S P E C I A L E L L C

Update: Orie Melvin convicted—now what?

Ben Speciale — Fri, 22 Feb 2013 18:07:34 +0000

Nine months after being indicted and suspended, Justice Orie Melvin has been found guilty of corruption for misusing state-paid workers to run her 2003 and 2009 Supreme Court campaigns. So what happens now?

Option one: She could voluntarily resign, as leaders of the bar have called for her to do.

Option two: If she does not resign, then she could be removed by court order. Allegheny County Court Judge Lester G. Nahaus will likely order her removed from office. Orie Melvin could appeal such an order.

Option three: The House may also move for impeachment, triggering a trial in the Senate. Some worry that legislative impeachment could potentially embroil Harrisburg in an embarrassing spectacle for months as happened in 1994 when convicted justice Rolf Larsen proceeded to a five-month-long impeachment trial.

Once vacated, her seat will be filled by a nominee of Governor Tom Corbett’s choosing pursuant to Article V § 13 of the Constitution of Pennsylvania. The replacement justice will serve until a replacement is elected in 2015.

Update: Philly bar calls on Orie Melvin to resign

Ben Speciale — Sat, 19 May 2012 14:27:05 +0000

In response to Justice Orie Melvin’s indictment, the chancellor of the Philadelphia Bar Association called for the Justice’s resignation. Chancellor John E. Savoth, the head of the 13,000-member association, issued the following press release:

This is a sad day for the justice system in Pennsylvania. A justice of the highest tribunal in the state has been charged with violating state law. It is imperative that Justice Joan Orie Melvin resign from the state Supreme Court immediately to maintain the integrity of our justice system. The charges against Justice Orie Melvin cast a shadow on the court that compromises the ability for justice to be dispensed fairly. We cannot have a sitting justice who has been indicted.

As mentioned in a previous post, the only other Pennsylvania Supreme Court Justice indicted did not resign and was not removed until he was convicted and impeached. However, Orie Melvin’s resignation would clear the way for the appointment of her replacement – a seventh justice who could break the apparent 3-3 voting deadlock, which is split along party lines. Chancellor Savoth, recognizing that Orie Melvin could run in a special election if she was found not guilty, was quoted by the press as saying, “Let her run as the victorious victim of a political vendetta.”

Justice Joan Orie Melvin removed from high court

Ben Speciale — Fri, 18 May 2012 23:16:31 +0000

Today, the Pennsylvania Supreme Court relieved Justice Joan Orie Melvin of her judicial and administrative duties. She has been charged with illegally using her state-funded staff to perform campaign work. Prosecutors allege that she used her taxpayer-funded office for political purposes when she was a Superior Court judge campaigning for state Supreme Court.

The Boston Globe reported that the alleged scheme also ensnared her sister, state Senator Jane Clare Orie of the 40th district. Senator Orie was recently convicted of similar criminal counts.

Justice Orie Melvin stated that she will vigorously defend herself against the charges. Fox News quoted her as saying: “I am a woman of faith. . . . My faith will see me through this. And I will not resign because of these politically motivated charges.”

Whether the charges are politically motivated or not, her absence from the bench will certainly have significant ramifications for politically charged decisions. For example, the Supreme Court in a 4-3 vote recently rejected legislative reapportionment districts, and the reapportionment commission has yet to vote on new districts. Without Orie Melvin on the bench, the decision would have been a 3-3 tie.

Reportedly, the grand jury stated that Orie Melvin orchestrated political activities by using personal email accounts to conceal the actual email addresses that generated the messages, hiding the fact that political activities were being handled by staffers working for the Commonwealth. She also allegedly used her state-paid telephone to solicit support from Republican committee members around the state, according to the report.

Lisa Sasinoski, a former law clerk, testified that she told the Justice after the election that the illegal campaign activities needed to end. Sasinoski was fired the next day.

The only other time a Pennsylvania Supreme Court Justice has faced charges was in 1993 when Justice Rolf Larsen was charged for using the names of court employees to fraudulently obtain prescription tranquilizers. He was also suspended when the charges were filed, and he was eventually convicted and impeached.

Indictments of top judges, while rare, are not unheard of. In 1992, the high court in New York – The Court of Appeals – was dealt a disorienting blow when the FBI caught Chief Judge Sol Wachtler blackmailing and stalking his crush while he was dressed as a cowboy. He lost his position as New York’s top judge, had to serve an 11-month prison term, and was stabbed while in state custody; however, Wachtler’s license to practice was reinstated and he now teaches at Touro Law School.

Should Orie Melvin be convicted, she might eventually find inspiration in Wachtler’s example. For now, she might just take comfort in the well-warn cliche coined by Wachtler: that prosecutors have so much control over grand juries that they could get them to “indict a ham sandwich.”

ABA opinion erodes “no-contact” rule

Ben Speciale — Sun, 15 Jan 2012 06:07:17 +0000

In August, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 11-461 (Advising Clients Regarding Direct Contacts with Represented Persons). The Opinion’s synopsis states:

Parties to a legal matter have the right to communicate directly with each other. A lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. The lawyer’s assistance need not be prompted by a request from the client. Such assistance may not, however, result in overreaching by the lawyer.

Some commentators are concerned that Opinion 11-461 fails to address the issue of whether it is overreaching for an attorney to script a client’s conversation with an adversary. Others fear that the Opinion contemplates that a client could ask an opposing party to sign a document prepared by the attorney.

As a result of these questions, it is reported that the Committee is taking a second look at the Opinion. To better understand the controversy, it is helpful to review the no-contact rule and the parties’ right to communicate directly.

The No-contact Rule

Generally, ethics rules prohibit attorneys from communicating with an opposing party who is represented by counsel. Under Rule 4.2 of the Model Rules of Professional Conduct, a lawyer representing a client “shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” The purpose of this no-contact rule is to protect clients from overreaching by opposing lawyers who might seek to tease out information that would interfere with an existing client-attorney relationship or harm the client’s case.

Parties’ Right to Communicate Directly

Parties to a matter retain the right to communicate directly with each other, even if they are represented by counsel. Direct communications between the parties are sometime useful to break an impasse in settlement negotiations.

Under the traditional view, attorneys cannot use their client’s right to communicate directly as a means to skirt the no-contact rule by instructing their clients to do their bidding for them. Rule 8.4(a) deems that it is professional misconduct for a lawyer to seek to circumvent prohibitions in the rules through the actions of another person.

While a lawyer may not use a client to engage in prohibited communications with another party, Comment 4 to Rule 4.2 affirms that “parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.”

Formal Opinion 11-461

Opinion 11-416 focuses on where to draw the line between permissibly advising a client concerning a direct communication between clients (Rule 4.2, Comment 4) and impermissibly circumventing the no-contact rule. The Opinion states:

the line must be drawn on the basis of whether the lawyer’s assistance is an attempt to circumvent the basic purpose of Rule 4.2, to prevent a client from making uninformed or otherwise irrational decisions as a result of undue pressure from opposing counsel.

The Opinion highlights specific types of assistance that a lawyer may provide, which include “review, redraft and approve a letter or a set of talking points that the client has drafted and wishes to use in her communications with her represented adversary.” Examples of prohibited assistance to the client that would cross the line include “securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel.”

In such situations, overreaching may be avoided if the attorney advises the client to “encourage the other party to consult with counsel before entering into obligations, making admissions or disclosing confidential information.” A drafted agreement that the client delivers to a represented adversary should include “conspicuous language on the signature page that warns the other party to consult with his lawyer before signing the agreement.”

Criticism

In his article, “Scripting Contracts with Represented Persons,” Martin A. Cole, Director of the Minnesota Office of Lawyers Professional Responsibility, wrote that Opinion 11-416 might lead to conduct that could amount to overreaching, such as when a lawyer drafts a document that the client would present to the opposing party when it is unlikely that the opposing party would ask his or her own attorney to review it. Cole states that, an attorney “may not script any such communication or draft an agreement to be presented to the adverse person, even at the client’s request.” (Emphasis in original).

Another objection to the Opinion is that it replaces the clear line of the no-contact rule with the rule’s more nebulous and subjective underlying purpose. By allowing counsel to use their clients as an “end run” on Rule 4.2, so long as such assistance does not circumvent the basic purpose of the rule, the Opinion effectively supplants the language of rule with the rule’s purpose of preventing overreaching. The drafters of Rule 4.2 could have drafted a rule that prohibited communications that were overreaching, but they did not. Instead, the drafters prohibited all “communication with a person the lawyer knows to be represented by another lawyer.”

One problem with reducing the no-contact rule to its basic purpose is that the very same unscrupulous attorneys that Rule 4.2 was designed to thwart are now charged with the sole responsibility of evaluating whether their assistance will be overreaching. Rule 4.2 drafters might regard Opinion 11-416 as promoting the fox to guard the hen house.

The Committee will revisit the Opinion when they meet in February. Until further guidance is given by the ABA Committee, the New York State Bar Association Committee on Professional Ethics, or the Pennsylvania Bar Association’s Legal Ethics and Professional Responsibility Committee, it might be wise to avoid ghost writing documents and scripting clients’ conversations with adversaries that are represented.

30 under 30: Law and Policy recognizes CLS attorney

Ben Speciale — Thu, 22 Dec 2011 18:30:57 +0000

Those familiar with Philadelphia’s Community Legal Services (CLS) know the organization has provided high-quality legal assistance in civil matters for decades to those in need who could not otherwise afford it. While the program is a point of pride here in Philly and receives recognition nationally, those devoted to the mission of CLS and similar organizations receive far less credit than they deserve.

Some might quibble about Forbes’s methodology for settling on their “30 under-30-year-olds who are making their mark in the world of law and policy,” but Forbes was right to honor Rebecca Vallas, a Staff Attorney and Skadden Fellow at Community Legal Services.

Read the End User License Agreement – Spotify is not free

David Dinaburg — Mon, 12 Dec 2011 16:25:11 +0000

Spotify, the music streaming service, launched in the US this past July. It seemingly works on an ad-supported basis where users who want extra functionality can pay a monthly fee and have access to their “playlists” from multiple devices, including mobile phones.

It addresses the ease of access to music the internet provides while keeping the software files within the iron grasp of digital rights management (DRM).
Seems like a decent compromise: Users get to hear the songs they want, whenever they want, from their computer (or phone if they’re willing to pay for it); Spotify can gather and apply demographic user data and sell adspace; the music industry can license out their songs and generate publicity on a closed platform that ends up working like one giant international “Top 40” station.
Spotify’s privacy policy provides users a channel to request the information Spotify has collected on them– when I contacted an agent, I was told they had my (1) Date of Birth, (2) email address, (3) Country and (4) Gender. This, attached to what songs I have streamed, is probably valuable to them. It does not feel egregiously invasive to me. Personal preferences on data sharing will vary, but I would trade more to get less. In fact, it turns out I may have already agreed to do so.
Spotify is still under its promotional period here in the US.

The Spotify Service can be accessed (i) as an ad-supported free-to-the-user service having no monthly cap on listening hours or a cap on number of plays of a unique track during the first 6 months following creation of your Spotify account but thereafter a cap of 10 listening hours per month and a cap of 5 plays per unique track (the “Free Service”) [emphasis added].

The End User License Agreement (EULA), commonly referred to as the ‘click-through’ license since almost no users read the words and just end up clicking the I Agree button until the EULA goes away, has this surprisingly nonchalant phrase tucked away inside. That unlimited free streaming is temporary and promotional and not a feature supported by ads or data collection is not disclosed in any of the promotional materials before or after signing up for an account; indeed, it can be found only in the EULA.

After six months of “the first taste is free” marketing, the internet is primed to be filled with confused and unhappy music streamers come January 2012. Were you an early adopter that was completely aware of the promotional account period? Has Spotify hooked you, and paying to keep the easy music access to which you’ve grown accustomed seems reasonable? Leave a comment about Spotify’s marketing plan or any Terms of Service tales you wish to tell.

Philly’s five global law firms

Ben Speciale — Wed, 07 Dec 2011 17:20:38 +0000

This past fall, the American Lawyer published its annual Global 100, which lists the 100 largest law firms in the world by several metrics including gross revenue, number of lawyers, profits per partner, and revenue per lawyer.

The big New York law firms perennially dominate the list by any measure. For example, 14 of the top 18 law firms ranked by profits per partner are based in New York. But how do Philadelphia law firms fare on the world stage?

Twelve law firms with a Philly office make the list. Of those, five have a large office (defined as 150 or more lawyers) in the City of Brotherly Love:

Morgan Lewis & Bockius

Dechert

Drinker Biddle & Reath

Duane Morris

Reed Smith

Some might refute the suggestion that Philadelphia represents five percent of the Global 100. Dechert and Morgan Lewis both derive a substantial part of their revenue from their massive New York offices. Reed Smith’s office in Pittsburgh dwarfs its office in Philly. Only Duane Morris and Drinker Biddle can claim they have reached world prominence primarily on the strength of their Philadelphia offices; although, even they have sizable offices in bigger cities like Chicago and New York.

Philadelphia’s position in the legal world, while not as dominant as larger markets, still carries enough weight to attract Global 100 firms. Seven have established small satellite offices in Philly including true global titans like DLA Piper and Hogan Lovells, as well as national heavyweights like Greenberg Traurig and Akin Gump.

For more details, see the chart below. (Click to enlarge)

(Click here for data in a searchable PDF file)

Several Philadelphia law firms that don’t make the cut for the Global 100 are comparable to a firm like Drinker Biddle on the Am Law 100, which lists the top grossing firms in the United States. Those law firms include:

Pepper Hamilton: 459 lawyers; $313,500,000 in revenue

Blank Rome: 481 lawyers; $311,000,000

Cozen O’Connor: 504 lawyers; $277,500,000

While not making the Am Law 100, the 500-lawyer Philadelphia firms of Ballard Spahr and Fox Rothschild report revenue for 2009 of $271 million and $211 million, respectively.