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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

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Pennsylvania Legal Ethics

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:

8.1:101      Model Rule Comparison

PA Rule 8.1(a) states that "[a] lawyer is subject to discipline if the lawyer has made a materially false statement in, or if the lawyer has deliberately failed to disclose a material fact requested in connection with the lawyer's application for admission to the bar or any disciplinary matter." In contrast, MR 8.1 states that an applicant for admission to the bar or a lawyer in connection with a bar admission application or a disciplinary matter shall not "knowingly make a false statement of material fact" or "fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority . . ." The Model Rule does not require the disclosure of information otherwise protected by Rule 1.6. The Pennsylvania Rule does not contain a similar provision. PA Rule 8.1(b) states that "[a] lawyer shall not further the application for admission to the bar of another person known by the lawyer to be unqualified in respect to character, education, or other relevant attribute." MR 8.1 does not contain a similar provision.

8.1:102      Model Code Comparison

DR 1-101(A) provides that "[a] lawyer is subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact requested in connection with, his application for admission to the bar." DR 1-101(B) provides that "[a] lawyer shall not further the application for admission to the bar of another person known by him to be unqualified in respect to character, education, or other relevant attribute." EC 1-1 states that "[m]aintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer." EC 1-3 states that "[b]efore recommending an applicant for admission, a lawyer should satisfy himself that the applicant is of good moral character." It also states that a lawyer "should report to proper officials all unfavorable information he possesses relating to the character or other qualifications of an applicant." DR 1-103(B) states that "[a] lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges."

8.1:200   Bar Admission

Primary Pennsylvania References: PA Rule 8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary: ABA/BNA 21:101, 10l:1, ALI-LGL 2, Wolfram 15.2, 15.3

8.1:210      Bar Admission Agency

Under the Pennsylvania Bar Admission Rules ("Pa.B.A.R."), the Supreme Court of Pennsylvania has the authority to appoint a board to be known as the "Pennsylvania Board of Law Examiners" (the "Board"). Pa.B.A.R. 104. The Board has the power and duty, among other things, to adopt rules pertaining to admission to the bar and to the practice of law and to recommend the admission of persons to the bar and the practice of law. Pa.B.A.R. 104.

8.1:220      Bar Admission Requirements

Pa.B.A.R. 202 states that "[a]n applicant who complies with the requirements of Rule 203 (relating to admission of graduates of accredited institutions), Rule 204 (relating to admission of domestic attorneys) or Rule 205 (relating to admission of foreign attorneys) and the applicable rules of the Board shall be admitted to the bar of this Commonwealth in the manner prescribed by these rules."

Under Pa.B.A.R 203(b) (relating to graduates of accredited institutions), "[t]he general requirements for admission to the bar of this Commonwealth are (1) satisfactory completion of the bar examination administered by or under the authority of the Board. . ." The general requirements to sit for the bar examination are: (1) receipt of an undergraduate degree from an accredited college or university or the receipt of an equivalent education; (2) completion of the study of law at and receipt of an earned Bachelor of Laws or Juris Doctor degree from an accredited law school; and (3) absence of prior conduct by the applicant which indicates character and general qualifications incompatible with the standards expected to be observed by members of the bar. Pa.B.A.R. 203(a). An applicant who completed the study of law at and received an earned Bachelor of Laws or Juris Doctor degree from an unaccredited law school located within the boundaries of the United States may sit for the bar examination provided the applicant is a member of the bar of a reciprocal state and meets the following additional qualifications: (1) presentation of a certificate from the highest court or agency of such state having jurisdiction over admission to the bar and the practice of law stating that the applicant is in good standing at the bar of such court or such state; and (2) presentation of proof that the applicant has for a period of five of the last seven years (a) engaged in the practice of law in a reciprocal state, or (b) engaged full-time in the teaching of law at one or more accredited law schools in the United States, or (c) served on active duty in the United States military service as a judge advocate or law specialist. Pa.B.A.R. 203(a)(2)(ii).

Under Pa.B.A.R. 204 (relating to the admission of domestic attorneys), an attorney of another state may be admitted to the bar of Pennsylvania if the applicant has completed the study of law at and received an earned Bachelor of Laws or Juris Doctor degree from an accredited law school, is a member of the bar of a reciprocal state, and meets the same additional qualifications set forth above.

Under Pa.B.A.R. 205 (relating to the admission of foreign attorneys), the Board may allow an applicant to sit for the bar examination who has not completed the study of law in a law school located within the geographical area encompassed by the accreditation activities of the American Bar Association provided the applicant has been admitted to practice law in and is in good standing at the bar of a foreign country and has for a period of five of the last eight years engaged in the practice of law in such foreign country. Foreign applicants must also successfully complete 30 credit hours in an accredited American law school in the following subjects: Conflict of Laws; Constitutional Law; Contracts; Corporations; Criminal Law; Decedents' Estates; Evidence; Family Law; Federal and/or Pennsylvania Civil Procedure; Federal Income Taxes (personal only); Professional Responsibility; Real Property; Torts; Uniform Commercial Code, Art. II -- Sales; Uniform Commercial Code, Art. III -- Commercial Paper; Uniform Commercial Code, Art. IX -- Secured Transactions. Pa.B.A.R. 205(b). No more than four credit hours in any one subject shall be counted toward this requirement. Pa.B.A.R. 205(b). Applicants must successfully complete up to four credits in each of the following subjects: Constitutional Law; Contracts; Criminal Law; Decedents' Estates; Evidence; Federal and/or Pennsylvania Civil Procedure; Professional Responsibility; Real Property; and Torts. Pa.B.A.R. 205(b).

8.1:230      Admission on Motion

Pa.B.A.R. 231 states that motions for admission shall be made by filing one copy with the Prothonotary. The motion shall be in writing on a form prescribed by the Board and shall include (1) a certificate from the Board recommending such admission, (2) the oath of office required by statute, and (3) a formal motion for admission. Pa.B.A.R. 231(a). The certificate from the Board shall be dated within six months of the filing of the motion or shall be accompanied by a written statement of the Board dated within six months of the filing of the motion to the effect that it knows of no reason why the motion should not be granted. Pa.B.A.R. 231(a)(1). The motion for admission shall be subscribed by a member of the bar in good standing. Pa.B.A.R. 231(b). The applicant upon filing a motion shall pay a fee of $50.00. Pa.B.A.R. 231(c). An applicant may elect to take the oath of admission in person before the Supreme Court at such time and place as may be directed by the Court. Pa.B.A.R. 231(e).

8.1:240      Admission Pro Hac Vice [see also 5.5:230]

An attorney who is qualified to practice in the courts of another state or of any foreign jurisdiction may be specially admitted to the bar of Pennsylvania for purposes limited to a particular matter. Pa.B.A.R. 301(a). The attorney, however, is not authorized to act as attorney of record. Pa.B.A.R. 301(a). In the case of such applicants, the oath shall not be required and there shall be no fee. Pa.B.A.R. 301(b). Written notice of such motion shall be signed by a member of the bar of Pennsylvania, shall recite all relevant facts, and shall be filed with the clerk of the court in which the matter is pending at least three days before the motion. Pa.B.A.R. 301(b). The motion shall be granted unless good cause for denial shall appear. Pa.B.A.R. 301(b).

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

Primary Pennsylvania References: PA Rule 8.1
Background References: ABA Model Rule 8.1(a), Other Jurisdictions
Commentary: ABA/BNA 21:301, 101:201, Wolfram 15.3.1

No Pennsylvania cases or Ethics Opinions address this issue.

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

Primary Pennsylvania References: PA Rule 8.1
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:

No Pennsylvania cases or Ethics Opinions address this issue.

8.1:410      Protecting Client Confidential Information

No Pennsylvania cases or Ethics Opinions address this issue.

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

Primary Pennsylvania References: PA Rule 8.1
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 8.2
Background References: ABA Model Rule 8.2, Other Jurisdictions
Commentary:

8.2:101      Model Rule Comparison

PA-R 8.2(a) and (b) is similar to MR 8.2(a). However, whereas MR 8.2(a) prohibits a lawyer from making a statement that the lawyer knows to be false or "with reckless disregard as to its truth or falsity" concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to a judicial or legal office, PA-R 8.2 only prohibits a lawyer from knowingly making such a statement concerning the qualifications of a candidate for election or appointment to a judicial office PA-R 8.2(a), or knowingly making a false accusation against a judge or other adjudicatory officer. PA-R 8.2(b). PA-R 8.2(c) is substantially similar to MR 8.2(b). Pennsylvania adopted the Comment to MR 8.2.

8.2:102      Model Code Comparison

Rules 8.2(a) and (b) are identical to DR 8-102(A) and (B), and Rule 8.2(c) is identical to DR 8-103.

8.2:200   False Statements About Judges or Other Legal Officials

Primary Pennsylvania References: PA Rule 8.2(b)
Background References: ABA Model Rule 8.2(a), Other Jurisdictions
Commentary: ABA/BNA 101:601, ALI-LGL 174, Wolfram 11.3.2

Pursuant to PA-R 8.2(b) a lawyer shall not knowingly make false accusations against a judge or other adjudicatory officers. While no cases in Pennsylvania address this rule, it is similar to MR 8.2(a).

8.2:300   Lawyer Candidates for Judicial Office

Primary Pennsylvania References: PA Rule 8.2
Background References: ABA Model Rule 8.2(b), Other Jurisdictions
Commentary: ABA/BNA 101:601, ALI-LGL 174, Wolfram 17.2

A lawyer who is a candidate for judicial office must comply with the Code of Judicial Conduct. Phila. B.A. Prof. Guid. Comm., Op. 88-28 (1988). See Stretton v. Disciplinary (3rd Cir. 1991). Plaintiff, a lawyer and candidate for judge in the Court of Common Pleas sought to enjoin enforcement of Canon 7 of the Code of Judicial Conduct contending that his ability to campaign for the position was impeded by the limitations imposed by the Code. Canon 7(B)(1)(c) bars judicial candidates from announcing their views on disputed legal or political issues, while Canon 7(B)(2) prohibits personal solicitation of campaign funds. The Third Circuit affirmed the district court's finding that Canon 7(B)(2) does not offend the Constitution and vacated the district court's order barring enforcement of Canon 7(B)(2). Id. at 140.

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 8.3
Background References: ABA Model Rule 8.3, Other Jurisdictions
Commentary:

8.3:101      Model Rule Comparison

PA-R 8.3 is substantially similar to MR 8.3. Pennsylvania adopted paragraphs 1-4 of the Comment to MR 8.3, and substantively adopted paragraph 5 of the Comment.

8.3:102      Model Code Comparison

DR 1-103(A) provides that "[a] lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to . . . authority empowered to investigate or act upon such violation.

8.3:200   Mandatory Duty to Report Serious Misconduct

Primary Pennsylvania References: PA Rule 8.3
Background References: ABA Model Rule 8.3(a), Other Jurisdictions
Commentary: ABA/BNA 101:201, ALI-LGL 5, Wolfram 12.10

Misconduct which gives rise to a duty to disclose must raise a substantial question about the attorney's fitness to practice law. Pa. Eth. Op. 89-80 (undated). While substantial is not defined, the Comments to the rule suggest that "an apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover." Furthermore, the rule applies to actual misconduct, not suspected misconduct, Phila. B.A. Prof. Guid. Comm., Op. 90-7 (1990); Pa. Eth. Op. 92-32 (1992), and the duty to disclose the misconduct must be weighed against competing considerations under other rules such as the duty not to disclose confidential information. See 8.3:400 below. In the following situations, a duty to disclose the misconduct of another lawyer was found: See Phila. B.A. Prof. Guid. Comm., Op. 95-13 (1995) (lawyer advised to consider reporting misconduct of opposing counsel where opposing counsel sought to impose a non-negotiable condition in a settlement offer in violation of Rules 5.6(b) and 8.4); Pa. Eth. Op. 92-114 (1992) (associate must disclose fact that partner caused false signatures to be placed on a document unless the partner informs the applicable courts and opposing counsel); Phila. B.A. Prof. Guid. Comm., Op. 88-37 (1989) (lawyer had duty to report opposing counsel for submitting an attorney verification in support of a motion which contradicted the opposing party's affidavit as it calls into question the lawyer's honesty and trustworthiness). Rule 8.3 imposes an ethical duty on all members of the Pennsylvania Bar, including members of the judiciary. See Matthews v. Freedman, (E.D. Pa. 1989), aff'd. without op. (1990) (district court judge stated that an attorney's unexplained delay in filing his client's claim and his repeated failure to comply with filing deadlines set by the court warranted referral to the appropriate disciplinary board). However, the duty to report the misconduct of a lawyer does not extend to nonlawyers. Phila. B.A. Prof. Guid. Comm., Op. 95-15 (1995).

8.3:300   Reporting the Serious Misconduct of a Judge

Primary Pennsylvania References: PA Rule 8.3(b)
Background References: ABA Model Rule 8.3(b), Other Jurisdictions
Commentary: ABA/BNA 101:201, ALI-LGL 5, Wolfram 12.10

"A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority." PA-R 8.3(b). While no cases in Pennsylvania address this rule, it is the same as MR 8.3(b).

8.3:400   Exception Protecting Confidential Information

Primary Pennsylvania References: PA Rule 8.3(c)
Background References: ABA Model Rule 8.3(c), Other Jurisdictions
Commentary: ABA/BNA 101:201, ALI-LGL 113-117A, Wolfram 12.10

A lawyer cannot report the misconduct of another lawyer where disclosure involves confidential information. See e.g. Phila. B.A. Prof. Guid. Comm., Op. 96-6 (1996) (lawyer needed consent of client before disclosing misconduct of opposing counsel where disclosure involved confidential information); Phila. B.A. Prof. Guid. Comm., Op. 93-28 (1994) (where attorney B learned that attorney A had converted the funds of decedent's estate to his own use, he could not report the misconduct without the client/beneficiary's consent since the professional misconduct was based solely on "information relating to representation"); Pa. Eth. Op. 93-85 (1993) (lawyer may not report prior counsel's misconduct without client's consent). Information relating to the representation of a client is usually confidential. Pa. Eth. Op. 93-48 (1993). But see Phila. B.A. Prof. Guid. Comm., Op. 88-23 (1988) (where lawyer received information from another party to the litigation, rather than from his client, regarding the misconduct of another attorney involved in the litigation, that information was not confidential, and should be disclosed); Pa. Eth. Op. 92-33 (1992) (lawyer who discussed possible representation of a defendant in the presence of his current client and another lawyer, who later also became a defendant in the case, must report that lawyer when he falsely answers deposition questions about this meeting and his acquaintance with the second defendant. The false statements are not covered by the confidentiality of the lawyer's existing representation since they pertain to the other defendant).

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 8.4
Background References: ABA Model Rule 8.4, Other Jurisdictions
Commentary:

8.4:101      Model Rule Comparison

PA-R 8.4 is identical to the Model Rule. The Comment to the PA-R contains an additional paragraph stating that a lawyer's duties as an officer of the court require particular sensitivity to conduct that is prejudicial to the administration of justice.

8.4:102      Model Code Comparison

PA-Rs 8.4(a-d) are substantially similar to DR 1-102(A). PA-R 8.4(e) is substantially similar to DR 9-101(C). There is no direct counterpart to PA-R 8.4(f) in the Model Code. EC 7-34 states in part that "[a] lawyer ... is never justified in making a gift or loan to a [judicial officer] except as permitted by ... the Code of Judicial Conduct . . ." EC 9-1 states that a lawyer "should promote public confidence in our [legal] system and in the legal profession."

8.4:200   Violation of a Rule of Professional Conduct

Primary Pennsylvania References: PA Rule 8.4(a)
Background References: ABA Model Rule 8.4(a), Other Jurisdictions
Commentary: ABA/BNA 101:101, ALI-LGL 2, Wolfram 3.3

PA-R 8.4(a) has been considered in the following federal and Pennsylvania cases: United States v. McNaughton (E.D. Pa. 1994) (a law enforcement agent was alter ego of prosecuting attorneys and was not subject to Rule 8.4(a), absent proof by government that agent was not acting at request of government attorneys); Kelley v. Tupitza (E.D. Pa. 1992) (failure to obey client's instructions could be violation of Rule 8.4).

PA-R 8.4(a) is considered in the following Pennsylvania and Philadelphia bar association opinions: Pa. Eth. Op. 95-110 (1995) (lawyer serving as solicitor for two townships may not participate in negotiation on behalf of the townships with Developers where the townships request monetary donations or dedications of land from developers, and such requests are not provided by applicable statute, if the lawyer determines that the request amount to fraudulent or illegal conduct; if lawyer does in fact determine that the requests are fraudulent, lawyer must withdraw from representation. Lawyer may, but is not required, to disclose confidential information to prevent or rectify the consequences of fraudulent conduct); Phila. Eth. Op. 95-14-A (1995) (a lawyer whose client, without the lawyer's knowledge, wrote to the judge presiding over his lawsuit, is not obligated to provide opposing counsel with a copy of the letter); Phila. Eth. Op. 95-13 (1995) (an attempt to settle a case by imposing conditions that induce opposing counsel to violate the Rules may violate Rule 8.4(a)); Pa. Eth. Op. 94-110 (1994) (lawyer may advertise sale of his law practice if advertisement is clearly worded to indicate that it is clear that sale of the goodwill attached to the practice is not intended; Pa. Eth. Op. 94-65 (1994) (lawyer must explain to client the consequences of the client's seemingly fraudulent valuations of inherited stock and the need to rectify errors or false statements; if client refuses to rectify errors, lawyer must withdraw from representation); Phila. Eth. Op. 94-16 (1995) (an attorney who violates the statute requiring persons holding themselves out as being entitled to practice in Pennsylvania without in fact having been admitted to the bar may have committed a violation of Rule 8.4(a)); Pa. Eth. Op. 92-97 (1992) (opposing counsel may not plan together to intentionally create certain deficiencies in evidence at trial to achieve desired result); Pa. Eth. Op. 92-26 (1992) (lawyer whose opponent in litigation induces a notary public to secretly alter a publicly filed document must report such conduct to disciplinary authorities); Pa. Eth. Op. 92-18 (1992) (lawyer representing estate who discovers that executor, who is also a beneficiary, committed fraud to obtain estate assets is required to demand executor's withdrawal; if executor refuses, lawyer should disclose facts to court and may also terminate representation); Pa. Eth. Op. 90-142 (1990) (the Rule prevents an attorney from accomplishing indirectly what it is unethical to do directly, such as, for example, instructing an investigator to communicate with an opposing organization's employees where the attorney's contact would violate the Rules); Phila. Eth. Op. 90-21 (1990) (lawyer representing defendant against a claim that the plaintiff's injury prevents her from conducting sales demonstrations may not hire an investigator to stage such a sales demonstration in order to film the plaintiff's participation; such conduct would involve misconduct through the acts of an agent because a contact would involve direct communication with the plaintiff, rather than passive surveillance); Phila. Eth. Op. 89-17 (1989) (the Rule prevents a lawyer from counseling a client to do that which the lawyer is prohibited from doing under the Rules. For example, a lawyer should not advise a client to threaten pursuit of criminal remedies unless criminal remedies exist and the client in fact intends to pursue those remedies); Phila. Eth. Op. 89-2 (1989) (possible violation of Rule 8.4(a) if lawyer's proposal to purchase data from another lawyer would induce other lawyer to violate Rules).

8.4:300   Commission of a Crime

Primary Pennsylvania References: PA Rule 8.4(b)
Background References: ABA Model Rule 8.4(b), Other Jurisdictions
Commentary: ABA/BNA 101:301, ALI-LGL 8, Wolfram 3.3.2

PA-R 8.4(b) was considered by the Pennsylvania Supreme Court in Office of Disciplinary Counsel v. Anonymous Attorney A. (1991) (Judicial Inquiry Review Board had exclusive jurisdiction to discipline judicial officers for violations of Rule 8.4(b), so as to preclude action by Office of Disciplinary Counsel against the same individuals who were also attorneys registered to practice law in Pennsylvania, where conduct in question arose while attorneys were judicial officers and type of misconduct was intrinsically tied to position of attorneys as judicial officers).

PA-R 8.4(b) was considered in the following bar association opinions: Phila. Eth. Op. 95-15 (1995) (counselling a client against compliance with a reporting requirement imposed by applicable law might constitute a violation of Rule 8.4(b)); Phila. Eth. Op. 94-21 (1994) (violation of Workers' Compensation Act section regarding insurance fraud would constitute a violation of Rule 8.4(b)); Phila. Eth. Op. 94-16 (1995) (an attorney who violates the statute requiring persons holding themselves out as being entitled to practice in Pennsylvania without in fact having been admitted to the bar may have committed a violation of Rule 8.4(b)); Pa. Eth. Op. 92-97 (1992) (opposing counsel may not plan together to intentionally create certain deficiencies in evidence at trial to achieve desired result); Pa. Eth. Op. 92-18 (1992) (lawyer representing estate discovers that executor, who is also a beneficiary, committed fraud to obtain estate assets; lawyer required to demand executor's withdrawal; if executor refuses, lawyer should disclose facts to court and may also terminate representation).

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

Primary Pennsylvania References: PA Rule 8.4(c)
Background References: ABA Model Rule 8.4(c), Other Jurisdictions
Commentary: ABA/BNA 101:401, ALI-LGL 2, Wolfram 3.5.8

PA-R 8.4(c) was considered in the following federal and Pennsylvania cases: Georgine v. Amchem Products, Inc. (E.D. Pa. 1995) (letters and advertisements disseminated by counsel for clients opposed to class settlement of asbestos-related litigation were misleading to the extent they failed to disclose that counsel had strong pecuniary interest in disseminating/publishing the communications, and may have violated Rule 8.4(c)); Brown v. Hammond (E.D. Pa. 1993) (allegation that paralegal and secretary's work was billed to clients as "attorney time", if true, would violate Rule 8.4(c); Clemente v. Espinoza (E.D. Pa. 1990) (accusing an attorney of being connected to Mafia imputes a violation of Rule 8.4(c)); In re Costigan (1995) (lawyers lack of basic understanding of ethical obligation under Rule 8.4(c) disqualified him from readmission to the bar); Office of Disciplinary Counsel v. Duffield (1994) (attorney's dishonesty in representations to Office of Disciplinary Counsel violated Rule 8.4(c)); Office of Disciplinary Counsel v. Holston, (1993) (knowingly forging a court order and certificate, and lying to judicial authority upon being questioned as to origins of document, constitutes violation of Rule 8.4(c) and other rules warranting disbarment); Office of Disciplinary Counsel v. Anonymous Attorney A. (1991) (Judicial Inquiry Review Board had exclusive jurisdiction to discipline judicial officers for violations of Rule 8.4(c), so as to preclude action by office of disciplinary counsel against the same individuals who were also attorneys registered to practice law in Pennsylvania, where conduct in question arose while attorneys were judicial officers and type of misconduct was intrinsically tied to position of attorneys as judicial officers).

PA-R 8.4(c) was considered in the following bar association opinions: Phila. Eth. Op. 95-20 (1995) (a lawyer may distribute flyer to people entering or leaving family court building, listing telephone of non-profit organization to provide free information regarding domestic relations law, as long as the nonprofit is not actually a subterfuge for the lawyer to obtain clients; lawyer must also insure that the communication is not legal advice or counseling); Phila. Eth. Op. 95-15 (1995) (counselling a client against compliance with a reporting requirement imposed by applicable law might constitute a violation of Rule 8.4(c)); Phila. Eth. Op. 94-21 (1994) (attorney's failure to apprise defense counsel that client is receiving workers compensation while incarcerated is not a violation of Rule 8.4(c)); Phila. Eth. Op. 94-16 (1995) (an attorney who violates the statute requiring persons holding themselves out as being entitled to practice in Pennsylvania without in fact having been admitted to the bar may have committed a violation of Rule 8.4(c)); Pa. Eth. Op. 93-144 (1994) (lawyer who believes client may have malpractice claim against lawyer's former firm has no obligation to notify firm's insurer, that giving such notice would violate Rule 8.4(c) only if it was part of a scheme to engage in fraudulent or deceitful conduct); Phila. Eth. Op. 93-16 (1993) (lawyer who has written book of a particular area of law in which lawyer practices must be on active status with the state supreme court, regardless of whether work on the book was done on a pro bono basis); Pa. Eth. Op. 92-18 (1992) (lawyer representing estate who discovers that executor, who is also a beneficiary, committed fraud to obtain estate assets is required to demand executor's withdrawal; if executor refuses, lawyer should disclose facts to court and may also terminate representation); Phila. Eth. Op. 91-28 (1991) (attorney's knowing participation with a psychologist in the violation of the psychologist's code of ethics could violate Rule 8.4(c)); Phila. Eth. Op. 90-24 (1990) (an attorney who permits his name and signature to be used in a letter of which he has no knowledge and does not approve violates Rule 8.4(c)); Phila. Eth. Op. 90-7 (1990) (knowingly false statements made in letter to government authority would violate Rule 8.4(c)).

8.4:500   Conduct Prejudicial to the Administration of Justice

Primary Pennsylvania References: PA Rule 8.4(d)
Background References: ABA Model Rule 8.4(d), Other Jurisdictions
Commentary: ABA/BNA 101:501, ALI-LGL 2, Wolfram 3.3.2

PA-R 8.4(d) was considered in the following federal and Pennsylvania cases: United States v. Starusko (3rd Cir. 1984) (a prosecutor who intentionally fails to make disclosure to defense of existence of evidence which tends to negate guilt of the accused may be sanctioned under Rule 8.4(d)); Georgine v. Amchem Products, Inc. (E.D. Pa. 1995) (letters and advertisements disseminated by counsel for clients opposed to class settlement of asbestos-related litigation were misleading to the extent they failed to disclose that the office had strong pecuniary interest in disseminating/publishing the communications, and may have violated Rule 8.4(d)); In re Costigan (1995) (lawyer's lack of basic understanding of ethical obligation under Rule 8.4(d) disqualified him from readmission to the bar); Commonwealth v. Chambers (1996) (prosecutor's public criticism of judicial decision is not inherently prejudicial to adjudicative proceedings), cert. denied (U.S. 1997); Office of Disciplinary Counsel v. Anonymous Attorney A. (1991) (Judicial Inquiry Review Board had exclusive jurisdiction to discipline judicial officers for violations of Rule 8.4(d), so as to preclude action by office of disciplinary counsel against the same individuals who were also attorneys registered to practice law in Pennsylvania, where conduct in question arose while attorneys were judicial officers and type of misconduct was intrinsically tied to position of attorneys as judicial officers).

PA-R 8.4(d) was considered in the following bar association opinions: Pa. Eth. Op. 96-30 (1996) (lawyer who prepared will and learns prior to decedent's death that decedent executed new and materially different will may remain silent if he believes circumstances of new will are benign; if circumstances are suspicious, lawyer should advise beneficiaries); Pa. Eth. Op. 95-155A (1995) (lawyer may decline to represent potential client without revealing that the lawyer's firm has been retained by the adverse party); Pa. Eth. Op. 96-13 (1996) (lawyer who prepared will for decedent required to disclose co-beneficiary's misconduct to other beneficiaries); Phila. Eth. Op. 95-15 (1995) (counselling a client against compliance with a reporting requirement imposed by applicable law might constitute a violation of Rule 8.4(d)); Pa. Eth. Op. 94-69 (1994) (lawyer who drafted a will and a pre-nuptial agreement for a woman who subsequently died must disclose the fact that husband, who is executor of the will, intends to take against the will even though the former client left nothing to him in the will; lawyer should make disclosures in following order: first to executor, then if necessary, to beneficiaries, next to the attorney general and last to the court); Pa. Eth. Op. 92-18 (1992) (lawyer representing estate who discovers that executor, who is also a beneficiary, committed fraud to obtain estate assets is required to demand executor's withdrawal; if executor refuses, lawyer should disclose facts to court and may also terminate representation); Phila. Eth. Op. 91-33 (undated) (attorney required to recuse himself from participation as member of Tax Review Board in any hearing in which member of his firm appears as counsel); Phila. Eth. Op. 91-28 (1991) (attorney's knowing participation with a psychologist in the violation of the psychologist's code of ethics could violate Rule 8.4(d)); Phila. Eth. Op. 91-23 (undated) (attorney representing client in both civil and criminal matters may be required by Rule 8.4(d) to withdraw as counsel in the civil matter where client is a fugitive); Phila. Eth. Op. 87-20 (undated) (Rule 8.4(d) would be violated where attorney serves as member of Workers' Compensation Appeal Board while his law firm continues to practice before the Board).

8.4:600   Implying Ability to Influence Public Officials

Primary Pennsylvania References: PA Rule 8.4(e)
Background References: ABA Model Rule 8.4(e), Other Jurisdictions
Commentary: ABA/BNA 101:701, ALI-LGL 173, Wolfram

PA-R 8.4(e) was considered in the following bar association opinions: Phila. Eth. Op. 91-33 (undated) (attorney required to recuse himself from participation as member of Tax Review Board in any hearing in which member of his firm appears as counsel); Phila. Eth. Op. 87-28 (1987) (attorney's billboard advertisement that implied that prospective clients would be guaranteed a favorable result violates Rule 8.4(e)); Phila. Eth. Op. 87-20 (undated) (Rule 8.4(e) would be violated where attorney serves as member of Workers' Compensation Appeal Board while his law firm continues to practice before the Board).

8.4:700   Assisting Judge or Official in Violation of Duty

Primary Pennsylvania References: PA Rule 8.4(f)
Background References: ABA Model Rule 8.4(f), Other Jurisdictions
Commentary: ABA/BNA , ALI-LGL 173, Wolfram

PA-R 8.4(f) was considered by the Pennsylvania Supreme Court in Office of Disciplinary Counsel v. Anonymous Attorney A. (1991) (Judicial Inquiry Review Board had exclusive jurisdiction to discipline judicial officers for violations of Rule 8.4(f) so as to preclude action by Office of Disciplinary Counsel against the same individuals who were also attorneys registered to practice law in Pennsylvania, where conduct in question arose while attorneys were judicial officers and type of misconduct was intrinsically tied to position of attorneys as judicial officers).

PA-R 8.4(f) was considered in the following bar association opinions: Phila. Eth. Op. 91-33 (undated) (attorney required to recuse himself from participation as member of Tax Review Board in any hearing in which member of his firm appears as counsel); Phila. Eth. Op. 88-1 (1988) (no violation of Rule 8.4(f) where organization of trial attorneys entertains judges at an annual outing).

8.4:800   Discrimination in the Practice of Law

Primary Pennsylvania References: PA Rule 8.4
Background References: Other Jurisdictions
Commentary: ABA/BNA 91:301

8.4:900   Threatening Prosecution

Primary Pennsylvania References: PA Rule 8.4
Background References: Other Jurisdictions
Commentary: ABA/BNA 1:801, 61:601

Using threats of criminal prosecution in a civil matter is generally permitted in Pennsylvania as long as three conditions are met: (1) the lawyer must make a good faith effort to determine that the criminal remedies apply to the party's conduct, (2) the lawyer must ensure that the client intends to pursue these remedies, and (3) the lawyer must not imply or suggest that the lawyer or the client, rather than the district attorney controls the issuance of criminal complaints. Pa. Eth. Op. 91-55 (undated) (mentioning first requirement); Phila. Eth. Op. 89-17 (1989). However, one ethics opinion in Pennsylvania has taken the opposite stance, stating that letters from lawyers that threaten criminal prosecution are "inappropriate and that the tenor of the Rules prohibit them" because the "issuance of a private criminal complaint is not in the exclusive control of private counsel." However, a letter stating that the client might seek legal redress or institute a legal proceeding against the debtor would be permitted. Phila. Eth. Op. 88-20 (1988); see also Pa. Eth. Op. 89-120 (undated) (prosecutors may not make threatening statements to witnesses).

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary:

8.5:101      Model Rule Comparison

PA-R 8.5(a) is identical to MR 8.5(a). PA-R 8.5(b) is almost the same as MR 8.5(b); the only difference is the addition of the phrase "or agency" three times after the word "court" in PA-R 8.5(b)(1).

8.5:102      Model Code Comparison

There is no counterpart to PA-R 8.5 in the Model Code.

8.5:200   Disciplinary Authority

Primary Pennsylvania References: PA Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA 101:2001, ALI-LGL 5, Wolfram 3.2

PA-R 8.5(a) has been considered in the following bar association opinions: Phila. Eth. Op. 96-13 (undated) (attorney is subject to disciplinary authority of Commonwealth of Pennsylvania for any breaches of ethical obligations under rules promulgated by federal Immigration and Naturalization Service); Phila. Eth. Op. 96-12 (1996) (attorney is subject to disciplinary authority of Commonwealth of Pennsylvania for any breaches of ethical obligations under rules of United States Patent and Trademark Office); Pa. Eth. Op. 90-2 (1990) (attorney licensed in foreign jurisdiction who travels to Pennsylvania to negotiate on behalf of a foreign client remains subject to the disciplinary authority of the jurisdiction in which he is licensed to practice).

8.5:300   Choice of Law

Primary Pennsylvania References: PA Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA 101:2101, ALI-LGL 2, Wolfram 2.6.1

PA-R 8.5(b) was considered in the following federal cases: White Consolidated Industries, Inc. v. Island Kitchens Inc. (E.D. Pa. 1995) (application of Pennsylvania choice of law rules led to determination that motion to withdraw as counsel be evaluated under New York Code of Professional Responsibility rather than PA-Rs); Yardis Corporation v. Levine (E.D. Pa. Jan. 11, 1991) (motion to disqualify counsel evaluated under New York Code of Professional Responsibility since counsel was licensed to practice in New York, not in Pennsylvania).