Vol. 75, No. 3 Philadelphia Bar Association Quarterly Magazine Fall 2012 Justice Gap The Value of Civil Legal Assistance to the Poor By Louis S. Rulli

10 Questions for The Barristers Richard L. Scheff of Summer By Chancellor John E. Savoth By Angus Love

The Philadelphia L aw yer contents Vol. 75, No. 3 Philadelphia Bar Association Quarterly Magazine Fall 2012

Features Departments

4 From the Editor by Justine Gudenas

35 6 Briefs

12 Annals of Justice – A Simple Will 7 In Memoriam What should have been just the simple preparation of a will turns out to be much more 8 Zoning and Land Use Law By Steve LaCheen by Owen Franklin and Cheryl L. Gaston Key changes in Philadelphia’s new zoning code 14 10 Questions for Richard L. Scheff Richard L. Scheff is chairman of Montgomery McCracken 11 Ethics Walker & Rhoads LLP, a Philadelphia law firm celebrating its by David I. Grunfeld 100th anniversary this year Dealing with parties related to your client By Chancellor John E. Savoth 42 Technology 21 Bending Toward Justice by Daniel J. Siegel The winning essay in the Justice Ruth Bader Ginsburg Pursuit Welcome to the world of e-discovery of Justice Legal Writing Competition By Mark Franek 46 Book Review by Megan M. Kearney 22 Connected by Bars Angel of Death Row: My Life as a Death Penalty Defense Philadelphia, Lyon lawyers renew ties in twinning program Lawyer By Enid Adler 48 That Was Then - 1992 24 Money Well Spent The Philadelphia Lawyer magazine unveiling The value of civil legal assistance to the poor can be measured in millions of dollars and thousands of jobs By Louis S. Rulli 30 Filling the Gaps – The First Judicial District’s Judicial Fellowship Program Program helps law school graduates gain experience while giving city judges extra help in chambers By Chapin F. Cimino 35 The Barristers of Summer Teams of lawyers leave their briefcases on the bench and settle their differences on the diamond By Angus Love 38 Joe Paterno – Bad Samaritan Although the late Penn State football coach broke no laws by 30 not reporting child abuse, he should have done more By Jennifer R. Ewing

2 the philadelphia lawyer Fall 2012

from the editor Outsourcing Satisfaction

By Justine Gudenas

n perfect dress-down-Friday chinos, plaid shirt and loaf- closing, in addition to deposition reviews. That’s a lot. It explains ers; short brown Mitt Romney hair; beautifully capped why outsource lawyers are needed. And the fragmentation of teeth, and bright smile, he looked like a young man with legal work will continue and intensify. a front row future. His targeted networking friendliness But these findings make me worry for the future. Ibelonged to someone climbing a straight and probably narrow Many of us are familiar with the 1990 Johns Hopkins ladder to success. I had no idea how narrow. University study that compared more than 100 occupations, After approaching with a glass of and found lawyers to lead the nation with the highest incidence wine for me, he introduced himself as a of depression. The ABA estimates that one in five U.S. lawyer, and then related the nature of his lawyers suffer from alcoholism or substance abuse. Lawyer practice. dissatisfaction is on enough minds that, as a subject, it has been In the seven years since graduating - and is currently being – examined by experts in many fields; law school, he, and the majority of his and books like “Running from the Law: Why Good Lawyers law school friends, worked solely for Are Getting Out of the Legal Profession” by Deborah Arron outsourcing firms, and had no plans to (2003) are selling. ever change their It is now known that lack of human employment. They interaction is bad for one’s health. And were all glad to have What will recent studies have shown that to the good jobs. In his case, the hours were extent a lawyer’s professional input flexible; the compensation adequate; the become of the feels disconnected from the final judicial law firm clients pleased with his results. He outcome, the lawyer is in danger of reviewed depositions, then wrote summaries practice of law becoming dissatisfied. and reports on them. He didn’t believe it So how long can a lawyer toil away necessary for him to know the nature of if dissatisfaction piecemeal and far removed from the human the lawsuits for which the depositions had mounts? Isn’t beings directly involved in the cases and be been taken, and he had never seen any of satisfied? the actual human beings who spoke in the quality tied to What will become of the practice of law depositions. There was no reason for him to if dissatisfaction mounts? Isn’t quality ever meet any witness or litigant. And he satisfaction? tied to satisfaction? What kind of law do didn’t miss the experience. dissatisfied lawyers practice? I understand that you can’t miss what you These questions were in the back of my don’t know. Still, the perimeters of his outlook surprised me. mind when I read Professor Rulli’s cover story in this issue. We’ve all noticed the increasingly depersonalized direction of It compellingly demonstrates the wide-ranging economic legal practice. But until I spoke with this man, I hadn’t considered benefits of civil public interest law, an area suffering for lack of that, in their professional capacities, many young lawyers might lawyers (although, as you will read in this issue, it is one area never meet the human beings involved or see more than parts of where salaries have increased). I remembered that, ironically, a case. My curiosity was piqued to investigate. the highest rate of personal satisfaction has been found among In responding to a 2010 American Bar Association survey, 85 those who work for such organizations too poor to outsource. percent of law firms refused to answer whether they outsource. And not only because they typically meet face to face with But if you search want ads, you’ll see that the most plentiful legal live human being litigants, but also because, as Professor Rulli positions offered are for “outsource attorney” or “outsourcing writes, “As business-driven decisions increasingly dominate attorney.” Forrester Research estimates that by 2015 legal legal practice, pro bono legal assistance keeps the profession process outsourcing in India will grow to $4 billion; in the U.S. centered on core values like equal justice under law and the fair far more since most of it is hired domestically. Coordinate this administration of justice that the Conference of Chief Justices information with the Briefs on page 6 in this issue: legal salaries calls the ‘cornerstones of our democracy.’” have plunged and the job market is brutal. As options for recent Maybe public interest attorneys have a chance to act like the law school graduates grow more limited, legal outsourcing is old-fashioned gladiators for justice that lawyers once perceived expanding. themselves to be. Originally confined to document research and preparation, it now includes in personal injury law, for instance, new claims Justine Gudenas ([email protected]), a sole practitioner, is editor- processing, medical evidence evaluation, claims settling and in-chief of The Philadelphia Lawyer.

4 the philadelphia lawyer Fall 2012 The Philadelphia Lawyer

Editor-in-Chief Justine Gudenas

Editorial Board Niki T. Ingram Jennifer J. Snyder Steven R. Sher May Mon Post David I. Grunfeld Steve LaCheen Harold K. Cohen John C. Gregory Richard G. Freeman April M. Byrd Emmanuel O. Iheukwumere Audrey C. Talley Michael J. Carroll James Backstrom Peter F. Vaira Deborah Weinstein M. Kelly Tillery Daniel J. Siegel

Editor Emeritus Herman C. Fala

Associate Executive Director Mark A. Tarasiewicz

Senior Managing Editor Jeff Lyons

Design Wesley Terry Philadelphia Bar Association

Chancellor John E. Savoth Chancellor-Elect Kathleen D. Wilkinson

Vice Chancellor William P. Fedullo

Secretary Sophia Lee

Assistant Secretary Jacqueline G. Segal

Treasurer The Philadelphia Lawyer, printed with soy inks on recycled paper, is published quarterly in March, June, September and Joseph A. Prim Jr. December by the Philadelphia Bar Association, 1101 Market St., 11th floor, Philadelphia, Pa. 19107-2955. Telephone: (215) Assistant Treasurer 238-6300. E-mail: [email protected]. Subscription cost for members is $5 which is included in annual dues, and for nonmembers is $45 yearly. The opinions stated herein are not necessarily those of the Philadelphia Bar Association. Wesley R. Payne IV All manuscripts submitted will be carefully reviewed for possible publication. The editors reserve the right to edit Executive Director all material for style and length. Advertising rates and information are available from Don Chalphin, Sales Director, ALM, 1617 JFK Boulevard, Suite 1750, Philadelphia, PA 19103, (215) 557-2359. Periodicals postage at Philadelphia and Kenneth Shear additional locations. POSTMASTER: please send changes to The Philadelphia Lawyer, c/o Philadelphia Bar Association, 1101 Market St., 11th floor, Philadelphia, PA 19107-2955

the philadelphia lawyer Fall 2012 5 itBinvestment ■rjob marketi■ef fixed income ■ insmemoriam BriBri efef ss Law Firms Making Greater Investment in IT early six in 10 lawyers said their law firms will increase spending on technology in the nextN two years, according to Robert Half Legal’s 12th Annual Future Law Office project. Law firms plan to purchase software (79 percent), hardware (72 percent), desktop PCs (62 percent), laptops (49 percent), tablet PCs or handheld computers (44 percent) and smartphones (41 percent). Among the other findings: • Lawyers surveyed said their law firms are reducing the size their legal department’s greatest law firms used e-filing systems of their offices and reconfiguring challenge is reducing budgets/ (83 percent), meeting or audio- workspaces. controlling costs. They are utilizing conferencing tools (79 percent), • With firms of all sizes now using technology solutions to streamline document storage sites (58 percent), similar products, services and tools, communications with outside collaborative or information- small firms and solo practitioners counsel and improve efficiencies. sharing sites (51 percent) and client are able to establish a bigger • As the amount of electronic data portals or extranets (30 percent). presence online and, in some cases, grows exponentially, e-discovery • With mobile devices and wireless better compete with larger firms. remains both a growth area and a networks enabling lawyers to • Nearly one in three in-house counsel challenge for law firms and their work remotely from any location, (30 percent) interviewed said corporate clients. Job Market “Brutal” for New Law School Graduates

he overall employment rate for of 2011 employment figures reveal a job since reaching a 23-year high of 91.9 new law school graduates is market with many underlying structural percent in 2007 and marks the lowest at its worst level since 1994, weaknesses. The employment profile employment rate since the aftermath of NALPT, the Association for Legal for this class also marks a continued the last significant recession to affect Career Professionals, reported in a interruption of employment patterns the U.S. legal economy. recent survey. for new law school graduates that had, “For members of the Class of 2011, NALP said employment rate for prior to 2010, been undisturbed for caught as they were in the worst of the graduates of the class of 2011 was 85.6 decades. recession, entering law school in the percent, the lowest it has been since The survey measures the employment fall of 2008 just as Lehman Brothers 1994, when the rate stood at 84.7 percent. rate of graduates as of Feb. 15, 2012, collapsed, going through OCI in the fall In addition to an overall employment or nine months after a typical May of 2009, and summering in 2010 if they rate that fell two percentage points from graduation. Analyses of these data were lucky enough to secure a summer that for the previous class, and that has reveal an employment rate that has associate spot, the entry-level job dropped each year since 2008, the Class fallen more than six percentage points market can only be described as brutal,”

6 the philadelphia lawyer Fall 2012 said NALP Executive Director James Leipold. “When this for the Class of 2010, which in turn was a full five percentage class took their LSATs and applied for law school there were point decline from 2009. In most of the 38 years for which no signs that the legal economic boom was showing any signs NALP has collected employment information, the percentage of slowing, and yet by the time they graduated they faced what of jobs in law firms has been in the 55-58 percent range and was arguably the worst entry-level legal employment market has been below 50 percent only once before 2011. in more than 30 years.” Employment in business was 18.1 percent, the highest that Not quite half (49.5 percent) of employed graduates NALP has measured, and up from 15.1 percent for the Class obtained a job in private practice, a drop from 50.9 percent of 2010. Fixed Income in Today’s Environment ith interest rates expected to remain low through The material presented in this article is of a general nature and does not consti- tute the provision by PNC of investment, legal, tax or accounting advice to any 2014, investors may wonder what role fixed person, or a recommendation to buy or sell any security or adopt any invest- income plays in their portfolio today. For those ment strategy. Opinions expressed herein are subject to change without notice. Wwho need income, lower-quality fixed income securities may The information was obtained from sources deemed reliable. Such information is not guaranteed as to its accuracy. You should seek the advice of an invest- be a good place to invest rather than stocks. From a bank- ment professional to tailor a financial plan to your particular needs. For more ruptcy perspective, if a company does experience trouble, information, please contact PNC at 1-888-762-6226. The PNC Financial Services Group, Inc. (“PNC”) uses the names PNC Wealth creditors generally have a higher priority than stockhold- Management®, PNC Institutional Investments® and Hawthorn PNC Family ers on the repayment scale. However, some investors may WealthSM to provide investment and wealth management, fiduciary services, prefer longer-term Treasuries to keep up with inflation. It is a FDIC-insured banking products and services and lending of funds through its subsidiary, PNC Bank, National Association, which is a Member FDIC, balancing act – if a portfolio is too heavily weighted toward and uses the names PNC Wealth Management® and Hawthorn PNC Family fixed income, investors may be unable to keep up in terms of WealthSM to provide certain fiduciary and agency services through its subsid- purchasing power. One point about investing in fixed income iary, PNC Delaware Trust Company. Brokerage and advisory products and services are offered through PNC Investments LLC, a registered broker-dealer is that if the security is not callable you may be able to hold and investment adviser and member of FINRA and SIPC. Insurance products onto bonds until maturity, and if the issuer does not default and advice may be provided by PNC Insurance Services, LLC, a licensed insur- or go into bankruptcy, you will at least get all or a portion of ance agency affiliate of PNC, or by licensed insurance agencies that are not affiliated with PNC; in either case a licensed insurance affiliate will receive your principal back. compensation if you choose to purchase insurance through these programs. A decision to purchase insurance will not affect the cost or availability of other products or services from PNC or its affiliates. PNC does not provide legal, tax or accounting advice. “PNC Wealth Management” and “PNC Institutional Investments” are regis- tered trademarks and “Hawthorn PNC Family Wealth” is a service mark of Another possibility that we believe could be considered is The PNC Financial Services Group, Inc. the addition of some credit exposure in order to improve yield, Investments: Not FDIC Insured. No Bank Guarantee. May Lose Value. perhaps in the form of corporate debt. This can be an attractive Insurance: Not FDIC Insured. No Bank or Federal Government Guarantee. investment, since corporations, in general, currently have better May Lose Value. balance sheets than the government. Leveraged loans that are below investment grade also may be an interesting option. ■ in Memoriam ■ Investors should exercise caution when pursuing lower credit rating investments; as such, credit does not tend to perform well when there are concerns about the global economy. In that James F. Egan II David M. Kozlow situation, high-quality fixed income may do better. April 23, 2012, Age 41 July 25, 2012, Age 53 Emerging markets bonds are another asset category we believe investors may want to consider. Although selection Patrick W. Kittredge Irvin Siegel is critical, some emerging markets companies have stronger June 19, 2012, Age 75 July 30, 2012, Age 85 balance sheets than developed country companies do. REITs and leveraged loans can provide attractive yields. Dividend John M. Armstrong Dorothy K. Phillips June 22, 2012, Age 51 Aug. 13, 2012, Age 66 yielding stocks also can provide equity-like exposure with an income component, but investors must weigh the greater Paul R. Anapol Jerome R. Richter potential volatility with the potential to keep up with long-term July 6, 2012, Age 79 Aug. 19, 2012, Age 73 purchasing power. For those investors who are focused on retirement income, Daniel L. Thistle Morris M. Shuster Aug. 21, 2012, Age 82 we advocate taking a total return approach. Investors should July 13, 2012, Age 67 first determine their individual spending needs, followed by a Nelson H. Wollman Please send In Memoriam notices to focus on preservation of capital in order to meet withdrawal July 21, 2012, Age 86 [email protected]. needs over an estimated retirement holding period. This approach considers both capital appreciation and income in Have you considered a contribution to the Philadelphia Bar seeking to provide retirement income, with the goal of meeting Foundation in memory of a deceased­ colleague? cash flow needs in retirement while managing risk through For information, call Lynne Brown, asset allocation. Foundation Executive Director, at 215-238-6347.

the philadelphia lawyer Fall 2012 7 Zoning and Land Use Law By Owen Franklin and Cheryl L. Gaston Entering a New Zone Philadelphia Zoning Code Revised for the First Time in More Than 50 Years

n May 2007, 80 percent of Phila- delphia’s voters approved the creation of a 31-member Zoning Code Commission to reform and modernize Philadelphia’s Zoning Code. After four years of Commission Imeetings and dozens of community meetings, City Council Bills No. 110845 and 110835-A, which repealed and re- placed Title 14, Zoning and Planning, of The Philadelphia Code, were signed into law on Dec. 22. The new Zoning Code is the first comprehensive reorganization and revision of Philadelphia’s zoning Attached; RTA for Residential Two- allowed north of Market Street and now, and land use regulations in more than 50 Family Attached; RM for Residential under the new Zoning Code, restaurants years. This new Zoning Code officially Multi-Family; and, RMX for Residential are allowed by special exception. The became effective on Aug. 22, 2012. Mixed (residential and commercial) new Zoning Code now awards bonus While eight months of training work- Use. floor area for a more diverse set of shops were held to help citizens prepare The commercial base districts now public amenities such as public art, open for launch of this new Zoning Code, this include CMX or Commercial Mixed- space, public parks, public plazas, transit article will highlight a few of the more Use districts, or CA, Auto-Oriented improvements and green buildings and significant changes with this new Code. Commercial Districts. The new Zoning extends these bonuses to development The new Zoning Code is organized to Code creates a new base commercial outside Center City. The new Zoning make it easier to use and understand by district, CMX-2.5, to replace numerous Code also includes new controls for grouping similar content together. There neighborhood commercial corridor landscaping, tree preservation, and are separate chapters for base districts, overlays. building and site design that apply to overlays districts, use regulations, The base industrial districts include a certain types of development. dimensional standards, parking and new Industrial Residential Mixed Use One of the most significant changes in sign controls. The new Code utilizes district, or IRMX, intended to allow, the new Code is to the use controls. The charts rather than narrative descriptions for the first time, a combination of low- new Code is designed to allow more uses of code requirements and, the Code impact industrial uses such as artists and “as of right” and reduce use variance organization, as well as its table of artisan industrial, along with residential requests. The new use tables indicate contents, are designed to facilitate easy and neighborhood-oriented commercial what is permitted, prohibited or requires navigation even by those unfamiliar uses. The new ICMX, Industrial special exception approval by the with zoning or the zoning process. Commercial Mixed-Use district, is Zoning Board. In the old Code, only the The new Zoning Code consolidates intended to serve as a buffer between uses specifically defined were allowed. the former 60 base zoning classifications industrial districts and commercial and In the new Code, uses are grouped into into just 34 base districts. The base residential districts. categories, subcategories and specific district chapter includes tables for The new Zoning Code eliminates some use types, a more flexible system, with residential, commercial and industrial and consolidates other overlays. Overlay an aim of identifying the most similar base districts and each district has been provisions govern over base district and/or appropriate use category for a reclassified and renamed using symbols rules whether the effect of the overlay is proposed use while still regulating the to identify the use and building type. more or less restrictive. The new Center impact of such uses on surrounding For example, the new residential base City overlay district consolidates many properties. Uses are to be classified in districts now include more descriptive separate overlays that applied to Center the category, subcategory or specific use district designations such as: RSD for City. Other overlays now have less type that provides the most exact and Residential Single-Family Detached; impact, such as, for example, the Old appropriate “fit.” And, if a proposed use RSA for Residential Single-Family City Overlay where no restaurants were “fits” into a permitted general category,

8 the philadelphia lawyer Fall 2012 The new Zoning Code also includes new controls for landscaping, tree preservation, and building and site design that apply to certain types of development. the use will be allowed. based on a percentage of lot size. The the Zoning Board must notify the RCO There are 10 use categories including new Zoning Code also encourages decks whose boundaries include the proposed Residential, Office, Retail Sales by not counting decks and deck access development within seven days of and Commercial Services. The use structures, such as pilot houses, against submitting a zoning application. This subcategories provide further definition the 38-foot maximum height limit. The notification is in addition to the Zoning by grouping uses that have similar new Code also encourages sustainable Board’s 21-day posted public hearing customers, activities and functions. And, wind energy, solar panels, green roofs, notice requirement. The applicant and specific use types allow for more narrow rain barrels and composting equipment RCO must meet and submit a written regulation within a subcategory. As an by excluding such equipment from summary of this meeting within 45 example, the “Commercial Services” the new Zoning Code’s dimensional days to the Zoning Board before the use category includes as a subcategory requirements. application can be decided. If there is “Eating and Drinking Establishments” Parking controls are explained through which includes prepared food shops tables that show the required number of (sandwich shops, delis, coffee shops spaces for each use in each base district. Get Published in and ice cream shops w/no more than 20 Parking minimums are reduced for seats), take-out restaurants (food counter multi-family districts and eliminated service with limited or no seating for common rowhome districts. The or public restrooms) and sit down new Code also includes regulations restaurants. Within the subcategory governing bicycle parking ratios, the “Eating and Drinking Establishments,” provision of on-lot bicycle parking and take-out restaurants are a “specific use public bicycle lanes, paths or routes on The Editorial Board of this mag- type,” and any use application must be streets. azine welcomes submissions accompanied by a litter clean-up plan The new Code streamlines, formalizes from attorneys and other pro- that addresses on and off-site litter clean and manages the city’s civic engagement fessionals who wish to share up, the location of trash and recycling process by establishing Registered their expertise on law-related containers, a litter clean-up schedule and Community Organizations (RCOs). topics. a map of the off-site clean-up area. The RCOs may be local, covering a specific Zoning Board may also require take-out geographic area, or issue-based, with Articles must be original and restaurants to print the name and address a concern greater than that of any one previously unpublished. of the business on all disposable food geographic area. RCOs must register Manuscripts should adhere to and beverage containers as part of the with the Philadelphia City Planning the following word counts: regulation of this specific use type. Commission (PCPC) and renew The dimensional standards were registration every year. The PCPC will * Major Law-Related similarly designed to reduce variance keep a registry of RCOs and list RCOs Articles: 2,000 words requests. Tables for dimensional on the PCPC website. Local RCOs are * Other Law-Related standards define the height, floor area entitled to receive notice and to meet Features: 1,500 words ratio, setback and other controls for each with the developer of a proposed project * General Interest: 1,500 words base district. Some of the noteworthy in their area of concern. Issue-based * Fiction: 1,000 words changes in the new Code are the increase RCOs are entitled to notice only. Where * Practice Areas: 750 words in the residential height limit from 35 feet there is no registered Local RCO, the * Essays or Humor: 750 words to 38 feet and the elimination of stories district council member is to act as the * Book Reviews: 750 words including the three-story maximum in Local RCO. The new Zoning Code and residential areas. The new Code also the Planning Commission regulations encourages more “infill” development provide details governing RCOs, For more information by eliminating the requirement that including timelines for scheduled about submitting articles, 100 feet of rear yard area be provided meetings and criteria governing internal e-mail: [email protected]. for each additional unit in multi-family operations of Local RCOs. properties and substituting a calculation Applicants requesting approvals from

the philadelphia lawyer Fall 2012 9 more than one RCO for an area, the to transit. Notably, the CDR process pages of proposed amendments that aim RCOs must coordinate to convene is advisory only and an applicant is to correct typographical, illustrative, a single meeting with the applicant. not required to abide by the CDR’s and technical errors and/or to change The new Zoning Code and Planning recommendations or to change a proposal substantive provisions of the new Commission regulations establish a to incorporate CDR recommendations. Zoning Code. required format to document RCO As currently structured, the CDR Finally, a comprehensive evaluation of meetings and to address what happens if submission requirements are extensive the new Zoning Code is to be conducted the RCO meeting does not occur within and the CDR review process can take as within one year of implementation. the required time period. long as 270 days – quite a burden for a This review will provide yet another Local RCOs are also entitled to process that is only advisory. opportunity to engage Philadelphians notice of applications for certain large- What is still left: sign controls and in the zoning process and to decide scale by-right projects subject to a new city-wide remapping. The new Zoning whether or if this new Zoning Code can Civic Design Review (CDR) approval Code did not include a rewriting of sign or should be improved. process. Certain projects may “trigger” controls. The Planning Commission Civic Design Review such as any submitted new sign controls to City Owen Franklin is director of research and project involving more than 100,000 Council in the spring. planning at Portfolio Associates, Inc., a square feet of gross floor area or a The new Zoning Code rewrite was consultancy that supported the Zoning commercial project that involves more not a remapping project. The first Code Reform Project. Cheryl L. Gaston than 50,000 square feet that affects a phase of this remapping, already ([email protected]), a partner with residential district. The CDR Committee completed, involved the conversion of Spruce Law Group, LLC, is immediate- is a subcommittee of the Planning existing zoning classifications into new past chair of the Real Property Section, Commission and its seven-member classifications. The second phase, which co-chair of its Zoning, Land Use and Code board is to include architects, design is in progress, is to remap the City into Enforcement Subcommittee and was chair professionals and a rotating designated 18 districts. The Planning Commission of the official Subcommittee authorized seat for a member of the RCO where the expects the remapping will be completed by the Philadelphia Bar Association to project is located. The CDR Committee by 2015. participate in the drafting the new Zoning reviews the potential impact of a project City Council also has under Code. on the “public realm” by evaluating consideration a new overlay for the such aspects as site and building design, Central Delaware Riverfront area, and walkability, open space, and access several “clean up” amendments, 42

10 the philadelphia lawyer Fall 2012 Ethics By DaVID I. Grunfeld Dealing with Parties Related to Your Client Strategies and Instruction on How to Keep Your Client Free of Third-Party Issues

requently, a prospective cli- ent, particularly in a family law case, will come to your initial interview with a third party - a parent, friend, em- ployer, fiancee, or even current spouse. TheF other person is brought along for moral support or to provide additional facts, but sometimes because that person will be paying the fees. What can you and your client discuss in the presence of that person? What should you do about accepting the fee from that person, or answering their questions thereafter, or taking instruction from them during the pendency of the matter? The Rules of Professional Conduct give guidance as to some of these issues. Start with R. 1.6, Confidentiality (and keep in mind also lawyer-client privilege as an evidentiary concept). At the outset, independence of professional judgment. calls, hence impacting confidentiality. when a third party is present the client In addition, R. 5.4(c) says that a Finally, when the client asks that should be told that their presence lawyer shall not permit a person who the third party be kept “in the loop,” it destroys confidentiality between pays the lawyer to perform legal services usually means the lawyer is authorized the lawyer and client, making any for another to regulate the lawyer’s to communicate with the third party, communication between them possibly professional judgment in rendering answering their questions and discussing admissible in a later proceeding. Only those services. strategy. This authorization should with this “informed consent” can the Most commentators suggest that be confirmed with the client, either client decide whether to ask the third the lawyer ask the client to make the in the fee agreement or some written party to remain in the lawyer’s waiting payment to the lawyer from the client’s communication thereafter. Further, as room, and perhaps join the meeting at its account, getting the funds directly from set forth above, the lawyer should make conclusion. the third party if necessary. Further, the it clear to the client that, especially in the In addition, it may turn out that the client should be told that the lawyer case of a conflict in directions, the lawyer client will be more comfortable relating reserves the right to take direction from will take instruction from the client only, facts, wishes and strategy without that and communicate solely with the client, and possibly cease communication with person present. Hence, it may be helpful and not the third party. the third party at the lawyer’s option. to give the client that excuse for keeping If the client asks for bills to be sent Help to a client from a third party the third party out for all or most of the to the third party, you can either agree is great, but care should be taken to meeting. to send copies of the bills (addressed to comply with the Rules and protect both If the third party will be paying the the client) to that third party, or suggest the lawyer and client. retainer, and/or any other fees and costs in that the client do so (maybe sending the the future, R. 1.8(f) becomes applicable. client two copies). The client should also David I. Grunfeld (dgrunfeld@astorweiss. It provides that a lawyer may not accept be told that the details of the billings com), of counsel to Astor Weiss Kaplan & compensation for representing a client will result in disclosing to the third party Mandel, LLP, is a member of the Editorial from someone other than the client all activities performed by the lawyer, Board of The Philadelphia Lawyer without the client’s informed consent, including perhaps a summary of the magazine. and no interference with the lawyer’s substance of conferences and telephone

the philadelphia lawyer Fall 2012 11 A SIMPLE WILL Annals of justice

By Steve LaCheen

embarked on the private practice of law, as a sole practitioner, About a week later, the accountant’s client called. “The will’s fine,” he said, in June 1958. Mr. Clean was the shepherd in the White “perfect.” House, and there were two mail deliveries each day. Six “Remember,” I said, “your father has I to execute the will in the presence of months later, I was still typing my own letters, cleverly inserting two people, not including you; so, if you my wife’s initials where a secretary’s should have been. The most want, we can arrange to have it done in my office.” personal of my incoming mail was addressed to “Occupant,” and “So you have people who will be consisted of advertisements from law-book publishers, suppliers witnesses? Great. Remember to change the date,” he said. of temporary office help and smoker-film distributors. But, ever “That’s why I left the date blank, so so gradually, I began to build a client base and a practice. no change will be necessary, unless you don’t do it this month. My secretary and another lawyer on my floor will sign as I had been practicing for about a year when an accountant witnesses.” I had encouraged to send me work called to ask if I would “Witnesses? I’m not talking about witnesses,” he said, “I’m “do a will” for the father of a client of his. Although I had no talking about the will. Did you get someone to sign the will, experience in the drafting of complicated wills or trusts, I had or are you going to do it?” already drafted a number of simple wills for individuals, and “What do you mean, ‘sign the will’? The only other mutual wills for spouses, the going rates for which were $25 signature is your father’s,” I sputtered. and $50, respectively. “You mean he never told you?” In this instance, the accountant assured me that this would “Who?” I asked. “Who never told me what?” be the epitome of a simple will – the testator was a widower “My father died last month. We just need a will confirming whose sole heir was the accountant’s client. And, he said I he left everything to me.” should charge $50, twice my usual fee! Of course, I said yes. “Are you crazy!? You expected me to sign your father’s I prepared a draft of the will, inserting the current month, will, or get someone to do it?” leaving the date blank, and sent it to the client for review, and “The accountant said it wouldn’t be a problem. I’m the only execution if correct. heir. There’s no problem. No one will know. No one would

12 the philadelphia lawyer Fall 2012 even care. What was his is mine now, won’t be able to use it.” The accountant, of course, denied anyway. This is just to avoid the hassle And then I went one step farther. knowing about the proposed forgery; of posting a bond, and the rigmarole I said I would check all future filings but he never referred another client to and red tape when there is no will.” with the Register of Wills, and if I ever me. And, it was the first fee I ever ate. “You’re out of your mind,” I yelled, saw such a will was filed for probate, I Twenty-five years later, I came completely losing my composure. “Is would report it as a forgery. across a one-paragraph article in the this some kind of test, to see if I would I did not even consider that I probably Metro section of the morning paper, agree to something like that? What had an obligation to immediately report reporting that the decedent’s son in do you mean ‘no one would know’? the proposed forgery, or at least get an that old matter had pleaded guilty to a I would know. I WOULD KNOW, federal tax offense, and was scheduled WOULDN’T I?” for sentencing several months later. I “Well,” he said, remaining totally made a mental note to follow the matter calm – and I thought that if anyone “Is this some kind up, but it slipped my mind. overheard this conversation, it would A year or so later, however, I read his be me who sounded totally irrational of test, to see if obituary. More than just a death notice, and completely out of control. “Well,” I would agree to it recounted the history of how he had he repeated, “if you feel that strongly inherited his father’s business, which about it, you can just forget it. I am something like had been very successful at first, then sure we can get somebody else to sign went through a bankruptcy, but finally the will. We’ll just use the one you that? What do regained success. His death had been prepared.” unexpected and sudden. My insides felt shaken, and I was you mean ‘no one The obit mentioned that the decedent desperately trying to figure out how would know’?” was survived by three children. Only I could protect myself from the the oldest had been working in the accusations that would surely follow business; and he was quoted as saying if the will was ever questioned. The it did not bode well for the successful draft even had my backer on it, clearly opinion from the Disciplinary Board transition of the business that his father identifying it as a document prepared in about my responsibility; but I never died without leaving a will. my office. had to, because several weeks later I But I quickly realized I could protect saw a notice in The Legal Intelligencer Steve LaCheen (slacheen@concentric. myself. that Letters of Administration had net) is a partner with LaCheen Wittels “You’re forgetting one thing,” I said. been granted to the son as personal & Greenberg and has been a member of “You can’t use the will I prepared. Not representative of the estate of his father, the Editorial Board of The Philadelphia knowing your father was already dead, who had died intestate. Lawyer since 1975. I put this month’s date on it; so you I never heard from the client again.

the philadelphia lawyer Fall 2012 13 Ques10tions for Richard L. Scheff chairman, Montgomery McCracken Walker & Rhoads LLP

Interview by Chancellor John E. Savoth

ontgomery McCracken Walker & Rhoads concerned about the outlay of dollars spent, firms like ours present a value to these clients. LLP, one of Philadelphia’s oldest law firms, We provide quality legal services at a much more is celebrating its 100th anniversary this year. competitive rate, especially when compared to The firm’s alumni include a U.S. Supreme some of the larger New York firms, so we’re a Court justice, federal judges and a host of natural choice. We have had a desire to be in the M New York market for quite some time now. We leaders of the Philadelphia Bar Association. Richard L. Scheff, actively explored options and eventually found chairman of the firm, talks about the firm’s history and philosophy. the right opportunity in midtown Manhattan at 50th and Madison. It is great space, a great Chancellor John E. Savoth: Montgomery McCracken location and the lawyers complement and expand our practice. is marking its 100th anniversary this year. In this We now have 18 full-time lawyers in New York. The plan is to difficult economic time, how has the firm been able to bring that office to about 30 in the next 12 to 18 months. survive and flourish? We have a good group of people here, we’re like a family. Families argue sometimes, we’re no different and I want this Richard L. Scheff: The firm has always been fiscally family to continue. And so achieving the balance of the growth conservative. We pride ourselves on not having any debt. As a we want with our culture, I think that’s our biggest challenge result, in good times or bad, we are on a very solid foundation. for the future. I’m confident that we can be there. I have great In terms of flourishing, like any other firm you always have to faith in our lawyers and I have great faith in our younger continually look at your expenses, you have to make sure that people. I know that they will take the tradition of the firm and you are spending money the right way. And you have to make make it bigger, greater, better, and the quality of our services sure you have the right players on the field because it is an will improve along the way. They’re going to take it to a whole extremely competitive environment. different level. It’s important that we remember our culture and the role it played in getting us to this point. How many lawyers do you have here in Philadelphia and firm-wide? One of the founders of the firm, Owen J. Roberts, We have about 100 in Philadelphia and about 150 firm-wide. served as an associate justice of the U.S. Supreme Our plan over the next three-to-five years is to take the number Court. There have been others who have been called to between 200 and 225. I see tremendous opportunities for to the federal bench. What makes attorneys in your firms our size. I really do. I think in today’s economic climate, firm popular choices to become judges? particularly with large purchasers of legal services being Owen Roberts passed away in 1955 and so I never had the

14 the philadelphia lawyer Fall 2012 PHOTOGRAPHED BY John Carlano

The Bar Association is a community of lawyers and in my view, participation in the community is a component of participation in the chosen profession.

pleasure of meeting him, but we have chairman of the litigation department lawyers and in my view, participation done a lot of research on his life and here. I didn’t start at Montgomery in the community is a component of his contributions to the public, to McCracken until 1990 and so Tom participation in the chosen profession. Pennsylvania, to the court systems and I didn’t cross paths at the firm. I You need to be an active member of the and to the country, over the course have gotten to know Tom over the community, you need to give back. You of his long career. He was dean of years. He’s a former Chancellor of the need to be sharing your best practices, the University of Pennsylvania Law Bar Association. He’s a man of great helping other lawyers, participating. School, he was appointed to the patience and judgment, and he is an We think Bar participation is important, position of special counsel by President excellent jurist. So I would hope that we so the firm pays for all of its lawyers to Calvin Coolidge to investigate the are cultivating lawyers in that tradition. be members. We of course encourage Teapot Dome scandal, and he served as participation in the various sections and chair of the commission to investigate Montgomery McCracken lawyers committees. the state of the nation’s preparedness have a proud history of service to to meet the Japanese attack on Pearl the Philadelphia Bar. There have How does your firm’s attorneys’ Harbor, our entry into World War II. been six Chancellors, one chair of participation in the Bar So Owen Roberts brings a tradition the Board of Governors and three Association help Montgomery of great judgment and public service, chairs of the Young Lawyers McCracken? which I think has been a hallmark of Division. Why is bar service so Well, our interaction with people this firm. important to the firm’s attorneys from the legal community results in Judge Thomas O’Neill on the Eastern and to attorneys in general? the generation of ideas about how we District of Pennsylvania bench was the The Bar Association is a community of can better operate, better serve our

16 the philadelphia lawyer Fall 2012 lawyers, and do things better for the community. So for us, it’s a source of ideas – that exchange of information – that is something we look forward to. The Bar Association has tremendous training programs and it is not uncommon for our lawyers to attend training sessions or participate in a lunch-and-learn program, and then come back to the firm and share the wisdom of what they learned. Training is just one of the great services the Bar provides.

How does Montgomery McCracken bring new attorneys along? Do you have a specific mentoring program? We have had success with a formal mentoring program, but as a practical matter, much of the mentoring is done one-on-one, on an informal basis. Mentoring is done at all levels. In fact, I have an open-door policy and encourage lawyers and staff members to visit and discuss what’s on their minds. Part of mentoring or the learning process for young lawyers is to be in meetings with seasoned lawyers to discuss the nuances of a case. We involve our lawyers in discussion of strategy options and potential outcomes. Sitting around a table and strategizing about how to handle a case - the discussion and analysis is all part of the learning process. Likewise, we bring our young lawyers to client development pitches as another Chancellor John E. Savoth with Richard L. Scheff. important aspect of their training. We talk to associates about how to interact with senior partners as sometimes there learning process for me and it’s very difficult to get full attendance. I also is a sense of intimidation or a sense of exciting to be able to help shape the schedule regular open forum sessions not being able to approach someone. lives of younger lawyers and to shape where partners can meet with me We try and break down those walls. the life of our organization. one-on-one to discuss compensation, Are we successful across the board 100 business development, our capital percent of the time? I’m sure we’re not, I find it fascinating that the firm structure, expansion plans, the topics but we are moving in the right direction has maintained a culture through are endless. and have had great improvement over the decades, 100 years now, Shortly after I became chairman the years. whereby young lawyers feel that of the firm I started quarterly staff Recently, I convened a group of they can speak up. How do you meetings. No other lawyers attend. younger partners to talk about the firm foster that? It’s just staff members, regardless of and its future, because this isn’t just my I think while communication is position, and me. During that session, firm; it’s their’s too. We talked about important, encouraging people to do I tell them the status of the firm. I what we need to do to shape the firm so is hard to do. So, we have created tell them what’s going on, how we’re for the future, what we need to do to forums for open communication. doing financially, and what our plans make it a better and stronger place. And We have monthly partner meetings are for growth, etc. At the outset, so we’ve had a dialogue in that aspect where we discuss the business of the we implemented a program where of mentoring younger partners. It’s a firm. Lawyers are a busy lot, so it’s staff members are invited to submit

the philadelphia lawyer Fall 2012 17 questions anonymously because a lot of as lawyers. We have 25 people on our focus on diversity issues come in to people don’t want to stand up and ask committee. We meet once a month and show a film and then facilitate an open a question. In the first quarterly staff we have four or five subcommittees that discussion of the issues presented. meeting I had a slew of anonymous actively work on community and firm Diversity issues are a part of our world questions. I answer every single initiatives. We have a group of people and we all need to be aware of other question. Some of them are similar so working on a firm diversity vendor cultures, races, ethnicity, lifestyles, I group them, but read the question program, a relatively uncommon differences, etc. I grew up in North and provide an answer. In the last staff initiative. We’ve got a group of people Jersey, and my sister and I were the only meeting we had in June, I don’t believe evaluating whether or not we ought Jewish kids in our elementary school. It there was a single anonymous question to retain a chief diversity officer, as was an odd feeling in that setting. I’m submitted. And so people are now many large corporations do. We’ve got not saying that’s allowed me to be able feeling comfortable enough to stand up a group of people who on a quarterly to appreciate all the diversity problems and ask their questions. basis produce a diversity newsletter. and discrimination that people have We hold in-house diversity events. I suffered throughout the years, but it’s Diversity seems to be a key hope you can join us this fall for our provided a little bit of a window for me. component of your firm. What ongoing program called “Minorities We’re trying to get more and more are some of the initiatives and in the Military.” As a firm, we have people involved in diversity issues. I programs that you’ve instituted? actively supported the military. Last don’t think everyone appreciates how There was a point in time where there spring, we had two of the Tuskegee important it is to our culture, to us as was a fairly robust but relatively small Airmen at the firm. They gave a great people and to our business. But we’re group of lawyers working on diversity presentation on what it was like to be getting there. It’s a process. It’s not issues. I got involved in diversity a Tuskegee Airman in the 1940s. Our something that happens overnight. We actively here five or six years ago. fall diversity presentation will be on have a long way to go but we’ve come At that point, we decided to open the women in the military. a long way. Diversity Committee to staff as well We’ve also had filmmakers who Are the attorneys here fortunate we are and of the opportunities mentally, most likely, your productivity encouraged to take pro bono we have, and that we all need to give is affected. I suspect there are a cases? What is the approach of back in one way or another. Whether number of firms where an attorney’s your firm to having attorneys it’s through pro bono activities, service compensation would be cut and there participating in pro bono? to boards or charitable organizations, or would be an immediate financial impact We’ve had a long, rich program of reaching into your pocket and donating on that person. We’ve always been participation in pro bono in a variety to organizations, the notion of giving empathetic to our lawyers’ and staffs’ of different ways, through formal back to the community is something personal situations. Years ago, the wife and informal programs. We have had that lawyers have a long history of of one of our young partners tragically significant pro bono representations. doing, and it’s important. We have so passed away and he was left as a single We do that because we believe in a many advantages, we have so many parent with two kids. We told him to cause, or because a particular person opportunities and we shouldn’t lose take whatever time is needed, take care believes in a cause. If you could look sight of where that comes from. of your family, they need you now. You at our email system you would see that let us know when you’re ready to come our attorneys have many opportunities How do you help your folks back. He came back and reintegrated to become involved with pro bono here at the firm create a balance into the firm. We recently had someone cases. We encourage pro bono work between work life and home life? with a medical problem – there was a by all lawyers and all recorded hours I am the poster child for the need of an flood of support for him. We told him to go toward their billable-hour target. intervention when it comes to work/ take his time and he’s already back and All pro bono matters are opened as home balance. We have always been working. This way of thinking predates separate client engagements and pro flexible in terms of work hours, part-time me. It’s just the culture of the firm. bono clients are treated in all respects schedules and people telecommuting. as clients of the firm. We have been particularly sensitive to John E. Savoth ([email protected]), of It is good training for our young people’s personal situations. If you’re counsel to to Saltz, Mongeluzzi, Barrett lawyers. They’re learning to give back dealing with a family issue, a sick child, & Bendesky, P.C., is Chancellor of the to the community and it’s important or your spouse or parent has a problem, Philadelphia Bar Association. to their development and to the firm’s whatever the case may be that is taking culture. Many of us lose sight of how you away from the office, physically or

20 the philadelphia lawyer Fall 2012 Bending Toward Justice: Why Plaintiffs Deserve a Mixed-Motives Causation Standard for Retaliation Under Title VII

By Mark Franek

13 I.  Introduction limit its damages. If the employer can show by a preponderance of the When Congress passed the Civil Rights Act of 1964 evidence that it would have made (“Title VII”), 1 it was the beginning of an ambitious attempt the “same decision” even without to eliminate discrimination in employment based on race, considering the illegal motivating color, religion, sex and national origin. In a speech made in factor, the plaintiff’s attorney “may” Atlanta, just over three years later, Martin Luther King Jr. collect legal fees and costs, but payment said, “Let us realize the arc of the moral universe is long, but is unlikely since most judges follow a it bends toward justice.”2 The arc of employment law might “proportionality principle” that often gets be bending toward justice, too, though a closer examination eviscerated by a successful same-decision of its evolution might show lurching movements, followed by defense.14 The outcome is even worse for long periods of relative inactivity. the plaintiff, who “may” receive injunctive Over the past 50 years, Congress and the Supreme Court or declaratory relief, but cannot collect any monetary damages have tinkered with the appropriate causation standards, – a painful pyrrhic victory for an employee who has proven burden-shifting requirements and jury instructions under Title that discrimination had in fact occurred, just not enough VII, creating a complex system of rules for bench and bar. of it to trump the employer’s same-decision defense.15 The One of the most difficult and confusing concepts to result is mixed-motives causation standard is therefore a mixed-bag a mixed-motives causation standard and its pendant mixed for plaintiffs. motives jury instruction.3 Increasing the confusion is the Despite its limitations, the mixed-motives framework should lack of clarity about whether this framework applies to all be available to all Title VII plaintiffs as it attempts to level disparate treatment and retaliation plaintiffs under Title VII, the evidentiary playing field. In a litigation context where the or only to plaintiffs bringing disparate treatment claims.4 employer is often in sole control of its intent, and where the The mixed-motives cause of action is more kind to plaintiffs plaintiff may have a less-than-perfect employment record, the on the issue of liability than the traditional McDonnell mixed-motives framework helps plaintiff’s counsel untangle Douglas5 burden-shifting framework, first articulated by the threads of possible multiple motivations for an adverse the Supreme Court in 1973.6 Under the McDonnell Douglas employment decision.16 Accordingly, Congress should revise framework, once a plaintiff has established a prima facie the mixed-motives language of Title VII to impose some type case, the burden of production shifts to the employer to come of modest economic recovery for plaintiffs when liability is forward with legitimate, non-discriminatory evidence for its established, but where the employer successfully counters adverse employment decision.7 If the employer articulates with the same-decision defense. Furthermore, Congress a non-discriminatory reason for the adverse employment should require the payment of reasonable attorney’s fees action, the burden of production shifts back to the plaintiff and costs, subject to the court’s oversight, once liability is to demonstrate that the employer’s proffered reason was established and regardless of the outcome of the same- a pretext to mask unlawful discrimination.8 The burden of decision defense. These revisions and expansions of the persuasion always remains with the plaintiff, and the plaintiff mixed-motives causation standard will give Title VII plaintiffs is entitled to relief only if his or her protected status was the some economic relief for proving that illegal discrimination but-for (determinative) cause of the adverse employment occurred, encourage plaintiffs’ attorneys to pursue similar action. cases, and pressure employers to promote zero-tolerance In contrast, under the mixed-motives causation standard, policies and practices for discrimination and retaliation in the announced by Price Waterhouse9 in 1989, and then revised workplace. and incorporated by Congress in the Civil Rights Act of 1991,10 once a plaintiff has proven by a preponderance of the Mark Franek is a third-year law student at Temple University Beasley evidence that an illegal motivating factor played a role in the School of Law. For the complete essay go to www.philadelphiabar.org/ adverse employment decision,11 the burden of production and WebObjects/PBA.woa/Contents/WebServerResources/ persuasion shift to the employer, which is entitled to a partial CMSResources/ginsburg-2012.pdf. References 1-16 are all available (some might argue a near-complete) affirmative defense.12 through the online version of the essay. The employer cannot escape liability but can substantially

the philadelphia lawyer Fall 2012 21 Connected by Bars

Philadelphia, Lyon Lawyers Renew Ties By Enid Adler

t’s been 14 years since Michael the only American bar association that has this arrangement with Lyon. We Scullin and I initiated the have been instrumental in expanding this twinning program between relationship from one of just our two bar I associations to one of a full-fledged business the Philadelphia Bar and the Barreau and cultural arrangement between Philadelphia, de Lyon in France. Once again, at the beginning Lyon and the Rhone-Alps Region. The ceremony of the new signing agreement of December 2011, we made the annual, now biennial, at the offices of the Lyon Bar was the beginning trip to Lyon for the opening events of the Lyon Bar Year. of a full schedule of events for all visiting bars. Over the years, our bar has hosted yearly two or more As in the past, there was a seminar on a topic of mutual interest. This also serves as a CLE for Lyon recent Lyon law school graduates, who spend about six lawyers. The subject was “Business and the Law.” months in a Philadelphia law firm or with a local judge. It was interesting that two of the panelists were U.S. academics, one of whom serves with me in the American Bar Association Center for Human Rights. This year we witnessed the signing of a new twinning Topics in prior years included the concept and practice of pro agreement between the Barreau de Lyon and the Bar of bono for lawyers in various countries and the controversy of Burkina Faso. This was signed by the Batonnier of the Lyon class actions in the legal profession. Bar, Myriam Picot, and the Batonnier of Burkino Faso, Issouf Earlier in the day, I was a guest at the formal law school Baadhio, and followed by a reception at the offices of the graduation ceremony. Unlike our American tradition where Barreau. The Lyon Twinning Program encompasses many only members of the judiciary wear robes, this is the traditional bar associations of cities and countries in Europe but also, for courtroom garb of all lawyers in civil law countries and also example, from Tunisia and now Burkina Faso. Philadelphia is in some common law systems. So, I got to wear the obligatory

22 the philadelphia lawyer Fall 2012 black robe for this was a sugar factory and now houses an avant event. I was seated garde art collection on multiple floors. As has up front with Lyon’s become a custom, I was picked up at my hotel by Batonnier, Batonnier- Andre and Danielle Boyer. Andre was the Batonnier Elect, former or ancient in 1997 at the time of the beginning of our Twinning Batonniers and our friends from Program. He has headed previous Lyon delegations to Burkino Faso. This is a very solemn Philadelphia. In speaking with then-Batonnier Designe occasion. Sitting on the judges’ dais were (who took office in January 2012) Philippe Meysonnier, he members of the Bar Council in their red robes indicated that he planned to head a Lyon Bar delegation to with leopard-spotted ermine collars. As is customary the Philadelphia Bar in 2012. This group will include Thierry and a sign of respect, we all rose when they entered. The 150- Bonnet and Jean-Michel Raynaud, both leaders in the Lyon plus graduates wore their black robes for the first time as an Twinning Programs. official sign of becoming a lawyer. Each one carried white Lyon is known for its goumet restaurants; so the concluding gloves, wearing only one on the left hand until he or she came event was a gastronomic lunch on Saturday. forward to individually raise the right hand to repeat/take the Over the years, Michael and I have made many friends in lawyer’s oath. A small group of us, joined by Michael and his Lyon. So it was that we were invited for dinner on the day wife, were treated to a marvelous lunch at the restaurant at the of our arrival to the home of Christian and Agnes Leroy. Lyon Opera House. The view was spectacular, overlooking Christian was the director of the Twinning Program in 1997 the elegant Hotel de Ville (City Hall) and the rooftops of the and for many years to follow. When the Lyon delegation next city. returns to the U.S., it will be our turn to shower them with Friday evening, as is the custom, we attended the gala Philadelphia hospitality. reception for the opening of the Bar year. The location this time was at Sucrier, a restored warehouse in a newly developing Enid Adler ([email protected]) is a sole practitioner. area at the confluence of the Rhone and Saone Rivers. This

the philadelphia lawyer Fall 2012 23 Money Well Spent THE VALUE OF CIVIL LEGAL ASSISTANCE tO THE POOR By Louis S. Rulli

n the almost 50 years since the establishment of a federally driven decisions increasingly dominate legal practice, pro bono legal assistance funded legal services program for the poor, we have keeps the profession centered on core learned many important lessons about the value of civil values like equal justice under law and I the fair administration of justice that the legal assistance. Access to legal help for the poor has made our Conference of Chief Justices calls the courtrooms fairer and has engendered trust in the rule of law “cornerstones of our democracy.” among the disenfranchised. Representation in individual cases Legal Needs Studies has protected personal safety, preserved homes, secured public Unfortunately, we have also learned during the past several decades that the benefits and remedied discrimination that weighs families down legal needs of the poor are substantial and prevents them from moving out of poverty. and largely unmet. As The New York Times noted just last year, “most low- income Americans cannot afford a Being on the front lines of poverty has allowed lawyers to lawyer to defend their legal interests, identify systemic injustices that prey upon the poor and to no matter how urgent the issue.” Sustained cuts in federal educate the public about entrenched problems that demand funding, reductions in legal-aid staffing, and a recession that broader solutions. Path-breaking legislation and innovative has swelled the ranks of the poor, have all contributed to court projects, such as Pennsylvania’s Protection From Abuse pushing access to legal help beyond reach for most in need. Act, and Philadelphia’s Mortgage Foreclosure Diversion The alarming gulf between client need and availability of Program, are the tangible results of successful partnerships legal help is descriptively called the justice gap. between lawyers for the poor and public officials, to the Legal needs studies in Pennsylvania have generally found benefit of everyone. that only one in five low-income people who experience a We have also learned much about the vital role that lawyers legal problem are able to get legal help from any source. In play in our civil justice system. Ethical rules urge all lawyers 2009, the Legal Services Corporation conducted a study of all to perform pro bono legal assistance, and legal aid programs federally funded legal services programs and found that for have worked closely with bar associations, law firms, non- every client served another person who seeks help is turned profits and law schools to build innovative pro bono projects away because of insufficient resources. Over the past five that deliver high-quality representation. All lawyers have much years, at least nine states have conducted comprehensive legal to contribute regardless of career path or substantive expertise needs studies to document the extent of the justice gap. These and the legal profession is stronger because of the voluntary studies affirm that only a small amount of legal problems are contributions of diverse segments of the bar. As business- handled by an attorney (less than one in five) and that even

24 the philadelphia lawyer Fall 2012 among the most serious legal problems, Economic Impact Studies most are not addressed by any legal help. Even more troubling, the poor The maturation of legal aid programs who seek legal help represent only a has made possible a new frontier of fraction of those who actually need empirical studies designed to measure civil legal assistance. economic impact. With improved Today, with ample documentation tracking of legal aid outcomes, provided by legal needs studies, no one researchers are beginning to quantify reasonably questions the existence of a the overall economic benefit derived serious justice gap. Judges must cope from civil legal assistance. These studies with this gap as they are called upon are at an early stage of development to make fundamental decisions about and rely on assumptions that merit the best interests of children or the continued study and refinement. With fate of family homes without having more experience in tracking advocacy the benefit of legal counsel in the outcomes and increased rigor applied courtroom. to financial models, the studies will While the findings of legal needs sharpen. Still, important findings are studies are disturbing, the studies rapidly emerging from economic impact themselves have proven vital to helping studies around the nation, including us better understand the justice gap a recent study in Pennsylvania that and to identify tangible solutions. One deserves our close attention. response has been to find new ways The Pennsylvania Economic to fund civil legal assistance through Impact Study statewide IOLTA programs, filing fee surcharges, cy pres awards, and pro The Pennsylvania Interest on Lawyer hac vice and attorney registration fees. Trust Accounts program (IOLTA) is The Supreme Court of Pennsylvania the Pennsylvania Supreme Court- with filing-fee funds, and to report on is a national leader in expanding designated fiduciary for IOLTA and the overall economic impact resulting access to justice through these types of state Access to Justice Act (AJA) funds. from the provision of free legal help in innovations. Another response has been The IOLTA program is entrusted with civil matters. They chose The Resource to foster innovation in legal services collecting and managing funds from for Great Programs, a Michigan-based delivery systems through telephone several sources and awarding grants corporation with experience in legal hotlines, self-help materials on the to programs that provide civil legal services management and research, to Internet, help centers in court houses, assistance to persons who cannot afford conduct this study. law student projects and unbundled to engage private legal counsel. In The results were illuminating. In a legal assistance at points of contact in 2002, Pennsylvania enacted the Access report dated April 11, 2012, researchers low-income communities. The studies to Justice Act to provide supplemental found that for each dollar spent on legal have also helped legal aid programs funding for legal aid programs through aid, “$11 of quantifiable economic set priorities for the most efficient and a modest filing-fee surcharge on users outcomes and savings were realized for effective use of limited resources. And, of Pennsylvania’s civil justice system. all residents of the Commonwealth.” without question, the alarming size Originally slated to sunset five years According to the study, a total of $53.6 of the justice gap has fueled growing after passage, the General Assembly million from all sources was spent demand for a right to counsel at public extended the Act and required the in 2011 on Pennsylvania’s civil legal expense in adversarial civil proceedings Pennsylvania Legislative Budget services programs that, in turn, yielded where basic human needs of the poor and Finance Committee to conduct a $594 million in income and savings for are at stake. performance audit of AJA funds and the Pennsylvanians and supported 2,643 An overarching lesson from legal statewide civil legal aid network. jobs for Pennsylvania workers. needs studies is that empirical research Conducted in 2011, the performance With an 11-fold return to the local plays an important role in enhancing audit found that case outcomes were economy from monies spent on legal access to justice. Our society relies generally positive and the large aid, the Pennsylvania study suggests heavily upon empirical data to assess majority of clients appeared satisfied timely questions about lost opportunity. the efficacy of public initiatives and with the services of legal aid. The audit By not providing adequate funding to to chart future directions. Law is no recommended that the Pennsylvania meet client need, is Pennsylvania losing exception. While empirical research has Legislature consider making the AJA out on tens of millions of dollars each given us reliable data about unmet legal fee and surcharge for legal services year as unrepresented Pennsylvanians needs, we have only recently begun to permanent. In anticipation of the state are unable to assert rightful claims to quantify the economic impact that our audit, the Pennsylvania IOLTA program federal benefits? Are Pennsylvania investment in civil legal assistance has commissioned a five-year report to taxpayers incurring large safety-net upon states and local communities. examine the accomplishments achieved expenditures that could be avoided if

the philadelphia lawyer Fall 2012 25 legal help was made available in the first instance? These are important questions yet to be answered. The Methodology and Specific Findings of the Pennsylvania Study

The Pennsylvania study, which is available on Pennsylvania IOLTA’s website, first reviewed all sources of funding for civil legal services in 2011 to get an accurate fix on the total number of dollars spent on legal aid. Second, it quantified the amount of direct benefits flowing to state and local communities from successful legal advocacy and from federal grants received by legal aid programs. To compute direct benefits, the study utilized outcome rates in legal aid cases and applied the study was able to quantify the the Commonwealth in 2011. According a standard economic multiplier that total revenues obtained by legal aid to the study, this flow of federal funds captured economic activity generated clients from monthly awards and back produces an even greater economic from the circulation of federal benefits payments when standard averages for impact when the government’s standard in the state and local economy. Third, benefits and back awards as reported “economic multiplier effect” is taken the study computed cost savings to by the Social Security Administration into account. taxpayers by totaling the amount of were adopted. This step of the study The U.S. Department of Commerce’s public expenditures for safety-net concluded that legal aid representation Bureau of Economic Analysis has items, such as emergency shelter generated $118 million during 2011 developed an Input-Output Model that or assistance to domestic violence in Social Security and Supplemental has determined that each federal dollar victims, which were avoided because Security Income benefits for low- coming into a state circulates 1.86 of legal intervention. Finally, the report income Pennsylvanians. times in state and local communities identified other potential savings from The economic impact of these before leaving the state. Applying legal aid representation that were not federal benefits is actually magnified this economic multiplier effect, the quantified at this time. since recipients of Social Security Pennsylvania study found that $191 The first step of the study revealed Disability and Supplemental Security million in direct federal revenues to that Pennsylvania’s legal aid programs Income benefits are automatically Pennsylvania attributable to legal received $53.6 million during 2011 eligible for Medicaid coverage, and aid produced $355 million for local from all public and private sources. the health-care coverage they receive communities before it left the state. In the second step, researchers qualifies the commonwealth to receive Additionally, the Input-Output Model examined case outcomes achieved millions of additional federal dollars calculates that 13.84 jobs are produced with legal assistance. For example, under the Federal Medical Assistance for each $1 million of federal dollars lawyers for the poor assist low-income Percentage. Utilizing annual Medicaid coming into low-income households individuals obtain Social Security reimbursement statistics compiled by in the state. Applying this standard, and Supplemental Security Income the Centers for Medicare and Medicaid researchers concluded that civil legal benefits. When they are successful, Services, the study found that for each services supported 2,643 jobs for clients receive ongoing monthly federal dollar in Medicaid reimbursements working Pennsylvanians in 2011. benefits and are often entitled to back made on behalf of legal aid clients, In the third step of the study, payment awards. Successful outcomes there was a flow of 57 cents in federal researchers examined cost savings to direct substantial federal benefits to the revenue to Pennsylvania. Applying the public from legal aid representation. state and local economy. successful outcome rates, researchers Here, they determined that Pennsylvania Pennsylvania researchers borrowed calculated that Pennsylvania received taxpayers obtained an additional $48 case outcome results from a standard an additional direct economic impact of million in cost savings from successful linear regression analysis conducted $59 million in 2011. representation in cases involving on data obtained from 15 general In short, Social Security and domestic violence and housing. civil legal aid programs in New York Supplemental Security Income benefits, In 2011, Pennsylvania legal services State and Virginia. Applying average Medicaid reimbursements and federal programs helped 6,658 families to success rates from the regression grants obtained by Pennsylvania’s legal secure civil protection from abuse. analysis to the number of Pennsylvania aid programs collectively yielded a Based on a 2006 economic study that cases completed in this practice area, total of $191 million in federal funds to found that each incident of domestic

26 the philadelphia lawyer Fall 2012 The bottom line of the Pennsylvania study is that $53.6 million invested in legal aid yielded $594 million in direct economic benefits and cost savings to the state and local economy in 2011.

violence carried with it attendant costs such as health care, disability and jobs, producing $250 million of output of $3,201 in quantifiable items, such as community development, are quantified in the state economy and providing medical care for injured victims, special in future studies. $297 million of disposable income. education and counseling for affected Economic Impact Studies in The Florida study concluded that for children, police resources and prison Other States and Localities every dollar spent on legal aid, the state for perpetrators, the study concluded received an economic impact of $4.78. that successful representation to The results of the Pennsylvania study Finally, a 2012 economic study victims of domestic violence resulted are largely consistent with that of other by the Chicago Bar Foundation and in savings of $23 million during 2011. economic studies conducted around the Illinois Equal Justice Foundation According to the study, this figure likely the country. In a 2009 Texas study, examined 8,000 closed cases from underestimates savings because it does researchers found that for every dollar seven legal aid providers in Illinois not take into account reasonable cost spent on providing indigent civil legal and found that legal aid representation savings for items that are more difficult services, the Texas economy gained produced substantial economic benefit to quantify, such as time lost from work $7.42 in total spending, $3.56 in gross to the state. Karen Hasara, president of or school or longer-term trauma costs output and $2.20 in personal income. the Illinois Equal Justice Foundation, resulting from domestic violence. For only $4.8 million in state and local called legal aid a “good investment Similarly, legal aid programs provide funds expended on legal aid, Texas state of government and private dollars” in a high volume of housing representation and local governments benefited from which the economic data demonstrates intended to help low-income families approximately $30.5 million in yearly “the good that legal aid organizations preserve their homes or apartments fiscal revenues. Similarly, a 2011 study do for their low-income clients as well and thereby avoid homelessness. commissioned by the Massachusetts as the community at large.” Pennsylvania legal aid programs Legal Assistance Corporation found BEYOND ECONOMIC BENEFITS completed 22,174 housing cases in that Massachusetts received an 2011. With a representational success economic boost of $53.2 million from Over the past five decades, the rate of 18.7 percent, the Pennsylvania the state’s appropriation of $9.5 million delivery of legal services to the poor study concluded that legal aid helped for legal aid. has produced many tangible benefits 4,147 low-income households to avoid New York State’s Task Force to to the legal profession and to our civil eviction or foreclosure. Applying Expand Access to Civil Legal Services justice system. Until recently, however, economic data from a New York concluded that civil legal assistance there has been little attempt to measure study that found that 41 percent brings substantial federal funds to the economic impact to state and of households removed from their clients and to the New York economy, local communities from such work. homes due to eviction or foreclosure with significant cost savings to the Economic impact studies are now ultimately require emergency shelter at state and local governments. The New underway in many jurisdictions and a public cost of $14,794 per household, York study completed last year found though at an early stage of development researchers concluded that legal aid that civil legal assistance produced their research findings are significant. representation in housing saved the an overall economic impact of $980 They point to highly favorable public approximately $25 million in million to New York state. Based economic returns to local economies 2011. upon an investment of $216 million in from each dollar spent on legal aid. The bottom line of the Pennsylvania funding to legal aid from all sources, It is possible that these early studies study is that $53.6 million invested in this represented an almost five-fold slightly overstate the amount of legal aid yielded $594 million in direct return to the state on each dollar spent economic impact. However, many economic benefits and cost savings to on legal aid. believe that they more likely understate the state and local economy in 2011. In 2010, a Florida Bar Foundation economic impact because they do not yet The total economic impact is likely to study found that civil legal assistance capture all costs savings. Future studies be even greater when cost savings in had a significant impact on the Florida will provide more complete answers, other areas of legal aid representation, economy by creating more than 3,300 but available empirical evidence from

the philadelphia lawyer Fall 2012 27 current studies documents the value We must not lose sight of fundamental justice system and holds government of legal aid’s role in fostering equal values fostered by civil legal assistance accountable to make sure that everyone access to justice that, as Georgia Chief that are essential to the well-being is treated with respect and fairness. Justice Carol Hunstein recently wrote of our society, even if they cannot be This guiding principle fosters trust and in a leading newspaper, “contributes measured in dollars. For example, hope that keeps low-income families to healthy communities and a vibrant helping homeowners save their homes connected to mainstream society and economy.” from mortgage foreclosure does much enhances their ability to move out The Pennsylvania study is an more than achieve cost savings; it of poverty. In the final analysis, the important addition to this growing provides families with needed stability, relationship between ordinary citizens body of knowledge. It presents a avoids educational disruption, prevents and their government is much more convincing case that legal aid to the families from plunging deeper into important to the long-term success poor helps everyone’s pocketbook and poverty and helps communities remain of our democracy than any short- that underfunding does economic harm intact. Helping domestic violence term economic gains. As we quantify to all Pennsylvanians. Many agree in victims obtain legal protection saves economic benefits derived from civil principle with the call for a right to lives, protects safety and gives children legal assistance, we must be careful not counsel in important civil cases, but ask a healthy environment in which to to undervalue those enduring qualities how the public can afford additional nurture and grow. Helping senior that are not measureable in dollars, legal help in such difficult economic citizens or disabled persons obtain but that are the bedrock of a just legal times. However, economic studies that public benefits promotes independence system and a humane society that document such strong financial benefit and restores dignity to vulnerable remain a beacon of hope around the to state and local economies from legal citizens. Financial benefits are certainly globe. aid representation suggest a better gained in each of these legal aid question: How can we not afford to pay practice areas but, more importantly, Louis S. Rulli ([email protected]. for additional legal help? vital interests are advanced that define edu) is Practice Professor of Law As important as these economic the type of society we value. and Director of Clinical Programs at impact studies are, the value of civil Perhaps the most important lesson University of Pennsylvania Law School. legal assistance should never be about the value of civil legal assistance measured solely in economic terms. is that it bolsters the poor’s view of our

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Purchase of this CD-ROM entitles the owner to use it on a single computer only. It may not be copied or used over a CR – 6519 © 2012 network without express written Pennsylvania Bar Institute employers and employees license from PBI. All Rights Reserved This book features handy tools, including tips for handling workplace investigations (and 6 ways to attack the investigation), sample interrogatories and document requests, and a checklist for employers to avoid discrimination and other claims. Pennsylvania Employment Law Deskbook Save time with PBI Press’s professional research tools 8.5" x 11" looseleaf binder, 622 pages • 3 indexes: case names, statutory, • Searchable CD-ROM of entire book Published 2012 (#6519) and subject matter included with hard copy $169.00 • Detailed table of contents enabling you to find what you need quickly

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800-247-4724 | www.pbi.org Filling Gaps The First Judicial District’s Judicial Fellowship Program

By Chapin F. Cimino

t is three months to the day since your law school graduation fill-the-gap experience: while recent grads were suffering ceremony. You have just completed sitting for the bar exam, and from gaps in employment you know in your bones that you are accomplished, capable and opportunities, the court had I gaps of its own to manage. ready to go. Yet instead of feeling proud, instead of letting yourself Due to state budget constraints, relax, you feel strangely empty, anxious, even a little let down. Now the First Judicial District had less than a full complement of that you have no more classes to attend, you cannot hide from your new judges, yet remained committed reality: you must find a paying job in law. Of course you knew when you to both efficiency and quality. Perhaps the court could draw came to law school that the job market was terrible, but this day seemed upon the talent of new graduates so far off then. A year, even six months ago, you were sure that by now to maintain these commitments while at the same time something would have worked out. After all, you have been faithfully providing real work experience monitoring the on-campus employment office job postings, applying for to graduates. Judge Rau saw the JFP as a way to help both anything and everything that might be a good fit for you, and you have recent law graduates and her been networking the best you could for the past three years. But so far colleagues on the bench. Judge Rau understood nothing has panned out, and you are certainly not alone. Now what? intuitively that a volunteer program like this one had to Many who reach graduation without a job will remain be characterized by choice and selectivity. Judges would unemployed for three-to-six months after graduation, and volunteer to bring on a fellow only if they wanted to serve as some for nine, 12 or even 15 months more. Compassion for a mentor, and each judge would make all his/her own hiring these graduates led Philadelphia Court of Common Pleas decisions, based on both applicant qualifications and mutual Judge Lisa M. Rau to ask herself what the court could do to chemistry. Further, participants in the program would need to help. That inquiry led to the First Judicial District’s Judicial be flexible: the judge would give the fellow the same work as Fellowship Program (JFP). would be given to a full-time law clerk, but since the fellow Filling Multiple Gaps would continue looking for a full-time paying job, he/she would work in chambers part-time, and could leave as soon as Judge Rau started brainstorming ideas for a jobs-like he/she found a full-time paying position. program during the fall of 2010. Talking it over with With these parameters in place, the JFP would benefit both colleagues, Judge Rau spotted the opportunity for a double the fellow and the court. The fellow would immediately put

30 the philadelphia lawyer Fall 2012 Creating the JFP his/her law degree to work, preventing received inquiries from schools outside a resume gap, and would be actively As a first step, members of the the region, the program is now open to cultivating contacts inside the Bar, three career planning offices, as well all law school graduates. expanding his/her network. The hiring as several court administrators, Judge Success Story: Fellows judge in turn would benefit from Rau, and her staff formed an organizing Getting Jobs, Creating energetic, fresh talent in chambers. committee. Everyone recognized at the Opportunities for New And both fellow and judge would know outset that, to be a success, the program Fellows they were performing a valuable public had to essentially run itself, so as to service. not strain already overtaxed resources While retention of good talent is often Judge Rau took the idea to the – of the courts, the law schools or a challenge, not so with the JFP. Indeed, court and to career planning offices at the graduates. Technology helped. the goal of the program is for each Drexel University Earle Mack School The committee developed an entirely fellow to leave the program as soon of Law, Temple University Beasley self-executing electronic application as possible. Most fellows leave within School of Law and University of process: an applicant emails materials months. “The new employers’ gain is Pennsylvania Law School. The reaction directly to each judge, the judge our loss,” wrote one judge of her former was unanimously positive. The law makes her own choices about whom two fellows, “but we are delighted schools especially appreciated the idea to interview and hire, and once an to have our fellows springboard since the lean hiring market demanded applicant is selected, the judge informs successfully into a paid position.” new approaches to career planning. the court’s office of human resources Indeed, the program is working exactly The law schools well understood that for record-keeping and program- as Judge Rau had hoped. Through traditional on-campus interviewing monitoring. Additionally, applicants February 2012, a remarkable 88 percent no longer yielded the kind of results and judges can access program forms of fellows participating in the JFP left it used to. So, despite the fact that and information on the program’s their fellowship for a paid legal job. well-watched metrics like U.S. News website. The program is as streamlined Perhaps the shortest fellowship on and World Report would not include a as possible. record was that of Rebecca Trela of volunteer position like the fellowship in It didn’t take long before word Drexel University Earle Mack School its annual ranking tally, the law schools of the JFP began to spread, and of Law, who was working for Judge were fully on board with the idea. the young program began to grow. Rau. Rebecca applied for a fellowship Likewise, the court immediately saw Villanova University School of Law in the spring of her third year of law its value and committed to bringing the came on board, as did the remaining school, eight weeks prior to graduation. JFP to fruition. President Judge Pamela Philadelphia-area law schools (Widener “I had been interviewing, but nothing Pryor Dembe called the program “a Law School, Rutgers School of Law had yet worked out, and I didn’t want winner for both the courts and the new – Camden and Penn State Dickinson to end up in a non-legal job with a gap graduates.” School of Law). Because the JFP has on my resume. So I applied to become

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1617 JFK Boulevard, Suite 1750 • Philadelphia, PA 19103 • 800-722-7670 x2453 • Fax: 215-557-2301 • www.lawcatalog.com/ld12 a fellow,” she said. Judge Rau selected her immediately, grateful for the court’s support.” recognizing her strong academic record and commitment to Count the Philadelphia Bar Association among the program’s public interest. Perhaps good karma from the program was biggest boosters. Former Chancellor Rudolph Garcia all that Rebecca needed – only a few weeks after she accepted provided input, suggestions and advertising support in the Judge Rau’s offer, Rebecca landed a full-time paying clerkship early stages. Current Chancellor John E. Savoth has likewise with a Court of Common Pleas judge in a neighboring county. touted the program, recalling the invaluable experience and “I was thrilled when Judge Rau selected me right away. My mentorship he received early in his career as a clerk for only regret is that I won’t get a chance to work with her,” Pennsylvania Supreme Court Justice James T. McDermott. Rebecca added. “Judicial clerkships offer tremendous insight on the decision- Once at the court, fellows are helped in multiple ways. making process and how the courts work,” Savoth said. “To Fellows are incorporated into the ongoing monthly education be mentored by a sitting judge and introduced to the members program for judicial clerks and permitted to participate in of the Bar affords you the skills, knowledge and connections the court-sponsored CLEs that are that put you on an excellent path for provided at token cost to judicial the rest of your career in the legal clerks. Moreover, when there is profession.” word of a paid position, Judge Taking Stock: Challenges Rau notifies the fellows right and Next Steps away so they can apply. Notably, seven fellows so far have gone on Because applications are to paid judicial clerkships. Their accepted continuously, each fellow new employers apparently saw the Fellows complete exit moving on opens a spot for a new benefit from their prior training in fellow. Indeed, throughout the judicial chambers and were able evaluations, on which program’s history, demand for to rely on recommendations given they continually report fellows has consistently outpaced by their judicial colleagues. Other applications and is only growing: fellows have moved on to law firms good experiences. “The 44 Philadelphia judges are now and government positions. seeking to mentor fellows. Thus Lots of Supporters fellowship program the program’s biggest challenge has proved to be a largely unexpected Former fellows are the program’s turned my life around one, which is trying to attract grads best cheerleaders. Fellows and helped me with to the post. “I never thought this complete exit evaluations, on would be an issue, let alone the which they continually report every aspect of my job issue,” said Judge Rau. good experiences. “The fellowship In the end, it comes down program turned my life around and search,” wrote one. “The to recognizing the value of the helped me with every aspect of experience, especially as contrasted my job search,” wrote one. “The Fellowship was integral with its alternative: going it alone. fellowship was integral to me to me finding my job,” If a grad is not employed after the finding my job,” wrote another. The bar exam ends, what are his/her testimonials from the 27 Fellows wrote another. choices? The graduate can work who have completed the program part-time in any paid position – and landed paid legal positions even wait tables – but what then? show its rewards. How will he/she get his/her break Administrative Judge D. Webster into law? As one fellow noted, “It is Keogh supported the program when certainly difficult given our current it began and current Administrative financial positions to decide to take Judge John W. Herron has continued on an unpaid position. However I the court’s support. “We are just can guarantee that the knowledge delighted with the program,” Judge Herron said. “We at the and experience you will gain, coupled with the amazing people court always value our ability to support young lawyers, and you will meet and work, with will make it well worth it.” more so now than ever before.” Hiring judges appreciate their For additional information and fellowship application fellows as well – one judge remarked that her two fellows forms, visit the Judicial Fellowship Program’s website at helped her eliminate a backlog in opinions. Charles A. Mapp http://www.courts.phila.gov/jfp Sr., chief deputy court administrator, was another early supporter of the program, seeing how it could help the court Chapin F. Cimino ([email protected]) is an and also provide a public service. He appointed the court’s associate professor of law at Drexel University Earle Mack own Lee Swiacki from Human Resources to administer the School of Law. program, a position that Lee appreciates. “I watch applicants come in jobless, but then leave happily employed and forever

the philadelphia lawyer Fall 2012 33

By Angus Love

he scene is a late-season clash between two longstanding quality women on the field at all times. The competitive teams in the Philadelphia Recreational Lawyers Softball League. league was dominated by Pinnola and Bomstein is squaring off against the First Judicial Pepper Hamilton LLP and T Morgan, Lewis & Bockius District in a game with playoff implications. The game is being played at LLP for many years. They Pinnola’s home field, the W.B. Saul Agricultural High School in Roxborough. regularly squared off for the championship with This year 43 teams battled for the coveted 15 playoff spots and eventually Pepper getting the better bragging rights in the city. of it. Our team started in the fifth division and won it along with the fourth, This is also the first year in decades that there is only one third and second divisions but never got further than the final division of the softball league as the competitive division four of the first division only to suffer humiliating defeats at was folded into the rec league. About 25 years ago when my the hands of Pepper or Morgan. team (Pinnola) entered the fray, there were five divisions This particular night is what was once known as “Ladies in the competitive league and only a handful of rec teams. Night” but is now “Significant Others Night” when mimosas We employed the European soccer model of having to win and strawberries are served to our guests. We are an aging your division to advance to a better division as the last-place collection of current or former legal aid lawyers who have been team descended. There are several theories as to why the playing together for more than 30 years. We are so old that we migration came about. With apologies to our former mayor have five father-son/daughter combinations that allow us to and governor, Ed Rendell, “a nation of wusses” is not one of be competitive and give us a hand for odd jobs at the firms. them. Title IX and the opportunity for female company may FJD is one of the better teams paced by Court of Common have more to do with it as each team is required to have two Pleas Judge Daniel J. Anders, who hits the ball a country mile. of Summer

Deep Pockets pitcher Mark Maguire delivers to Blank Rome’s Eric Weschler during an Aug. 7 playoff game in Fairmount Park. Photo by Jeff Lyons

Playing against the judiciary poses new up his cleats a few years ago after a The Public Defenders field two teams, challenges, so an umpire is required short retirement speech, “I no DH.” one federal and one city. The city team, as the usual deference to the judiciary Our motley crew spent 10 years known as the Nerds, actually won the doesn’t come into play. Although there previously in the Architects and rec division last year after many years are often disputed calls during the Engineers League under the moniker of futility as their longtime pitcher course of the game, each game ends of the Community Legal Services David Rudovsky proved much more with a traditional lining up of the teams Crusaders with three surviving capable in the courtroom than the and shaking of hands as a show of members including myself, before playing fields. In a bit of a stretch, sportsmanship. switching to the Lawyers League Chico’s Bail Bondsman fielded a After growing up with dreams around 1990. We are a self-funded team for a few years. Some teams of playing major league baseball, team and have members representing make up fancy or cute names such softball provides an excellent antidote seven or eight different public nonprofit as the Unwarrantable Failures (who for a lifelong devotee of the game of and private law firms. This year we usually live up to their name), Camden baseball. There is no place I would are hoping to make a donation to the Benchwarmers (judges from the U.S. rather be and nothing I would rather ALS Association in honor of our fallen District Court for the District of New do than play softball with my longtime teammate Al Phillips who contracted Jersey), Harmless Errors (judges from friends and teammates on a beautiful the dreaded disease many years ago the U.S. District Court for the Eastern summer evening. Occasionally legal and succumbed to it a year or so later. District of Pennsylvania), the Lefty business is transacted, a referral I still remember Al watching the games Fielders (National Lawyers Guild), here and an exchange of specialized from his wheelchair down the left field Deep Pockets (City Solicitor’s Office), knowledge there but usually it’s talk of line. Ellyn Phillips, Al’s wife, founded Barely Legal and Lightning. The sports, family and occasionally politics. the Philadelphia chapter of the ALS District Attorneys’ Association, which Diversity has always been an important Association along with former Phillies was traditionally one of the stronger component of our team, which has pitcher Curt Schilling’s wife, Shonda, units with multiple teams, has returned always had a strong Latino component. many years ago. to the fray this year with the Flounders. Our founder Peter Pinnola, a former Most of the large law firms field at Much of the credit for our existence CLS attorney, started his career least one team and the public sector and that of the league goes to Jackie some 40 years ago playing for Taller institutions are also well represented. Dungee and Bonnie Hoffman of Puertorriqueno in the Spanish leagues The U.S. Attorney’s Office fields Team Hangley Aronchick Segal Pudlin & along with former City Councilman USA that was once managed by Zane Schiller; Ken Racowski of Morgan; and and shortstop Angel Ortiz. Angel hung Meminger, our current U.S. Attorney. Hyung Steele of Pepper for the great

36 the philadelphia lawyer Fall 2012 After growing up with dreams of playing major league baseball, softball provides an excellent antidote for a lifelong devotee of the game of baseball. administrative burden that they have it is more important to look good in teammates and enjoy a lovely summer shouldered through the years. Jackie is person. We’re all better off when we evening and maybe even toast your our current commissioner and deserves get out and let those other body parts teammates with your favorite post- extra credit as she keeps everything on have their day. What better way to do game adult beverage. track and settles the occasional dispute/ that than play in the Lawyers League protest. These folks have graciously where you can get that exercise, engage Angus Love ([email protected]) is executive given of their time to develop the in some healthy competition, enjoy director of the Pennsylvania Institutional rules, organize the teams, put together the camaraderie of our friends and Law Project. the schedules, keep the scores, set out the playoff form and crown a new champion each year. My hat is off to them for their tireless dedication. I have always been a firm believer in the need for regular exercise, which is especially important in a profession, like ours, where stress levels are high and the primarily physical exercise is lugging around a briefcase. A healthy body is a healthy mind. While it is This year’s championship team, Pond Lehocky Stern Giordano. important to look good on your resume,

the philadelphia lawyer Fall 2012 37 Bad JoeSa Paternomaritan The aftermath of The Penn State scandal

By Jennifer R. Ewing

nyone with eyes or ears in Pennsylvania has read or heard about the Stagg Championship Trophy; removing Paterno’s what is being described as the Penn State scandal, at the center name from Nike’s Joe of which is Jerry Sandusky’s conviction on June 22, 2012 for Paterno Child Development A Center; removing Paterno’s sexually abusing 10 young boys. While there is enough legal evidence name from an award given and moral condemnation to convict Sandusky 10 times over, much heated to the top male freshman athlete at Brown University, debate has arisen over the extent to which Penn State’s formerly beloved Paterno’s alma mater; head football coach, Joe Paterno, was involved in Sandusky’s criminal renaming the area of tents where students camp behavior, and the extent to which his legacy should be diminished or erased outside Beaver Stadium for for any such involvement. tickets from Paternoville to Nittanyville; removing a halo above Paterno’s head Five days after Sandusky was indicted, in November 2011, in a mural near Penn State campus; and renaming “Joegies” Penn State’s Board of Trustees fired Paterno for his possible hoagies at the Hetzel Union Building on campus HUB Subs. connection with the matter. The firing of Paterno caused an In the court of public opinion, Joe Paterno has received uproar on campus, with students rioting and causing damage multiple sentences, both before and after his death, for to cars and other property. Paterno died two months later of Sandusky’s crime. Based on the Freeh Report alone, it lung cancer. is undisputed that Paterno deserves blame from a moral After Sandusky’s conviction, Paterno’s legacy continued standpoint, although the appropriate level of blame – and to wane. In July, after the Freeh Report was released, which punishment – is still a hot-button issue. At a minimum, the further condemned Paterno, Penn State removed the iconic facts appear to show that Paterno learned more than once that Paterno statue outside Beaver Stadium. The next day, the Sandusky was engaged in unacceptable behavior with a young NCAA leveled unprecedented sanctions against Penn State, boy in Penn State’s locker rooms, yet did not notify the police. including removal of all its recorded football wins since 1998. But, legally, did Paterno do anything wrong? Like it or not, the This sanction wiped out 111 of Paterno’s wins and ended his answer to that question definitively is “no.” reign as the winningest coach in Division I college football. In Pennsylvania, as in many states, a regular citizen has Smaller censures included renaming the new Big Ten no legal duty to report a crime or assist a victim. The classic championship trophy from the Stagg-Paterno Trophy to example of this hard reality, which many of us undoubtedly

Photo by Jim Prisching, Associated Press 38 the philadelphia lawyer Fall 2012

learned in law school, is the Kitty Genovese murder that a child has been subjected to abuse to report it to the Division occurred in Queens, N.Y. in 1964. In that case, Genovese of Child Protection and Permanency. Failure to do so could was stabbed outside of her apartment complex in the early result in up to six months in jail. hours of the morning. Her screams for help woke several of Pennsylvania has a similar statute, but it only applies to her neighbors, who flicked on their lights and looked out of certain categories of people. Paterno did not fall within one their windows to see Genovese’s assailant, Winston Moseley, of these categories. Pennsylvania Consolidated Statutes standing over her. One neighbor yelled out at Moseley, who Annotated Title 23, Sections 6311 and 6313 provide that departed. people who come into contact with children in the course Another neighbor witnessed Genovese drag herself into of their employment, occupation or professional practice, the foyer of the apartment and collapse at the bottom of the and have reasonable cause to suspect child abuse based on stairs. The same neighbors who heard Genovese’s cries saw their medical, professional or other training and experience, Moseley return after 10 minutes, but did nothing. Moseley must report the abuse to the Department of Public Welfare located Genovese, slit her throat to silence her cries, then immediately by telephone and within 48 hours by written viciously stabbed and sexually report. Willful failure to do so is assaulted her. Neighbors who a misdemeanor in the third degree heard this commotion also for first-time offenders. did nothing, including a man The statute lists several who cracked his door open categories of people that it and watched the scene unfold. intends to cover, including school While the apathy of Genovese’s administrators and teachers. neighbors continues to horrify Although Paterno had Another provision of the statute law students of each new provides that if a person obligated generation, the truth is that her no legal duty to act any to report under the statute, such neighbors had no legal duty to differently from the way as a teacher, works for a company intervene or call for help. in that capacity – in other words, Even in states where statutes he acted, moral outrage works at a school – then they must create such a duty on ordinary immediately notify the person in citizens – known colloquially as at this legal truth has charge of the school, who must “Good Samaritan” laws, after assume the responsibility of the well-known New Testament led to the submission of making the report. parable – the requirement is several new bills in the Paterno was not a school usually limited to eyewitnesses. administrator or schoolteacher; he For example, Massachusetts Pennsylvania House of did not have training or experience General Laws Annotated related to child abuse and he was Chapter 268, Section 40 Representatives. not in charge of a school. Therefore, provides that whoever knows Paterno had no obligation under another person is a victim of Pennsylvania law to report certain crimes, and is at the Sandusky’s child abuse. Even if scene of that crime, shall report he had, he likely would have been the crime to an appropriate required to report to his superior, law enforcement official, or who would have been obligated to be subject to a fine. Similarly, Rhode Island General Laws make the actual report to the Department of Public Welfare, Section 11-56-1 provides that it is a petty misdemeanor if any not the police. Interestingly, the first time that anyone at Penn person, at the scene of an emergency, does not give reasonable State learned of Sandusky’s possible misconduct, in 1998, the assistance to someone exposed to or suffering from physical Department of Public Welfare did get involved and concluded harm. that no sexual assault occurred. As a citizen of Pennsylvania, Paterno did not have a legal Although Paterno had no legal duty to act any differently duty to report what he heard about Sandusky’s possible from the way he acted, moral outrage at this legal truth has criminal acts. In fact, even under the Good Samaritan laws led to the submission of several new bills in the Pennsylvania in other states, Paterno still would not have had a duty, since House of Representatives. House Bill 1990 proposes to he never saw Sandusky engaging in sexual assault firsthand. include all school faculty, including coaches, in the groups Deplorable? Yes. Illegal? No. of people who are required to report child abuse. House Bill Many states also have statutes that criminalize the failure 2047 proposes to make a failure to report child abuse a second- of an ordinary citizen to either report child abuse or assist degree misdemeanor, instead of third degree. And House Bill a victim of child abuse. For example, Texas Penal Code 2046 proposes to require that employees who actually see the Annotated Section 38.17 makes it a Class A misdemeanor child abuse firsthand must ensure that a report is submitted, for any witness to child abuse to not either assist the child or even after they report the incident to their employer. report the abuse to law enforcement. Similarly, New Jersey Sexual abuse of a child is one of the most heinous crimes. Statutes Annotated 9:6-8.10 require any person who believes It is no surprise that people demand severe punishment

40 the philadelphia lawyer Fall 2012 One always hopes a person would do the right thing morally to prevent child abuse, and that no statutes would be needed. Sometimes, though, statutes are necessary, so long as they are not overbroad. for anyone possibly related to enabling such a crime. One show, examinations of what happened leading up to truly always hopes a person would do the right thing morally to horrific events reveal a disturbing array of errors, from prevent child abuse, and that no statutes would be needed. minuscule to gargantuan, made by a great number of Sometimes, though, statutes are necessary, so long as they are individuals, which ultimately result in disaster. The amount of not overbroad. people who, for more than 10 years, were somehow connected For example, if a duty-to-assist law required each person with Sandusky’s crimes and somehow managed to fall short of who saw someone being murdered to jump in and attempt to moral and legal obligations, is quite large. stop the murder, that person could wind up injured or dead. Hopefully, the House bills pass and help deter tragedies Similarly, if a duty to report law required every citizen who like the Penn State scandal from happening in the future. thought they witnessed a crime to dial 911 immediately, then Hopefully, the scandal itself has raised enough awareness that 911 lines might get unnecessarily tied up with false alarms, nobody in Pennsylvania or this country could plead ignorance and every person who failed to call would immediately be to the signs of child abuse. subject to punishment, just for being in the wrong place at the As for Joe Paterno, the facts clearly show that he was not a wrong time. The harm of such broad mandates would soon Good Samaritan, but neither was he a criminal. outweigh the benefits. And, unfortunately, no matter how many laws are passed, Jennifer R. Ewing ([email protected]) is an associate bad things will continue to happen. As documents like the with Buchanan Ingersoll & Rooney PC. Freeh Report and the 9/11 Commission Report repeatedly

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BY Daniel J. Siegel

awyers may kick and data from which information may do so one or more times. scream, but electronic can be obtained, translated, if (b) A party requesting discovery (commonly necessary, by the respondent party electronically stored information L called e-discovery) is now or person upon whom the request may specify the format in which it part of the Rules of Civil Procedure. or subpoena is served through is to be produced and a responding Those attorneys who had hoped it would detection or recovery devices party or person not a party may disappear like Nehru jackets can no into reasonably usable form] and object. If no format is specified by longer avoid the reality that, effective electronically stored information), the requesting party, electronically Aug. 1, 2012, technology, and all of its stored information may be repercussions, are part of the litigation produced in the form in which it landscape. is ordinarily maintained or in a What caused this seismic shift is that Because it takes reasonably usable form. the Pennsylvania Supreme Court has The court also revised the amended the Rules of Civil Procedure time for case- introduction to Rule 4011: to include e-discovery. In doing so, Rule 4011. Limitation of Scope the court did not follow the trail (and law to develop, of Discovery [and Deposition] the extensive case law) created by the litigators will have No discovery [or deposition], federal courts. Instead, the court chose including discovery of a different path, and it is hard, if not little guidance electronically stored information, impossible, to tell where it will lead. shall be permitted which Only time will tell. and neither will (a) is sought in bad faith; Allow me to explain. On June 6, (b) would cause unreasonable 2012, the court amended Rules of the judges who annoyance, embarrassment, Civil Procedure 4009 (“Production must rule upon the oppression, burden or expense to the of Documents and Things. General deponent or any person or party; Provisions”): disputes. (c) is beyond the scope of discovery (a) Any party may serve a request as set forth in Rules 4003.1 through upon a party pursuant to Rules 4003.6; 4009.11 and 4009.12 or a subpoena (d) is prohibited by any law upon a person not a party pursuant or to inspect, copy, test or sample barring disclosure of mediation to Rules 4009.21 through 4009.27 to any tangible things or electronically communications and mediation produce and permit the requesting stored information, which documents; or party, or someone acting on the constitute or contain matters within (e) would require the making of party’s behalf, to inspect and copy the scope of Rules 4003.1 through an unreasonable investigation by the any designated documents (including 4003.6 inclusive and which are in deponent or any party or witness. writings, drawings, graphs, charts, the possession, custody or control of The court also added the following photographs, [electronically created the party or person upon whom the note to Rule 4009.11: data, and other compilations of request or subpoena is served[;], and Note: A request seeking

42 the philadelphia lawyer Fall 2012 Tech briefs Survey: We Really, Really, REALLY Like Our Smartphones

A staggering 68 percent of smartphone users surveyed said they “couldn’t live” without their devices, according to a recent study conducted by the Online Publishers Association.

The OPA survey says an estimated 44 trendy java joint. And it fits in your percent of the U.S. Internet population, vehicle’s cupholder. But on top, there ages 8-64, owns a smartphone are two plugs for AC cords and one for (estimated 107 million consumers), a USB cord. The PowerCup plugs into up from 31 percent (73.2 million your car’s 12V power socket and can consumers) in 2011. power up to three devices. Other findings from the survey: PowerCup is fairly quiet and takes up a • Android users continue to lead minimum of space. And if it keeps your Apple iOS users, with both platforms passengers plugged in, connected and electronically stored information growing in share since last year; online, it’s worth the $35 price (from Blackberry and all other platform Amazon). should be as specific as possible. shares declined rapidly over the same Limitations as to time and scope are period. favored, as are agreements between • Smartphone users are trending older the parties on production formats and more balanced between males and other issues. and females, and are more affluent The court added a note to Rules – the majority of smartphone users come from households earning 4009.11, 4009.12, 4009.21, 4009.23 and $50,000 or more per year. 4011 advising attorneys to “See also Rule • Fifty-seven percent of the U.S. 4009.1 generally regarding electronically Internet population, ages 8-64, are stored information.” Unfortunately, these expected to own a smartphone by Rules changes don’t provide the type of early 2013 (estimated 142.3 million guidance lawyers had hoped for. Or, at consumers). the least, the new Rules do not parallel Over the course of a week, regular Projecting the Federal Rules, under which there is smartphone activities include accessing extensive case law. In fact, the court content/information (93 percent); With a Camera explicitly rejected the approach adopted accessing the Internet (59 percent); by the federal courts in its “Explanatory checking email (58 percent); listening It’s a digital camera! It’s a projector! Comment – Electronically Stored to music (46 percent); using a social It’s both! Nikon’s COOLPIX S1000pj Information:” network (48 percent); playing games is a 12.1-megapixel camera with a 5X A. No Importation of Federal Law (43 percent); downloading and using wide-angle zoom lens that lets you apps (39 percent); making purchases display the HD images and movies Though the term “electronically (14 percent); and reading books (14 stored information” is used in these you’ve just taken with the touch of a percent). It should be noted that all button. rules, there is no intent to incorporate those activities showed decreases from the federal jurisprudence surrounding 2011, with the exception of accessing The addition of the projector doesn’t the discovery of electronically stored content, which was the same. add much weight or size to the information. The treatment of such camera. In fact, were it not for the issues is to be determined by traditional round opening on the front marked principles of proportionality under Get Juice from PowerCup “projector,” it would be pretty much Pennsylvania law as discussed in indistinguishable from other point-and- shoot models. Your images and movies further detail below. PowerLine’s PowerCup Mobile can be displayed at sizes as large as 40 B. Proportionality Standard Inventor helps you plug in on the go. inches diagonal. As with all other discovery, We’ve all been there – the long car electronically stored information is trip and suddenly, someone’s device The projector is very bright, but the governed by a proportionality standard runs out of juice. That’s where the darker the room, the better the viewing in order that discovery obligations PowerCup comes in. experience. The rechargeable lithium are consistent with the just, speedy ion battery will last for about 220 photos. The S1000pj lists for $429. and inexpensive determination and It looks like a cup of coffee from some

the philadelphia lawyer Fall 2012 43 resolution of litigation disputes. The proportionality e-discovery or the methods information is stored, maintained standard requires the court, within the framework of the or produced. purpose of discovery of giving each party the opportunity To compound the problem, the Rule states, “If no format to prepare its case, to consider: (i) the nature and scope of is specified by the requesting party, electronically stored the litigation, including the importance and complexity of information may be produced in the form in which it is the issues and the amounts at stake; (ii) the relevance of ordinarily maintained or in a reasonably usable form.” In other electronically stored information and its importance to the words, a party can produce it in any way it wants. That is where court’s adjudication in the given case; (iii) the cost, burden more problems will arise. and delay that may be imposed on the parties to deal with The best and most economical way to produce electronic electronically stored information; (iv) the ease of producing data is in its native form. Think about it. It is easy to copy electronically stored information the files from one computer to and whether substantially similar another, but it may be easier for the information is available with less less tech-savvy (and others with less- burden; and (v) any other factors It is easy to copy than-honorable motives) to merely relevant under the circumstances. the files from one print out the material. Why is this a C. Tools for Addressing problem, you ask? The answer is that Electronically Stored Information computer to another, printed information does not show the Parties and courts may consider metadata, the information behind the tools such as electronic searching, but it may be easier data. In other words, it won’t show that sampling, cost sharing and non- a person manipulated a spreadsheet waiver agreements to fairly for the less tech and changed the formula in a cell so allocate discovery burdens and savvy (and others with that it would provide a result that it costs. When utilizing non-waiver should not have. Or, it won’t show agreements, parties may wish less than honorable the revisions in documents that can be to incorporate those agreements game changers. into court orders to maximize motives) to merely The court’s goals are clearly protection vis-à-vis third parties. laudable, but it seems a fait accompli See, e.g., Fed. R. Evid. 502(c). print out the material. that judges in Pennsylvania who D. Eliminating References to handle discovery disputes are on their “Depositions” own. Because it takes time for case- The elimination of specific references to “depositions” in law to develop, litigators will have little guidance and neither Rule 4011 is not intended to exclude depositions from the will the judges who must rule upon the disputes. And because scope of this rule. The reference was eliminated because the court made it clear that Pennsylvania was not adopting the there was no reason to call out this one form of traditional Federal Rules, Pennsylvania judges must instead create their discovery among many. own body of law until, as is inevitable, the Supreme Court While this Note is intended to provide guidance, in actuality weighs in on a dispute and fills in some, if not all, of the blanks it provides little. The court clearly intends to encourage that are currently empty. “traditional principles of proportionality.” What does that Pennsylvania lawyers, welcome to the world of mean? That question is especially difficult to answer in e-discovery. light of Rule 4009.1(b), which permits a “party requesting electronically stored information [to] specify the format in Daniel J. Siegel ([email protected]), is a local attorney who which it is to be produced and a responding party or person operates the Law Offices of Daniel J. Siegel, LLC and is the president not a party may object.” This is a recipe for discovery disputes, of Integrated Technology Services, LLC. particularly because so many attorneys simply don’t understand

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the philadelphia lawyer Fall 2012 45 Book Review By Megan M. Kearney Preventing Injustice Early Social Activism Led Andrea Lyon to Represent Clients Facing the Death Penalty

Angel of Death Row: My Life as is to become part of the a Death Penalty Defense Lawyer system. Lyon ascribes Written By Andrea D. Lyon to certain basic, yet 288 pages lofty, ideals: every $24.95, Kaplan Publishing person’s life is valuable, every person deserves a good legal defense n 1995, the Chicago Tribune and no one’s race, coined the moniker “The Angel gender or class should I of Death Row” to refer to Andrea impact the outcome Lyon because she has argued 19 cases of trial. Her career has where her clients were found guilty been dedicated to the of capital murder and 19 times she protection of these has persuaded a jury to spare their ideals. lives. “The Angel of Death Row” is an Lyon’s empathy for autobiographical account of Lyon’s life her clients has made her and most fascinating cases. As the first a formidable lawyer, woman to ever serve as lead attorney but it also makes her an in a capital punishment murder case, insightful author. She Lyon is undeniably a tough woman. illustrates the fallibility The story of her career is sprinkled with of the “system” anecdotes of male lawyers and judges through the stories of who underestimated or openly doubted her innocent clients her abilities as a female criminal defense and humanizes her lawyer. This book is worth reading just guilty clients by telling to read Lyon’s clever and irreverent their tragic histories, banter with her male contemporaries. which brought them But, Lyon’s sharp wit and tongue are just to a point where their one reason. right to continue living “The Angel of Death Row” tracks is left in the hands of Lyon’s career as she moved through twelve strangers. Her the lives and cases of her clients. Lyon talent of humanizing defended Milton, a young man who through storytelling killed three members of his family has prevented any jury while hallucinating on angel dust, From that point on, Richard and Lyon’s from sending her clients to their deaths. and Charlotte, a chronically battered jail conversations were split between In this book, Lyon uses her same knack woman who killed her husband with discussing his case and the literature that for narrative to illustrate her clients’ a meat carving knife during one of his Lyon would bring to him on death row. potential for redemption and makes a assaults. Lyon represented Lonnie, a Alan Dershowitz writes in the strong case against capital punishment. man who shot and killed an attorney foreword, “[w]e represent the ‘guilty,’ Her argument is subtly woven into her and judge in open court and who was [ . . . ] in order to prevent injustice to clients’ riveting stories and is persuasive arguing in favor of his own death to the innocent.” Lyon recounts the social because it appeals not only to one’s achieve martyrdom. Annette was a client activism in her youth that was the rational views of fairness, but also to accused of killing her own 22-month- catalyst for her to become a lawyer. one’s visceral sense of justice. old daughter. Richard, a gang enforcer, This choice stemmed from her belief made a unique impression on Lyon in that the only way to create change in a Megan M. Kearney (kearneym@ their first meeting where he recounted system that is unfairly stacked against pepperlaw.com) is an associate with the story of Aristophanes’ “Lysistrata.” certain races, social groups and classes Pepper Hamilton LLP.

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1617 JFK Boulevard, Suite 1750 • Philadelphia, PA 19103 877-256-2472 • Fax: 347-227-3576 1992 That Was Then

The Philadelphia Lawyer magazine unveiling

Steve LaCheen and retired Judge John A. Geisz, former editors of The Shingle (above), unveil the first edition of The Philadelphia Lawyer, the Bar’s expanded quarterly magazine, at a news conference April 21 at Bar Headquarters. At right, Chancellor Deborah R. Willig helps Richard H. Groves (right), president of Legal Communications, Ltd., and publishing agent for the Bar, open boxes of the first issue. At center is Richard G. Freeman, editor-in-chief of The Philadelphia Lawyer.

48 the philadelphia lawyer Fall 2012