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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.
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Pennsylvania Legal Ethics
3.1:100 Comparative Analysis of Pennsylvania Rule
DR 7-102(A)(1) provides that a lawyer may not "File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." Rule 3.1 is to the same general effect, with three qualifications. First, the test of improper conduct is changed from "merely to harass or injure another" to the requirement that there be a basis for the litigation measure involved that is "not frivolous". This includes the concept stated in DR 7-102(A)(2) that a lawyer may advance a claim or defense unwarranted by existing law if "it can be supported by a good faith argument for the extension, modification or reversal of existing law." Second, the test in Rule 3.1 is the objective test, whereas DR 7-102 applies only if the lawyer "knows or when it is obvious" that the litigation is frivolous. Third, Rule 3.1 has an exception that in a criminal case or when incarceration might result, the lawyer may put the prosecution to proof even if there is no nonfrivolous basis for defense.
3.1:200 Non-Meritorious Assertions in Litigation
Courts in Pennsylvania have invoked rules such as 3.1 to decry attorneys who raise legal or factual arguments which tend to delay the court or confuse the issues at trial. "Vexatious conduct" can include the repeated assertion of defenses which have been previously adjudicated and rejected. Simmons v. City of Philadelphia (Commw. Ct. 1984). Similarly, an appeal is "frivolous" if it presents no justiciable question of law or fact and is readily recognized as devoid of merit in that there is little prospect of success. Department of Transportation v. Emery (Commw. Ct. 1990). However, if an appeal raises an issue of first impression, it cannot be considered frivolous. Department of Transp. v. Moran (Commw. Ct. 1993). Additionally, it does not constitute "frivolous" conduct to attempt to persuade the Superior Court to adopt a position opposite to that of the Commonwealth Court. Johnson v. Singleton (Pa. Super. Ct. 1995). See also 3.2:200 et. seq.
3.1:300 Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)
3.1:500 Complying with Law and Tribunal Rulings
3.2:100 Comparative Analysis of Pennsylvania Rule
DR 7-102(A)(1) provides that "a lawyer shall not . . . [f]ile a suit, assert a position, conduct a defense [or] delay a trial... when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another."
3.2:200 Dilatory Tactics
The obligation to assist courts in expediting litigation requires attorneys to follow court orders and instructions. Frequent tardiness to court can be grounds for a contempt order. In re James (Pa. Super. Ct. 1984) The duty to expedite litigation is also owed to clients. Deceiving client about progress of case while neglecting to work on case violates an attorney's duty to expedite litigation. Office of Disciplinary Counsel v. Holston (1993). See also 3.1:200.
3.2:300 Judicial Sanctions for Dilatory Tactics
Refusal to communicate with opposing counsel concerning discovery process, for example, by repeatedly failing to respond to phone calls and letters could warrant sanctions. Mahon v. City of Bethlehem (E.D. Pa. 1995). See also 3.1:200.
3.3:100 Comparative Analysis of Pennsylvania Rule
Paragraph (a)(1) is substantially identical to DR 7-102(A)(5), which provided that a lawyer shall not "[k]nowingly make a false statement of law or fact." Paragraph (a)(2) is implicit in DR 7-102(A)(3), which provided that "a lawyer shall not ... knowingly fail to disclose that which he is required by law to reveal." Paragraph (a)(3) is substantially identical to DR 7-106(B)(1). With regard to paragraph (a)(4), the first sentence of this subparagraph is similar to DR 7-102(A)(4), which provided that a lawyer shall not "knowingly use" perjured testimony or false evidence. The second sentence of paragraph (a)(4) resolves an ambiguity in the Model Code concerning the action required of a lawyer who discovers that the lawyer has offered perjured testimony or false evidence. DR 7-102(A)(4), quoted above, did not expressly deal with this situation, but the prohibition against "use" of false evidence can be construed to preclude carrying through with a case based on such evidence when that fact has become known during the trial. DR 7-102(B)(1), also noted in connection with Rule 1.6, provided that a lawyer "who receives information clearly establishing that ... [h]is client has ... perpetrated a fraud upon ... a tribunal shall [if the client does not rectify the situation] ... reveal the fraud to the ... tribunal...." Since use of perjured testimony or false evidence is usually regarded as "fraud" upon the court, DR 7-102(B)(1) apparently required disclosure by the lawyer in such circumstances. Paragraph (c) confers discretion on the lawyer to refuse to offer evidence that the lawyer "reasonably believes" is false. This gives the lawyer more latitude than DR 7-102(A)(4), which prohibited the lawyer from offering evidence the lawyer "knows" is false. There was no counterpart in the Model Code to paragraph (d).
3.3:200 False Statements to a Tribunal
The proscription against "false statements" of material fact or law to a "tribunal" embraces a wide range of conduct toward a variety of legal institutions which aims to frustrate the course of justice. Failure to uphold the obligation of candor can result in the most serious punishment. See, e.g., Office of Disciplinary Counsel v. Holston (Pa. 1993) (attorney disbarred for forging court order and later lying during inquiry); Office of Disciplinary Counsel v. Grigsby (1981)(filing false sworn documents warrants attorney being disbarred]. Although the extent of the term "tribunal" has not been defined by a Pennsylvania Court, notably, under the parallel provisions of the Disciplinary code, perjury before a grand jury or a investigating judge in a Special Judicial Investigation were grounds for disbarment. Office of Disciplinary Counsel v. Tumini (1982)(attorney disbarred for, among other offenses, lying to a grand jury).
3.3:300 Disclosure to Avoid Assisting Client Crime or Fraud
3.3:310 Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]
[The discussion of this topic has not yet been written.]
3.3:400 Disclosing Adverse Legal Authority
An attorney has a broad responsibility to inform the court of the legal authority that is relevant to her case. For example, an attorney whose argument on behalf of a particular defendant has been rejected by other courts has an obligation to bring those decisions to a court's attention. Gill v. Mid-Penn Consumer Discount Co. (E.D. Pa. 1987), aff'd without op., (3d Cir. Pa. 1988). Counsel have a continuing duty to inform the Court of Appeals of any legal development which may conceivably affect the outcome of the litigation, even when the recently announced law may be unfavorable. In re Universal Minerals, Inc. (3d Cir 1985). Seidman v. American Express Co. (E.D.Pa 1981) (court commending attorney for producing case which "severely undercut" position) Submitting cases which are clearly overruled (as revealed by "Shepardizing") may also warrant an appellate court deeming an appeal "frivolous" and worthy of imposing attorney fees and costs. Robinson v. City of Philadelphia (Commw. Ct. 1995) It is also "in the best spirit" of the Rules to clearly label a plurality decision, as such, either by proper citation or by informing appellate court of its non-binding status. Johnson v. Harris (Super. Ct. 1992).
3.3:500 Offering False Evidence
Pennsylvania explicitly requires a lawyer to reveal information necessary to comply with the duty of candor toward the tribunal. Pennsylvania also requires disclosure to prevent a client from committing a criminal or fraudulent act that is likely to result in the injury to the financial interests or property of others, or to prevent or rectify the consequences of a clients criminal or fraudulent act in the commission of which the lawyers services are being used. For example, where an attorney representing a guardian discovers the guardian has filed a fraudulent account with the Orphan's Court, the attorney has a duty to see that the account is corrected. Phila. Eth. Op. 95-11 (1995). Additionally, if an attorney discovers that a former client is making claims based on false facts, and has retained new counsel, the original attorney has an obligation to put the successor attorney on notice of the deception. Phila. Eth. Op. 89-15 (1989).
Defense counsel in a criminal case is not under the same obligation to disclose information unfavorable to his client as the prosecution. However, a defense attorney may not argue known perjury to the factfinder as credible, nor may she deliberately distort evidence not legitimately raised under the facts of the case. See generally. Commonwealth v. Alderman (Super. Ct. 1981); Commonwealth v. Bolden (1987). An attorney must have a firm factual basis for believing the client will perjure himself before informing the court of the belief. United States ex rel. Wilcox v. Johnson (3d Cir. 1977). If a attorney in a criminal trial is informed by his client that the client intends to perjure himself, a court can direct a defendant to testify using a "narrative" approach rather than permitting a mistrial or allowing counsel to withdraw. Commonwealth v. Mascitti (Super. Ct. 1987). Physical evidence of a crime in the possession of a criminal defense attorney is not subject to attorney client privilege and a court can direct an attorney to turn it in. Commonwealth v. Stenhach, (Super Ct. 1986) Moreover, such an attorney turning in evidence can be called to testify to establish the chain of custody. Commonwealth v. Ferri (Pa. Super Ct. 1991) An attorney also has the obligation to prevent the client from committing criminal acts. Commensurate with this duty, a criminal lawyer may be compelled by a court and is required by the rules to disclose the whereabouts of a fugitive client. See Commonwealth v. Maguigan (1986); Phila. Eth. Op. 91-23 (1991).
It is improper to pay a witness a fee which is contingent upon the content of her testimony or the outcome of the case. Belfonte v. Miller (Super Ct. 1968).
Requesting or advising a client to testify falsely warrants disbarment. In re Oxman (1981).
3.3:600 Remedial Measures Necessary to Correct False Evidence
• Primary Pennsylvania References:
PA Rule 3.3
• Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
• Commentary: ABA/BNA § 61:401 et seq., ALI-LGL § 117A-B, Wolfram §§ 12.5, 12.6, 13.3.6
[The discussion of this topic has not yet been written.]
3.3:700 Discretion to Withhold Evidence Believed to Be False
Counsel in a criminal case will never be deemed ineffective for failing to raise a meritless claim. Commonwealth v. DeHart (1994). However, civil and criminal courts generally highlight an attorney's obligation to vigorously assert a client's case. An attorney is a "hired gun", who is not required to "believe" in the client's case nor vouch for the evidence he submits. He must merely refrain from submitting evidence he knows is false. Norris v. Lee (E.D. Pa. 1994).
3.3:800 Duty of Disclosure in Ex Parte Proceedings
An attorney's duty of disclosure in an ex-parte hearing includes a duty to bring to the court's attention possible conflicts of interests among or between the parties involved. Eagan by Keith v. Jackson (E.D. Pa. 1994)(attorney for incompetent's estate breached duty of candor to court from which attorney's fees and settlement were sought when he failed to mention guardian's agreement to accept portion of fees).
3.4:100 Comparative Analysis of Pennsylvania Rule
MR 3.4(a) states that a lawyer shall not "counsel or assist" another person to "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document having potential evidentiary value." In contrast, PA-R 3.4(a) states that a lawyer shall not "assist" another person to do any such act. It does not refer to "counsel." MR 3.4(b) states that a lawyer shall not "offer an inducement to a witness that is prohibited by law." PA-R 3.4(b) is much more specific about what an attorney can offer a witness. Under PA-R 3.4(b), an attorney shall not "pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness' testimony or the outcome of the case." A lawyer, however, may pay: "(1) expenses reasonably incurred by a witness in attending or testifying, (2) reasonable compensation to a witness for the witness' loss of time in attending or testifying, and (3) a reasonable fee for the professional services of an expert witness." Neither MR 3.4(c) nor MR 3.4(d) appears in the Pennsylvania Rule. MR 3.4(c) states that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal." MR 3.4(d) states that a lawyer shall not "make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by any opposing party." MR 3.4(e) states that a lawyer at trial shall not "allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence," or "assert personal knowledge of facts in issue except when testifying." The Pennsylvania Rule does not contain a similar provision. MR 3.4(e) provides that a lawyer at trial shall not "state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused." This language appears in PA-R 3.4(c), which applies whenever a lawyer appears before a tribunal; the Pennsylvania rule makes clear that a lawyer may argue for "any position or conclusion" based on the "lawyer's analysis of the evidence." Both MR 3.4(f) and PA-R 3.4(d) prohibit a lawyer from asking a person other than a client to refrain from voluntarily giving relevant information unless "the lawyer reasonably believes that the person's interest will not be adversely affected by refraining from giving such information." The Pennsylvania Rule also adds that a lawyer cannot make such a request if such conduct is prohibited by Rule 4.2. Rule 4.2 relates to communications with a party known to be represented by another attorney.
[The discussion of this topic has not yet been written.]
3.4:200 Unlawful Destruction and Concealment of Evidence
PA-R 3.4(a) provides that a lawyer shall not "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value or assist another person to do any such act." The Comments to PA-R 3.4 state that subsection (a) applie s to evidentiary material generally, including computerized information. The Comments additionally provide that subsection (a) was drafted in recognition of the fact that "the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right" that is typically necessary to establish a claim or defense. Under this rule, an attorney may be required to disclose a client's HIV status in a personal injury action if objections to disclosing that information are overruled. Phila. Eth. Op. 95-19 (1995). Also, an attorney cannot enter into a false stipulation that an expert witness was privy to the other side's confidential information as a condition of settlement because that stipulation might prevent other persons from using that expert witness. Phila. Eth. Op. 95-13 (1995). Further, although a lawyer may withdraw fraudulent bills from a package of bills sent to a third-party for payment, the lawyer must retain the fraudulent bills unaltered and make sure that the removal of the fraudulent bills does not make the submission of the remaining bills misleading. Phila. Eth. Op. 93-6 (1993).
No Pennsylvania case or advisory opinion has addressed this topic.
3.4:300 Falsifying Evidence
PA-R 3.4(b) states that a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness' testimony or the outcome of the case; but a lawyer may pay, cause to be paid, guarantee or acquiesce in the payment of: 1) expenses reasonably incurred by a witness in attending or testifying, 2) reasonable compensation to a witness for the witness' loss of time in attending or testifying, and 3) a reasonable fee for the professional services of an expert witness." In Paralegal v. Lawyer (E.D. Pa. 1992), a paralegal alleged that she had been terminated because she had disclosed that her employer, an attorney, had falsified evidence. The district court held that the public policy underlying PA-R 3.4(a) and 3.4(b) was "so obvious as to need no discussion." Thus, the paralegal's termination fell within the public policy exception to the at-will employment doctrine and she could sue the attorney for damages. On falsification of evidence and inducing witnesses to testify falsely, see In re Oxman (Pa. 1981). In Oxman, two lawyers were suspended from the practice of law for falsifying referral sources in filed contingency fee agreements and for counseling and requesting clients and former clients to testify falsely in front of the investigating judge for the Special Judicial Investigation. By falsifying evidence as to how personal injury clients were contacted, the lawyers had obstructed the administration of justice.
The payment of contingency fees to witnesses is directly prohibited by PA-R 3.4(b). Although not expressly prohibited by the rules, a lawyer most likely should not compensate a non-expert witness for preparatory work. Pa. Eth. Op. 95-126. An agreement pursuant to which a plaintiff agreed to pay a third party to authorize a blood bank to release a sample of his blood for $30,000 upon the successful completion of the lawsuit does not violate PA-R 3.4(b). Phila. Eth. Op. 93-23.
[The discussion of this topic has not yet been written.]
3.4:400 Knowing Disobedience to Rules of Tribunal
3.4:500 Fairness in Pretrial Practice
3.4:600 Improper Trial Tactics
MR 3.4(e) corresponds with PA-R 3.4(c), which provides that a lawyer, when appearing before a tribunal, shall not assert his or her own opinion regarding the justness of a cause, a witness' credibility, a civil litigant's culpability, or an accused's guilt or innocence.
3.4:700 Advising Witness Not to Speak to Opposing Parties
MR 3.4(f) corresponds with PA-R 3.4(d), which provides that a lawyer may not request a person not his or her client to refrain from voluntarily giving information to another party unless the person is a relative or agent of the client and the lawyer reasonably believes that the person's interests will not be negatively affected and such conduct is not prohibited by PA-R 4.2, which deals with communications with persons represented by counsel. A prosecutor is barred from instructing a witness not to cooperate with the defense. The inclusion of the language in the Pennsylvania rule regarding communication with a person represented by counsel apparently underscores the Guidance Committee's concern that the Pennsylvania Rules give considerable weight and protection to pre-existing relationships between a witness and the party or party's counsel. Thus, contact with the other party's expert witness may be impermissible or tightly circumscribed depending upon the circumstances. Phila. Eth. Op. 94-22 (1994).
3.5:100 Comparative Analysis of Pennsylvania Rule
Subsections (a) and (b) of Pennsylvania Rules of Professional Conduct 3.5 ("PA-R 3.5") are identical to MR 3.5. Regarding subsection (c), however, PA-R 3.5 differs from its Model Rule counterpart. PA-R 3.5(c) prohibits conduct that is disruptive to a tribunal. MR 3.5(c) prohibits "conduct intended to disrupt a tribunal."
Regarding PA-Rs 3.5 (a) and (b), DR 7-108(A) states that "[b]efore the trial of a case a lawyer . . . shall not communicate with . . . anyone he knows to be a member of the venire. . . ." DR 7-110(A) prohibits giving or lending things of value to a judge, presumably in order to avoid possible undue influence. See also EC 7-34. DR 8-101(A)(2) states that a lawyer who holds public office shall not "[u]se his public position to influence or attempt to influence, a tribunal to act in favor of himself or a client." Additionally, DR 7-108(B) provides that a lawyer is not permitted to communicate with a juror concerning the case. DR 7-110(B) states that a lawyer is not to communicate regarding the merits of the cause with a judge or any official before whom the action is pending, unless the lawyer adequately provides notice to opposing counsel or unless otherwise authorized by law. See also EC 7-35. As to PA-R 3.5(c), DR 7-106(C)(6) provides that an attorney is not to "[e]ngage in undignified or discourteous conduct which is degrading to a tribunal." EC 7-36 provides that "[j]udicial hearings ought to be conducted through dignified and orderly procedures. . ." It also states that a lawyer "should not engage in any conduct that offends the dignity and decorum of proceedings," and a lawyer "should be respectful, courteous, and above-board in his relations with a judge or hearing officer. . ." EC 7-37 provides that "[h]aranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system."
3.5:200 Improperly Influencing a Judge, Juror, or Other Court Official
• Primary Pennsylvania References:
PA Rule 3.5(a)
• Background References: ABA Model Rule 3.5(a), Other Jurisdictions
• Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 173, 175, Wolfram §§ 11.3, 11.4
PA-R 3.5(a) states that a lawyer is not to "seek to influence a judge, juror, prospective juror or other official by means prohibited by law."
In In re Anonymous (D.B. 1982), a lawyer was charged with professional misconduct arising from lending money to an unnamed Pennsylvania Supreme Court Justice. The attorney was a personal friend of the Justice and had no intent or motivation to curry favor with the Justice. The attorney and his wife made a $12,000 loan to the Justice by withdrawing funds from their joint passbook savings account. The Hearing Committee ruled that only an informal admonition was appropriate. DR 7-110(A) supported this result because the code provision was not meant to prohibit gifts or loans between friends simply because the persons happen to be members of the legal profession. Had the attorney made the loan with the intent or thought to procure any professional advantage, the Hearing Committee would have taken additional action. Further, in making its determination, the Hearing Committee stated that it had considered the lawyer's long period of legal practice and service to his community as Chairman of the Rules Committee of the County Bar Association. PA-R 3.5 does not prohibit a segment of the Bar from entertaining judges at its annual outing. Phila. Eth. Op. 88-1.
In Pennsylvania, this topic has arisen in the context of post-trial communications with jurors. A lawyer may be permitted to distribute a questionnaire to jurors after the verdict in a civil trial to ascertain the jurors' background, views on political issues, and reactions to evidence and witnesses. Phila. Eth. Op. 91-27 (1991). However, the questionnaire must not violate local court rules and customs regarding prior trial judge approval. Most importantly, a lawyer must not harass or embarrass a juror, must not attempt to influence a juror's actions in future cases, and the questionnaire must contain language to the effect that the juror is under no obligation to answer any of the questions. See also Guidance Request 87-26 (stating that attorney may write to jurors in just-completed case and ask them to contact attorney to discuss the way case was presented and jurors' verdict so long as attorney does not harass or embarrass jurors).
In Sixberry v. Buster (E.D. Pa. 1980), the district court denied a lawyer's request to contact jurors for the purpose of improving his skills as a trial lawyer. The lawyer had hoped to ascertain from the jurors which aspects of the trial influenced their verdict. The court first noted that federal courts have traditionally disapproved of any type of post-trial inquisition of jurors for fear that jurors will feel harassed by the treatment. Where such interrogation has been permitted, it has been in the context of an investigation to determine whether irregularities exist that would warrant a new trial. The court stated that in the absence of evidence of jury impropriety, it would not permit a lawyer to invade the privacy of the jury deliberation room. Permitting counsel to interrogate a jury following a verdict is unduly oppressive and potentially intimidating to jurors.
3.5:300 Improper Ex Parte Communication
PA-R 3.5(b) provides that a lawyer shall not "communicate ex parte with [a person listed in PA-R 3.5(a)] except as permitted by law." In Pennsylvania, an arbitrator assumes the role and function of a judge or juror. Phila. Eth. Op. 95-8 (1995). As a result, PA-R 3.5(b) prohibits ex parte communications with an arbitrator, even if the arbitrator has been chosen by the party with the expectation that he or she will support that party's view. There is no ethical violation, however, if the ban on ex parte communications is waived by the parties, in writing, orally, or by implicit conduct. The Committee considers an explicit waiver in writing the better choice. Phila. Eth. Op. 95-8 (1995).
In Enos v. DeHart (In Re Metropolitan Metals) (Bankr. M.D. Pa. 1996), a bankruptcy judge had an ex parte communication with an attorney about the bankruptcy judge's testimony as a witness in an unrelated case. The attorney followed up his ex parte communication with a written letter to the court and sent copies to all parties. The bankruptcy judge held that the attorney had not violated PA-R 3.5(b). The communication was "nondescript, de minimis, and had no conceivable effect on the administration of the case."
For a violation of PA-R 3.5(b) to occur, the lawyer must make the ex parte communication or, at the very least, assist or induce another to make the communication. Phila. Eth. Op. 95-14-A (1995). Where a lawyer's client engages in ex parte communication with the court (in this instance by writing a letter to the court to thank it for its decision before the court had written an opinion during a thirty day appeal period) without the lawyer's knowledge or approval, the lawyer had not violated PA-R 3.5(b).
3.5:400 Intentional Disruption of a Tribunal
PA-R 3.5(c) provides that a lawyer is not to "engage in conduct disruptive to a tribunal." Public criticism of judicial decisions...is not inherently prejudicial to adjudicative proceedings and thus does not violate PA-R 3.5(c). Commonwealth v. Chambers (1996), cert denied, (U.S. 1997).
3.6:100 Comparative Analysis of Pennsylvania Rule
PA-R 3.6 is identical to the pre-1994 version of MR 3.6. PA-R 3.6 differs from new MR 3.6 as follows: First, PA-R 3.6 prohibits any lawyer from making improper extrajudicial statements about an investigation or litigation matter. MR 3.6 instead applies only to a lawyer "who is participating or has participated" in the matter or who is "associated in a firm or government agency" with such a person. Second, the Pennsylvania rule omits MR 3.6(c), which creates an exception for statements made to "mitigate" recent adverse publicity "not initiated by the lawyer or the lawyer's client." Third, PA-R 3.6(b) lists six types of statements which are likely to be considered improper under the rule; MR 3.6 contains no such list.
PA-R 3.6 is similar to DR 7-107, except as follows: First, PA-R 3.6 adopts the general criteria of "substantial likelihood of materially prejudicing an adjudicative proceeding" to describe impermissible conduct. Second, PA-R 3.6 transforms the particulars in DR 7-107 into an illustrative compilation that gives fair notice of conduct ordinarily posing unacceptable dangers to the fair administration of justice. Finally, PA-R 3.6 omits DR 7-107(C)(7), which provides that a lawyer may reveal "At the time of seizure, a description of the physical evidence seized, other than a confession, admission, or statement." Such revelations may be substantially prejudicial and are frequently the subject of pretrial suppression motions, which, if successful, may be circumvented by prior disclosure to the press. See also EC 7-33 (goal of legal system that each party shall have case adjudicated by an impartial tribunal is "defeated by dissemination of news or comments which tend to influence judge or jury").
3.6:200 Improper Extrajudicial Statements
Question and answer format.
A prosecutor may not be interviewed in a question and answer format by the media because matters would almost certainly be addressed which would be beyond the permissible areas outlined in the rules and the prosecutor's refusal to answer such questions would appear as if he or she were withholding information and thus would have a substantial likelihood of materially prejudicing the proceeding. Pa. Eth. Op. 92-70 (1992); see also PA-R 3.8.
The Pennsylvania trial publicity rules are not limited to pre-trial publicity. The trial publicity rules include and comprehend all post-trial sentencing procedures. Commonwealth v. Brooks (Phila 1978).
A prosecutor's statements to the press as "background information" was not inadvertent and therefore constituted misconduct under DR 7-107. Commonwealth v. Anderson (Super. Ct. 1981).
Constitutionality of Pennsylvania DR 7-107(H).
The Pennsylvania Commonwealth Court has held that Pennsylvania DR 7-107(H) concerning statements made during the pendency of an administrative hearing is not unconstitutionally overbroad or vague. Widoff v. Disciplinary Bd. (Commw. Ct. 1980).
First Amendment rights of attorney.
A threat of disciplinary action under DR 7-107(H) to an attorney for making "future public statements that would be `reasonably likely to interfere with a fair hearing'" does not violate the attorney's First Amendment rights. Widoff v. Disciplinary Bd. (Commw. Ct. 1980).
Preclusion of a fair trial.
Where pre-trial statements are not factual or objective, and are emotionally charged, inflammatory, or clearly point to a defendant's guilt, Pennsylvania courts will find that such publicity precludes a fair trial. See Commonwealth v. Pierce (1973); Commonwealth v. Frazier (1977); Commonwealth v. Sutton (1979). Defendant was not denied a fair trial based on an isolated pre-trial remark that was not emotionally-charged or inflammatory and post-trial comments contributed little, if any, to the sentencing judge's knowledge thereof. Commonwealth v. Scarpino (1981). Public disclosure of target of criminal investigation violates DR 7-107. In Re Grand Jury Proceedings (3d Cir. 1980).
3.6:300 Permissible Statements
Preparation of client for television interview.
A lawyer may assist his or her client in preparing for a television interview concerning matters pertinent to a pending lawsuit, but the preparation must be strictly limited to those areas about which the lawyer himself would be permitted to comment. Pa. Eth. Op. 94-27; see also PA-R 8.4.
3.6:400 Responding to Adverse Publicity
No Pennsylvania rule or decision addresses this issue.
3.7:100 Comparative Analysis of Pennsylvania Rule
PA-R 3.7 is similar to DR 5-101(B) and DR 5-102 except as follows: First, DR 5-101(B) and DR 5-102 prohibit a lawyer from serving as an advocate if the lawyer "knows or it is obvious that he or a lawyer in his firm ought to be called as a witness," whereas PA-R 3.7(a) uses the criterion of "likely to be a necessary witness." Second, unlike DR 5-101(B)(2), PA-R 3.7 contains no exception for testimony which "will relate solely to a matter of formality." Third, DR 5-101(B)(4) limits the "substantial hardship" exception to instances in which the hardship is "because of the distinctive value of the lawyer or his firm as counsel in the particular case"; PA-R 3.7(a)(3) contains no such limitation. Fourth, PA-R 3.7(b) permits a lawyer to act as "advocate at a trial" in which another lawyer in her firm is likely to be a witness unless there is a conflict of interest under PA-R 1.7 or 1.9. In contrast, DR 5-102 distinguishes between instances in which the witness is or is not called on behalf of the client. In the former situation, DR 5-102(A) requires that the lawyer "withdraw from the conduct of the trial" unless an exception enumerated in DR 5-101(B)(1) through (4) applies. In the latter, DR 5-102(B) permits the lawyer to "continue the representation until it is apparent that [the] testimony is or may be prejudicial to the client." For an explanation of the purpose of the Rule, see EC 5-9 and EC 5-10.
3.7:200 Prohibition of Advocate as Witness
Limitation of the rule to trials.
A lawyer may serve as both witness and counsel in pre-trial hearings. Schwartz v. Industrial Valley Title Insurance Co. (E.D. Pa. 1997); Lebovic v. Nigro (E.D. Pa. 1997); Fuller v. United States, IRS (In Re Fuller) (Bankr. W.D. Pa. 1997); Phila. Eth. Op. 88-35 (1988); Pa. Eth. Op. 93-02 (1993). At least one court has stated that a lawyer should withdraw "as soon as it becomes foreseeable" that she may be needed to testify in the case. See Commonwealth v. Willis (Super. Ct. 1988); Pa. Eth. Op. 92-79 (1992); but see Electronic Lab. Supply Co. v. Motorola, Inc. (E.D. Pa. 1990). PA-R 3.7(a) applies regardless of whether the attorney is called to the witness stand because the jury may view the attorney's argument as unsworn testimony. United States v. Stout (E.D. Pa. 1989).
Representation versus advocacy at trial.
PA-R 3.7(b) precludes a lawyer only from serving as an "advocate at trial" when the lawyer will likely be a necessary witness; it does not prevent a lawyer from representing the client in such a case. See Caplan v. Fellheimer Eichen Braverman & Kaskey (E.D. Pa. 1995); Rounick v. Fireman's Fund Ins. Co. (E.D. Pa. 1996).
Many judges will wait until discovery is completed before assessing whether the lawyer is likely to be a necessary witness. See Caplan; Vanguard S. & L. Ass'n v. Banks (E.D. Pa. 1996); Gillespie v. Chrysler Corp. (E.D. Pa. 1993); Anderson v. Reliance Std. Life Ins. Co. (E.D. Pa. 1988). A necessary witness is one who "has crucial information in his possession which must be divulged." See Rounick v. Fireman's Fund Ins. Co. (E.D. Pa. 1996)(citation omitted); Electronic Lab. Supply Co. v. Motorola, Inc. (E.D. Pa. 1990). In the absence of a showing that no other witness could testify as to the interpretation of a contract, the attorney who drafted the agreement is not a necessary witness. United Food & Commercial Workers Health & Welfare Fund v. Darwin Lynch Admrs., Inc. (M.D. Pa. 1991). One court has stated that the term "necessary witness," as used in PA-R 3.7, parallels DR 5-102(A)'s description of when counsel "ought to be called as a witness on behalf of his client." Anderson v. Reliance Std. Life Ins. Co. (E.D. Pa. 1988).
Lawyer appearing pro se.
PA-R 3.7 is inapplicable to attorneys representing themselves pro se. Wolk v. Cohen (E.D. Pa. 1997); Electronic Lab. Supply Co. v. Motorola, Inc. (E.D. Pa. 1990).
Lawyers are allowed to testify regarding legal fees. Ludmer v. Nernberg (Pa. Super. (1994) cert. denied (1996).
3.7:300 An Affiliated Lawyer as Advocate (Imputed Disqualification)
PA-R 3.7(b) does not bar a law firm from representing a client where an attorney who was formerly associated with the firm may be called as a witness at trial. See Snyder v. Brownlow (E.D. Pa. 1994).
An assistant counsel to a government agency may represent the agency at a hearing once its chief counsel is called to testify and therefore withdraws. Pa. Eth. Op. 94-43 (1994).
A lawyer may testify on behalf of the lawyer's firm's client so long as the client consents after consultation. Pa. Eth. Op. 95-166 (1995). Similarly, a lawyer may handle the trial of a case when a member of his law firm will be called as a witness in the case, provided the other lawyer's testimony does not involve conflicts of interest or disclosure of confidential information. Stolp v. Sollas Corp. (E.D. Pa. 1997); Pa. Eth. Op. 88-240 (1988); see also Pa. Eth. Op. 92-24 (1992). A conflict does not arise when the district attorney testifying at trial is not the same attorney prosecuting the case. United States v. Aponte (E.D. Pa. 1996).
3.8:100 Comparative Analysis of Pennsylvania Rule
Rule 3.8 of the Pennsylvania Rules of Professional Conduct parallels the MR 3.8(a-e). Additionally, Pennsylvania adopted Rule 3.10 regarding the issuance of subpoenas to lawyers seven years before the ABA approved a similar provision as MR 3.8(f). PA-R 3.10 requires a prosecutor to receive prior judicial approval to subpoena a lawyer to provide evidence regarding the lawyer's client or former client. In contrast, the 1995 amendment to the Model Rules does not require prior judicial approval. MR 3.8(f). Rather, it grants the prosecutor discretion to subpoena a lawyer if the prosecutor reasonably believes that the situation he confronts fulfills three criteria outlined in the rule. MR 3.8(f). Rule 3.8 of Pennsylvania's Rules of Professional Conduct, however, does not include a provision similar to MR 3.8(g). MR 3.8(g) provides that the prosecutor shall "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused." MR 3.8(g). Rule 3.6, however, contains similar prohibitions applying to all attorneys, not just prosecutors. See 3.6:200 above.
EC 7-13 emphasized that a prosecutor's role is not merely to convict, but rather his duty is to seek justice. Thus, EC 7-14 recommended that a prosecutor not advance a case that is obviously unfair. Similarly, DR 7-103(A) provided that a "public prosecutor . . . shall not institute . . . criminal charges when he knows or it is obvious that the charges are not supported by probable cause." DR 7-103(B) also provided that "[a] public prosecutor . . . shall make timely disclosure . . . of the existence of evidence, known to the prosecutor . . . that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment." Additionally, unlike the Pennsylvania Rules, DR 7-107(B) restricted the extrajudicial statements of a prosecutor.
3.8:200 The Decision to Charge
Primary PA References
Commonwealth v. Eskridge (Pa. 1992); Pa. Eth. Op. 91-190 (1991); Pa. Eth. Op. 91-81 (1991); Pa. Eth. Op. 91-07 (1991)
Under PA-R 3.8(a), a prosecutor shall refrain from prosecuting a charge that is not supported by probable cause.
Prosecutorial Conflicts of Interest
The Pennsylvania Supreme Court made clear in Commonwealth v. Eskridge that the duties of a prosecutor and the duties of a private attorney differ. Commwealth v. Eskridge (1992). While the prosecutor is a minister of justice, the private attorney is a zealous advocate of his/her client's position. Id. See also EC 7-13. In Eskridge these differing roles created a conflict of interest for a district attorney prosecuting a vehicular homicide. Id. The conflict arose because the district attorney's private law partners represented the victims in a civil suit. Id. If the prosecutor convicted the defendant, his private law partners would almost definitely win in the civil case. The Eskridge court held that the prosecutor would gain financially from a successful criminal prosecution and, therefore, was not impartial. Id. at 702. Thus, the court ruled that the prosecutor's conflict of interest, even if there was no actual prejudice, required that the prosecutor remove himself from the case. Id.
The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility has issued several opinions regarding prosecutorial conflicts of interest. For example, the committee opines that a lawyer in private practice who has been appointed by the attorney general's office to serve as a special prosecutor in a criminal matter may represent criminal defendants in the same county, even when the attorney general is the opposing counsel, provided that the cases are totally unrelated and the lawyer has no access to confidential matters or investigations. Pa. B.A. Comm. on Legal Ethics and Prof. Resp., Op. 91-07 (1991). Other opinions relate to the type of clients a part-time district attorney may represent in civil proceedings. See Pa. B.A. Comm. on Legal Ethics and Prof. Resp., Op. 91-81 (1991) (law firm that employs part-time district attorney may represent juvenile client in initial intake proceeding where district attorney's office does not appear); Pa. B.A. Comm. on Legal Ethics and Prof. Resp., Op. 91-190 (1991) (part-time prosecutor and his private law partners may not represent in civil proceedings clients previously prosecuted absent special approval from the appropriate governmental agency).
3.8:300 Efforts to Assure Accused's Right to Counsel
PA-R 3.8(b) provides that a prosecutor shall make reasonable efforts to assure that the accused was advised of his right to counsel and the procedure for exercising that right. In addition, the prosecutor shall assure that the accused was given reasonable opportunity to obtain counsel. While no Pennsylvania cases address this rule, it is the same as MR 3.8(b).
3.8:400 Seeking Waivers of Rights from Unrepresented Defendants
A prosecutor shall not attempt to obtain a waiver of important pretrial rights, like a preliminary hearing, from an unrepresented accused under PA-R 3.8(c). While no Pennsylvania cases address this rule, it is the same as MR 3.8(c).
3.8:500 Disclosing Evidence Favorable to the Accused
Under PA-R 3.8(d), except when relieved by a protective order from the tribunal, the prosecutor shall make timely disclosure to the defense of all information that tends to negate the guilt of the accused or mitigate the offense.
The Pennsylvania Supreme Court, in dicta, commented on the prosecutor's duty to disclose evidence favorable to the accused. Commwealth v. Bolden (1987). The court noted that "[t]he prosecutor is unquestionably required to disclose information that may be favorable to the defendant where it becomes an issue in the proceedings." Id. at 458.
3.8:600 Monitoring Extrajudicial Statements by Law Enforcement Officials
A prosecutor, under PA-R 3.8(e), shall exercise reasonable care to prevent investigators, law enforcement officials and others associated with the prosecution from making extrajudicial statements that would be prohibited under PA-R 3.6. While no cases in Pennsylvania address this rule, it is the same as MR 3.8(e).
3.8:700 Issuing a Subpoena to a Lawyer
Pennsylvania adopted Rule 3.10 regarding a prosecutor's issuance of a subpoena to a lawyer in 1988. At least one commentator, however, has argued that Rule 3.10 should be abandoned because it is unnecessary. Andrea F. McKenna, A Prosecutor's Reconsideration of Rule 3.10, 53 U. Pitt. L. Rev. 489 (1992). Additionally, the Third Circuit Court of Appeals discussed the harm to the attorney-client relationship that issuing subpoenas to lawyers causes. Baylson v. Disciplinary Bd. (3d Cir. 1992). It recognized that Rule 3.10 was an attempt to balance the government's need for information with the need to protect the attorney-client privilege. Id.
In 1992, the Third Circuit Court of Appeals considered whether The Disciplinary Board of the Supreme Court of Pennsylvania could enforce Pennsylvania Rule 3.10 against federal prosecutors practicing before the federal district courts in Pennsylvania. Baylson v. Disciplinary Bd. (3d Cir. 1992); see also Roger C. Cramton & Lisa K. Udell, State Ethics Rules and Federal Prosecutors: The Controversies Over the Anti-Contact and Subpoena Rules, 53 U. Pitt L. Rev. 291 (1992) (discussing Baylson); Andrea F. McKenna, A Prosecutor's Reconsideration of Rule 3.10, 53 U. Pitt. L. Rev. 489 (same); Nancy J. Moore, Intra-Professional Warfare Between Prosecutors and Defense Attorneys: A Plea For an End to the Current Hostilities, 53 U. Pitt. L. Rev. 515 (1992) (same); F. Dennis Saylor, IV & J. Douglas Wilson, Putting a Square Peg in a Round Hole: The Application of Model Rule 4.2 to Federal Prosecutors, 53 U. Pitt. L. Rev. 459 (1992) (same). In Baylson the plaintiffs, Acting United States Attorneys, sued the Board to prevent enforcement of PA-R 3.10 against them. Id. at 105. The court held that the Rule could not be enforced against federal prosecutors. Id. at 106. First, the court held that PA-R 3.10 was invalid, as applied to federal prosecutors, because its adoption by federal district courts as federal law was outside their local rule making authority. Id. at 106-11. Second, the court ruled that enforcement of the Rule as state law violated the Supremacy Clause of the United States Constitution. Id. at 111-12. Despite this holding, PA-R 3.10 still applies to state prosecutors in Pennsylvania. The Local Rules of all federal courts sitting in Pennsylvania now decline to incorporate Rule 3.10, although they otherwise adopt to Pennsylvania Rules of professional conduct.
3.8:800 Making Extrajudicial Statements
Pennsylvania has no such provision specifically applicable to prosecutors. See, however, Rule 3.6 of the Pennsylvania Rules of Professional Conduct regarding extrajudicial statements. Additionally, the Pennsylvania Bar Association Committee on Legal Rules and Professional Responsibility issued an opinion that advised that a prosecutor may not make statements about a pending criminal case nor could he be interviewed by the media in a question and answer format. Pa. Eth. Op. 92-70 (1992).
3.8:900 Peremptory Strikes of Jurors
3.9:100 Comparative Analysis of Pennsylvania Rule
EC 7-15 stated that a lawyer "appearing before an administrative agency, regardless of the nature of the proceeding it is conducting, has the continuing duty to advance the cause of his client within the bounds of the law." EC 7-16 stated that "[w]hen a lawyer appears in connection with proposed legislation, he . . . should comply with applicable laws and legislative rules." EC 8-5 stated that [f]raudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a . . . legislative body . . . should never be participated in . . . by lawyers". Furthermore, DR 7-106(B)(2) provided that "[i]n presenting a matter to a tribunal, a lawyer shall disclose . . . [u]nless privileged or irrelevant, the identities of the clients he represents and of the persons who employed him."