PA Supreme Court Disciplinary Board's Top Disciplinary Cases for 2008

In its latest edition of its Attorney E-Newsletter, the Disciplinary Board of the Supreme Court of Pennsylvania, www.padb.us, announced its picks for the Top Five Disciplinary Cases of 2008. The Board chose its finalists based on the novelty of issues presented, the significance for guidance to the bar, and new developments in disciplinary procedure. The cases highlight some of the biggest ethical pitfalls for attorneys in any jurisdiction.
 
In a tie for fourth runner up were Budzak, 92 DB 2006 and Mimnaugh, 185 DB 2006, which present differing outcomes for a mitigation defense based on physical, mental, or substance problems. In Budzak, the Board found that the attorney’s misconduct of prevarication in response to pressure from a difficult client was subject to mitigation due to a psychiatric condition because he had expert testimony that linked his misconduct to impulsivity and procrastination arising from his condition. In Mimnaugh, the defense was rejected because the attorney’s physician testified hypothetically regarding the attorney’s use of cocaine for relief from pain caused by a medical condition. Receiving an honorable mention in the mitigation category was Mizner, 46 DB 2007, in which a lawyer with Obsessive Compulsive Disorder had filed false travel claims in order to fund his compulsion with landscaping and relandscaping his home.
 
Feingold, No. 93 DB 2003-ctp placed as third runner up. In Feingold, an attorney was disbarred after the Board determined that he committed contempt by continuing to practice while suspended, under the nominal supervision of his wife/former partner (who was also suspended in a separate case). The Board found the case to be remarkable because, inter alia, the Board addressed the limits on a suspended attorney’s activity in the course of employment with a law office.
 
Second runner up Silver, No. 22 DB 2007 addressed an attorney’s behavior outside the office. The attorney had received a six-month suspension for conviction of vehicle-related offenses, including an accident involving damage to an attended vehicle, driving within a single lane, and driving under a suspended driver’s license – for the tenth time. The Board determined that the attorney’s repeated violations of the law were aggravating factors warranting suspension.
 
Capturing first runner up status was In re Anonymous No. 125 DB 2006 No. 125 DB 2006, which involved a Grisham-like situation in which a lawyer who represented individual and organizational clients was notified that he was implicated in a criminal investigation of possible illegal activity by either or both clients. In response, the attorney recorded potentially privileged conversations with the individual client and allowed U.S. attorneys to listen to the tapes in order to exonerate himself. The Disciplinary Board dismissed the charges and found no violations, concluding that the attorney’s action was justifiable under RPC 1.6(c)(2) (relating to a client’s criminal or fraudulent act in the commission of which the lawyer’s services are being or had been used) and 1.6(c)(3) (relating to a defense to a criminal charge, civil claim, or disciplinary proceeding against the lawyer based upon conduct in which the client was involved).
 
Garnering the top prize was Mazza, No. 95 DB 2000, which was chosen because it represents a novel discipline. The former attorney at issue had been disbarred, but he continued to draft pleadings and perform other “legal work of a preparatory nature” as an independent contractor. The Board found this conduct to violate Rule 217(j) and found the former attorney in contempt. Notably, the sanction determined by the Board was a fine of $1,000 and a declaration of ineligibility to apply for reinstatement until a given date, thereby extending the period of disbarment by more than three years.
 
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