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It’s December; time for lights, bells and whatever other holiday trimmings suit your fancy. For us, it’s time to reflect on, and update, some of the issues we’ve written about in the past year.

Rule 215

First, let’s start with an issue we wrote about in our May column: the changes to Rule 215 of the Pennsylvania Rules of Disciplinary Enforcement allowing the Office of Disciplinary Counsel (ODC) to negotiate with respondents and reach joint recommendations of discipline in all cases. Before the changes to the rule, the only discipline that could be negotiated was disbarment. As we predicted, negotiated discipline has revolutionized the disciplinary practice.

One clear indication of the magnitude of this revolution is the board’s need to revise the definition of “senior hearing committee member.” Hearing committee members sit on panels of three and conduct evidentiary hearings on petitions for discipline, providing the first level of factual and legal review, and recommending a sanction to the disciplinary board for its consideration.

Before this year, a hearing committee member was considered “senior” if, among other criteria, she had previously served a three-year term as a committee member and, during that time, had participated in at least three hearings. So many cases are being resolved through joint petitions for discipline — eliminating the need for a hearing — that many committee members were reaching their three-year mark before they had heard three cases. As a result, the board changed the definition of “senior” to require only two hearings.

So far, this year alone, 27 joint petitions have been filed, 14 of which were filed before a hearing committee was even assigned to the case. We predict that next year, negotiated discipline will become the norm rather than the exception, expediting the process and saving the disciplined attorney the financial and emotional drain of an evidentiary hearing.

One more note on this topic: Any attorney who has been suspended for more than one year must file a petition for reinstatement before resuming practice. At that point, an evidentiary hearing will be required, including an examination of the underlying misconduct. At that hearing, the attorney will continue to reap the benefits of discipline on consent. As reinstatement counsel, we will argue that the attorney has already demonstrated acceptance of responsibility, a first step on the road to rehabilitation, simply by agreeing to waive a hearing and accept ODC’s offer.

The Nifong Case

Speaking of disciplined attorneys, in April we wrote about prosecutor Michael Nifong, the former Durham County, N.C., district attorney. At the time of our column, Nifong had turned the Duke lacrosse player investigation over to the North Carolina Attorney General’s Office and was preparing to defend himself against state ethics charges, including allegations that he withheld DNA evidence to mislead the court, demonstrating a “systematic abuse of prosecutorial discretion . . . prejudicial to the administration of justice.”

Since then, much has happened. On April 11, North Carolina Attorney General Roy Cooper dismissed the case against the Duke students. In June, a North Carolina state ethics panel ruled that Nifong had misled a judge and defense lawyers about the fact that DNA from four unidentified men was found on the body and clothes of the alleged victim and no DNA from any of the suspects was found. In announcing the panel’s unanimous decision to disbar Nifong, chairman F. Lane Williamson described the aggravating factors of “dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge wrongful nature of conduct” and “substantial experience in the practice of law.” Nifong formally resigned from office on July 2. On Aug. 7, Nifong formally surrendered his law license.

Following the disciplinary panel’s decision, the accused lacrosse players filed a motion asking Superior Court Judge Osmond Smith, who presided over the underlying case, to hold Nifong in contempt. Smith found that Nifong had provided the defense with a DNA testing report that he knew to be incomplete. Smith’s decision, he said, was aimed at “protecting and preserving the integrity of the court and its processes.” On Sept. 7, Nifong reported to the Durham County jail to serve a one-day sentence for contempt of court.

The Nifong case has provided us with a disturbing picture of prosecutorial misconduct. The case has also provided us with a new verb: “to Nifong.” Conservative columnist Kathleen Parker was probably the first to coin the neologism in a Charlotte Observer column, in which she said: “Now we can ‘Nifong’ someone when we want to trump up criminal charges based on flimsy evidence allegedly for political purposes.” However, more recent events may lead to the use of the word “nifong” to define a new level of chutzpah: in October, after the three wrongly accused players filed a civil rights complaint against Nifong and the city of Durham, Nifong asked the North Carolina Attorney General’s Office to represent him in the federal lawsuit, based on the fact that he was acting in the scope of his employment. We predict that the Attorney General’s Office will decline the representation.

The Russell Case

In June, we discussed a more sympathetic case of an experienced attorney who went too far in zealously representing his client. Philip Russell, a prominent and respected criminal and civil litigator in Greenwich, Ct., represented a church that had found child pornography on an employee’s laptop. Russell’s destruction of the laptop led to a federal indictment charging him with obstruction of justice. In September, Russell pleaded guilty to an information charging him with one count of misprision of a felony. Misprision is a less serious charge than obstruction of justice and is committed when a person who has knowledge of the commission of a felony does not alert the authorities and takes steps to conceal the offense. If the concealment is done with the knowledge of an ongoing federal or state investigation, the concealment is obstruction. Since, at the time he destroyed the computer, Russell did not foresee a criminal investigation, he was able to plead to the lesser charge.

According to Russell’s plea agreement, the U.S. Attorney will recommend a sentence of eight to fourteen months in prison and fines, as supported by the federal sentencing guidelines. Robert Casale, Russell’s defense attorney, has been quoted as stating that “the error began when [Russell] took the case. He was way too close to be objective,” implying that Russell’s long term family ties to the church clouded his ability to act correctly. Russell’s lack of objectivity and desire to protect an institution to which he was deeply connected may lead to a period of incarceration and will certainly lead to a period of suspension of his license.

Fumo and Sprague

And finally, a wrap-up of one of our favorite topics: In August, we wrote about the government’s motion to disqualify defense counsel in the federal prosecution of state Sen. Vincent Fumo. Since then, the plot has taken some interesting twists, including the Sprague firm’s withdrawal as counsel for the senator.

Before the firm withdrew, Senior U.S. District Judge William H. Yohn Jr. issued a published decision denying the government’s motion to disqualify the firm. Based on a thorough analysis of the government’s disqualification motion, Yohn concluded that the Sprague firm faced conflicts of interest arising out of their representation of two of the entities alleged, to have been victims in the case: Citizens’ Alliance for Better Neighborhoods and the Independence Seaport Museum. Weighing the seriousness of the conflicts, however, Yohn found that securing a waiver from the senator could cure them. Yohn further concluded that the conflicts of interest did “not overcome the constitutionally mandated presumption that a defendant is entitled to counsel of choice.” The judge also noted that the equities weighed in favor of the senator retaining his chosen counsel “given his long-standing relationship with the Sprague firm, and the length of time . . . and effort attorneys from that firm have devoted to this investigation . . . .”

As noted above, the Sprague firm withdrew as counsel before the court was scheduled to conduct a waiver colloquy with the senator, based on the senator’s decision not to waive the conflicts. Had the Sprague firm stayed on as counsel for the senator, Yohn’s order denying the government’s disqualification motion would also have required a waiver colloquy with Ruth Arnao, former executive director of Citizens’ Alliance, and the current board members and executive director of Citizens’ Alliance. We were watching with interest to see whether these parties would waive and what would occur if they refused. However, those intriguing questions remain unanswered as prominent criminal defense attorney Dennis Cogan is now the senator’s conflict-free counsel of choice.

This concludes our look back on our first year of columns. As Charles Dickens might have said if he were writing in this millennium, “Happy Holidays to all, and to all a good night!”

Litigation associates Karen Ibach and Macavan Baird contributed to the research and writing of this article.

ELLEN C. BROTMAN serves as of counsel to Montgomery McCracken Walker & Rhoads’ white collar crime and government investigations groupand chairwoman of its professional responsibility group, after several years of being a principal in the firm of Carroll & Brotman. Brotman is also a former assistant federal defender with the Philadelphia Community Defenders Organization.

MICHAEL B. HAYES is a senior litigation associate with the firm and is a member of the firm’s professional responsibility practice group. Prior to joining the firm, Hayes served as a law clerk to Justice Russell Nigro of the Pennsylvania Supreme Court.

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