Pages Menu
TwitterRssFacebook
Categories Menu

Posted by on Nov 23, 2017 in Attorney Discipline, Civil, Constitutional Provisions | 0 comments

In re Roca, In re Segal: No, we can’t just ignore the Constitution

The Supreme Court of Pennsylvania is, perhaps, the most powerful state Supreme Court within its own jurisdiction. Given comprehensive power over all attorney discipline matters by the state Constitution, our Supreme Court has struck down validly-passed statutes that transgress this judicial power. Pennsylvania’s Supreme Court also maintains “King’s Bench” authority to step into any case at any time and render a decision on any matter, great or small, within a case. Other jurisdictions limit their high courts by practice or rule.

These cases call on the Pennsylvania Supreme Court to determine whether the Commonwealth’s Constitution limits SCOPA’s power to re-consider the punishments handed down by the Court of Judicial Discipline (CJD), and whether its common law King’s Bench power gives the Court power to intervene where the Constitution says it cannot.

Three judges were caught up in various schemes involving phone calls to one another and receiving phone calls from government officials asking for special favors in various cases, including entering continuances, re-opening cases closed by default, and granting or denying motions. The calls were recorded by the FBI pursuant to criminal investigations and then turned over to the CJD.

One judge resigned amidst the scandal; the remaining judges were removed from the bench and barred from holding future judicial office. Judge Segal’s offenses seem to be much more serious, involving an ongoing and persistent pattern of ex parte phone calls, favors and other judicial misconduct. Judge Roca’s conduct was limited to one instance in which she requested a favor from another judge for a family member. Roca argued that her conduct did not warrant the harsh penalties imposed on her, and that the Court should moderate her punishment in consideration of the punishment imposed for past crimes.

These cases were argued together, but ruled on separately. I will focus on In re Roca because its legal argument is much more interesting, and because the ruling in In re Segal follows a fortiore.

Majority by CJ Saylor: King’s Bench power does not override the Constitution

Pennsylvania’s Chief Justice, speaking for the 4-3 majority, makes the final ruling on this judicial misconduct. The Chief Justice rejects the notion that the Court’s common law King’s Bench power allows it to step into a proceeding for which the Commonwealth’s Constitution strictly limits review. The Court is limited to reviewing the record to ensure the facts found were not erroneous and that the punishment inflicted is not unlawful. It is not the place of the Court to trample the prerogative of the people or override the Constitution.

Relying on the plain language of Article V, § 18(c)(2), the Court declares that its standard of review is limited to overturning a judgment which is clearly contrary to law. The Court may not second-guess the punishment prescribed by the CJD, nor may it replace CJD’s judgment with its own. The Court may not ignore the Constitution in favor of its common law King’s Bench power.

In response to the claim that the CJD exceeded its authority in removing the Judge, the Supreme Court rules, “The CJD has wide discretion to fashion the appropriate penalty once it finds a predicate violation.” The Court opens the door to the idea that a punishment could be so beyond the pale of appropriateness, but does not make clear what that punishment would be.

Finally, the Court rejects Roca’s claim that she should not face such a severe punishment because it is unfair to her. The primary purpose of Judicial Discipline is to maintain the public’s confidence in the judiciary and to repair the public’s perceptions where misbehavior has brought the courts into disrepute. Thus, Roca’s claims of a personal right to more merciful consideration fall against the public concern.

Segal’s situation is far more serious, and Segal’s arguments are not as well developed. The Court’s majority affirmed the convictions of both judges.

Dissent by Donohue

Justice Donohue dissents, appalled at the “breathtakingly narrow definition of our standard of review,” which is “patently violative of the United States Constitution,” argues that the Court should engage a much broader inquiry into the conviction, and consider these appeals like any other. She urges that the Court should ensure the equal administration of justice for every citizen—including disgraced former judges.

Conclusion

The Pennsylvania Constitution made the CJD an independent body capable of exercising its discretion in determining what to do with judges who had violated the public trust. SCOPA’s power to review these decisions is accordingly limited. This is one of the few places where our Supreme Court’s power is limited.

Read More

Posted by on Jun 21, 2017 in Attorney Discipline | 0 comments

ODC v. Quigley: Misuse of IOLTA funds warrants disbarment

Quigley was an attorney with a “generally good reputation as a good trial attorney.” However, Mr. Quigley began to have money problems. Other difficulties arose, including when an ad in the phonebook was printed with the wrong phone number, and business dried up. He misused IOLTA funds from five clients over three years, and the Court rules that he is disbarred.

Majority by Mundy: Misuse of client funds warrants disbarment

Justice Mundy, writing for the majority, concludes, “The misuse of client funds in five separate matters, over three years by Quigley has compromised the integrity of the legal profession to a degree which warrants the sanction of disbarment.”

A psychologist was called to testify that Mr. Quigley should have been diagnosed several years ago with depression and mild post-traumatic stress disorder. However, evidence was adduced that Quigley’s misbehavior regarding the IOLTA account began well before any psychological disturbances arose. Therefore, “Quigley failed to demonstrate a causal connection between his misconduct and a psychiatric disorder sufficient to constitute a lesser disciplinary sanction in this matter.”

Furthermore, other mitigating factors offered by Quigley were rejected by the majority. Yes, Quigley paid back four of his five defrauded clients in full—but only after the instigation of disciplinary proceedings. Yes, he may not have had intent to defraud them—but mistakes in an IOLTA account are strict liability, and the vast disparities in the amounts in the account show he was wildly reckless at the very least in the maintenance of his account.

Dissent by Donohue: Disbarment was unnecessary in this case

It’s always surprising to see a dissent in an ODC case. The Supreme Court likes to present a united front regarding its regulation of the profession. But as Justice Donohue argues, the Court must also punish similar conduct consistently. Pointing to similar cases in the Court’s attorney disciplinary jurisprudence, Donohue argues that this case should not have resulted in disbarment. She also points out the purpose of the disciplinary oversight of the Court.

“Disbarment is an extreme sanction properly reserved for only the most egregious matters, as it constitutes a termination of the privilege to practice law without any promise of ultimate reinstatement.” Donohue would have preferred that the Court temporarily suspend Quigley, allowing him to make a recovery as to any psychological concerns and then be readmitted.

Justice Wecht joined this dissent.

Conclusion

These cases are never fun to write about, but they serve as a warning to all attorneys to carefully manage our practices and IOLTA accounts, and to be above repute in these matters. It’s heartbreaking to see a talented trial attorney lose his license over ethical abuses, but it happens all too frequently. Hopefully Mr. Quigley will be able to get his life straightened out and after the five-year moratorium passes, successfully reapply to the practice of law.

Read More

Posted by on May 3, 2017 in Attorney Discipline, Constitutional Provisions, Rule-Making Powers | 0 comments

Villani v. Seibert: Dragonetti Statute Does Not Violate Separation of Powers; But We’re Leaving the Door Open

 

Civil lawyers know—and may even fear—the threat of a Dragonetti action. The draconian name accurately depicts one of the few times in law that a lawyer can subsequently be called into court for his actions as an advocate. The Act is named for Joseph Dragonetti, a then-retired reporter for the Philadelphia Daily News, who unsuccessfully brought suit after he was frivolously named in a lawsuit against a bank which he had done some marketing for. Dragonetti was unable to recover because of the common law rule—dating back to the 13th century—that required a show of imprisonment or seizure before an abuse of process claim could prevail. Dragonetti persuaded the legislature to pass 42 Pa.C.S. § 8352(1), the Act now commonly called by his name, in 1980, and his name has been bandied about in acrimonious disputes between litigious attorneys ever since.

Villani v. Seibert arose out of a case in Chester County (home of America’s most valuable mushrooms) in which a Dragonetti action was pleaded. Seibert persuaded the trial court to grant preliminary objections on the basis that the Dragonetti statute impermissibly crosses into the exclusive purview of the Supreme Court of Pennsylvania under Article 5, Section 10 of the Pennsylvania Constitution, which grants the Court the exclusive right to regulate the conduct of attorneys and to lay down rules governing the profession.

In a 6-1 decision, (though with only five votes for the majority opinion), the Court ruled that the Dragonetti Act did not violate its prerogatives to regulate the practice of law in the Commonwealth.

Saylor for the Majority: Dragonetti Statute is Primarily Substantive, but Where Punitive to Attorneys, It’s a Problem

Describing the statute as having “a strong substantive, remedial thrust,” Chief Justice Saylor relied on the Court’s voluminous caselaw (which is well summarized in the prior case of Com v. Olivo, 127 A.3d 769 (2015)) establishing that Article V, § 10’s provisions are generally meant to give the Court exclusive power to create procedural rules, while the legislature retains its more traditional power to create substantive rights and remedies for the Commonwealth.

The Court relied on federal caselaw which characterizes tort statutes such as this one as “perform[ing] an important remedial role” to emphasize that the legislature’s actions in passing the Dragonetti statute were substantive, not procedural. Given this fact, the statute falls within the legislature’s prerogative, rather than the Court’s.

“There is no directed challenge to the punitive damages aspect here,” Saylor noted, taking care to leave wide the door to the argument that an attorney is not subject to punitive sanctions under the Dragonetti Act. Such punishment might run afoul of the Court’s prerogative to discipline attorneys, and leaving attorneys open to discipline in civil actions brought by private parties throughout the Commonwealth may be argued to trample the Court’s exclusive powers. But this question is left for another day, and a narrower case. For now, the Court was content to rule that there is no “generalized attorney immunity from the substantive principles of tort law embodied in the Dragonetti Act.

Conclusion: Separation of Powers

This case represents a creative argument and a further refinement on the Court’s separation of powers jurisprudence. Several times, now, the Court has resisted the urge to become overly-aggressive in defense of its prerogatives, and is working to strike a balance between the substantive rights of the legislature and the more restrained procedural rule-making power of the Court. As the Court notes in this opinion, the legislature is better situated for making broad policy, and leaving questions such as the civil remedies available to aggrieved defendants to the legislature.

One final note: somewhat unusually, the Attorney General declined to take up the defense of the statute as called for under Pa.R.C.P. No. 235. The Court notes this oddity with some surprise in footnote 2. It is unclear why the AG’s office declined to intervene here.

Read More