalk unless prohibited by an official traffic control device. However, a bicycle parked on a sidewalk shall not impede the normal and reasonable movement of pedestrians or other traffic. The Motor Vehicle Code provisions regarding bicycles also provide that a bicycle may be parked on a roadway at any angle to the curb or the edge of the roadway at any location where parking is allowed. 75 Pa. C.S.A. § 3509(b)(1). The statute additionally provides that a person shall not park a bicycle on a roadway in such a manner as to obstruct the movement of a legally parked motor vehicle. 75 Pa. C.S.A. §3509(b)(3).
Life Is Better on a Bicycle
an accident. As established in this article, under Pennsylvania law, motorists and bicyclists not only share the road, but they also share essentially the same rules of the road. In the end, the application of one of those particular rules to a bicycle accident lawsuit could serve to make or break the case. ⚖ ____________________________________ Daniel E. Cummins is managing attorney at the Clarks Summit law firm of Cummins Law. He focuses his practice on motor vehicle accident liability cases, uninsured and underinsured motorist arbitration matters, and product liability and premises liability cases. He also serves as a mediator in these types of cases. He is also the sole creator and writer of the Tort Talk Blog which can be found at www.TortTalk. com. He can be reached at dancummins@ CumminsLaw.net. If you would like to comment on this article for publication in our next issue, please email us at editor@pabar.org.
Some may say that life is better, freer, on a bicycle. That’s not so much so when there’s
March/April 2024 I 25
“Three may keep a secret, if two of them are dead.” — Benjamin Franklin, Poor Richard’s Almanac
F
rom law firms with fewer than 10 attorneys to those with more than 500 and from bar associations to state courthouses, dozens of organizations involved in the legal profession have reported experiencing cyberattacks compromising their confidential information in the past few years. The American Bar Association (ABA) reported that more than 100 such organizations disclosed similar attacks from 2014-19, and more than one in four law firms disclosed experiencing data breaches in 2021-22. In the first quarter of 2023, the global rate of cyberattacks rose by 7%, with one in 40 focused on law firms or insurance providers, proving it to be an accelerating (albeit not new) phenomenon.
26 I The Pennsylvania Lawyer
Not surprisingly, attorneys regardless of firm size have voiced significant and increasing concerns over protecting the privacy and security of the confidential information entrusted to them. When it comes to security defenses, however, many law firms lag well behind most other organizations, including their own clients. According to the ABA report, only 49% of firms regularly use file encryption and only 40% regularly use email encryption — both common cybersecurity defense techniques used by businesses across the country. The result is that hackers have come to view the legal profession as a preferred point of attack. Data breaches at five prominent law firms made the news in 2023. These incidents are not just a
Information Privacy and Cybersecurity Responsibilities, Liabilities, Strategies and Tactics for You and Your Firm By Jeffrey B. Miller and Anthony Sims
mess that firms must clean up in-house, clients-become-plaintiffs have filed at least five class actions claiming that the named firms failed in their duties to sufficiently guard confidential information against disclosure. In response to these pressures, many firms have wisely added cyber insurance policies to their insurance portfolios. Unfortunately, while helpful, even the best cyber insurance policies do not come close to adequately mitigating the damages caused by data breaches. Attorneys and their firms cannot insure against the time lost in opening locked-down systems and retrieving lost data. Neither can they insure against the licensure implications of failing to comply with professional ethical rules that require better safeguards or the potentially serious penalties associated with violations of federal and
state laws. There are also important questions involving the waiver of attorney-client privilege where attorneys fail to take reasonable measures to safeguard the confidentiality of their clients’ information. Consider also the significant costs of losing clients and the negative public relations implications of losing control of sensitive and confidential client information — information that is often sold to the highest bidder on the dark web or made public. The limitations of cyber insurance could not be any clearer, making it especially important that attorneys proactively manage and mitigate cyber risks both before and in response to attacks when they occur. A variety of attorney ethical rules, provided both in the ABA Model Rules and in Pennsylvania’s rules, clearly require attorneys to take objectively reasonable measures to identify and manage these risks.
March/April 2024 I 27
ABA Model Rules of Professional Conduct The American Bar Association Model Rules of Professional Conduct make it clear that attorneys shoulder the obligation to maintain the confidentiality of their clients’ information in whatever technological environment they work within. ABA Model Rule Section 1.1 provides that: [a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Focusing on the technological environment, Comment 8 to Model Rule 1 makes clear that: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. Clearly in today’s day and age under the ABA Model Rules, the duty of competency requires a reasonable level of cybersecurity understanding. The ABA Model Rules also make it clear that attorneys have an obligation to ensure
28 I The Pennsylvania Lawyer
that the tools used to maintain and communicate client information are secure. ABA Model Rule Section 1.6(c) provides that: [a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. Comment 18 sets forth the factors to be considered in determining the reasonableness of the lawyer’s efforts, including, but not limited to: the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). ABA Formal Opinion 477 adds additional clarity, providing that: [a] lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information
when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security. Following upon Formal Opinion 477, Formal Opinion 483 strikes directly at the matter of cybersecurity, stating: The potential for an ethical violation occurs when a lawyer does not undertake reasonable efforts to avoid data loss or to detect cyber-intrusion, and that lack of reasonable effort is the cause of the breach. Opinion 483 further states: As a matter of preparation and best practices … lawyers should consider proactively developing an incident response plan with specific plans and procedures for responding to a data breach. In a world where most information is received, stored, used and transmitted electronically, the ABA Model Rules require attorneys to undertake proactive reasonable efforts to protect that information, and to prepare to respond to potential breaches.
Pennsylvania Rules of Professional Conduct The Pennsylvania Rules of Professional Conduct largely track the ABA Model Rules. Focusing in on the technological environment, Comment 8 to Pa. Rule 1 states that: [A] lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. Like ABA Model Rule 1, Pa. Rule 1 clearly requires attorneys to maintain a reasonable level of knowledge, including of the risks and benefits, of these technologies.
Pa. Rule Formal Opinion 2011-200, in consideration of Pa. Rule 1.6 and its related Comment 25, further asserted that a lawyer’s duty of competency extends:“Beyond protecting client information and confidentiality; it also includes a lawyer’s ability to reliably access and provide information relevant to a client’s case when needed. This is essential for attorneys regardless of whether data is stored onsite or offsite with a cloud service provider.”
Hackers have come to view the legal profession as a preferred point of attack.
While referring specifically to attorneys working in remote offices, these principles apply to attorneys and their efforts to protect cyber information wherever they work — whether in the office or in a remote location. Building on this foundation, Formal Opinion 2020-300 provides additional
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information. • Encrypting electronic records containing confidential data, including backups. • Prohibiting the use of smart devices such as Amazon Alexa. Clearly in today’s day and age, under both the ABA Model Rules and the Pennsylvania Rules of Professional Conduct, the duties of competency, confidentiality and the preservation of client property require a reasonable level of cybersecurity consideration. Federal Law and State Laws
The limitations of cyber insurance make it especially important that attorneys proactively manage and mitigate cyber risks.
guidance related to attorneys fulfilling their duties of confidentiality and preservation of client property, including, but not limited to: • Requiring encryption or use of other security to ensure that information sent by electronic mail is protected from unauthorized disclosure. • Using firewalls, anti-virus and anti-malware software and other similar products to prevent the loss or corruption of data. • Verifying the identity of individuals who access a firm’s data from remote locations. • Requiring the use of a virtual private network or similar connection to access a firm’s data. • Requiring the use of two-factor authentication or similar safeguards. • Supplying or requiring employees to use secure and encrypted laptops. • Saving data permanently only on the office network, not personal devices, and if saved on personal devices, taking reasonable precautions to protect such
30 I The Pennsylvania Lawyer
In addition to attorney ethical rules, multiple federal laws governing the protection of certain information require attorneys and their firms to take proactive, effective actions to protect that information. While a full accounting and explanation of the federal laws are beyond the scope of this article, many law firms face one central and well-known law — the Health Insurance Portability and Accountability Act of 1996, and its progeny law, the Health Information Technology for Economic and Clinical Health Act (together as HIPAA). As HIPAA business associates, law firms that receive, store, use or transmit HIPAA-defined Protected Health Information are required to maintain adherence to HIPAA’s privacy and security requirements. For information security, HIPAA provides the HIPAA Security Rule, containing more than 60 required or addressable actions. Serious civil and/or criminal penalties can be assessed for violations of HIPAA’s requirements. For years 2023-24, civil penalties range between $137 per violation to a whopping $68,928 per violation, depending upon level of culpability, with an annual penalty limit of $2,067,813. Criminal penalties can include fines of up to $250,000, imprisonment of up to 10 years, or both. > page 32
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A variety of attorney ethical rules clearly require attorneys to take objectively reasonable measures to identify and manage these risks.
> from page 30
Pennsylvania Law In addition to the federal laws, numerous states have enacted laws that require businesses that own, license or maintain personal information to implement and maintain “reasonable security procedures and practices” to protect personal information from unauthorized access. At this time, all 50 states and the District of Columbia have enacted legislation requiring businesses and other entities to notify affected individuals when data breaches involving their personal information occur. In addition, 32 states plus the District of Columbia require that notice of the breaches be made to certain state agencies and law enforcement authorities, typically to the state attorney general’s office and/or office of consumer protection. Pennsylvania has not yet enacted any legislation that requires law firms to report breaches to a state agency. In Pennsylvania, when law firms and other businesses fail to protect the confidential information of their employees and/or clients, lawsuits can be and are brought under a variety of theories of liability,
32 I The Pennsylvania Lawyer
including negligence, negligent misrepresentation and breach of fiduciary duty. This results in significant risks for firms incurring data breaches. Additionally, under the 2018 Pennsylvania Supreme Court case Dittman v. UPMC, Pennsylvania now recognizes a common law duty for employers to exercise reasonable care to safeguard their employees’ confidential, personal information. As part of this duty, employers, including law firms, have the duty to implement and maintain reasonable cybersecurity safeguards. Cybersecurity Strategies and Tactics for You and Your Firm Industry-specific guidelines offer a roadmap for enhancing cybersecurity posture for law firms and other organizations alike. These guidelines cover a spectrum of recommendations, from implementing robust access controls and encryption protocols to providing regular security training. Adhering to these guidelines not only helps in meeting regulatory requirements but also demonstrates a commitment to client confidentiality and security. Implementing and adhering to these industry standards helps
organizations build a strong foundation for their information privacy and security program at the operational level. There are many accepted professional and technical standards that can be used to assess and improve cybersecurity at law firms. Two of the most commonly utilized standards are: • ISO/IEC 27001: Commonly referred to as ISO 27001, this is an international standard for information security management systems. ISO 27001 provides a set of controls that are applicable to organizations of all types and sizes and that are designed to preserve the confidentiality, integrity and availability of information by applying comprehensive and strategic risk management processes. • NIST Cybersecurity Framework: Developed by the National Institute of Standards and Technology, NIST provides a structured approach for assessing and improving cybersecurity risk management. Adaptable for organizations of all types and sizes, the NIST guidelines provide detailed but highly customizable processes
that organizations can use to prioritize the activities that are most critical and apply their resources to maximize cybersecurity impact. It is notable that HIPAA provides its own requirements related to information privacy and security and, in doing so, refers to and provides a crosswalk to the NIST Cybersecurity Framework, recommending application of the NIST standards for ensuring compliance with the HIPAA Security Rule. A robust information privacy and security program at the operational level is vital for safeguarding sensitive data within any organization. Typically spearheaded by a chief information privacy and security officer or a similar executive role, these programs establish the use of a recognized cybersecurity standard, build controls around that standard and measure effectiveness against that standard though structured risk assessments and gap remediation. The HIPAA Security Rule requires law firms subject to HIPAA to perform such risk assessments and gaps remediation annually.
Information privacy and security programs, including gaps remediation, do not occur on their own. Maintaining a system of controls to prevent security lapses and to identify and properly resolve those lapses when they occur are key to an effective program. Appropriate controls can vary by the firm and its circumstances. Basic controls involving the right policies and procedures, training programs and defined lines of communication support the firm’s ability to effectively secure its confidential information. Policies and procedures clarify the firm’s required approach to its risks, while education and training programs instruct colleagues on the firm’s security practices and enhance their understanding of evolving threats. Frequent training for colleagues focusing on the “dos and don’ts” of cybersecurity can help to prevent a considerable number of data breaches. Ensuring clearly defined lines of communication between colleagues and security management also helps to minimize security lapses and ensure that any lapses are resolved as quickly and efficiently as possible. In addition to these basic controls, there are a number of technical controls that firms should consider to protect their confidential information. A few common ones include: • Access control measures: These measures provide a least privileged approach that only provides data access to the individuals who require it, supported by continuous monitoring and regular security audits to detect and respond to potential vulnerabilities. • Password Policies: Proper password policies vary based on business needs and the cyber standards applied. That said, they generally require the creation of complex passwords using a combination of letters, numbers and symbols that are a minimum of 12 characters and contain upper- and
March/April 2024 I 33
lowercase letters. Among other points, NIST provides that passwords should be long and complex and never used for more than one system. Forced password changes should only occur where there is an indication of a breach.
Law firms can fortify their defenses.
• Data Encryption: Ensuring the security of confidential information is paramount, and robust data encryption practices play a pivotal role in safeguarding this data. Law firms should encrypt confidential information both in transit and at rest. As part of these controls, firms should establish stringent rules for email use that mitigate against phishing attacks and malware distribution.
• Network Segmentation: Implementing proper network segmentation through a zero trust framework is a strategic approach to security that operates on the assumption that the network is already compromised. This methodology involves effectively partitioning network resources to impede lateral movement by potential attackers. By adopting a zero trust model, security controls are dispersed throughout the network, creating barriers that significantly hinder unauthorized access. Properly segmenting a network in anticipation of a breach is crucial in minimizing the potential damage caused by attackers. Through this approach, the impact of a security incident is not only mitigated but also localized,
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The legal industry is at a point where the integration of robust cybersecurity measures transcends mere best practices — it emerges as a critical necessity. The consequences of a cybersecurity breach extend far beyond financial losses, reaching into the realm of irreparable damage to a firm’s reputation and client trust. By staying informed about the evolving threat landscape, understanding legal obligations and adopting proactive cybersecurity measures, law firms can fortify their defenses. In doing so, they not only protect their clients and themselves from potential devastation but also uphold the integrity of their esteemed profession in the digital age. ⚖ ____________________________________
preventing the lateral spread of threats. The value of such segmentation lies in its ability to fortify the network against potential breaches, ensuring that even if one segment is compromised, the rest of the network remains resilient and secure. • Continuous Monitoring: Security tools that continuously monitor network activities and that ensure the timely application of software updates and patches are critical to intercepting, quarantining and resolving cyberattacks. Not only does this software aid in incident detection and resolution, but it supports forensic analysis and provides valuable audit trails for compliance purposes. • Incident Response/Disaster Recovery Plan: Even with the very best security protection available, law firms and other organizations still remain at risk of a data breach. As a result, it is essential (and required by HIPAA and the other standards described above) to prepare for that inevitability by having a formal incident response/
disaster recovery plan. This plan should address procedures for preparation, data backups and availability, incident detection and analysis, containment, eradication, recovery and post-incident assessment, as well as communication to reporting entities, government agencies and clients. Final Analysis Cyber underinvestment can cause real financial harm to law firms in ways that make it more affordable to have an information security management system in place to protect sensitive client information. For small to medium-sized firms, the initial investment in a cybersecurity program handled internally can range from $15,000 to more than $65,000, depending on the products and services required and the size of the firm. While this initial investment can seem daunting, the costs of not implementing these programs can be highly damaging and even fatal.
Jeffrey B. Miller of the Lancaster office of Saxton & Stump is a transactional, commercial, regulatory and compliance attorney for clients involved in healthcare and the life sciences, as well as other areas of business. He is a member of the firm’s Corporate Healthcare and Life Sciences, Mergers and Acquisitions, Risk Mitigation and Safety and Investigations and Criminal Defense groups. Jeff also provides support to the firm’s Commercial Litigation team. In addition to his legal work, Jeff is director-in-charge of Granite Governance, Risk and Compliance LLC, an affiliated international consulting firm. Anthony Sims is Cyber Security Analyst at Granite Governance, Risk and Compliance LLC. As a former Cyber Attacker for the U.S. Navy, Anthony performed enterprise cybersecurity management, network defense, risk assessment, security governance and technology implementation. He also participated in the NSA-certified Joint Cyber Analysis course, focused on programming, OS architecture, network analysis and malware analysis. If you would like to comment on this article for publication in our next issue, please send an email to editor@pabar.org.
The prevailing philosophy holds that a data breach is a question of when, not if.
March/April 2024 I 35
36 I The Pennsylvania Lawyer
Does Frye Transfer Too Much Power to the Trial Judge? By John Gismondi
C
hallenges to expert testimony in Pennsylvania are often raised via a Frye motion, a pretrial pleading that attacks the threshold reliability of the proffered testimony. Since expert witnesses have a substantial impact on the outcome of trials, both civil and criminal, the ruling on a Frye motion is one of the most consequential that a trial judge can make. Indeed, it is so consequential — even outcome determinative in some cases — that devotees of legal philosophy may ask this fundamental question: Does Frye transfer too much power to the trial judge? In federal court, and in most other state courts, similar pretrial challenges are considered under the analogous Daubert standard. Although the two standards are different — Frye being less demanding as it requires only that the expert employ a “generally accepted” methodology, whereas Daubert also requires that the methodology be “reliably” applied, and the resulting conclusion be supported by “sufficient facts and data” — the question regarding the power vested in the trial judge applies in either paradigm. How that question is answered likely depends on one’s view about the appropriate limits of the province of the jury, i.e., under what circumstances should the jury be left to its own devices in assessing the reliability of expert testimony? Or, stated more bluntly, how much faith does one have in the jury’s ability to “find truth” on its own? Those are weighty propositions given the exalted status the jury occupies in our adversarial system.
March/April 2024 I 37
Under what circumstances should the jury be left to its own devices in assessing the reliability of expert testimony?
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Historical Perspective The rubric of Frye/Daubert jurisprudence is better understood by first putting it in historic context. While expert testimony has been used in civil and criminal cases since the earliest days of our judicial system, the advent of a pretrial mechanism to screen such evidence prior to trial is a relatively recent legal phenomena. The Frye test arose out of a case from the 1920s, Frye v. United States, 293 F.1013 (D.C. Cir., 1923), in which the court said that to be admissible, expert testimony must be based on scientific techniques that are generally accepted. Although in recent years the case has been much discussed, Frye existed in relative legal obscurity for decades after it was first published. It was rarely cited and there were few pretrial challenges to the admissibility of expert testimony. The uptick in such objections began in the 1980s with the complaints by certain constituencies about so-called “junk science” entering the courtroom. The real accelerant came in 1993 with the U.S.
Supreme Court’s decision in Daubert v. Merrell Dow, 509 U.S. 579 (1993), which memorialized the trial judge’s role as the “gatekeeper” who passes judgment on the threshold admissibility of scientific opinion testimony. The decades that followed saw a continued increase in challenges to expert testimony, so much so that Frye/Daubert motions have now become part of the regular rhythm and cadence of litigation, particularly on the civil side. It is interesting to note that our legal system managed to produce sufficiently acceptable results for two centuries with judges rarely being asked to perform detailed pretrial vetting of expert testimony. What changed? Did expert witnesses circa 1980 suddenly become less reliable, informed and diligent in their methods than they were in the 200 previous years? Probably not, as one would have to believe that, relative to the state of human knowledge at any given time, the scientific virtue of expert witness testimony has remained fairly consistent throughout history. The more likely cause was a combination of the Supreme Court’s specific
assignment of a gatekeeper function and a cadre of lawyers and their clients, often involved in high stakes personal injury litigation, who saw an opportunity to strike a damaging and, in some cases, fatal pretrial blow to their opponent with virtually no downside risk except the expenditure of time and money, both of which many had in abundance. As one commentator noted, “Daubert created a cultural shift that altered the behavior of both lawyers and judges … attorneys reported more closely scrutinizing the credentials of their own experts and filing more motions to exclude opposing expert evidence.” “The Disappointing History of Science in the Courtroom: Frye, Daubert, and the Ongoing Crisis of ‘Junk Science’ in Criminal Trials.” Oklahoma Law Review 71:759 (2019), 793. Eventually, the inclusion of the Frye/Daubert challenge in the trial lawyer’s arsenal trickled down to less well-heeled lawyers and clients to account for its current prominence in the litigation ecosystem.
Does Frye Transfer Too Much Power to the Judge? Enough about its history, let us discuss Frye/Daubert in the broader context of the adversarial system in which it operates. At its core, Frye/Daubert creates a screening procedure that in theory insures that only “reliable” expert testimony is presented to the jury. As such, any debate among lawyers, judges or legal scholars as to its virtue and necessity ultimately requires one to ask a fundamental question that lies at the root of the American legal system; namely, how much faith do we have in juries operating within the confines of our adversarial system to find truth? In theory, if one’s faith is absolute and unwavering, there would be no need for judicial vetting of an expert’s theory because the jury, having heard the witness espouse his or her opinion and
be subjected to cross-examination, would be able on its own to detect any analytic infirmities. After all, our legal history and traditions dating back even to Colonial days reflect a basic assumption that the ideal way to find truth is through a legal framework that has these two basic elements: 1) the presentation of evidence in an adversarial system; and 2) the assessment of that information by a jury, not a judge. As to the former, we declined to adopt the inquisitorial system, in which the judge takes a leading role in the investigation of the case and questioning of witnesses, in favor of the adversarial one, in which the judge’s main role is to resolve legal issues while the parties obtain their own counsel to investigate the case, present it to the jury and seek to discredit the opposing witnesses through cross-examination. The second element recognizes that the fact-finder should not be a single elected or appointed official, but instead a jury comprised of members of the community who evaluate the evidence through consensual discussion reflecting the knowledge, memory, perspective and values of the group. The awesome power that our system vests in juries implicitly reflects great confidence in their ability to “find truth.” Hence, we adhere to an inviolate rule whereby the jury makes all credibility determinations, and appeals from its verdict, except in the rarest circumstances, cannot be based on the argument that it came to an incorrect conclusion. Rather, they must be grounded on an assertion that the judge made a legal mistake involving matters such as admission of evidence or instruction to the jury. Seen in that context, and depending on one’s philosophic perspective, the rise of the Frye/Daubert challenge represents either a necessary reset in the judge-jury relationship or an unprecedented intrusion on the province of the jury reflecting a loss of confidence in its ability to find truth. According to the former point of view, Frye/
Frye/Daubert motions have now become part of the regular rhythm and cadence of litigation, particularly on the civil side.
March/April 2024 I 39
The rise of the Frye/Daubert challenge represents either a necessary reset in the judge-jury relationship or an unprecedented intrusion on the province of the jury.
Daubert is simply a rational, measured tool for regulating the introduction of evidence, much like rules that prohibit the admission of hearsay or prejudicial information, which is warranted in order to maintain integrity in our court proceedings by imposing some minimum threshold of reliability for expert testimony. But critics of Frye/Daubert would suggest that the basic premise underlying the mechanism — that judges are more suited to make threshold determinations about the reliability of scientific evidence — may itself be flawed, for most judges have no specialized training in any of the scientific disciplines that typically are the subject of a pretrial challenge, and thus it is folly for one to presume that they are more qualified than the average juror to scrutinize technical information. Unlike rulings on hearsay or prejudicial objections that involve legal reasoning and application of case principles, Frye/Daubert challenges usually require a largely factual assessment of the soundness of a scientific theory. Also, a fundamental distinction between hearsay and contested scientific evidence is that with the former, the declarant is never subject to cross-examination, whereas the expert espousing supposedly weak, unfounded or
poorly reasoned opinions must sit in the witness box and withstand pointed and sometimes withering cross-examination. Even more fundamentally, some would say that the Frye/Daubert intrusion on the province of the jury is so substantial that it arguably violates the right to a jury trial guaranteed in the Seventh Amendment of the federal Constitution and in Article 1, Section 6, of the Pennsylvania Constitution. Dating back to pre-Colonial times in America, and even earlier in old England, the right to a jury trial was conceived not only as a check on the power of the king, but also as a restraint on individual judges who were subject to a myriad of influences, not the least of which was that of the crown itself. But Frye/Daubert, in effect, transfers case-deciding authority from the jury to the judge because in many cases, sustaining a Frye/Daubert objection essentially ends the entire case, i.e., the motion becomes “do or die” for the party whose expert is being challenged. Admittedly, there are other standard legal procedures apart from Frye/Daubert by which judges decide cases that otherwise qualify for a jury trial, e.g., the power in civil cases to grant summary judgment, a non-suit or judgement notwithstanding the verdict, or in a criminal case to enter a judgment of acquittal. But in each of those instances, the judge is not making credibility determinations. For example, with motions for summary judgment or nonsuit, the court is required to assume that everything asserted by the opposing party is true, and when considering a judgment n.o.v., the court is required to assume that the jury resolved all credibility questions in favor of the verdict winner. Similar assumptions prevail on the criminal side. While, in theory, a Frye inquiry involves only a review of the expert’s methodology, the reality is that the gatekeeper function can entice the trial judge, wittingly or unwittingly, to make credibility determinations.
40 I The Pennsylvania Lawyer
Indeed, Justice David N. Wecht has suggested that the gatekeeper moniker first utilized in Daubert should be avoided because “it suggests a more jealously guarded portal than the Frye test calls for.” See footnote 7 in Concurring Opinion, Walsh v. BASF Corp., 234 A.3d 446 (Pa. 2020). Walsh is a good example of a trial judge being drawn into the realm of assessing credibility, for there the court determined that in the course of ostensibly analyzing the methodology of an expert who said that a certain pesticide caused leukemia, an experienced and very well-respected trial judge “unilaterally without citation to any authority or to the voluminous expert deposition testimony in the certified record,” (Walsh at p. 459) made personal judgements about the legitimacy of the expert’s methodology and improperly rejected one of the expert’s key conclusions “based solely upon its own analysis of the scientific studies proffered by [the expert] and not on any review of the methodology that the [expert] was utilizing to reach his conclusion.” (Walsh at p. 460) The odds of a similar intrusion into the jury’s role occurring in a Daubert inquiry are
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since the court must decide whether to accept the expert’s representation that his/ her methodology is indeed “generally accepted.” In other words, even in a properly conducted Frye review, the court, unlike when considering a motion for summary judgment, is not necessarily accepting everything the witness says as true. Instead, it can become engaged in an exercise that surely resembles a credibility assessment as it wades through voluminous information to determine whether an expert’s methodology is “generally accepted.”
even more likely since it requires a judge to engage in more rigorous scrutiny of an expert’s opinion. How can we reduce those instances in which Frye/Daubert reviews lead to an encroachment on the traditional province of the jury? Certainly, one way is for courts to understand that not all pretrial attacks on an opposing expert raise a legitimate Frye issue. On the contrary, the Frye/Daubert mechanism is properly invoked only when an expert’s opinion relies on novel science. Thus, a classic “battle of the experts” in which opposing experts simply come to opposite conclusions does not raise a Frye issue unless novel science is involved. In that regard, there are several cases where our courts have said that a challenge to an expert did not raise a Frye issue. (See e.g., Cummins v. Rosa, 846 A.2d 148 (Pa. Super. 2004), where two opposing experts in a medical malpractice case came to different conclusions as to what caused plaintiff’s injury, but each employed traditional methodology; Tucker v. Cmty. Med. Ctr., 833 A.2d 217 (Pa. Super. 2003),
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where a defense expert’s opinion that plaintiff’s urologic complications were caused by a preexisting condition was based upon a review of medical literature, the medical records and an evaluation of the plaintiff; and Haney v. Pagnanelli, 830 A.2d 978 (Pa. Super, 2003), where plaintiff’s expert said that plaintiff’s bowel, bladder and sexual dysfunction must have been caused by injury to sacral nerves and the expert was simply using deductive reasoning to reach his conclusion. Second, judges can heed the lesson from Walsh and confine their inquiry to the expert’s methodology, thereby resisting the temptation to exaggerate their role as gatekeeper. This is particularly important in more complex cases where it is easier for the judge to unintentionally stray beyond the mere examination of methodology. But even when Frye is legitimately invoked, and even when the trial judge assiduously confines his or her review only to the expert’s methodology, that inquiry can still involve a degree of credibility assessment
In conclusion, it is fair to say that nowhere else in our legal system does the court act in a role that so closely resembles that of a jury as when they are conducting a Frye/ Daubert review, and given the requirements of that review, it seems inevitable that, at least on occasion, the court may unwittingly invade the province of the jury. Thus, while the question posed at the outset — Does the gatekeeper role vest too much power in the judge? — may be legitimately debated, what cannot be debated is that such power should be exercised very judiciously in order to limit those instances in which the judge usurps the role traditionally assigned to the jury. ⚖ ____________________________________ Trial lawyer John Gismondi is a former president of the Allegheny County Bar Association and a decades-long adjuct professor of trial advocacy at the University of Pittsburgh School of Law. He can be reached at jpg@gislaw.com. If you would like to comment on this article for publication in our next issue, please send an email to editor@pabar.org.
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March/April 2024 I 43
Hiring a New Employee in Pennsylvania? Don’t Stumble Into a Trade Secret Lawsuit By Shane Miller
L
et’s say you own a midsized company in Pennsylvania. You’ve stayed in business for the last 20 years by selling a few products to a small but loyal customer base. But sales have dried up. You need to launch new products and find new customers. But how?
Fresh thinking, that’s the answer. And fresh thinking means new employees. But not just any employees — they need industry experience and expertise. So, you post a job opening. The applications roll in. You find a great fit. She’s been with a competitor for the last seven years but wants a new opportunity. You’ve been around the block a few times, though. You know you must be careful when hiring from a competitor. So, you do the right thing and ask if she has a noncompete agreement. She says no. Great. She’s hired. She joins the team a few weeks later and injects energy into the group. New ideas flow and fresh products develop. More customers seem within reach. But the momentum screeches to a halt a few months later when you receive a nasty letter from a big law firm that represents your new employee’s former company. It says she stole secret company information before she left. She’s now supposedly using it at your company. The company threatens to sue your company unless you fire her
44 I The Pennsylvania Lawyer
and return the stolen information. You don’t care for threats, especially from a competitor, so you tell them to go pound salt. The former company carries out its threat. It sues you for trade secret misappropriation and several other claims. The lawsuit drags on for two years. You must turn over a million pages of company documents during discovery. Some employees also must attend depositions. They spend days locked in the conference room preparing with your lawyers. Then, each deposition lasts several hours. They give new meaning to the word “tedious,” as the opposing lawyer asks about one document after another, never seeming to tire. All the while, your attorney’s fees keep piling up. As the facts come to light, you realize that your new employee did mess up. She downloaded confidential documents from her former employer before quitting. She’s been using them to generate new ideas for you. You can’t believe it. You never told her not to take confidential materials from her last employer … but isn’t that common sense? Finally, after two long years of litigation, your company pays a big settlement to end the case and move on. After cutting the check and sinking into your chair, you ponder the same question that’s been bugging you for the last two years: How could you have avoided this mess?
March/April 2024 I 45
What is a Trade Secret?
You never told your new employee not to take confidential materials from her last employer … but isn’t that common sense?
Most employers don’t need to know the intricacies of trade secret law, but they should understand the basic difference between a trade secret and general company information. After all, a trade secret lawsuit often boils down to determining if the defendant misappropriated a trade secret. Let’s say an employee resigns and walks out with a box of blank printer paper. He may have misappropriated the paper, since it did not belong to him. But it is not a trade secret; it’s just a box of blank paper. But if that box contained important company financial statements — not just blank paper — then that’s a whole different ballgame. That sensitive financial data may qualify as the company’s trade secret. And by walking out with it and using it at his next job, the employee may be in hot water for trade secret misappropriation. In practice, the line between a trade secret and regular company data is, of course, harder to draw than distinguishing between blank paper and valuable financial statements. Nonetheless, past cases provide guidance about where the line falls. For example, the following information often qualifies as a trade secret in Pennsylvania as long as the information’s owner took reasonable steps to keep it secret: • Business plans • Marketing strategies • Financial projections • Terms of specific customer accounts, such as contract expiration dates and revenues generated • Customer or client lists, especially if the company has a permanent and exclusive relationship with the customer or client • Sales trends, vendor capabilities and strategic methods of purchasing
46 I The Pennsylvania Lawyer
• Any compilation of data that has independent economic value, such as the categorization and organization of information on thousands of customers Conversely, the following information usually fails to qualify as a trade secret in Pennsylvania: • An employee’s general knowledge and skill • Common industry knowledge, especially if it has been known for a long time • Pricing information that can be readily obtained from a customer or another publicly available source • Public information, such as information available in articles, websites, public disclosure statements or patents • An employee’s personal business contacts • Data that can be readily obtained from another source, such as prices charged, the identity of a material supplier, information that is marketed to the public, information that can be obtained by enrolling in an academic course and names and addresses published in a directory • Materials that are not the employer’s intellectual property 10 Tips to Avoid a Trade Secret Lawsuit So, with this framework in mind, how does an employer avoid stumbling into a trade secret lawsuit when hiring a new employee? Here are 10 pieces of advice for all steps of the hiring process. The following largely come from “The Sedona Conference, Commentary on Protecting Trade Secrets Throughout the Employment Life Cycle,” 23 Sedona Conf. J. 807 (2022), which is an excellent resource for trade secret issues.
Before the Interview 1. Consider including a statement in the job description asserting that the candidate, if hired, must not misappropriate any trade secrets. In addition, state that the candidate must be able to perform the job responsibilities without misappropriating any trade secrets from a former employer. 2. Be especially careful when interviewing or recruiting a candidate from a competitor. The competitor may be unhappy and eager to retaliate. You, as the new employer, cannot know if the job candidate took any confidential or trade secret information from his/her former employer. But look for red flags suggesting that the candidate is not trustworthy. For example, does the candidate’s resume include potentially confidential information about previous employers? Has he or she been involved in previous lawsuits involving restrictive covenants, unfair competition or trade secrets? None of these factors necessarily means that you should lose interest in the candidate. But it can’t hurt to know who you’re speaking with. 3. Make it clear to the job recruiter and the interviewer that they should never ask the candidate about nonpublic information from a former employer or a third party. To
that end, consider creating specific guidelines or checklists describing topics to avoid during the interview. 4. Before the interview, consider providing the candidate with a detailed description of the proposed job duties. Then, ask the candidate to certify in writing that he or she does not believe the new job would require reliance upon a former employer’s trade secrets. This certification should also state that a candidate will not disclose any trade secrets during the application process or any interviews. 5. After the candidate accepts an offer for an interview, request any documents the candidate has containing a noncompetition, nonsolicitation or confidentiality agreement; any invention disclosure or assignment agreement; any separation or severance agreement with restrictive covenants or confidentiality provisions; and any patents and published patent applications that identify the prospective employee as an inventor. During the Interview 6. Don’t ask the candidate to provide any nonpublic information related to a previous employer. For example, don’t ask about company-specific information, the identity
of customers and nonpublic information on current products or processes. Just talk about the candidate’s talents, skills, general experience and qualifications. 7. During the interview, discuss the nature of the position in general terms and ask a yes or no question as to whether the candidate has had exposure to potential trade secrets of a prior employer or third party that would be relevant to performance of the proposed job. If yes, ask the candidate whether (based on the job description) he or she can perform the job without knowingly or unconsciously using or disclosing the prior company’s trade secrets. Ask the candidate to agree to take care that no such trade secrets are used or disclosed during employment. 8. Keep the interview centered on general knowledge and not specific topics when discussing projects and customers (unless they are public information already). For example, don’t discuss the following topics: • Customer profitability, margins, order history and ongoing projects • Research and development efforts • Strategic plans • Future plans
March/April 2024 I 47
Ask a yes or no question as to whether the candidate has had exposure to potential trade secrets of a prior employer.
After the Interview 9. Before extending an employment offer, review the candidate’s ongoing obligations to former employers (contractual, noncompete, nonsolicit, restrictive covenants, etc.). Determine if those provisions are enforceable and, if so, what the relevant parameters are. For example, what is the candidate prohibited from doing under the agreement? What would be permissible? For executives or other sensitive hires, it may be wise for the candidate to obtain independent legal advice concerning his or her continuing obligations under such agreements. 10. If the new role might violate a noncompete obligation, consider if the job can be modified to prevent potential exposure. For example, it may be possible to arrange for engineers to take on a different type of
project. Or maybe sales personnel can operate in a different geographic area or market segment involving different customers. Finally, reiterate that the employee must not share any trade secrets as he or she transitions to your company. What’s the Payoff? The adage “An ounce of prevention is worth a pound of cure” may be a cliche, but it happens to be true. Following the tips mentioned above may create extra work on the front end but may save a giant headache down the road. By exercising diligence in the hiring process, an employer can reduce the odds of being sued for stealing trade secrets. And if the lawsuit comes anyway, the employer will be in a much stronger position to fend it off. ⚖ ____________________________________
Stay connected to the PBA! PBA emails can keep you up to date with the latest news about advocacy initiatives, educational opportunities, firm best practices, legislative changes, member benefits and more. Members should receive the PBA e-brief two times each month, along with other important PBA marketing, CLE and latest news emails. If you aren’t receiving these updates, your emails might be landing in a “junk” or “quarantine” folder — or you might be unsubscribed. To resubscribe, send an email to pbanews@pabar.org with “Resubscribe” in the subject line.
48 I The Pennsylvania Lawyer
Shane Miller is an associate in the Pittsburgh office of Freeman Mathis & Gary LLP and a member of the firm’s Labor and Employment Law Section. He has represented Pennsylvania employers in all stages of litigation, including jury trials, arbitrations, mediations and administrative proceedings. He focuses on cases involving claims of discrimination, harassment, retaliation and trade secret misappropriation. If you would like to comment on this article for publication in our next issue, please send an email to editor@pabar.org.
‘WAR STORIES’ Be Prepared
W
hen I practiced in Pittsburgh, I represented indigent respondents in mental health commitment hearings. One such hearing was scheduled in Orphans’ Court at 10 a.m. on a sunny winter day. The petitioner, the respondent and I arrived in the City-County Building courtroom; however, the petitioner’s lawyer was absent. Jim and I were friends and had been assistant district attorneys together, so I called him. He answered and shared that he had forgotten the date and the time of the hearing.
What’s the lawyer story you most love to tell when you bend an elbow with friends after hours?
His office was nearby, and he arrived just a few minutes later wearing a collared golf shirt, blue jeans and tennis shoes. For such occasions, the judge’s tipstaff kept a coat and tie in a nearby closet since the judge would not begin a hearing until counsel were wearing court-approved duds.
Every lawyer has a favorite “war story” — a tale of a hard-won legal battle, a story with a hilarious twist, an account of an incredible escapade. Pick your best can’t-top-this adventure with a judge, jury, client or colleague and write about it for us in 400 words or less.
The all-purpose sport coat was four sizes too large, and the tie reached to Jim’s knees. The judge began the hearing, and I looked over and saw that Jim was having difficulty taking notes because the sleeves of the coat were six inches longer than his fingertips. Although this was a serious matter, I muffled my laughter at his sartorial splendor.
We’ll choose the best of the best to share with our readers in an upcoming issue of The Pennsylvania Lawyer magazine.
Testimony was completed, and my client was discharged. Coat and tie were returned to the probate closet, and the judge
suggested that, when in the office on a workday, one should always wear appropriate court clothing. Justice was done, and a promising year lay ahead. My friend is no longer with us, but I recall with fondness his spiffy attire on that day many years ago.
Mark Geary Washington
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.
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March/April 2024 I 49
THE EFFECTIVE LAWYER The Myths and Reality of Attention Span By Robert Angelo Creo _______________________________________ The world is full of obvious things which nobody by any chance ever observes. — Arthur Conan Doyle _______________________________________
“
As the venue for work changes, so does the individual management of attention span and our observational skills as we adapt to new work environments.
”
50 I The Pennsylvania Lawyer
E
arlier columns addressed the lawyer’s reputation, professional growth, persuasion skills, navigating emotions and the importance of perpetual learning, as well as provided insight into best practices for competency, contentment and professional development. (PBA members can refer to previous columns using their member login at https:// www.pabar.org/site/News-and-Publications/ Pennsylvania-Lawyer-Magazine.) Judgment and decision-making theory and practice are best understood when read in the context of the series, which has offered specific best practices that can be integrated easily into the practice of law, regardless of the nature of individual employment. This current series explores decision-making, including curiosity, decision-making fatigue and cognitive endurance. We now explore the role of paying attention amid the daily distractions of practicing in a profession increasingly reliant upon technology for effective representation. Improving and protecting our thinking and competency will be treated in successive columns, with the next focusing on multitasking and the last in the series on flow.
In recent years, I have been amazed at how much I have missed by not paying attention to things — many, many things — right before my eyes. Most of the hidden or missed meaning has been pointed out by others rather than resulting from my own initiative or observation. For example, logos. Lots of them. Seen daily yet blurred over by the mind’s eye, which favors quick, default decisions and shortcuts. Take a moment to study the FedEx, Wendy’s, Hershey’s Kisses or Baskin-Robbins logos. Do an internet search for the hidden or subliminal messages of logos. Look closely at the eight of diamonds in a deck of playing cards. I learned to play poker and other card games around age 5, but never noticed the pattern in the card until it was pointed out to me at the tender age of 70. Bloomfield is a Pittsburgh neighborhood that I have frequented thousands of times over my lifetime. Last year, I was reading a history of Western Pennsylvania that noted that at the time of the Revolutionary War, it was a massive meadow of flowers. I mentioned my only-then spark of recognition to a friend who looked at me with mocking eyes while slowly mouthing the words “bloom” and “field.” So, is it only me? Nah! Our brains are hardwired for efficiency, quick decisions, automatic responses and reactions (fight-flight, freeze-hide), honed by learning and experience. Minimal thinking leads us to Wendy’s with no more than a glance at the sign in our peripheral vision. No subtleties necessary. Fine, but what does this have to do with practicing law?
____________________________________ … [T]hat lovely poem that didn’t get written because someone knocked on the door. — Martin Luther King Jr. ____________________________________
Distraction
Details are the fundamental stock-in-trade of the business of lawyering. No lawyer is effective with only macro or strategic thinking. Logic and reasoning ultimately require the ability to flesh out details and communicate minutiae to successfully solve a problem or frame the theory of the case for resolution by a third-party or court. Lawyers navigate complex mazes, usually with at least one opposing counsel running interference to actively thwart plans A, B and whatever follows. Lawyers’ minds must always be agile — and their eyes and ears wide open. We must be diligent about paying attention.
The Science of Attention Gloria Mark, a professor at the University of California, Irvine, is a researcher and leading expert on paying attention. She concludes that there are different types of attention, some that follow a personal rhythm. There are four common misconceptions about what it means to be engaged in concentrated thinking and tasks. The first is that people should always be focused and
that they should feel guilty when their mind and actions stray. She concludes that it is not realistic to expect the mind or body to continuously run marathons of productivity. Breaks and rest are necessary to replenish resources. Each person, through trial and error, can determine how to maximize opportunities for his or her own peak performance. The second myth is that rote, mindless activities, such as phone/computer games like Candy Crush, are a waste of time. These activities, if used strategically, can help replenish overspent mental resources or enable fresh ideas to surface as we rely on our automatic motor skills to physically respond to the game stimuli. A third myth is that electronic interruptions, such as email notifications, render us helpless to avoid distractions. Managing focus is individual and personal, with diverse ways to keep moving forward. Mark’s fourth contention is that regularly obtaining the state of flow when using technology is not easy; thus, the ideal or goal should be lowered to a balance of different attentional modalities tailored to the deliverable at issue.
It is difficult for lawyers whose work has shifted over my four decades of practice from working as part of a team to working solo in the electronic silo of screen time. Over time, the human interaction has eroded from when we dictated or wrote on a yellow pad the letters and legal documents for someone else to transform into the first draft of communication to colleagues, clients, opposing counsel or a court or regulatory agent. When I was younger, a busy lawyer often had a paralegal and a secretary (now called an administrative assistant). They provided second opinions on the content and style of those letters and legal documents. The lawyer then reviewed the document and thanked the staff for catching mistakes and making improvements. Now we wordsmith alone with spell check and Microsoft Word Editor guiding how we write and, perhaps unconsciously, even how we think. Briefs and important communications may be reviewed by a colleague or assistant, but my observation and speculation are that shorter communications such as emails and text messages are unicorns traveling from mind to fingers before romping through cyberspace at the speed of light to the end of the journey. With the increased use of technology pushed by the pandemic, particularly remote meeting platforms, “work from anywhere” is the new norm despite many employers requiring or promoting more time at the office. As the venue for work changes, so does the individual management of attention span and our observational skills
March/April 2024 I 51
THE EFFECTIVE LAWYER manner that provides positive experiences and rest and rejuvenation. • Sleep and eat well. • Consider engaging in the arts, music and other creative endeavors. • Consider meditation, mindfulness, yoga, chimes, drums or other contemplative or spiritual practices. You will never see it if you do not look for it. Make your Personal Improvement Plan to include paying attention to Attention Span! ⚖ ______________________________________ as we adapt to new work environments. Like most things, it is a mixture of the good, the bad and the ugly. ____________________________________ Speed is irrelevant if you are going in the wrong direction. — Mahatma Gandhi ____________________________________
How To Do Better Professor Mark contends that all is not lost when dealing with interruptions, finding that people completed interrupted tasks with no reduction in quality. She indicates that the data suggests that people compensate for interruptions by working faster to make up lost ground. However, there are the obvious side effects of more stress, higher frustration and greater effort. Of course, moving at higher speed can lead to error and to missing secondary or hidden meanings. Here are some ideas (aka hacks) to consider as you create your own structure and approach for paying attention. • Be aware of your own rhythms. • Create a dedicated physical workspace to minimize distractions.
52 I The Pennsylvania Lawyer
• Work on projects requiring the greatest mental effort at the time of day most conducive to your reflective and critical thinking. • Manage clutter, including people and pets. • Put away the cellphone for defined periods. • Listen to music if that helps keep you focused. • Keep a yellow legal pad at hand to write side thoughts or “footnotes” to return to or to bounce off another person. • Master the functions in Word as much as possible to increase your efficiency. • Set specific periods for telephone calls or reading and responding to email. • Take walking, exercise or other breaks involving movement. • Schedule lunch or coffee breaks with colleagues or staff. • Build time into your weekly schedule for pro bono, civic or volunteer activities. • Play your preferred computer, word or card games or puzzles in a deliberate
Pittsburgh attorney Robert Angelo Creo practiced as an in-house corporate lawyer and a solo and small firm general practitioner before becoming a full-time neutral. He has mediated and arbitrated thousands of cases, including as a salary arbitrator for MLB, a grievance arbitrator for the NFL and a hearing officer for the U.S. Senate Select Committee on Ethics. He is the editor-in-chief of Elkouri & Elkouri How Arbitration Works 2022 update. He has been on the mediator roster of the Court of Arbitration for Sports, Lausanne, Switzerland, which provides ADR services for international sports, including the Olympics. He served as adjunct professor at Duquesne University School of Law and at the University of Pittsburgh School of Law. He is a recipient of the PBA ADR Committee Sir Francis Bacon Alternative Dispute Resolution Award. He is annually named as a Superlawyer and included in Best Lawyers in America, where he was recognized as a mediator of the year and for arbitration, Pittsburgh. He has a passion for storytelling, is the principal of Steel City Storytellers LLC (www.steelcitystorytellers. com), has coproduced a 2022 Emmy-nominated television pilot and is working on a television special of storytellers. He researches and presents on lawyer contentment and is the principal of Happy! Effective Lawyer LLC (happyeffectivelawyer.org). His website is www.robertcreo.com. If you have a story to share on this subject or other practice topics, please email racreo@gmail.com.
Depressed? Stressed? Anxious? Overwhelmed?
YOU ARE NOT ALONE.
Sources and Additional Reading Nichols Carr, The Shallows: What the Internet is Doing to Our Brains, W.W. Norton & Company, 2020. Robert A. Creo, “How to Avoid Becoming Enslaved by the Tyranny of Technology,” 7 Pittsburgh Lawyers J. 7, 2005.
Takeaways • Structure your workday around your own rhythms. • Increase in-person interaction with colleagues, staff and friends.
www.lclpa.org
LCL CONFIDENTIAL HELPLINE
1-888-999-1941
• Make use of yellow legal pads. • Rest, recreate and rejuvenate.
Mihaly Csikszentmihalyi, Flow: The Psychology of Optimal Experience, Harper & Row, 1990. Gloria Mark, Attention Span: A Groundbreaking Way to Restore Balance, Happiness and Productivity, Hanover Press, 2023. Gloria Mark, Daniela Gudith, Ulrich Klocke, “The Cost of Interrupted Work: More Speed and Stress,” CHI ’08, Proceedings of the SIGCHI Conference on Human Factors in Computing Systems, 2008. M. Muraven, D.M. Tice, R.F. Baumeister, “Self-control as a Limited Resource: Regulatory Depletion Patterns.” 74 J. of Personality and Social Psychology, No. 3, 774, 1998. Selina J. Shultz and Robert A. Creo, “Harnessing the Power of Mindfulness in Mediation,” Pa. Lawyer, March/April 2017.
This printed PBA directory includes: • PA appellate court justices and judges, common pleas judges, magisterial district judges and key state government personnel • County courthouses and key county government personnel • Federal court and key government personnel • PBA, county bar associations and law libraries Order at https://bit.ly/3Pq8RuP or scan the QR code. Payment of $40 plus applicable tax(es) required with order. Bulk pricing available.
March/April 2024 I 53
ETHICS DIGEST Formal Opinion 2023-100 Joint Representation of a Corporation and Individual Defendants in a Derivative Action I. Introduction and Summary In a derivative action, a minority shareholder, or shareholders, sue corporate officers or directors on behalf of the corporation, alleging that misconduct or mismanagement by the individual officials injured the corporate entity. Typically, the corporation itself is named as a nominal defendant or as an involuntary plaintiff. In such circumstances, the question arises whether the same lawyer who represents the individual defendants may also represent the corporation. While joint representation of a corporation and its constituents is generally authorized under Rule 1.13(e), Rule 1.13(e) also states that such representation is “subject to the provisions of Rule 1.7.” Therefore, as with any joint representation, potential concurrent conflicts under Rule 1.7(a)(1) or (2) may preclude such representation, unless it is possible to meet all four requirements under Rule 1.7(b). Whether the same lawyer may represent the corporation and the individual defendants in a derivative action depends upon the nature of the allegations against the individual defendants. Allegations involving “serious charges of wrongdoing,” such as fraud, self-dealing or other intentional acts, unless patently frivolous, give rise to a nonconsentable conflict under Rule 1.7(b)(1) and preclude such joint representation. On the other hand, if the allegations involve mere “mismanagement,” such as misjudgment or other negligent acts or omissions, joint representation may be permissible with the informed consent 54 I The Pennsylvania Lawyer
of all proposed clients as required by Rule 1.7(b)(4). Even where joint representation is otherwise permissible under Rule 1.7, Rule 1.13(e) requires that the informed consent to such representation on behalf of the corporation be granted by a disinterested and authorized representative of the corporation who is not accused of wrongdoing. If there is no disinterested person who is authorized to give informed consent on the corporation’s behalf, then joint representation is precluded. II. Discussion Joint representation of an organization, such as a corporation, and one or more of its constituents implicates the following provisions of the Pennsylvania Rules of Professional Conduct: Rule 1.7 Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or, (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and, (4) each affected client gives informed consent. Rule 1.13 Organization as Client (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. Rule 1.7(a)(1) generally prohibits the concurrent representation of multiple clients who are directly adverse to one another, and Rule 1.7(a)(2) prohibits representation of multiple clients where there is a significant risk that the representation of one client will be materially limited by the lawyer’s responsibilities to another client. In the context of a derivative action, Rule 1.7(a)(1) can come into play where the corporation is named, typically involuntarily, as a plaintiff and corporate officers and directors are defendants, and Rule 1.7(a)(2) can come into play where there is a divergence of interests between the corporate defendant and the individual defendants. Even where a concurrent conflict exists under Rule 1.7(a)(1) or (2), joint representation may be possible if all four requirements under Rule 1.7(b) can be met. Rule 1.13 relates generally to the representation of an organization as a client. Rule 1.13(e) permits a lawyer for an organization to simultaneously represent one or more of
its constituents provided potential conflicts of interests are addressed in accordance with Rule 1.7, which specifies the requirements for obtaining informed consent. With specific regard to the concurrent representation of a corporation and its individual officers and directors in the context of a derivative action, official comments [10] and [11] to Rule 1.13, which were adopted by the Pennsylvania Supreme Court when Rule 1.13 was adopted in 1987, provide the following guidance: [10] Under generally prevailing law, the shareholders or members of a corporation may bring suit to compel the directors to perform their legal obligations in the supervision of the organization. Members of unincorporated associations have essentially the same right. Such an action may be brought nominally by the organization, but usually is, in fact, a legal controversy over management of the organization. [11] The question can arise whether counsel for the organization may defend such an action. The proposition that the organization is the lawyer’s client does not alone resolve the issue. Most derivative actions are a normal incident of an organization’s affairs, to be defended by the organization’s lawyer like any other suit. However, if the claim involves serious charges of wrongdoing by those in control of the organization, a conflict may arise between the lawyer’s duty to the organization and the lawyer’s relationship with the board. In those circumstances, Rule 1.7 governs who should represent the directors and the organization. Thus, effective with the adoption of Rule 1.13 and its commentary in 1987, the Supreme Court can be considered to have endorsed the interpretation of Rule 1.13(e) that is embodied in the official commentary quoted above. Subsequent Pennsylvania federal district and appellate decisions have
further developed the distinction between what are, and are not, “serious charges of wrongdoing by those in control of the organization.” In Bell Atlantic v. Bolger, 2 F.3d 1304, 1315-1317 (3rd Cir. 1993), the Third Circuit addressed a shareholder plaintiff in a derivative action’s challenge to the same law firm representing both the corporate and individual defendants. The district court had found no disqualifying conflict, based on older Pennsylvania state and federal cases. The appellate court noted that more modern authority recognized that it was generally improper for the same counsel to attempt to represent the corporation, on whose behalf the derivative action was instituted, as well as the individual defendants whose intentional acts of wrongdoing were alleged to have harmed the corporation. 2 F.3d at 1316. The Bell Atlantic Court cited the commentary to ABA Model Rule 1.13, which is substantially identical to the commentary to Pennsylvania Rule 1.13 quoted above, providing that “if the claim involves serious charges of wrongdoing by those in control of the organization, a conflict may arise between the lawyer’s duty to the organization and the lawyer’s relationship with the board.” Bell Atlantic, supra, 2 F.3d at 1317. The court further stated that it had “no hesitation in holding that — except in patently frivolous cases — allegations of director’s fraud, intentional misconduct, or self-dealing require separate counsel.” Id. However, recognizing that “corporate law has traditionally distinguished between breach of the duty of care and breach of the duty of loyalty,” the court distinguished such “serious charges of wrongdoing” from mere “mismanagement” — i.e., misjudgment or other negligent acts or omissions. Id. Because the case at hand involved “no allegations of self-dealing, stealing, fraud, intentional misconduct, conflicts of interest, or usurpation of corporate opportunities” by the defendant directors, the court concluded that the defendants’ law firm had no March/April 2024 I 55
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disqualifying conflict in representing those directors jointly with the corporation. Id.
interests are aligned with those of majority shareholder).
In Musheno v. Gensemer, 897 F.Supp. 833, 836-837 (M.D. Pa. 1995), the court applied the distinction between “serious charges of wrongdoing,” on the one hand, and mere claims of “mismanagement” on the other, as laid out in the Bell Atlantic case. Noting that the complaint in that case alleged fraud and self-dealing on the part of the individual defendants, and, in the absence of evidence that these claims were “patently frivolous,” the court held that the corporate defendant was required to retain independent counsel.
The individual defendants cannot properly decide whether facially valid pleadings setting forth “serious charges of wrongdoing,” such as misappropriation of corporate funds or other self-dealing, are “patently frivolous,” such that joint representation of the corporate and individual defendants would be permissible. In Musheno v. Gensemer, supra, the court held that such facially valid allegations precluded joint representation of the corporation and the individual defendants, even though an independent investigation on behalf of the corporation concluded that no action should be taken against the director defendants. See also, Lewis v. Shaffer Stores Company, supra, 218 F.Supp. at 239, where the court held that, since the allegations “on the face of the complaint” indicated that the interests of the corporation and its officers, directors and majority shareholder were clearly adverse, independent counsel for the corporation must be appointed, notwithstanding that the allegations were vigorously contested by the defendants.
No subsequent Pennsylvania state or federal decisions have called into question the reasoning or conclusions of the Bell Atlantic and Musheno cases with respect to joint representation of a corporation and its individual leaders in connection with a derivative action. The analysis underlying the Bell Atlantic and Musheno decisions is in line with the current state of the law nationwide. See generally, Lawyers Manual on Professional Conduct: Practice Guides, Section 20.130.20. The analytical approach laid out in Rule 1.13(e) and its commentary, and in the Bell Atlantic and Musheno cases, recognizes that what is in the corporation’s best interests may well diverge from what is in the individual defendants’ best interests. A lawyer tasked with representing the corporation in a derivative action must endeavor to act exclusively in the entity’s best interest, even if this does not coincide with the accused officers’, directors’ or other corporate constituents’ interests or desires. See Lewis v. Shaffer Stores Company, 218 F.Supp., 238, 239 (S.D.N.Y. 1963) (independent counsel for corporation must assess whether corporation’s
56 I The Pennsylvania Lawyer
Further, Rule 1.13(e) expressly provides that consent to joint representation “shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.” This requirement is underscored in Comment (g) to Restatement (Third) of the Law Governing Lawyers, Section 131, which provides: g. Derivative action. When an organization such as a business corporation is sued in a derivative action, the organization is ordinarily aligned as an involuntary plaintiff. Persons associated with the > page 58
March/April 2024 I 57
ATTORNEY DISCIPLINARY / ETHICS MATTERS STATEWIDE PENNSYLVANIA MATTERS NO CHARGE FOR INITIAL CONSULTATION Representation, consultation and expert testimony in disciplinary matters and matters involving ethical issues, bar admissions and the Rules of Professional Conduct
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> from page 56
organization who are accused of breaching a duty to the organization, typically officers and directors of the organization, are ordinarily named as defendants. The theory of a derivative action is that relief is sought from the individuals for the benefit of the organization. Even with informed consent of all affected clients, the lawyer for the organization ordinarily may not represent an individual defendant as well (see §128, Comment c). If, however, the disinterested directors conclude that no basis exists for the claim that the defending officers and directors have acted against the interests of the organization, the lawyer may, with the effective consent of all clients, represent both the organization and the officers and directors in defending the suit (see §122). (emphasis added). In cases where the only corporate constituents legally capable of giving consent to joint representation are accused of wrongdoing, valid consent to counsel’s concurrent representation of the corporation and the individual defendants would not be possible. See, e.g., Amramsky v. Zmirli, 2013 WL 373274 *4 (E.D. Pa. 2013), where the court held that separate counsel would be required to appear on behalf of a corporation, where the corporation’s directors were deadlocked and therefore could not give informed consent to the corporation’s representation by the lawyers representing director defendants. See also, Cannon v. U.S. Acoustics Corp., 398 F.Supp. 209, 216, n.10 (N.D.Ill. 1975) reversed in part on other grounds 532 F.2d 1118 (7th Cir. 1976) (“informed consent” to concurrent conflicts is “peculiarly inapplicable to a derivative suit, because
the corporation must consent through the directors, who, as in the present case, are the individual defendants”). III. Conclusion When a derivative action is brought on behalf of a corporation by minority shareholders against individual corporate defendants and the corporate entity, a nominal defendant, a lawyer must carefully assess whether joint representation of the corporation and the individual corporate defendants is ethically permissible. While joint representation is generally authorized under Rule 1.13(e), as with any joint representation, potential concurrent conflicts under Rule 1.7(a)(1) or (2) may preclude such representation. The first step in the Rule 1.7 analysis is to determine whether either a Rule 1.7(a)(1) or (a)(2) conflict exists. If a conflict exists, the lawyer can only proceed if all four requirements in Rule 1.7(b) can be satisfied. Whether the same lawyer may represent the corporation and the individual defendants in a derivative action depends upon the nature of the allegations against the individual defendants. Allegations involving “serious charges of wrongdoing,” such as fraud, self-dealing or other intentional acts, unless patently frivolous, give rise to a nonconsentable conflict under Rule 1.7(b) (1), which preclude such joint representation. On the other hand, if the allegations involve mere “mismanagement,” such as misjudgment or other negligent acts or omissions, joint representation may be permissible under Rule 1.7(b)(1). Even if Rule 1.7(b)(1) is satisfied, all of the other elements in Rule 1.7(b) must be satisfied, including Rule 1.7(b)(4)’s requirement that the lawyer obtain the informed consent of all proposed clients.
Even where joint representation is otherwise permissible under Rule 1.7, the lawyer must comply with Rule 1.13(e). This rule requires that informed consent to such representation on behalf of the corporation must be granted by a disinterested and authorized representative of the corporation who is not accused of wrongdoing. If there is no disinterested person who is authorized to give informed consent on the corporation’s behalf, then joint representation is precluded. Editor’s note: Formal Opinion 2023-100 appears here slightly revised and edited for space. The opinion as issued is available on the PBA website at 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 numbers are to the Pennsylvania Rules of Professional Conduct. The formal and informal opinions of the committee are posted on the PBA website, www. pabar.org. Questions and requests for copies of opinions should be directed to the Legal Ethics Hotline, 800-932-0311, ext. 2214. Requests may also be addressed to victoria.white@pabar.org.
March/April 2024 I 59
ON THE HILL Mission Accomplished By Anna Malcein King
incapacitated persons, thus helping to ensure that no one is denied their legal rights not only on account of poverty, but also on account of age or disability.
“
The PBA’s voice is strongest when we are working together to carry out our core mission.
”
A
s the legislative director for an organization with more than 20,000 members, collectively representing just about every interest under the sun, I have found it useful to remind myself periodically of the Pennsylvania Bar Association’s mission statement. It helps me to stay focused. Part of that mission statement declares that we exist as an organization in part to ensure that “no one on account of poverty [is] denied their legal rights.” The PBA Legislative Department takes seriously its role in promoting and advancing the principles in our mission statement, through the work of our sections and committees, and believes that the PBA’s voice is strongest when we are working together to carry out our core mission. While I would not normally endorse taking liberties with mission statements, I might humbly suggest that it includes striving to ensure that no one is denied their legal rights for any reason. That is why I am particularly proud of our role in the recent passage of Senate Bill 506, now Act 61 of 2023. Act 61 amends Title 20 (affectionately known as the PEF Code) to add significant legal protections for alleged incapacitated and adjudicated
60 I The Pennsylvania Lawyer
At its core, the legislation recognizes that an adjudication of incapacity and appointment of a guardian is a somewhat radical thing in terms of individual autonomy and rights, and that guardianships are therefore to be avoided whenever reasonably possible. The consequences of an adjudication of incapacity and appointment of a guardian are profound; the individual is stripped of the right to decide where to live, make health care decisions and handle personal finances. It is the PBA’s position that, where such fundamental liberty and property interests are at stake, access to legal counsel is absolutely necessary. Accordingly, the newly enacted law requires that, if counsel has not already been retained for a hearing to determine if an individual is incapacitated or in any subsequent hearing to consider, modify or terminate a guardianship, the court shall appoint counsel. This requirement applies regardless of the alleged incapacitated individual’s ability to pay. Anticipating the sometimes-tricky situations that arise in the representation of persons with limited capacity, the law clearly provides that the attorney must advocate for the client’s expressed wishes, to the extent the client is able to express wishes and provide instructions, and cannot act as guardian ad litem for the alleged incapacitated person. In the event that an individual is adjudicated incapacitated, the court must consider less restrictive alternatives before ordering a general guardianship and must make specific findings of fact on the record pertaining to the absence of sufficient existing or available supports and of less restrictive alternatives
PAL-2022 E3 (05-06) P01-21.qxp_Layout 1 6/4/22 3:27 PM Page 15
We’re looking for a few good articles … for The Pennsylvania Lawyer magazine. before ordering guardianship. Less restrictive alternatives may include health care and financial powers of attorney, advance directives, appointment of health care representatives and representative payees, trusts, Pennsylvania Achieving a Better Life Experience (ABLE) accounts, mental health directives and even limited guardianships.
capacity may improve, the court must hold a hearing after one year to determine whether the guardianship continues to be necessary. In addition to the automatic review process, the law also provides that any interested person may petition the court to modify or terminate a guardianship and includes a nonexclusive list of factors for the court to consider.
Another key feature of the legislation is the addition of requirements for so-called The new law will go into effect in mid-June. “professional guardians.” Namely, individuImplementation will require a good deal of als who seek to be appointed as guardian advance work, which is already underway. for three or more incapacitated persons I am sure that more information on the “Team Wilkinson”: Michael, Lindsey, Kathleen, Lauren and Tom at the PBA Midyear Meeting in Bonita Springs, Fla., in February must be certified. The Supreme Court will rollout of the program will be forthcoming, prescribe rules and forms necessary to so please continue to check all PBA publieffectuate certification. In orderDistrict to become cations for updates. I have been very proud to serve as the District Court for the Eastern of certified guardians, applicants must 127th president of the PBA. Pennsylvania spoke at the section’s As a member of the PBA, you should be provide their education and employment To the PBA staff, who have worked Philadelphia Regional Dinner, where I also proud of your organization’s role in helping history and federal and state criminal so hard during the pandemic, I am very made remarks. to craft this legislation and in lobbying for history record andamust also grateful and I thank all of you. Special In late April,information the PBA held president’s its passage. True to our mission, we helped recognition goes to Barry Simpson, Fran dinner with presidents, governorswhich and execpass a certification examination, will to strengthen theHogan, integrity of practice in O’Rourke, Lisa Pamela Kance, utive directors from zonesnonprofit 1 and 9. be administered by aPBA national guardianship proceedings and ensured Ursula Marks, Wendy Loranzo and Holly The PBA partnered with the other barsmay to organization. Upon petition, court that countless vulnerable Pennsylvanians Wertz for working together to provide celebrate Law Day in May with another waive the certification requirement if the who might otherwise havebar hadexperience their legal me with the best possible student chalk art contest and opportunities individual “has such equivalent licenses or rights denied them on account of poverty, this year. for lawyers to speak in schools. certifications as are necessary to ensure I thank and send to in-legal Also in May, the U.S. Eastern District age or disability will best now wishes be afforded the proposed guardian is capable of fully, coming PBA President Jay Silberblatt, Court of Pennsylvania will host a luncheon representation and adequate procedural faithfully and competently performing President-Elect for leaders from the PBA and local barthe protections. ⚖ Mike McDonald and obligations of a guardian.” The Immediate Past President Anne John, associations to discuss the rule statute of law provides no examples of what licenses or ______________________________________ who have all been supportive and great and the role of the court in community certifications may qualify, but (as amendoutreach. colleagues during my presidency, and I ed)The it does state that a law license PBAexplicitly Bar Leadership Institute and welcome incoming Vice President Nancy Anna Malcein King is PBA director of legislative other sections and committees Conrad as aadditional PBA officer. is not one of them. Interesting. are working affairs. For information on the PBA’s
on attorney wellness. We are conducting
One feature the finalConcerned bill that represents a survey withofLawyers for aLawyers markedtoimprovement earlier veraddress PBAfrom member needs. sions is the addition of review hearings. These provisions will make Goodbye and Thank You it easier, in appropriate cases, for a person to termiTo allanofexisting the members of the PBA nate guardianship. The and statute local bars, thank you for participating in provides that, if any evidence is presented the many activities this year. I appreciate during the proceedings that the person’s
To my husband and children, Tom, legislative program, contact the PBA Legislative RelationsLauren Department 800-932-0311, Lindsey, andatMichael, youext. all have 2207, or email anna.king@pabar.org. been part of “Team Wilkinson” and have made my year full of joy and fun. ⚖
Kathleen D. Wilkinson PBA President
your confidence, support and kind words.
The Pennsylvania Lawyer
15
May/June 2022
The Pennsylvania Lawyer is your PBA membership magazine. Our mission is to inform, educate, analyze and provide a forum for comment and discussion. We’re always looking for informative articles of 2,000 to 3,000 words that help lawyers understand and deal with trends in the profession, offer ways to practice more efficiently and shed light on issues of importance. If you’re interested in writing for us, we’d like to hear from you. To submit an article proposal or request our writer guidelines, email editor@pabar.org or write to Pennsylvania Bar Association, Attn. Editor, The Pennsylvania Lawyer, P.O. Box 186, Harrisburg, Pa. 17108-0186.
March/April 2024 I 61
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PBA Quarterly Moving to Online
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March/April 2024 I 63
True Tales of Trying Times Legal Fables for Today By Professor Bob Rains
The Booty That Brought Down the Bandit*
R
obert went to the supermarket with what must have seemed like a foolproof plan. He wore two pairs of pants, one inside the other. The inner pair had elastic at the ankles. As Robert went along pilfering products, he slipped them inside his pants. When the day manager came on shift, a store employee called to his attention a customer who was walking strangely, as if both of his legs were broken. It was Robert, walking quickly but awkwardly toward the exit. Robert did not stop at the cash register to perfect any purchases, and an alarm went off indicating that he had taken unpaid merchandise with him. Robert looked back and saw the manager giving chase, so he tried to run for it. But he was done in by his product selection. He made loud noises as he ran, and liquid began to run down his legs. He fell, got
up, but was tackled by the manager and a security guard. When the police arrived, they counted six broken and three intact bottles of booze in Robert’s pants. And, to add injury to insult, the broken bottles had cut his ankles. The bottles, one might say, were his Achilles’ heels. Although Robert’s attorneys diligently tried to explain to the court that there was a perfectly innocent explanation for Robert’s behavior, he was duly convicted of theft of goods and sent to a place where the state will provide him with one pair of pants at a time. Moral: When filching goods, don’t take the chance Of stuffing bottles down your pants, Because if you are seen and chased, They’ll slow you down and go to waste. So, as you choose which goods to lift, Recall the race goes to the swift. ⚖
*State v. Yrle, 901 So.2d 470 (La. App. 5 Cir. 2005). ____________________________________ True Tales of Trying Times (Willow Crossing Press, printed in the U.K. by Cambridge University Press, 2007). Text © 2007 by Robert E. Rains; Illustrations © 2007 by E. A. Jacobsen. Reprinted with permission.
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