Archive for November, 2011

Happy Thanksgiving from the Superior Court

Wednesday, November 23rd, 2011

Last year, the Superior Court sent a shiver through the bar with its opinion in Barrick v. Holy Spirit Hospital.  The controversial decision ruled a counsel had to produce correspondence, both letters and e-mail, with a treating physician who had been identified as an expert witness in a medical malpractice case.  On Nov. 19, the  Pennsylvania Superior Court granted a petition for en banc re-argument and withdrew the original opinion.  The en banc opinion has just been published, reversing the prior opinion.  The court engages in an in-depth discussion of the rules regarding discovery of expert opinion and comes to the conclusion that:

[I]nterrogatories under Pa.R.C.P. 4003.5(a)(1) may only require an opposing party’s expert witness to “state the substance of the facts and opinions to  which the expert is expected to testify and [to] summar[ize] [] the grounds for each opinion.”  Any discovery request for information beyond the boundaries of this clear, explicit, and succinct statement is impermissible under Pa.R.C.P. 4003.5(a)(1).  Thus, a discovery request for the content of any correspondence between an opposing party’s attorney and the expert witness retained by that party falls outside the express language of Pa.R.C.P. 4003.5(a)(1).

The Superior Court agrees with Appellants that “forcing the disclosure of any communications between counsel and an expert witness violates the work product privilege contained in [Pa.R.C.P.] 4003.3.”

Apparently the spirit of Thanksgiving is alive and well in the Superior Court.

-Josh J.T. Byrne, Esquire

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Roosevelt Hairston Sentenced

Monday, November 21st, 2011

We have been following the saga of former Children’s Hospital of Pennsylvania attorney Roosevelt Hairston with interest.  We have written previously about the obvious ethical violations implicated in this case.  Mr. Hairston pled  guilty to embezzling $1.7 million from Children’s Hospital of Philadelphia, mail fraud, money laundering, and filing a false tax return to try to hide the theft.  Between 1999 and February 14, 2011, Mr. Hairston used dozens of false invoices he created for shell companies to steal from CHOP.  Last week, Mr. Hairston was sentenced to 48 months imprisonment, he was ordered to pay restitution of $1.7 million dollars to CHOP, and another $1 million owed in Federal taxes.  Mr. Hairston has been suspended from the practice of law.

-Josh J.T. Byrne, Esquire

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Pennsylvania Professional Liability- Key Case

Friday, November 18th, 2011

An important initial question in legal malpractice cases is necessarily whether the attorney actually represented the client for the matter in which the attorney was allegedly negligent.  Privity between the parties is necessary to maintain an action against a professional.  A lawyer owes allegiance only to his client so there is no duty or obligation for a lawyer to act for the benefit of anyone except his client.  Smith v. Griffiths, ___Pa.Super.___, 476 A.2d 22, 26 (1984).  Although whether privity existed is often a clear cut question, there can be some very murky waters.

One of the most helpful cases in navigating those waters is Atkinson v. Haug, 424 Pa. Super. 406, 622 A.2d 983 (Pa. Super. 1993).  The court in Atkinson affirmed the concept that a plaintiff cannot unilaterally impose an attorney-client relationship on a lawyer.  An attorney-client relationship exists only if 1) the purported client sought advice or assistance from the attorney; 2) the advice sought was within the attorney’s professional competence; 3) the attorney expressly or impliedly agreed to render such assistance; and 4) it is reasonable for the putative client to believe the attorney was representing him. The court also set forth a list of factors that can be used to determine if an implied attorney-client relationship exists.  According to the Atkinson court one may consider whether there was a fee agreement, retainer, discussion about the legal ramifications of the deal, a request for legal services by the plaintiff, or legal services offered by the lawyer.  Id.

Going into a professional liability case against an attorney, the first question to answer is did the attorney owe a duty to the putative client.  Atkinson is very useful in answering that question.

-Josh J.T. Byrne, Esquire

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The e-mail scam for lawyers

Wednesday, November 9th, 2011

We have written before about the interesting ways e-mail scammers have been targeting lawyers.  In my e-mail bin this morning was the following scam e-mail from an Australian IP address:

I am in need of your service with regards to enforcement/collection of divorce settlement or possible litigation with my ex spouse. Kindly advise.  -Brianna Shunshi

This is a classic example of the type of scam that was used by Emmanuel Ekhator to fleece lawyers to the tune of $31 million.  It is important to be aware of the existence of these scams.  The difficulty with this scam is that the checks written by the scammers to your firm will clear before the fraud is detected.  Even prudent (ethical) attorneys who wait for the checks to clear can be caught up in these scams.  Be careful of the cases you take, and be particularly careful of clients who send you more money than you ask for.  As we all know, clients do not generally send more money than is requested, and it is a serious red flag pointing towards a possible scam.

-Josh J.T. Byrne, Esquire

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Interesting Effects of a Controversial Law

Wednesday, November 2nd, 2011

While not relevant to most attorneys in Pennsylvania and New Jersey, the recent controversial immigration law in Alabama raises a very interesting question regarding the intersection of attorney ethics and legal responsibility.  It is not clear whether it is an unintended consequence, but Sections 5 and 6 of the law make it a crime for an “officer of the court” to adopt a practice “that limits or restricts the enforcement of federal immigration laws by limiting communication” with immigration officials.  This wording has led attorneys to question whether they can be subject to criminal or civil action for protecting client confidences regarding immigration status.  The law authorizes any U.S. citizen to file a civil claim against an officer of the court who violates the section, and creates a penalty of between $1,000 and $5,000 for each day of violation.

The U.S. Department of Justice has warned Alabama about its implementation of the law, and several key provisions of the law have already been blocked.  However, most of the law has been upheld by the courts so far.  Until the law is overturned, Alabama lawyers are in the uncomfortable position of weighing their ethical obligations to their clients against the potential for criminal or civil action against them.

-Josh J.T. Byrne, Esquire (HT to BCB)

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Treating Everything Put on the Internet as if It Could be Blown Up as an Exhibit

Tuesday, November 1st, 2011

In Zimmerman v. Weis Markets,  Judge Saylor of the Northumberland County Court of Common Pleas ordered plaintiff to reveal passwords to his MySpace and Facebook accounts.  Plaintiff sought compensation for injuries he sustained while operating a fork-lift at the Weis Markets’ warehouse.  Counsel for the defendant had viewed the public portion of his Facebook page where he was shown wearing shorts after having sustained his injuries.  Plaintiff had testified he never wore shorts because he was embarrassed by the scar from the surgery he had.  Citing McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Jefferson Co. Com.Pl. 2010), Judge Saylor ordered plaintiff reveal his passwords, stating “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.”

This decision is, of course, important for lawyers in pursuing and defending personal injury actions.  However, it could also have implications in legal malpractice actions.  There is nothing that would prevent a plaintiff in a legal malpractice action from using this opinion to gain access to an attorney’s Facebook page or other social media website.  Most lawyers are cognizant enough to avoid posting any sensitive information where it might be publicly available, but when it is password protected they often feel a certain impunity.  Remember, the nasty things you have to say about other counsel, opposing parties, and/or judges will be subject to discovery if a legal malpractice or wrongful use of civil proceedings action arises out of your case.  The appropriate use of social media sites is an important question for every professional, not just lawyers.  The best practice is to not reduce anything to writing that you would not mind seeing blown up as evidence in a trial against you.

-Josh J.T. Byrne, Esquire

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