BCC, THAT IS Why Buying a Sandwich with Bitcoin Is a Taxable

Vol. 83, No. 1 Philadelphia Bar Association Quarterly Magazine Spring 2020 Medical Marijuana in the Workplace: Information and Guidance for Employers in Pennsylvania

BY LEAH DIMAT TEO

TO BCC, OR NOT TO BCC, THAT IS Why Buying a Sandwich THE QUESTION with Bitcoin is a BY DANIEL J. SIEGEL Taxable Transaction BY ROBERT ELWOOD

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5 From the Editor by emmanuel o. iheukwumere

7 From the Chancellor by chancellor hon. a. michael Snyder (ret.)

9 In Memoriam

12 Technology 20 by daniel J. Siegel Protect yourself from the online world 8–10 Coronavirus Response Features From the editor, From the chancellor, & technology 16 Ethics by daniel J. Siegel 18 The Parole Steeplechase Beware. The courtesy of a BCC can backfire The unforeseen can have great relevance by Steve lacheen 37 Book Review by m. kelly tillery 20 Medical Marijuana in the Workplace “Indelible Ink—The Trial of John Peter Zenger and the Birth of Information and Guidance for Employers in Pennsylvania America’s Free Press” by Richard Kluger by leah dimatteo 39 Figure 8 Puzzle 23 75 Years Later By Robert J. Stern The Philadelphia Transit Strike of 1944 by Patrick mcknight 40 That Was Then - 1996 Law Week 1996 26 “White Rain” A farce reborn into a grim reality by albert S. dandridge iii 28 Why Buying a Sandwich With Bitcoin is a Taxable Transaction And Other Tax Issues Affecting Funds Investing in Cryptocurrencies by robert elwood 32 Retirement—Who Me? At the “end” there’s still more to be done by lynn a. markS, eleanor w. myerS, and Janet F. 40 Stotland YLD Chair-Elect Michael L. Viola (holding bullhorn) 35 Ethics is Easier When You're Older addressed students at the conclusion of the Million Student Exercising one of the great priveleges of age and experience March in the City Hall courtyard on May 2, 1996. by Johnny myerS

2 the philadelphia lawyer Spring 2020 the philadelphia lawyer Spring 2020 3 A Note on the COVID-19 Pandemic Dear Readers:

The content of this issue of The Philadelphia Lawyer was decided before the outbreak of the novel coronavirus (COVID-19), now declared a pandemic by the World Health Organization. Because this magazine takes seriously the safety and health of its readers/Bar Association members, we strongly encourage you to stay tuned to the Philadelphia Bar Association’s website, as well as the websites for the U.S. Centers for Disease Control, World Health Organization, Pennsylvania Department of Health, City of Philadelphia, and when appropriate, other public health authorities, for the latest developments on this pandemic. In addition, please frequently check the Association’s website at http://philadelphiabar.org/page/HomePage for updates from the Association and the courts on COVID-19 and related measures. Be vigilant and protect yourself as we deal with this pandemic. Emmanuel O. Iheukwumere Editor-in-Chief | The Philadelphia Lawyer

4 the philadelphia lawyer Spring 2020 FROM THE EDITOR Political Corruption: A Bane on Justice and Societal Improvement

EMMANUEL O. IHEUKWUMERE

ew high-profile incidents and allegations of corruption rottenness.” (citation omitted). in our government over time, including, but not Due to the destructive effects of corruption around the world, Flimited to, the recent impeachment of President few examples of which are set forth below, it is imperative that Donald Trump by the U.S. House of Representatives we, especially lawyers, continue to fight to eradicate and lessen for, among other counts, abuse of power, his subsequent trial corruption in our society. and acquittal by the U.S. Senate, and his After European leaders—including the pardoning of former Democratic governor of highly corrupt and morally bankrupt King Illinois Rod Blagojevick, who was convicted Leopold, II, of Belgium—, with the help of the in 2009 for lying to the FBI and in 2011 for British, and German leader Kaiser Wilhelm attempting to auction off the senate seat of II, used the pretext of bringing Christianity newly elected President Obama, have fueled and civilization to native Africans in order to a rampant belief among Americans that subjugate them and inflict upon them cruelty government in the United States is rife with of the worst kind—including enslavement, corruption, and that the average politician is murder for slight infractions, rape, torture, corrupt. Other high-profile examples of public amputations, and stealing of their assets corruption include the guilty plea in 1996 of and resources—independence was granted the powerful chairman of the House Ways and to the various African colonies. Using their Means Committee, U.S. Rep. Daniel “Dan” newfound freedom, many so-called African Rostenkowski of Chicago, following his leaders continued the brutal corruption of indictment in 1994 for corruption, and close their colonial masters by enriching themselves to home, the conviction in 2016 for corruption through abuses of political offices. of then-influential Philadelphia U.S. Rep. In Congo, a young colonel named Chaka Fattah. Joseph-Desire Mobutu, who later changed In fact, the public’s belief of widespread his name to Mobutu Sese Seko and was then corruption within our government resulted in chief-of-staff to the young and newly elected about 75% of respondents in a 2015 Gallup poll believing that 36-year-old first prime minister of the Congo Patrice Lumumba, corruption was widespread within the government. Thankfully, the came to power through the brutal assassination of Lumumba. evidence does not bear out that widespread belief of government Mobutu renamed the Congo Zaire, and then began enthroning corruption in the U.S. In the global scheme of things, the U.S. is corruption within his country by continuously looting the public a well-run society where corruption is relatively rare, contrary treasury with impunity. Mobutu exploited ethnic divisions, to the prevailing public belief. For example, Transparency sowed disunity among the populace, and encouraged apathy in International—the global non-profit organization headquartered challenging corruption. Mobutu appointed individuals to key in Berlin, Germany, which gauges corruption around the world— government positions without the necessary qualifications and for most of the last two decades, has ranked the U.S. among the experiences. Loyalty to Mobutu and being a member of his 20 least corrupt countries—until 2018, when the U.S. was ranked ethnic group became the major considerations for appointments 22. to government positions. As a consequence, despite its vast However, corruption remains a bane on justice and societal natural resources, the Congo devolved into abject poverty and improvement. Corruption impedes the fair administration of misery, which continues to the present—23 years after Mobutu justice, including contributing to unfair and unequal treatment of died in September 1997 from prostate cancer. persons, and engenders a sense of hopelessness within societies In Nigeria, military dictator General Sani Abacha treated (for more on effects of corruption in Africa, see my law review the national treasury as his personal piggy bank, killed off his article, co-authored with Chukwuemeka A. Iheukwumere, opponents with impunity, and squandered his country’s precious “Colonial Rapacity and Political Corruption: Roots of African resources on excesses, including on prostitutes. Abacha ensured Underdevelopment and Misery,” 3 Chi.-Kent J. Int’l & Comp. that only his cronies and family members secured and held on Law (2003)). Corruption in the narrow context, as Transparency to high government positions. Appointments to government International puts it, is “the abuse of entrusted power for private ministries were made without regard for qualifications, gain.” Corruption in the broader sense, includes, as we argued competence, and experience. Loyalty to Abacha became the in our law review article, “moral perversion, depravity, and dominant qualification for plum government jobs. Phantom

the philadelphia lawyer Spring 2020 5 contracts with exorbitant amounts of Bosnian Muslims, culminating in became the Abacha government’s way concentration camps, mass rapes, torture, of stealing and siphoning away massive and massacre by the Serbian army of public funds to European and American thousands of Bosnian men and boys in financial institutions. By the time Abacha Srebrenica in 1995. Ultimately, NATO, The died, reportedly in the midst of a Viagra- led by the U.S., intervened in the brutal fueled orgy with three Indian prostitutes, civil war to end the ongoing genocide. In Philadelphia he had siphoned off billions of dollars of the midst of the unspeakable suffering, public funds to foreign bank accounts, Milosevic and his family corruptly Lawyer enthroned corruption as the object of his enriched themselves until he was defeated government, plunged his country into in a 2000 election. Milosevic was indicted EDITOR-IN-CHIEF economic ruin, and punished and killed for war crimes in 1999 and died in March Emmanuel O. Iheukwumere his opponents with impunity. 2006 in his prison cell while awaiting Meanwhile, in South America’s Chile trial. Editorial Board in 1973, General Augusto Pinochet seized Hopefully, these examples of the David I. Grunfeld power in a military coup that deposed destructive effects of corruption noted Stephen Robert LaCheen elected President Salvador Allende. For in this editorial will encourage some, Richard G. Freeman the next couple of decades until 1998 when especially within our esteemed profession, Michael J. Carroll he ceased his position as commander-in- to continue fighting corruption within our Deborah Weinstein chief of the Army, Pinochet ruled with an American government. Effective ways Daniel J. Siegel Justine Gudenas iron fist that included torture, murder, and of fighting governmental corruption Rochelle M. Fedullo exile of thousands of Chileans. Although include voting in both primary and Albert S. Dandridge III some of his early free market programs general elections and encouraging others Steven R. Sher led to economic growth, his regime was to do likewise as a means of having a Jennifer Platzkere Snyder marred by suppression of dissent, killings say in selecting our leaders; forcefully Brian McGinnis and torture of opponents with impunity, and consistently speaking out against Daniella Price and his personal starching of millions of injustice and inequality, which thrive in Niki T. Ingram John Gregory dollars in foreign bank accounts. the midst of corruption, including moral Jonathan Aronchick In Asia, Cambodia’s Saloth Sar, who perversion, depravity, and rottenness; and Maria Bermudez took the name Pol Pot, came to power generally advocating for the powerless, Matthew Faranda-Diedrich in April 1975 after his rebel army, the traditionally disfavored groups, and Angela Giampolo Khmer Rouge, captured the capital Phnom others lacking the power to advocate Eli Segal Penh. Pol Pot masterminded the brutal for themselves. As lawyers, we have the Editing and Design enslavement, torture, starvation, and training—and the obligation—to ensure a Brittany Anne Robertson deaths of millions of Cambodians, later fair administration of justice, and by doing highlighted in the critically acclaimed so, continue to chip away at governmental 1984 movie “The Killing Fields.” With corruption. For corruption—if left Philadelphia unchecked power, Pol Pot’s regime unchecked, as shown by the few examples destroyed families, stifled dissents, in this column—leads to misery, poverty, systematically killed off educated people, injustice, and moral depravity. Bar Association particularly physicians, and essentially CHANCELLOR decimated the fabric of his society until Hon. A. Michael Snyder (Ret.) his regime was ousted in 1979 by an Emmanuel O. Iheukwumere (lawyer@ Chancellor-Elect invading Vietnamese army. emmanuellawfirm.com), founder of Lauren P. McKenna In Europe, after the fragmentation Emmanuel Law Firm, LLC, is editor-in- Vice Chancellor of Yugoslavia into different countries, chief of The Philadelphia Lawyer. Wesley R. Payne IV Slobodan Milosevic rose to power in Secretary 1989 in Serbia after deposing his mentor Jennifer S. Coatsworth and then President Ivan Stambolic. Assistant Secretary Aggressively fanning the flames of Kathleen Kirkpatrick ethnic and religious divisions, Milosevic Treasurer engineered the brutal ethnic cleansing Marc J. Zucker Assistant Treasurer Matthew S. Olesh The Philadelphia Lawyer (USPS #025-241), printed with soy inks on recycled paper, is published quarterly in March, June, September and December by the Philadelphia Bar Association, 1101 Market St., 11th floor, Philadelphia, Pa. 19107-2955. Executive Director Telephone: (215) 238-6300. E-mail: [email protected]. The opinions stated herein are not necessarily those of the Harvey L. Hurdle, Jr. Philadelphia Bar Association. All manuscripts submitted will be carefully reviewed for possible publication. The editors reserve the right to edit all material for style and length. Advertising rates and information are available from Shawn D. Phillips, Corporate Account Executive, Marketing Solutions, ALM, 1617 JFK Boulevard, Suite 1750, Philadelphia, PA 19103, (215) 557-2340. Periodicals postage at Philadelphia and additional locations. POSTMASTER: please send changes to The Philadelphia Lawyer, c/o Philadelphia Bar Association, 1101 Market St., 11th floor, Philadelphia, PA 19107-2955. As policy, we do not compensate our writers.

6 the philadelphia lawyer Spring 2020 FROM THE CHANCELLOR Conversations

93RD CHANCELLOR HON. A. MICHAEL SNYDER (RET.)

will be safe; that her pain can stop. There ask that each of us will look around us and are the words of children without parents find some way that we can truly use our who only ask for someone to love them skills to solve the problems of those who and shelter them. There are the choruses have so much less than us. We are lawyers; of the hungry, who wish for a warm we solve problems. Let’s use those skills nourishing meal. And there are the voices to fight abuse, homelessness, hunger, and of the homeless, who ask for a safe place some of the other issues of modern life. to sleep, or a place to call home. Each of Let’s look at the world around us from these people need to ask for something the perspective of those who exist outside in their conversations; they are not as of our comfortable lives and try to bring fortunate as we are. them in to something better. Why am I writing in this voice? I am doing so because I am still reeling from the news of the death of the great Kobe Hon. A. Michael Snyder (Ret.) (msnyder@ talk to myself. Don’t get worried, Bryant and his 13-year-old daughter, adrdri.com) is the 93rd Chancellor of the I don’t talk out loud, and no, along with seven others. I realized that in Philadelphia Bar Association. II am not hearing voices. Each a heartbeat, our perspectives on our world night, once I get in bed, I take a can change. Each of us sees things from few moments to have what amounts to a a particular window, but that window one-sided conversation. I don’t expect to may be shattered by catastrophe. I think Get Published in get an answer because the one that I am of the terrible dilemma that Kobe must talking to doesn’t talk back. He, or She, have faced during the seconds before doesn’t talk to mere mortals. If I don’t the crash occurred: How does a loving have this conversation in bed at night, I do parent protect their child while facing the so in the morning as I am driving to work. certainty of imminent death? Other than I almost never ask for anything in these holding one’s child, telling them to close The Editorial Board of this mag- conversations. Instead, I say “thank you” their eyes, and saying that they are loved, azine welcomes submissions for the wonderful things that I have in there is little that can be done, except, from attorneys and other profes- my life: a wife who loves me and whom perhaps a prayer that their child will be sionals who wish to share their I love, a son and daughter-in-law that I saved from harm. expertise on law-related topics. love, grandchildren who make my heart There are, of course, many things that As policy, we do not compensate sing, close family who are supportive and we cannot change. Horrible things happen our writers. who love me as I love them, and amazing that are beyond our control; each one of Articles must be original and pre- friends. I am thankful for a career that us knows that. However, as lawyers and viously unpublished. challenges me and delights me every day, judges, we are possessed of a skill set that and I thank Him/Her for having the ability gives us the ability to effectuate change Manuscripts should adhere to to do some good things for others. If I do for good. We can provide representation the following word counts: ask for anything, it is that those I love will to the abused to protect them from harm. be healthy, happy, and satisfied with their We can work to get children in loving * Major Law-Related lives. family situations. We can use our skills to Articles: 2,000 words I am hopeful that many of you are represent those whose lives are in chaos * Other Law-Related fortunate enough to be able to be in a in so many ways. We can advocate for Features: 1,500 words * General Interest: 1,500 words position to have conversations that are positive change in our society. We can * Fiction: 1,000 words similar to mine. We are members of work to provide protections for those * Practice Areas: 750 words a profession that has the potential to who seek to immigrate to our country and * Essays or Humor: 750 words effectuate change, and to make the lives who look to provide a better life for their * Book Reviews: 750 words of those around us better. families. And most importantly of all, we However, there are so many whose can work to assure equal access to justice For more information, conversations have a very different tone to all those who seek it. e-mail: [email protected]. and content. There are the pleas of an So, perhaps, I do have a possible abused woman who only wishes that she conversation that asks for something. I

the philadelphia lawyer Spring 2020 7 CORONAVIRUS RESPONSE ADDENDUM: FROM THE EDITOR Doing Good in the Midst of a Pandemic:

EMMANUEL O. IHEUKWUMERE

n March 11, 2020, the World Health Organization Let’s find the time to (WHO) declared the novel coronavirus (COVID-19) a Opandemic following the infection of more than 118,000 acknowledge our common people in 110 countries, at that point in time. That declaration forced more of us to take serious notice of the virus, which humanity without regard to our has proven more deadly and economically destructive than invading armies. Soon after that declaration, many of us were forced differences. into the reality of working remotely from home, particularly after Governor Wolf, and later, Mayor Kenney, imposed lockdowns. In telephone discussions with others, including our Chancellor, Soon after working remotely and away from our offices, Hon. A. Michael Snyder (Ret.), about the devastating effects of the many of us, myself included, began whining about the inconve- virus, I decided to write this addendum to my editorial column. I nience and uncertainty of it all, but were soon humbled by the hope that the profound impact of this virus has unwittingly forced fragility of life, and the realization, as Dr. Anthony Fauci, director us to rekindle our appreciation for the many contributions and of the National Institute of Allergy and Infectious Diseases, would sacrifices others have made to our lives, which have allowed us, later remind us, that the virus—not our political leaders—deter- especially as attorneys, to work from the comfort of our homes, mines the time-table for when life may perhaps return to normal. whereas many within our communities in the United States, and around the world, do not have that option. Instead of bemoaning the ongoing lockdown, let’s seize the opportunity to continue making positive differences in the lives of others, including making and pledg- ing recurring contributions to great charities of our choices, such as the Red Cross, Save the Children, UNICEF, food banks, advocacy and legal services organizations, and religious and medical institutions, etc. Let’s find the time to acknowledge our common humanity without regard to our differences. Let’s find the time to increase our level of empathy and humility by showing more concern and appreciation for those risking their lives to serve, protect, and help us flatten the virus’ curve, including, but not limited to, medical personnel, grocery workers, food bank volunteers, police, EMT, and firefighters. Let’s also show our concern for our fellow lawyers, judges, and others—here and abroad—struggling to maintain their sanity and contain mounting financial stress in the face of this unprecedented uncertainty. Let’s also un- dertake some light-hearted activities to help us cope with the mounting stress of this challenging period, such as listening to our favorite songs, going for walks whenever possible, reading those books we have been meaning to read but never found the time to, watching comedies, and sharing laughters and jokes with others, via the phone, video apps, and inside our houses. Let’s work on being nicer and more civil to opposing counsel, and to the parties in our cases. Above all, in the midst of this pandemic, let’s continue striving to do what is right, to love, have mercy, and to walk humbly with our God, as God enjoined us in the Bible through the Prophet Micah (Micah 6:8).

8 the philadelphia lawyer Spring 2020 CORONAVIRUS RESPONSE ADDENDUM: FROM THE CHANCELLOR Music Hath Charms

93RD CHANCELLOR HON. A. MICHAEL SNYDER (RET.) “Music hath charms to soothe a savage breast, to soften rocks, or bend a knotted oak.” - William Congreve, The Mourning Bride

hen I sit in my home of- realize how much better the orchestra special to you. For that matter, send me an fice on the third floor sounds when I am “conducting!” e-mail with a song, an aria, a piece that you Wof our house, or when I Now, in this time of forced social adore. I promise that I will listen to each of would drive into work distancing, when we are each working at them; who knows, I may learn to love what (when we still went into an office), or home, trying to be productive in our jobs, you love, and you may learn to love what when I would occasionally take the train trying to multitask between our phones, I love. Either way, we will be soothed, we into town, I do something that has always and our monitors, having Zoom meetings, will be charmed, and we will forget, at least transported me to another time, another or watching a webinar, when it seems that for a moment, the world around us. place: I listen to music. Not just any kind the flood of information relative to the of music, mind you, but for me, the kind of novel coronavirus and COVID-19 is nev- music that I truly crave is classical music. erending, we each need to have a form of ■ IN MEMORIAM ■ I've loved classical music of every genre, escape. We need to be able to hear some- period, and style since I was a little kid. thing that truly elates us. Whether you Michael Fitzpatrick Even more strange to understand, at love Classic Rock, Rhythm and Blues, Jan. 6, 2020, age 56 least to many, is my love of opera. I grew up Jazz, New Age Music, or even Country and Kenneth L. Fox with a dear aunt who adored opera. She and Western (OK, I know that 5,000 of you will Feb. 13, 2020, age 64 I would listen to it together every Saturday now tell me how much you love Country on the Metropolitan Opera broadcast. Just and Western music), listening to the music David Glyn hearing certain arias takes me back to sit- that we love allows us to be transported to Jan. 17, 2020, age ting with her in her apartment, listening to someplace different than where we are; to Madame Butterfly and munching on some a place where the conversation is not that Al Marroletti Jan. 13, 2020, age 90 kind of snack that she had made for me. of face masks, respirators, and self-quaran- In high school, in college, in law tining. Ed Pawelec school, I always studied to classical music. As we go through our busy profession- March 9, 2020, age 89 It relaxed me, it allowed me to focus, and al days, dealing with problems large and it just made me happy. To this day, when small, trying to help clients, and doing all John Taulan I really want to concentrate on something, the myriad tasks that make up the practice Nov. 24, 2019, age 86 the music comes on. In fact, I’m listening of law, let’s allow ourselves to be charmed Please send In Memoriam notices to tplmag@ to something by Schubert as I write this by music. Let’s connect with one another philabar.org. piece. My wife teases me about “air con- by sharing the music that we love with oth- ducting” when I listen to something that I ers. Send a friend or a colleague a link to Have you considered a contribution to the Philadelphia Bar Foundation in memory of a really love; I don't know why she doesn’t some music that is really meaningful or deceased colleague?

For information, call Jessica Hilburn- Holmes, executive director, at 215-238-6347.

the philadelphia lawyer Spring 2020 9 CORONAVIRUS RESPONSE: TECHNOLOGY By DANIEL J. SIEGEL Adapt or Die Lawyers Must Pivot to Working Online

write this article during Passover, the holiday when Jews recall their Iliberation from Pharaoh after God inflicted 10 plagues upon the Egyptians. At the Passover Seder, it is traditional for the youngest child present to ask the Four Questions, which begin with “Why is this night different from all other nights?” This year, as the world celebrated Passover, Easter, and Ramadan, it did so under the cloud of concern and trepidation created by the COVID-19 pandemic. As a result, when Jews recited the Four Questions, the question had an eerily contemporary as well as historic answer. While contemplating the surreal reality in which we are living, not knowing the ultimate course of the COVID-19 pandemic, I also recalled the Unetanah Tokef, a prayer recited on the High Holidays:

On Rosh Hashanah it is inscribed, And on Yom Kippur it is sealed. How many shall pass away and how many shall be born, Who shall live and who shall die, Who shall reach the end of his days and who shall not,

So, what do these prayers have to do with technology, or the implications of Image by mohamed Hassan from Pixabay the COVID-19 pandemic for law office technology? Actually, a lot, although not in a biblical sense, and certainly not in a game changer for many lawyers, from discover in 1981 that their office building a sense of whether COVID-19 is 2020’s solos to those in large firms, because had just suffered a major fire burning version of the plagues. suddenly their safety net, more commonly everything, and they were never likely to In particular, they portend which known as support staff, was gone, as was get back into the building anyway. law firms will likely exist five, 10, or the reality that “someone” in the office In reality, the lawyers and firms even 20 years from now—in a Darwinian could handle whatever they needed. who were technologically unprepared sense. Some probably will not survive the Suddenly, they were at home, literally for COVID-19 discovered that they pandemic because they were unprepared locked into their houses, with clients were no better off than the firms whose to work remotely. Others will not survive calling, deadlines coming up, and they files were lost in the fire back in the days because they will continue to refuse to couldn’t even figure out how to log in to when almost every file was paper, and adopt even the basic technology every law their own offices, let alone complete their technology was an infant. firm should use. assignments. But a lot has changed since 1981 in The COVID-19 pandemic has been They were the lawyers with offices in legal technology. One Meridian Plaza who woke up to We have computers; they had electric 10 the philadelphia lawyer Spring 2020 typewriters. woods! So I am not on email their offices. We have scanners and electronic files; till I get my ISP, get It’s not possible to describe everything they had carbon paper and copy machines. set up, and learn stuff. lawyers and their firms could, indeed We have document management Please call me at home should, have done to attain a minimal software; they had Redwelds and binder for anything important, level of preparedness. Not for COVID-19; clips. including telephone or no one could predict this. But certainly, We have case management software; virtual meetings, etc. for lesser emergencies, like the Meridian they had Day Timers appointment books. Fire. Or even a major snowstorm that shut We have smartphones, iPads, and Another wrote the following email: down the city for a few days. laptops; they had legal pads and landlines, After all, while the COVID-19 with toll calls and phone booths. What good is working from pandemic is different from all other You get the picture. Times were home? When I log into my catastrophes we have lived through, we do different, but for some firms, the computer all I see are a not yet know who among us will live and COVID-19 pandemic only demonstrated few things, but I can’t who will die. But we do know that firms how far technology has come for many, work this way. that were better prepared for their staff but not for all. to work from home were better able to And therein lies the rub. My point is that lawyers need to be provide the type of service clients expect. One colleague sent the following prepared for the worst, just like we advise email: our clients to be prepared. Of course, what lawyer would advise a client not to be Daniel J. Siegel, a member of the Board of Everyone—I am forced to prepared in case an emergency shut down The Philadelphia Lawyer, is the principal disconnect my office their office? of the Law Offices of Daniel J. Siegel, computer in about an Despite countless warnings given which provides appellate, writing and trial hour or so, to take home, in lectures, articles, ethics opinions, and preparation services to other attorneys, where I have no computer even in this magazine, many lawyers as well as ethical and disciplinary or INTERNET CONNECTION. I chose not to upgrade their technology and guidance. He can be reached at have to choose an ISP and to not be able to work at even a minimum [email protected]. learn how to get back on the level of competency if—although we internet to start working. know it is really when—a major event Talk about a babe in the prevented them from physically entering

the philadelphia lawyer Spring 2020 11 TECHNOLOGY By DANIEL J. SIEGEL Preparing for the Dangers of the Online World

ace it—whether you are young or old, techie or FLuddite, or just want to cling to the ways of the world as it was decades ago—there is a lot of scary tech news out there. And for those who claim that they want to return to the days before the Internet, consider the following list:

• Smartphones (or even flip- phones) • Google • GPS systems, Google Maps, and MapQuest • MP3s, iPods, and iPads • E-filing • Kindles • Wi-Fi

None of these things existed 30 years ago when the Internet started to be a then that she learned that the emails were not all publicity is good publicity. “thing,” and many did not exist as recently bogus. But not before she had transferred These were not highly complex as 10 years ago. How many of us would more than $20,000, and her money was incidents, at least not from the lawyers’ want to return to those days? Even if you gone. or law firms’ perspectives. Each was do, you can’t. Would you want to be that attorney? preventable or, at the least, could have Which means you need to recognize Would you want to have to explain to your been averted with a bit more diligence. the risks and benefits of technology as client that she was bilked? What is the Lawyers are easy targets for they relate to your law practice. Oh yeah, attorney’s liability, if any? What are the cybercriminals. Every time I write or that phrase was not part of an attorney’s chances the client changes lawyers? lecture, or speak with lawyer/victims, I duty of competence until its inclusion in In another instance, a regional law hear the same retort, “I never thought it the Model Rules of Professional Conduct firm that represents insurers in personal would happen to me.” It does, and it will. in 2012. injury claims against its insureds learned Why are lawyers easy targets? Because It can be a scary world out there. that a hacker had accessed its cloud- most are either deniers who do not believe Consider two events that happened to based backups, including the records of “it” can happen to them or are those who Philadelphia lawyers in the past year. One countless plaintiffs from numerous states. hear the warnings and do nothing. Only lawyer, who handles estate administration, The hacker had access to the personal a few firms are proactively secure. Most received a call from a client who had information of every plaintiff whose allow me to scare them—at seminars, in received an email “from the attorney” information was stored on the site, all my columns, and during consultations— with instructions to wire funds to pay because of a programing error. and then go back to business as usual. inheritance tax. The email looked like Would you want to be that attorney? And everyone (including hackers and it came from the attorney, but it did not. Would you want to tell the carriers you criminals) knows that lawyers have access It came from a hacker who spoofed the represent about the hacking? And would to, and maintain, sensitive information attorney’s email and made a copy so you want to tell the individual plaintiffs about their clients. realistic it was virtually impossible for (and their counsel) about the hacking? It’s time for those lawyers to stop anyone, let alone a less than tech-savvy In each instance, can you picture the being scared and to do something. So, client, to recognize that it was not real. The client firing the attorney or firm? what steps should lawyers and their firms client wired the money, as instructed, and And, of course, consider the publicity take to protect against cyberattacks? Here received a second similar email, and was that would result if the firms’ identities is my seven-step plan: going to follow the instructions when she became public. Contrary to the old maxim, finally decided to call the attorney. It was

12 the philadelphia lawyer Spring 2020 Firms should know and control the information to which each employee has access, and also whether the data, including information stored on smartphones and other mobile devices, is encrypted and password protected.

1. Analyze Your Firm’s Current and with whom it is shared. Status Not only will this information 3. Employ Basic Technology to help assess and pinpoint any security Prevent a Cyberattack Every firm should perform a cyber- deficiencies, it will also facilitate assessment and inventory of all creation of a long-term plan for Everything need not be hardware, software, data, and other replacement of outdated technology. complicated. Most vulnerabilities are technology. Create an inventory the most obvious. Firms should have of all computers, servers, printers, 2. Evaluate Your Cybersecurity spam filters, anti-malware, antivirus mobile devices, and other “things,” Systems and anti-spyware software, as well such as flash drives, etc. Having as hardware- and software-based this information will enable the This step is crucial. Firms should firewalls. In addition, staff using firm to see whether any hardware is know and control the information to mobile devices (isn’t that everyone?) outdated, unprotected, or otherwise which each employee has access, should be required to connect their a security risk. Next, do the same and also whether the data, including devices through a VPN. for software. Having information, information stored on smartphones such as passwords, licenses, and and other mobile devices, is encrypted 4. Evaluate Your Vendors’ Security versions, will help assess whether and password protected. There should any software is no longer supported also be a record of all passwords for This is a scary prospect for or otherwise vulnerable. Firms all devices. Finally, the firm should many firms. When necessary, call should also identify all stored data verify that it uses up-to-date antivirus, in a consultant. But at a minimum, and where it is stored, who created it, anti-malware, and firewalls. require vendors to show their security

the philadelphia lawyer Spring 2020 13 [Cyberattacks] happen to companies like Target and Wawa, and can easily target lawyers, courts, and others whose infrastructure is inadequate

certificates. If you don’t know what I employees—so that everyone is aware cyber insurance should be mandatory. mean, hire or use a consultant. and acknowledges their obligations These policies protect against a wide toward technology policies and range of dangers, and generally 5. Create Policies and Procedures procedures. Staff should be trained cover the costs of hiring consultants, to recognize dangers, and the firm new equipment, marketing, and Many law firms do not have should adopt policies through which other associated expenses. Without technology-related policies, including staff can preemptively discover and appropriate insurance, firms run the those for cybersecurity, email respond to inevitable dangers. risk of financial ruin if a cyberattack security, web access and usage, firm is sufficiently robust. technology, and for staff-owned 7. Purchase Cyber Insurance Cyberattacks will happen. They do devices. There should be policies in every day. They happen to companies place, and every staff member should Cyber insurance has become a like Target and Wawa, and can easily be required to acknowledge that they necessity for law offices. In most target lawyers, courts, and others whose have read and will comply with these cases, a “rider” to a general liability infrastructure is inadequate. As we venture policies. insurance policy will not provide into the third decade of the 21st century, enough protection for the many law firms must finally be proactive in 6. Train Employees – New and Old dangers that confront firms. Rather, preparing for and responding to the because cyber-dangers are a “when” inevitable threats and dangers that they Training is essential—for all not an “if” concern, having appropriate will confront.

14 the philadelphia lawyer Spring 2020 the philadelphia lawyer Spring 2020 15 ETHICS By DANIEL J. SIEGEL To BCC, or not to BCC, That is the Question

that they were not supposed to reply to all 3. Whether the use of a broadcast the identified non-BCC recipients. email, that is, an email to many recipients, Unfortunately, email BCCs create will create an unacceptable risk that a client problems that do not arise in paper. will respond to the entire distribution list Electronically, that is, when a person and disclose privileged and/or confidential receives an email BCC, their reaction is information; often different, creating situations that 4. Whether sending an email to would never have occurred if the email opposing counsel with a CC or BCC to BCC option had never been invented. the attorney’s client may create a risk First, BCC recipients may not realize that the client will respond to all and that or may not pay enough attention to realize the opposing attorney will deem such that they were not included in the “formal” a response as consent for the opposing email chain, that is, they were not in the list attorney to communicate directly with the of recipients identified in the “TO” and the client; and “CC” fields. 5. Whether counsel who receives Second, BCC recipients may respond privileged information on an email chain not only to the sender (who obviously created using CCs or BCCs has a duty to knew who received the BCC copy of the report the disclosure to opposing counsel. email) but also to other, or all, recipients. Those responses could create problems After addressing the various concerns, when, for example, an identified recipient the Opinion concludes that lawyers should: mail. Lawyers love it. It is unhappy that the communication went to 1. Limit the circumstances in which allows them to stay in others whom that recipient was unaware. they include a client as a CC or BCC on an Etouch with clients, counsel Third, for lawyers, who might include email; and others, and eliminates clients in the BCC line, ethical problems 2. When appropriate, specifically the need for letters and more formal may result if a client responds to all or advise opposing counsel and their client of communication. It also saves money, begins a conversation that the original their inclusion; and because you don’t need paper and you sender never approved. It is that problem 3. Specify whether the client and/ don’t need to pay for postage. that is addressed in Formal Opinion 2020- or the attorney may “reply to all” or must Email. Lawyers hate it, because it 100 (“Ethical Considerations Relating to exclude the client in any responses. never seems to end. It also creates an Email Communication Involving Opposing impression that lawyers must be available Counsel and Clients”), issued by the The Opinion explains that these 24-7 to respond to clients. Pennsylvania Bar Association Committee questions implicate Pennsylvania Regardless of which side of the debate on Legal Ethics and Professional Rules of Professional Conduct you are on, email isn’t going away anytime Responsibility. 1.4 (“Communication”), 1.6 soon, even with concerns, such as privacy, The PBA Opinion addresses the (“Confidentiality”), 4.2 (“Communication always lurking. ethical issues arising if an attorney uses the with person represented by counsel”), and But if I could turn back the clock and carbon copy or blind carbon copy functions 4.4 (“Respect for rights of third persons”). uninvent one aspect of email, I would to send to the attorney’s client a copy of Concerning client confidentiality, the immediately eliminate the blind carbon email communications by the attorney with Opinion explains that “when an attorney copy, known commonly as the BCC. A opposing counsel. The Opinion raises five copies a client on an email to opposing great idea on paper, the BCC has proven to ethical issues: counsel, the email discloses the client’s be a disaster electronically. 1. Whether including a client’s email address. By disclosing the client’s In the “old days” of paper, paper BCCs email address in the CC line may disclose email address, an attorney risks violating were mailed or delivered separately, so that confidential information about the Rule 1.6(a) which prohibits a lawyer recipients knew that they were not included representation in violation of Pennsylvania from revealing ‘information relating to in the “formal” chain of communication. Rule of Professional Conduct 1.6; [the] representation of a client unless the BCC recipients knew that other recipients 2. Whether opposing counsel may client gives informed consent, except for of the letter or other document did not know reply to all in a response to a distribution disclosures that are impliedly authorized that the BCC recipients were also getting a chain that includes opposing counsel’s in order to carry out the representation.’” copy. And BCC recipients were also aware client; Further, disclosure of a client’s email

16 the philadelphia lawyer Spring 2020 Also implicated by BCCs is the potential for violating Rule 1.6, which could occur if a client mistakenly replies to all members of a distribution chain, including opposing counsel, and discloses information that would otherwise be protected by the attorney-client communication privilege or Rule 1.6. address may open avenues for investigation communication privilege or Rule 1.6. forward a copy of communications by opposing counsel, including a client’s Further, lawyers have a duty to protect separately to a client (like they did when fictitious name or the identity of the client’s confidential or privileged information. using paper) or use a secure client portal to employer. Under Rule 1.4(b), the Opinion explains store emails for a client’s review; Using a BCC also raises concerns that when forwarding or copying a client 2. Lawyers should obtain express about improper communications, contrary on an email, attorneys should also consider consent from opposing counsel to reply to Rule 4.2, which prohibits a lawyer from the nature and complexity of the subject to an email chain that includes counsel’s communicating with a person the lawyer matter in the email, and their client’s ability client when circumstances warrant the knows to be represented by another lawyer to evaluate the information being shared need for email distribution chains; and “in the matter,” unless the lawyer has the in order to make an informed judgment. 3. Lawyers should provide adequate consent of the other lawyer or is authorized Thus, if a lawyer intends to copy a client context and explanation to the client when to do so by law or a court order. on communications with third parties, sharing an email exchange among third Also implicated by BCCs is the the lawyer should advise and caution the parties. potential for violating Rule 1.6, which client that any reply all should not be used Email saves time and has many benefits. could occur if a client mistakenly replies if it will include or divulge confidential or But a BCC on paper is very different from to all members of a distribution chain, privileged information or legal advice. an electronic one. Consequently, when including opposing counsel, and discloses Finally, the Opinion recommends the possible, lawyers should avoid using a information that would otherwise following best practices: BCC with clients, or perhaps ever. be protected by the attorney-client 1. Lawyers should, when possible,

the philadelphia lawyer Spring 2020 17 ANNALS OF JUSTICE

THE PAROLE STEEPLECHASE By Steve LaCheen parole eligibility on the five- ne of my most fervent empirically-based beliefs pertaining to the practice year “new law” sentence, that had to be completed first. That of law—or at least the practice of criminal defense as I have experienced calculation would require the Oit—is that, more often than not, there occurs, during the course of the inmate to serve 51 months on representation, an unanticipated development or event no one could have foreseen, the new sentence (60 months which, if not a deus ex machina, has almost as dramatic an effect on the ultimate less nine months’ good time) before starting service on the 20- determination of the matter. Writing that, the following clichés spring to mind. The year old-law sentence on which only constant is change; there are enormous changes at the last minute; so, expect the inmate would not be eligible the unexpected. for parole for 6 and 2/3 years (80 months); requiring incarceration Often, in my experience, the deciding Louisiana, who had been convicted of two of at least 131 months. factor in a given situation—the thing that separate offenses and given two separate The Bureau of Prisons also treated makes reasonable resolution possible—is sentences; the first, a 20-year sentence for the two cases separately, but reversed the something that no one could have foreseen accepting illegal campaign contributions order, requiring the inmate to serve the old- or prepared for. Indeed, it is often the when running for the office; the second, law 20-year sentence before being paroled very fact of being unforseen that allows a five-year sentence for awarding state to the new-law five-year sentence, which everyone involved—warring, or at least contracts to the insurance company which would have required him to serve at least sparring, opponents on opposite sides of had made those contributions. Ordinarily, 80 months and then serve an additional 51 the table (read “battlefield”)—to be able the parole commission would have simply months, a total of at least 131 months. to move toward the center of resolution stacked the sentences and the applicable Our position was that the sentences without admitting error or, worse, losing parole guidelines, treating the two cases were concurrent, and the 20-year old-law face. as one 25-year sentence, with parole sentence made him eligible for parole at I have written of this phenomenon eligibility at one-third (100 months); but 80 months, by which time the five-year on several occasions in the past and will not in this case, because the later offense new-law sentence would have already not repeat stories previously told, but the was committed after November 1, 1987, been completed. Since the judge had not following history illustrates how the “X” and the five-year sentence was imposed specifically ordered the sentences to be factor impacted one of the most challenging under the new sentencing act, which did served consecutively, they should run federal parole cases I ever handled. not have a parole component. concurrently by default; and the fact that My inmate client was the former The parole commission treated the there was no parole eligibility on the five Insurance Commissioner of the State of sentences separately. Since there was no years did not affect his parole eligibility at

18 the philadelphia lawyer Spring 2020 During a Friday afternoon telephone call, the parole commission attorney mentioned that she could not wait to get out of Chevy Chase and spend the weekend with her horse. “You sound just like my daughter,” I said. And just like that, our conversations took a different tack . . . .

80 months. he was in no rush; and, even though it was getting bogged down in the administrative The difference to the client, of course, just an SIH hearing, he gave me free rein process. We wanted to avoid further delay. was that under the parole commission’s to make a full presentation to the tape- I explained that my client had already interpretation, he would not be eligible for recorder, which he promised he would served more than the required minimum release until he served at least 131 months; ensure would be heard at the regional for parole eligibility, and that if we were whereas under our interpretation, he would office. Although he had no power to make right, then he ought to be given immediate be eligible for release after service of 80 any changes, he would see to it that our consideration by the National Commission, months, a difference of 51 months. position was given consideration by the which always had the power to deal with By the time I had been contacted by my powers-that-be in due course. certain cases as “original jurisdiction” client’s family, he had already been given We were, of course, elated that we cases; and that’s what should be done in a presumptive parole date. At his initial had lucked out and found a sympathetic this instance to right the wrong already parole hearing, the parole commission ear. Unfortunately, the word came back done. had determined that, since he was not that the regional commissioner did not see My argument fell on stony ground until eligible for parole consideration on the our situation the same way, and nothing an unexpected turn of events set us on a five-year new-law sentence, he would not would be done to change the current different course. During a Friday afternoon be parole eligible until he had completed order of things. To complicate matters, telephone call, the parole commission that sentence, plus one-third of the old-law since this hearing had not been a parole attorney mentioned that she could not wait sentence; in other words, 131 months. hearing as such, I had nothing to appeal, to get out of Chevy Chase and spend the My client was serving his sentence administratively speaking. And I had no weekend with her horse. “You sound just behind the wall at the federal prison in basis to go to court with a habeas corpus like my daughter,” I said. And just like that, Atlanta, and the parole hearing would be petition because we had not exhausted our our conversations took a different tack, and conducted by hearing examiners from the administrative remedies. So, I decided to we were rounding the far turn and coming Southeast Region, with whom I had some, try a different tack. down the back stretch. The lawyer, as I but limited, experience, having handled I prepared an Administrative Petition learned, was, like my daughter, a dedicated only a few hearings at institutions in that for Extraordinary Relief, couching it in rider who owned a horse and engaged in region. exactly the same terms as I would later use dressage and steeplechase competitions, What I had failed to fully appreciate in a habeas corpus petition if need be. I and so it went, on and on and on; and was that the upcoming hearing was not had little hope for winning administrative the problem of my former insurance an actual parole hearing at all, but a relief; what I was hoping to do was to commissioner was carried across the finish statutory interim hearing, to which an set the stage for an immediate appeal. By line in record time. inmate was entitled every 18 months for filing the petition with the National Parole In short, and shortly thereafter, with the the sole purpose of determining whether Commission, I hoped to get a ruling which recommendation of the hearing examiner there had been any significant changes would be the equivalent of exhausting and counsel, the parole commission in his status since his last parole hearing. administrative remedies, and allow me to reopened the case, and advanced my “SIH” hearings were conducted by a single go to court without having to climb every client’s presumptive parole date by 36 hearing examiner, who had no authority to rung up the administrative ladder, which months, entitling him to immediate release conduct a plenary review of decisions made would have taken a year at least. at 90 months. by the commission at prior hearings. So, The response I got, however, was not A week later, I met my client at the we would be presenting argument for relief the response I had hoped for. I received gate and drove him directly to Sonny’s to a single examiner with no authority. Not a telephone call from an attorney for Barbeque, where his family was waiting much to look forward to other than meeting the parole commission who said the to celebrate his release. It was a great my client and enjoying a pulled pork platter commission intended to respond to my homecoming. And the ribs were good, too. at Sonny’s Barbecue. petition, and that if there was agreement But I was wrong. As luck would have it, that my argument should be given further the hearing examiner was a self-described consideration, my client would be given Steve LaCheen (slacheen@concentric. “old hand,” and, because we were one of a full parole hearing at the next scheduled net), a partner with LaCheen, Wittels & only a few cases on the diminishing list of hearing date at FCI Atlanta. That, of course, Greenberg, is a member of the Editorial “old law” inmates still eligible for parole, was not what I wanted; I wanted to avoid Board of The Philadelphia Lawyer.

the philadelphia lawyer Spring 2020 19 Medical Marijuana in the Workplace:

Information and Guidance for Employers in Pennsylvania

By Leah DiMatteo

a neurodegenerative disease, terminal here is no question that legalization of medical marijuana is illness, dyskinetic and spastic movement on the rise. In 1996, California became the first state to allow disorder, or opioid-use disorder. Tresidents to use medical marijuana and, since then, more than 30 Qualifying conditions include other states and Washington, D.C. have passed similar laws. The shifting cancer, inflammatory bowel disease, post-traumatic stress disorder, epilepsy, legal landscape surrounding medical marijuana has exposed employers to and a catch-all for “[s]evere chronic or new potential liability. This series examines the medical marijuana law in intractable pain in which conventional Pennsylvania with a focus on employment issues. Specifically, this series therapeutic intervention and opiate therapy aims to help employers anticipate, prepare for, and guard against potential is contraindicated or ineffective.” medical marijuana-related litigation. II. Medical Marijuana FAQ for Pennsylvania Employers I. Medical Marijuana Laws in Pennsylvania1 The following are some common questions that Pennsylvania Medical marijuana is legal in Pennsylvania. In 2016, employers have regarding the state’s medical marijuana laws, Pennsylvania enacted the Medical Marijuana Act (the “Act”), 35 along with some answers and guidance for best practices. P.S. § 10231.101, et seq., and in 2018, medical marijuana became available to Pennsylvania residents with a valid marijuana ID and 1. Must I accommodate employees who want to use who have registered with the Medical Marijuana Registry. medical marijuana in the workplace? To qualify for, and obtain, the requisite ID card in Pennsylvania, a patient must: • Answer: No, but blanket prohibitions are not advisable. 1. be a resident of Pennsylvania; and Section 2103(b) of the Pennsylvania Act states: “Nothing in 2. have an approved physician certify that the patient suffers this act shall require an employer to make any accommodation of from at least one of 17 “serious medical condition[s]” enumerated the use of medical marijuana on the property or premises of any in Section 103, or has an anxiety disorder, Tourette Syndrome, place of employment.” 35 P.S. § 10231.2103(b)(2).2

20 the philadelphia lawyer Spring 2020 Pennsylvania employers should be mindful that employees should not be terminated, and applicants should not be denied employment simply because of their participation in the medical marijuana program.

In other words, employers may employee alleged that she was terminated • Answer: Yes. prohibit the use of medical marijuana in based upon positive drug test results, The Act enumerates certain “[p] the workplace. However, employers should notwithstanding the employer’s knowledge rohibitions” which Pennsylvania be careful and avoid implementing blanket that she participated in the state’s medical employers should know. Under Section policies against the use of marijuana in the marijuana program. In Palmiter, the court 510, a patient “under the influence with a workplace, as the employer risks being overruled the employer’s preliminary blood content of more than 10 nanograms charged with employment discrimination objections, finding that an aggrieved of active tetrahydrocannabis per milliliter under the Americans with Disabilities Act employee has an implied private right of of blood in serum” may not operate or be (ADA). Under the ADA, an employer action to seek compensatory damages from in physical control of federally or state- is required to provide a reasonable an employer that violates Section 2103(b) permitted chemicals or any “high-voltage accommodation to employees who qualify (1). Also pending in Pennsylvania is Gsell electricity or other public utility.” 35 as disabled under the statute and can still v. Starline Holdings, LLC d/b/a Universal P.S. § 10231.510(1). Additionally, under perform the essential functions of the Electric Corporation, wherein the plaintiff- Section 510, a patient who is “under the job with or without an accommodation. employee claims that the defendant- influence of medical marijuana”: A disabled employee could argue that employer failed to hire him “solely on the a. is prohibited from performing prohibiting all employees—including basis of his status as an individual who any employment duties at heights or in legal, medical marijuana cardholders— is certified to use medical marijuana.” confined spaces (e.g., mining); from using marijuana in the workplace is Although the outcomes of these cases b. may be prohibited from a violation of the ADA, as it constitutes remain to be seen, Pennsylvania employers “performing any task which the employer a failure to provide a reasonable should be mindful that employees should deems life-threatening, to either employee accommodation. Accordingly, employers not be terminated, and applicants should or any of the employees of the employer,” should carefully evaluate each request on not be denied employment simply because and a case-by-case basis to determine whether of their participation in the medical c. may be prohibited from such an accommodation (i.e., the use of marijuana program. “performing any duty which could result in marijuana on the employer’s premises) is a public health or safety risk.” reasonable. 3. Can I discipline an employee 35 P.S. § 10231.510 (2)-(4). for being under the influence of legal Importantly, the statute carves out a 2. Can I terminate or refuse to medical marijuana in the workplace? protection for employers in points b. and hire employees who participate in the c. above, providing that “[t]he prohibition medical marijuana program? • Answer: Yes, under certain shall not be deemed an adverse employment circumstances. decision even if the prohibition results • Answer: No. Under Section 2103(b)(2) of the in financial harm for the patient.” 35 P.S. Under Section 2103(b)(1) of the Act, Act, an employer still may discipline § 10231.510 (3)-(4). employers may not “discharge, threaten, employees who are “under the influence refuse to hire or otherwise discriminate of marijuana in the workplace” if their 5. Should I ask employees and or retaliate against an employee regarding conduct “falls below the standard of care applicants whether they participate in an employee’s compensation, terms, normally accepted for that position.” 35 the state’s medical marijuana program? conditions, location or privileges solely on P.S. § 10231.2103(b)(2). However, absent a the basis of such employee’s status as an clearly defined “standard of care,” proving • Answer: No. individual who is certified to use medical a violation may be difficult. Accordingly, It is important to note that the law in marijuana.” 35 P.S. § 10231.2103(b)(1) employers should review and update each state provides for a medical program (emphasis added). Employers need to the definitions and standards outlined in that may raise HIPAA privacy concerns. be cautious when making employment their employee handbooks and company Employers should be careful about how decisions regarding an employee or policies. Establishing objective standards of they approach this, as the information they applicant who is known to participate care and clearly defining conduct that is in seek may be confidential. Moreover, as in Pennsylvania’s medical marijuana violation thereof can help employers guard discussed in a prior article in this series, in program, as an employment decision based against employee claims that they were Pennsylvania it is unlawful to discriminate solely on the individual’s participation unfairly disciplined due to participation in against an employee or applicant solely in the program is expressly prohibited the medical marijuana program. because the person participates in the under Pennsylvania law. In a still-pending medical marijuana program. To avoid employment action in the Lackawanna 4. Can employees who use medical risking confidentiality violations or the Court of Common Pleas, Palmiter v. marijuana be prohibited/restricted from appearance of discrimination, employers Commonwealth Health Systems, Inc. performing any work-related activities? should try to avoid directly asking et al., No. 19-CV-1315, the plaintiff- employees and applicants whether they are

the philadelphia lawyer Spring 2020 21 medical marijuana cardholders. • Reviewing and updating their 1 As an initial matter, under federal Employee Handbook, policies, and law, marijuana is an illegal Schedule I 6. Should I drug test my current procedures to ensure that the rules regarding controlled substance, 21 U.S.C. § 802(16), employees for THC? discipline, performance evaluations, and any employer subject to federal laws accommodations, and drug testing are or regulations mandating a drug-free • Answer: No, not without a good clearly defined, uniformly applied, and workplace (e.g., the trucking industry) reason. comport with the current laws; must continue to abide by such laws. This As an initial matter, drug testing can be • Training managers and article does not address federally regulated expensive, and with the laws changing to supervisors to properly handle emerging employers and businesses. be more accepting of marijuana use, it may medical marijuana issues; and not be advisable to conduct such tests, and • Monitoring any pending 2 The Pennsylvania Act allows medical in fact, many employers are dropping them. legislation and preparing to adjust marijuana to be dispensed only in the With Pennsylvania’s prohibition against accordingly. following forms: pill; oil; topical forms discrimination based on participation in Additionally, if an employer suspects (e.g., gels, creams, ointments); a form the state’s medical marijuana program, an employee is under the influence at appropriate for vaporization (excluding dry drug testing may actually work against the work, the employer should engage in leaf or plant form); tincture; or liquid. 35 employer, as it could support a claim that an interactive process. Specifically, the Pa. Stat. Ann. § 10231.303(b)(2). The drug the employee was discriminated against employer should: may not be dispensed in dry leaf or plant on the basis of those results. On the other • Regularly document the form. 35 Pa. Stat. Ann. § 10231.303(b)(3). hand, if the employee’s job responsibilities employee’s performance to determine This means that in Pennsylvania, smoking include any prohibited activities outlined in whether productivity or performance has or ingesting marijuana in an edible form is Section 510, an employee should submit to changed/declined; and not allowed. a drug test. (See answer to Question No. 5). • Drug test with caution, as the tests can return positive results where the Leah DiMatteo (ldimatteo@ III. Conclusions and employee used marijuana while off-duty theaxelrodfirm.com) is an associate at The Recommendations but is not necessarily under the influence Axelrod Firm, PC. She is a civil defense while at work. attorney who litigates employment law and In this evolving legal landscape, Taking these precautions can help general liability matters in Pennsylvania employers in Pennsylvania should employers maintain a safe and productive and New Jersey. take certain measures to guard against workplace and avoid litigation. marijuana-related litigation, including:

22 the philadelphia lawyer Spring 2020 75 YEARS LATER: The Philadelphia Transit Strike of 1944

By Patrick McKnight

opular history often places the beginning of the modern civil rights movement in the 1950s. Historians correctly cite Brown v. Board of Education in 1954 and the Montgomery Bus Boycott of 1955 and 1956 as landmark events in legal history. Fewer people may appreciate the P significance of a different sort of boycott a decade earlier. This often-forgotten historical drama didn’t occur in the Deep South or before the Supreme Court. It happened on the streets of Philadelphia. Seventy-five years ago, the failure of the Philadelphia Transit Strike helped build momentum towards later, more widely remembered civil rights victories.

the philadelphia lawyer Spring 2020 23 The rule of law has the power to nonviolently overcome injustice. The legal process may not always be smooth, quick or pleasant, but lawyers who are willing to lead the effort can have a tremendous and long-lasting impact.

Philadelphia Goes to War a temporary military encampment for convictions. By 1946, most of these men federal troops. Strikers were told they were released and honorably discharged. 1944 is remembered for many of the had to return to work or lose their draft Later in 1944, a full-scale race riot most pivotal battles of the Second World deferments. The entire episode was a broke out among Marines on Guam. War. There is a wealth of information high-profile incident which undercut Forty-three Marines were court martialed about the legendary Normandy Invasion, America’s image as a defender of and convicted. These convictions were the Battle of the Bulge and landings in freedom. It also resulted in a drastic overturned shortly after the war, once the South Pacific. Here in the Delaware reduction in war production at a critical again by legal challenges launched by Valley, Philadelphia was playing a critical time. the NAACP. Many historians believe role in the war effort. Philadelphia was Despite the concerns of all-out riots, these events helped motivate the eventual the third-largest manufacturing city for the city remained generally nonviolent desegregation of the U.S. military in United States war production. The Navy during this embarrassing ordeal. 1948. Yard alone employed nearly 60,000 Philadelphia Mayor Bernard Samuel workers. Philadelphia factories worked closed all establishments selling alcohol What Does 1944 Mean in around the clock to keep up with the and deployed extra police. The NAACP 2019? insatiable demand for ships, planes and worked diligently to maintain the peace other crucial equipment for the war. and even distributed over 100,000 These largely forgotten events Although America was fighting posters reading, “Keep Your Heads and undercut the image of 1944 as a year of tyranny overseas, some African American Your Tempers! ... Treat other people as national solidarity at home and patriotic leaders increasingly questioned racial you would be treated.” victories abroad. Instead, they paint a inequality at home. The “Double V” Although there was sporadic racial more complicated and painful image of a campaign sought victory over both the violence, most accounts seem to agree nation divided. These stories remind us of Axis Powers abroad and discrimination at that the majority of Philadelphians the ugliness and complexity of America’s home. Some estimates suggest over 90% opposed the strikers and their demands. history of inequality. Yet, these events of African Americans actively supported The federal troops left on August 17, and can also provide us perspective on the this campaign. African Americans served the number of black transit employees in divisions and animosity which appear in segregated military units in World War skilled positions continued to increase. resurgent in 21st-century America. II. The Tuskegee Airmen are the most The four men who led the strike were The unrest of 1944 suggests that famous example, but other units, such fired and arrested. although the problems of today aren’t as the 92nd and 93rd Infantry Divisions new, neither are they intractable. The also served with distinction during the Discontent Spreads in 1944 rule of law has the power to nonviolently war. overcome injustice. The legal process Unrest wasn’t confined to may not always be smooth, quick or The Strike Philadelphia during the summer of 1944. pleasant, but lawyers who are willing The Port Chicago disaster in California to lead the effort can have a tremendous On Aug. 1, 1944, eight Philadelphia was a prominent example. Unfortunately, and long-lasting impact. African Americans were promoted to this event involved significant loss of life How far have we really come in 75 streetcar motormen for the first time. This and the “mutiny” of hundreds of African years? Surely not far enough. But just prompted a strike led by white transit American servicemen. Three hundred 10 years after the Philadelphia Transit workers who opposed the inclusion twenty soldiers and civilians died in Strike, when an army was required to of the new black operators. The strike the Port Chicago tragedy. Dangerous overcome racism, Philadelphia lawyer crippled the city for six long days. Just munitions exploded while being loaded William T. Coleman Jr. was helping a few weeks after D-Day, Philadelphia’s onboard a Navy cargo ship. Most of Thurgood Marshall win Brown vs. Board factory workers suddenly had no way of the dead were African American sailors of Education. Thirteen years after that getting to work. working under the direction of white case, Marshall became the first African The strike was only broken when officers. Unsafe working conditions American Supreme Court justice. the federal government used the Smith- provoked a subsequent strike where 50 Progress has indeed been far too slow, Connally Act to send 5,000 soldiers men were convicted of mutiny. Thurgood but important legal victories deserve to into the city. Fairmount Park became Marshall led the effort to appeal these be celebrated.

24 the philadelphia lawyer Spring 2020 America has two great legal principles, both of which were born largely out of Philadelphia history. The first is equality, an unsatisfied ideal that continues to motivate a new generation of young lawyers today. The second is the rule of law, the principle that justice doesn’t depend on violence or coercion.

America has two great legal Constitution and Philadelphia’s role in complicated, unsavory and unsettling. principles, both of which were born the civil rights movement all demonstrate But that’s exactly why they’re so largely out of Philadelphia history. The our city’s unparalleled legacy in important. Understanding Philadelphia’s first is equality, an unsatisfied ideal that furthering both of these principles. local legal history can make us better continues to motivate a new generation citizens, better lawyers and better of young lawyers today. The second is Conclusion leaders. Seventy-five years later, we still the rule of law, the principle that justice have plenty of work to do. doesn’t depend on violence or coercion. In an era too often defined by partisan It’s easy to forget how many nations animosity, lawyers are uniquely placed today have yet to embrace either of these to fight for justice and civility. These Patrick McKnight is a law clerk at principles. The fact that many Americans are not political issues. Today’s leaders Wilson Elser Moskowitz Edelmen & take them for granted is both a symptom can’t make informed decisions without Dicker LLP. of progress and a great cause for concern. understanding the lessons of yesterday. The Declaration of Independence, the Many of these historical truths can be

the philadelphia lawyer Spring 2020 25 “White Rain” BByy AlbertAlbert S.S. DandridgeDandridge IIIIII

hen I was a child, I could not wait until Thursday night at 8:30 I recently went back and looked at some of the old shows on YouTube. As an p.m. to watch television. At exactly 8:30 p.m., a commercial adult black male, I now understand the dis- would come on and I would start to salivate in anticipation comfort of the show’s detractors; however, like Pavlov’s dog. It was the White Rain commercial: “Try White Rain it is still funny. W Now the show has come back for its shampoo tonight, and tomorrow your hair will be sunshine bright – White third incarnation. This iteration is clearly Rain, White Rain.” not funny and is offensive. It has come back as a daily reality TV show now play- Next would come the magnificent azimuth to the North Star). ing on Fox News and in Washington, D.C. soundtrack of the start of the “Amos ‘n’ I was a child, but I still thought it was Kingfish is now played by Donald Trump. Andy” show. It was very much my favorite very funny. It was slapstick of the highest Andy is now played by Mike Pence. Amos television show, and it allowed me to stay order, with a dose of buffoonery. I never is now played by Mitt Romney. Sapphire up until 9:00 p.m. saw my parents wince when looking at the is now played by Kellyanne Conway. Cal- “Amos ‘n’ Andy” started on radio in show, although later I found out that some houn is now played by Bill Barr. Now, ev- the 1930s with two white actors using black people thought it to be inappropriate. Black eryone winces. dialect—a minstrel show on the radio. The folks had enough burdens and did not need No White Rain. show migrated to TV in 1951 with—out another load to carry. Even as a kid, I never of necessity—an all-black cast. We got to thought that it was representative of black know Amos (the cameo-appearing straight lives; it was a comedy. Albert S. Dandridge III (adandridge@ man), Andy (the amicable dunce who was After a while, however, the NAACP schnader.com), a partner at Schnader Har- the victim of some of Kingfish’s shenani- and others who took offense believing that rison Segal & Lewis, chair of the firm’s gans), Kingfish (the star of the show, the the show created a negative image of black Securities Practice Group and its Chief Di- consummate con-artist and serial liar), Sap- people lobbied to take it off of the air. In versity Officer, is a member of the Editorial phire (the fire-breathing dragon lady), and 1966, they finally got CBS to cancel the Board of The Philadelphia Lawyer. Calhoun (the lawyer with a questionable show.

26 the philadelphia lawyer Spring 2020 Lawyer Referral and Information Service (215) 238-6333 | PhiladelphiaBarLawyers.com TRUST US TO HELP

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the philadelphia lawyer Spring 2020 27 WHY BUYING A SANDWICH WITH BITCOIN IS A TAXABLE TRANSACTION AND OTHER TAX ISSUES AFFECTING FUNDS INVESTING IN

CRYPTOCURRENCIES By Robert Elwood

ue to their impressive returns, U.S. dollar is, that is designed for the purpose of cryptocurrencies can be an attractive exchanging value digitally using certain principles asset class. But those returns do come of cryptography. Cryptography is used to secure the transactions and to control the creation of new Dat a price in the form of legal restrictions and “coins,” although most cryptocurrencies are designed complicated tax issues for both individual and to decrease in production over time, which creates a ceiling on the quantity. That’s different from typical institutional investors, especially for mutual government currencies where governments can funds. When advising clients on investing always create more. Cryptocurrency works through distributed ledger in cryptocurrencies, it is essential that all technology, typically a “blockchain” that serves as a parties understand the meaningful risks and secure, public financial transaction database. A blockchain is a continuously growing list of reporting involved. records, called blocks, which are linked and secured. Each block contains a link to the previous block, a On January 1, 2017, bitcoin traded at $963. By December of timestamp, and data detailing the transaction. These features that year, that number had skyrocketed to $16,601, resulting make blockchains inherently resistant to modification of the in an annual return of 1,700%. In 2019, bitcoin appreciated data, which is critical given there have been many attempts to 92%—another impressive year. It’s not surprising, then, illegally obtain digital currencies. that individual investors, mutual funds, and hedge funds are Cryptocurrencies are legal in most countries, with paying attention to bitcoin, Ethereum, XRP, and other digital some notable exceptions: Iceland, mainly due to its freeze currencies or altcoins (“cryptocurrencies”). on foreign exchange in general; Vietnam; China, which has A cryptocurrency is a medium of exchange, just as the banned financial institutions from handling cryptocurrencies;

28 the philadelphia lawyer Spring 2020 Infographic by Weiswood Strategies Ltd. and Russia, which has made it illegal to priority. On November 29, 2017, a federal can do so more nimbly than others. purchase goods with any currency other court in San Francisco ordered digital Mutual funds face the most obstacles than Russian rubles. Unlike centralized currency exchange Coinbase to release in investing in cryptocurrencies. The banking, where governments control the certain customer information to the IRS. Securities and Exchange Commission value of a currency through the process of See United States v. Coinbase, Inc., 2017 (SEC) has rejected various proposals printing money, no government has direct WL 5890053 (N.D. Cal. 2017). The court to create mutual funds or exchange- control over cryptocurrencies as they are ruled that Coinbase must turn over the traded funds (ETFs) that invest directly fully decentralized. In the U.S., however, details of all its bitcoin customers who in cryptocurrencies. The SEC said “its there is oversight by both the Financial had transactions greater than $20,000 disapproval does not rest on an evaluation Crimes Enforcement Network (FinCEN) between 2013 and 2015. The result of of whether bitcoin or blockchain and the Internal Revenue Service (IRS). the court’s order is that Coinbase had technology more generally, has utility or FinCEN has issued guidelines for to provide information for millions of value as an innovation or an investment,” cryptocurrencies, stating: “A person transactions made by nearly 15,000 but rather that the funds proposing that creates units of convertible virtual customers. to invest directly in cryptocurrencies currency and sells those units to another The stakes are high for taxpayers “[had] not met their burden under the person for real currency or its equivalent who do not follow the rules, including Exchange Act and the SEC’s Rules of is engaged in transmission to another penalties for civil fraud (75% of tax due), Practice to demonstrate that the proposals location and is a money transmitter.” failure to file (up to 25% of tax due), are consistent with the requirements The IRS has ruled that cryptocurrency failure to report foreign bank and financial of Exchange Act Section 6(b)(5), and, is to be treated not as currency but as accounts ($10,000 minimum), and even in particular, the requirement that the property for tax purposes, making it criminal fraud. With such steep penalties, rules of a national securities exchange subject to tax rules that apply generally transactions should be undertaken only be ‘designed to prevent fraudulent and to property transactions. In other words, when the record-keeping burden is manipulative acts and practices.’” the IRS is treating the income or gains worthwhile. In other words, don’t buy In December, the SEC seemed from the sale of a virtual currency, such a sandwich with bitcoins! Although this to give the green light to an ETF that as bitcoin, as a capital asset, subject to may change if Congress enacts the Virtual plans to invest solely in bitcoin futures. either short-term (ordinary income tax Currency Tax Fairness Act of 2020. The The NYDIG Bitcoin Strategy Fund, a rates) or long term capital gain tax rates, bill provides that U.S. federal income tax portfolio fund in the Stone Ridge Trust if the asset is held greater than 12 months is due on gains in cryptocurrencies only VI, appears to have received its approval (15% or 20% tax rates based on income). if the gain on a particular transaction is based upon its plan to invest solely in This ruling imposes extensive record- greater than $200. Accordingly, if the bill cash-settled bitcoin futures contracts keeping requirements, including tracking passes, it would alleviate the “sandwich” traded on exchanges registered with the each purchase (tax basis), the amount problem. Commodity Futures Trading Commission realized on each sale or other disposition, Regardless of the outcome of the (CFTC). The fund does not intend to tax lots, and gain or loss on each sale pending legislation, cryptocurrencies invest in bitcoin directly or any other (not aggregate). The IRS is making tax can be useful for investing purposes; cryptocurrencies. The fund is an unlisted, enforcement of cryptocurrencies a high although, some types of investment funds closed-end, interval fund. The fund will

the philadelphia lawyer Spring 2020 29 When a retirement account generates income or gains from the purchase and sale of cryptocurrency, the retirement account does not pay any tax on the transaction. not offer daily redemptions nor be subject good assets for the 50% RIC asset test. not generally produce UBIT. to potentially significant and unexpected Despite the problems associated with Fortunately, the rules do provide a liquidity demands during short periods. investing using cryptocurrencies, there favorable tax environment for retirement The fund operators have addressed the are potential solutions available. Funds account investors. When a retirement SEC’s concerns regarding valuation, can limit exposure so as to comply with account generates income or gains from custody, liquidity, and efficient arbitrage the income and asset tests. Funds may the purchase and sale of cryptocurrency, mechanisms for digital asset-based funds. also invest in securities that invest in the retirement account does not pay any There are obstacles imposed by cryptocurrencies. But most derivatives tax on the transaction. Any tax would be the Internal Revenue Code as well. based on cryptocurrencies will not deferred to the future when the retirement One of the requirements that an entity help (e.g., options, swaps, and futures). account holder takes a distribution. In the must satisfy to be treated as a regulated Potential cryptocurrency investments case of a Roth IRA or Roth 401(k) plan, investment company (RIC) is a gross that may satisfy the income or asset no tax would be due if the distribution is income test under Code Section 851(b) tests include COINXBT (Bitcoin ETN), qualified. Hence, using retirement funds (2). The RIC income test provides that COINETH (Ethereum ETN), Bitcoin to invest in cryptocurrencies could allow at least 90% of an RIC’s income must Investment Trust GBTC, Ethereum the investor to defer or even eliminate (in be derived from a list of sources that Classic Investment Trust, Z-Cash the case of a Roth) any tax due from the includes dividends, interest, sale of stock Investment Trust, Vontobel-issued investment. Note, though, that retirement or securities, and other income derived certificate linked to bitcoin, and Leonteq- account investors interested in investing with respect to its business of investing issued certificate linked to bitcoin. in cryptocurrencies do need to be aware in stock, securities, or currencies. Thus, For both hedge funds and separately of UBIT. because cryptocurrencies are considered managed accounts, there is no income or While there are some challenges property and not currency, they (together asset test. However, investors must keep associated with investing with with all other non-qualifying income) track of each purchase, amount realized, cryptocurrencies, investors can take must be less than 10% of a mutual fund’s and tax lots, as well as calculate gain or advantage of them provided they are fully gross income. loss on each sale (not aggregate). aware of the rules and requirements at the To qualify as an RIC, at least 50 % of In addition, hedge funds, separately outset. the entity’s total assets must be in the form managed accounts, and other investors of cash, cash equivalents, or securities. need to pay attention to the unrelated Robert Elwood is the chief operating Also, no more than 25% of the company’s business income tax (UBIT). This is a officer and partner at Practus, LLP. His total assets may be invested in securities tax on unrelated business income, which practice focuses primarily on investment of a single issuer unless the investments comes from an activity engaged in by funds, start-ups, real estate, and other are government securities or the securities a tax-exempt organization that is not investments. of other RICs. Cryptocurrencies do related to the tax-exempt purpose of that not count as cash, cash equivalents, or organization. The consensus appears to securities, so cryptocurrencies are not be that trading in cryptocurrencies will

30 the philadelphia lawyer Spring 2020 the philadelphia lawyer Spring 2020 31 RRETIREMENTETIREMENT – WWHOHO MME?E? By Lynn A. Marks, Eleanor W. Myers, and Janet F. Stotland

“You are Old, Father William,” the young man said, “And your hair has become very white; And yet you incessantly stand on your head— Do you think, at your age, that is right?”

Leewiswis CCarroll,arroll, AAlice’slice’s AAdventuresdventures iinn WWonderlandonderland

3232 thetthhe philadelphiaphphililaddeellphphiaa llawyerawwyeyer SpringSpSpriringng 2202002020 ost attorneys still practicing—and years to transition fully. Some did extensive planning while even those yet to enter the profession— others did nearly none. Mostly, people will one day transition to working thought about their retirement alone, discussing it, if at all, with one or two family fewerM hours or not at all. Many of you will now stop members or friends. Many discovered that reading, thinking that these reflections are aimed at retirement had implications for and effects on family, spouses, and close community. those closer to retirement age. We hope you will keep Those who considered work colleagues going. Over the next decade, the Philadelphia Bar to be a second family sorely missed them. Obviously, financial concerns were a major will see a huge group of lawyers reach retirement factor in whether and when to retire.2 There age—perhaps even you. are few “golden parachutes” in the public interest world. Financial planning needs to to share. They also wanted to stay engaged start early and there are experts who can A major goal of this article is to share the with each other. To meet this need, the help. Access to health insurance is another experiences and perceptions of a group of DLSC created the Public Interest Alums key factor. senior public interest lawyers in the hope Network (PIAN).1 PIAN’s members are The consensus is that it is critically that their insights about retirement will be career public interest attorneys and others important to acknowledge the weight of useful. This piece is also intended to en- who define their work as public service and this decision and the difficulty of this pas- courage a conversation within the Bar re- who put a driving emphasis on continuing sage. It is not a decision that should be garding the difficulties and opportunities to “be of use.” We are confident that we are faced alone or without preparation. And it faced by those who, willingly or unwilling- not the only members of the bar to have is hard work. A former Executive Director ly, face major career transitions. We call on these issues. Many members of the private who employed a transition coach had dif- the Bar to timely support senior colleagues bar share this goal and experience similar ficulty focusing on the personal, always transitioning out of full-time work. struggles and doubts as they transition from defaulting to her program’s needs. The Retirement can be a traumatic experi- their intense, full-time careers to the next important question the coach asked was, ence for those who have loved their work phase. “what elements of your current work are and focused on it, often 24/7 or at least most enjoyable?” This helped her focus on five packed days a week. Some reject the Making the Decision to Retire ensuring that these elements were present word “retirement” because it implies that PIAN members began by sharing how in her next life choices. our useful work-life is over, and they prefer each of us made the decision to retire. The to call this stage “rebalancing,” “transition- reasons for retiring were many, but for most Transition’s Impact on Ourselves ing,” “next chapter,” or “moving on.” Even it was wrenching. Some had no choice be- and Others those who have not “loved” their work cause of mandatory retirement require- Beyond the when and why discussions, (and who perhaps find its cessation a relief ments or other exigencies of employment. PIAN members explored and continue to and an escape) can miss the discipline of Some left because of health, their own or explore how the decision to cutback or re- a schedule or the satisfaction of knowing the health of loved ones. Others left be- tire has affected us and our families. What they did a job well. cause their job had changed into something has gone well; what not so well? Some Work is a defining element of many they no longer wished or felt competent members, especially those who had done lawyers’ identities, and, when someone’s to perform. For example, some who were some prior planning, moved seamlessly to identity is challenged or erased, he or she leading organizations had found that, while other activities or were comfortable with can feel broken and incomplete. We are the legal work still felt important and chal- a family-based focus. Several members uneasy about being out of the loop on new lenging, the responsibility to fundraise and continued to volunteer, full- or part-time, developments, trends in the law, and tech- manage a complex program did not match for the same or another public interest nology. We miss our relationships with col- their talents or interest. program. Others made work-related plans leagues. We worry about being forgotten. Others’ jobs changed because of new but could not implement them—a source The reality of aging likewise presents leadership. Some left because the de- of frustration. Some, especially those who many challenges. Facing retirement inevi- mands of learning new technology felt too had not left voluntarily, still had unresolved tably raises concerns about growing older daunting. (One member said that she had angry feelings about their departures. But and one’s mortality, diminished physical decided to leave before she had to learn e- almost all have enjoyed the newfound flex- and/or cognitive capacities of self, loved discovery.) Others began to feel generally ibility in their schedules. It’s great having ones, and friends. And loss. out of touch, especially with new and much the week to do many home-life tasks that In 2014, the Delivery of Legal Servic- younger staff whose life experiences, train- had to be packed into a Saturday morning es Committee (DLSC) of the Philadelphia ing, and outlook were different. It became before retirement. One member opined that Bar Association recognized that many of important not to hang around. A former ex- the best thing about retirement was not hav- the public bar’s senior staff were retiring or ecutive said that she wanted to leave while ing to get up before dawn to get to the pool getting ready to retire, reducing their work her colleagues still wanted her to stay. before work, i.e., luxuriating in bed until 8 commitments, or transitioning to their next Some just wanted a change. Some wanted a.m.! And then, there’s Netflix streaming! public interest careers. Many of these al- to teach. Everyone found it extremely dif- And, of course, we discussed aging, ums had important expertise and a desire ficult to make this decision, some taking but that is another article.

the philadelphia lawyer Spring 2020 33 There is much that the Bar can do, and there is much that retiring lawyers can do for the Bar.

Everyone participating found the op- ty; and what can the Bar do to ease the services programs have weak or no retire- portunity to share with other lawyers to be transition? One area to explore could ment plans. There will always be a tension profoundly helpful. be whether the emeritus rule is meet- between these agencies’ desires to focus ing its goals and is widely understood. limited funding on program needs versus Ways to Continue to Serve our • A series of seminars and/or CLEs the needs of employees to be well treated Community focusing on some of the big issues and protected. More focus on identifying a The topic of volunteering arose re- touched on here, such as: When and fair resolution of this tension is needed in peatedly. We explored how to find cases to how to step away from full practice; fi- the future. handle and how to ensure that volunteers nancial issues (including health insur- have malpractice coverage. For example, ance); and how to maintain a healthy 3 VIP has a full-time staff of 20 to assist. we explored volunteering with Philadel- work-life balance before and after re- For more information, check out its website phia’s Volunteers for the Indigent Program tirement. at https://www.phillyvip.org. (VIP). VIP recruits, trains, and supports • We encourage employers to ex- volunteer attorneys who represent without plore whether there are part-time op- 4 The current PA registration fee, due at charge low-income individuals, families, tions in their firms or organizations, the time of application, is $35. An emeri- businesses, and nonprofits.3 Lawyers vol- paid or unpaid. Perhaps transitioning tus attorney is eligible to provide pro bono unteering through VIP or most other public employees could mentor newer attor- services only through an eligible legal aid interest law programs are covered by the neys, either formally or informally. For organization, a not-for-profit organization organization’s malpractice plan and free another example, the Bar Association that provides legal services. For the full text CLEs are usually available. could establish an electronic bulletin of the Rule see, http://www.pacourts.us/as- In 2018, the Pennsylvania Supreme board where employers could post sets/opinions/Supreme/out/Attachment%20 Court adopted “emeritus” Rule 403 to cre- their need for volunteers or temporary %2010353802736697871.pdf?cb=1. Most ate a pool of qualified volunteer attorneys help. It could also include opportuni- of the organizations for which emeritus at- to provide services to those in need. An ties for service on nonprofit boards. torneys would work offer free training with emeritus attorney must be registered as re- • The Bar could sponsor a panel of CLE credit. tired, must complete six hours of continu- volunteer transition coaches who could ing legal education within one year prior to be available to those who want a men- the application date, must verify that he or tor during their transitions. The collec- Lynn A. Marks (lynnmarks49@gmail. she is authorized solely to provide pro bono tive wisdom of our PIAN colleagues com), Eleanor W. Myers (emyers@temple. services, is not permitted to handle client has helped members navigate this pas- edu), and Janet F. Stotland (Stotland@ funds, and is not permitted to ask for or re- sage. The Bar could add a counseling msn.com) are members of the Public Inter- ceive compensation.4 assistance program (primarily identi- est Alums Network (PIAN). fying resources) for those considering Engaging the Broader Legal full- or part-time retirement. Community The important task ahead is for the Bar Answers to the Figure 8 puzzle on page 39 While there is a consensus in the legal to identify this issue as a priority. There community that we must mentor and nur- is much that the Bar can do, and there is ture those entering the profession, missing much that retiring lawyers can do for the is a consensus that the profession also has a Bar. Most of us will get there. We can help responsibility to help those who are leaving each other, and we can continue to serve a regular practice. This needs to change. our community. In this process, we must The profession has a responsibility and an not forget the values that brought us to pub- opportunity to assist those who are transi- lic interest careers in the first place, values tioning from full-time work. that are shared by many in the broader legal We have several suggestions as we community. seek a wider discussion. We welcome a robust conversation. • A Chancellor’s Forum could spark the discussion and identify next 1 The Philadelphia Bar Association also steps. Topics might include: What are has a Seasoned Lawyers’ Committee, the demographics of those leaving the which is engaging senior attorneys in vol- profession over the next decade; how unteer projects. might their talents be redeployed to enhance the delivery of legal services 2 This is a particularly tricky issue for and boost prosperity in our communi- many public interest lawyers, as most legal

34 the philadelphia lawyer Spring 2020 Ethics is Easier When You’re Older

By Johnny Myers

he Preamble to Pennsylvania’s Rules of Professional Conduct We lawyers are “professionals,” so we are says this about ethical behavior and a certain conflict of interest: expected to adhere to the ethical rules and other higher ideals, even when contrary to our own professional and economic inter- T[9]...Virtually all difficult ethical problems arise from ests. But we also have to eat. The quoted conflict between a lawyer’s responsibilities to clients, to the preamble describes the problem. We worry legal system and to the lawyer’s own interest in remaining about professional survival and advance- an ethical person while earning a satisfactory living. ment; and we —hardly alone among professionals—like to avoid the risk of enormous personal consequence to ourselves. It’s a typical provision. And as every prac- Part of this is that we get more reflec- The problem with ethics is that the ticing lawyer comes to quickly under- tive; and I have been thinking about wheth- questions don’t arise when it’s easy—ex- stand, the personal consequence resulting er my present (perceived) ease in making cept in law school, where the real pressures from decisions and advice weighs hugely ethical decisions may have changed as part of life are nearly impossible to replicate. We in our decision-making processes. We al- of my own aging process. I’m not talk- are usually able to process the balance of most always claim to put those considering about maturity here; I’m just thinking competing interests, and how to deal with ations aside. We refer to them, sensitively, about the fact that I am much nearer the end our own, when we are actually doing it. I as “misaligned financial incentives.” But I than the beginning of a career. have usually known when there is a differ- think it’s worth reflecting that this is much I’m pretty clear the answer is “yes”— ence between what a client wanted to hear, easier at the end of one’s career than the it’s become easier. and what they needed to hear. The compli- beginning. Simply put, age is a difference Of course, the ethical rules are pretty cator has always been the client volatility that makes a lot of things different; it’s clear: loyalty is required; personal interests factor: many are willing, ready, and able to more than just a number. It makes ethi- can’t get in the way of proper legal ad- “shop” for advice until they get what they cal decision-making less complicated and vice; civility is called for; and the need for want. Some just won’t hear “no.” We read pressured. truthiness invades most legal contacts.

the philadelphia lawyer Spring 2020 35 Early in my career, I had it easy. My clients as a public defender (in the 70s) had nowhere else to go. And even if I was “fired” by one of them, it would be of no personal economic consequence; just bruised ego, perhaps. often about high-profile clients changing liver it without personal risk? Not always, hotly contested matter, demanded that I go “teams” because of “differences.” Diffi- because I was dealing with well-connected on the “attack” at a particular deposition. cult, but we can’t live without them. And civil servants at the top of the food chain, They thought that if I was aggressive and it’s almost always viewed as a good thing if as well as those who were elected. And I rough enough, there was a chance I could we keep them, so long as they pay the bills. was the newbie, so to speak, and an at-will literally cause the witness to break down. And of course, when it’s a really big employee whose only job security was the My reaction to the demand was immedi- client (say, 1/3 or more of your practice) or backing of a string of strong city solicitors. ate and very negative, but the client was you are in-house or otherwise captive, the I felt safe enough, but I harbored doubts one of the firm’s most important. I held personal consequence cloud is all the dark- from time to time, usually as a result of my my tongue with the client, but immediately er. We probably all do the same thing— own brashness. When handling a matter talked to the Senior and said I couldn’t and first, we try to duck the hypo and avoid for a senior judge, I gave this advice as to wouldn’t do it, and would understand if I having to deliver unwelcome advice. We whether to settle an employment discrimi- was replaced on the case. The Senior, with avoid confrontation with ideas like “possi- nation case: no hesitation, asked the client to come in, bilities,” “further research,” “perhaps,” and told him we would not do his bidding, and “let’s see.” That list can be long. But we Judge, I’ll tell you what I have told many that we would help him find replacement actually know how it will play out. It’s so Defender clients about the risks of going counsel. That’s just what we did. much easier when we convince ourselves to trial. There are only two who know you The client was pretty surprised. I was that there’s a way to avoid giving the not- aren’t a discriminator: You and God. I can thrilled. Not only was I still employed, but wanted advice; but we often know, that it’s never get God into court; and you will not at a firm that held to its professional guns in either “yes” or “no,” and clear either way. be believed by a jury. That’s why we have a way that made me proud. I was working And we also know that will inflame the cli- to settle. with a Senior who also took professional- ent. It takes a special relationship to keep a ism seriously. client to whom you have to say “no.” And The judge actually got out of the chair My point—yes, I have one—is not to special relationships don’t come easy. and started at me, furious. I scuttled back to profess any particular wisdom or heroism Early in my career, I had it easy. My the office, reported what had happened, in- or ethical purity. Have all my trial discovery clients as a public defender (in the 70s) had cluding my unforgivably brash speech, and tactics been the purest? Have I ever been nowhere else to go. And even if I was “fired” waited for the hammer to drop. The judge obstreperous? Have I ever overstepped at a by one of them, it would be of no personal called; tempers flared and were calmed; deposition? Ask a question I knew was im- economic consequence; just bruised ego, the settlement was authorized; we made proper? Did I ever settle without the other perhaps. So I could be abrupt, confrontive, up; and I continued both with my career side knowing key facts? Well, “… hardly even at times rude, in dispensing advice. If and with my advising the judge. I think this ever.” We all face decisions where our per- I “knew” the answer, I was completely free might have been the first time that I felt the sonal and professional needs enter into, or to deliver it. And I did, with sufficient lack personal economic risk of putting the job- at least color, our decision-making for cli- of grace and finesse that, when I left that client relation on the line in order to deliver ents. In my case, I have muddled through job, my colleagues gave me a rubber ham- the best advice. It certainly would have many decisions around the “bright lines” of mer said to be a “retired” tool I had used been safer to just try the case and lose. But professionalism, doing the best I can. I am in “discussing” certain recommendations. that would have been lousy lawyering. sure I often have been too sanctimonious In other words, I worked really hard at de- That wasn’t the last time, and it wasn’t or aggressive; I am equally sure I have self- livering the tough messages to recalcitrant the hardest. At my next job (the 90s)— as justified a little too often. What has been clients about the wisdom/necessity of a a very junior partner in a small firm—life relatively constant, most of the time, is that particular path, often a guilty plea. seemed very different. I had two children I have kept a pretty clear image of what I That hammer has hung in every office and a mortgage. Although we had two in- should be doing. Of course, it also has cer- I have had since, as an important reminder. comes, we also had real financial responsi- tainly helped that I have been living with a I was next a lawyer for the city of bilities. I loved what I thought was relative law school ethics professor my entire pro- Philadelphia. My clients, no longer crimi- job security. And I loved the firm, headed fessional life. nal defendants, were a mix of civil servants by one of the city’s lions. We represented So, what’s age got to do with it? The and elected officials. It was a time (the 80s) all sorts: small and medium businesses, en- tensions in the early years were certainly of governmental reform. Although the cli- trepreneurs, banks, individual plaintiffs and eased by my two key facts: first, I wasn’t ents were different in some ways, they, too, defendants. It was a wonderful practice. needed straight, forceful talk. Could I de- Our client, a wealthy individual in a continued on page 38

36 the philadelphia lawyer Spring 2020 BOOK REVIEW By M. KELLY TILLERY Indelible Ink – The Trial of John Peter Zenger and the Birth of America’s Free Press

ichard Kluger won the Pulitzer in late 1733. Alexander and Morris RPrize for his masterful expose intended to use it as a vehicle to make of the cigarette industry in Cosby and his royal administration Ashes to Ashes in 1996, and his study accountable to the people. As the most of school desegregation, Simple Justice prominent and wealthy lawyer in New (1975), is a classic. His latest, equally York, Alexander had a lot to lose and excellent if less controversial should be thus concealed his involvement, lest he of interest to every Philadelphia Lawyer. be charged with seditious libel or worse. Indelible Ink is the most thoughtful, Zenger was a businessman without comprehensive and well-researched any particular political leanings, but study of the 1735 criminal trial in New he knew this was risky business. So York City of newspaper publisher John he made a deal. He would print, and Peter Zenger on charges of seditious Morris and Alexander would write, but libel. While you may know that Zenger Alexander would pay for everything and was acquitted, that he was defended by a defend him for free if he was charged. Philadelphia lawyer Andrew Hamilton, And Zenger would not betray his and that his victory was based upon the backer’s identity. defense of truth, Kluger sets forth so The newspaper was a hit as each much more. And, it is not all what you issue turned up the heat on Cosby. After might expect. only 11 issues, Cosby could take it no Kluger lays the groundwork for more—he had Zenger charged with the trial with a lively, detailed review seditious libel. But a grand jury refused of colonial New York politics, some of to indict. Morris and Alexander were which makes modern politics appear emboldened and hit harder at Cosby’s rather tame in comparison. But the story Indelible Ink – The Trial of John clumsy attempt to silence the free press. often turns and returns to Philadelphia, Peter Zenger and the Birth of Although many suspected which was then larger than New York America’s Free Press Alexander and Morris to be the authors City. By Richard Kluger of the allegedly offending articles, they A young German-American, John 364 pages remained silent, as did Zenger. And Peter Zenger, began his eight-year $27.95, W.W. Norton & Co., 2016 Cosby seemed content to charge only the apprenticeship in 1710 with printer hapless, apolitical printer. William Bradford in New York, but Governor William Cosby. After Issue #49, Cosby tried again, moved to Philadelphia in 1718 to work By 1726, a restless Zenger split but a second grand jury also refused with Bradford’s son, Andrew, also a from Bradford and set up a competing to indict. Undeterred, Cosby had the printer. There, he married Mary White, printing shop across from the Morrisite Governor’s Council issue a warrant for moved to Maryland, and had a son. haunt, the Black Horse Tavern. Zenger Zenger’s arrest. The printer was thrown Mary died in 1722, so Zenger returned was soon printing tracts written by into a cell in City Hall and the lawyer, to New York to work again with the Morris and Alexander. Bradford’s paper Alexander, donned his barrister’s wig elder Bradford. In 1725, together they was the house organ for Cosby and and headed for court. The battle lines launched New York’s first newspaper, crew, so Morris and Alexander turned were drawn. New-York Gazette. to Zenger to help get their anti-Cosby Zenger had a net worth of only 40 At the time, two rival political message out. pounds. But bail was set at 10 times that. factions battled for power in New York, The result, the brainchild of Morrisite His wealthy patrons could have bailed the Morrisites under lawyer Lewis James Alexander, the unquestioned best him out, but instead let him languish Morris and his protégé lawyer, James lawyer in New York, was the Zenger- in jail, because their willing pawn was Alexander, and the Cosbyites under published “New-York Weekly Journal” more useful as a martyr.

the philadelphia lawyer Spring 2020 37 Yet, a third grand jury refused having twice, as a member of the the matter published by Zenger was to indict. So, now, Cosby’s attorney Pennsylvania Governor’s Council, voted true and that which is true cannot be general charged Zenger by information to censure, prosecute, and punish printer seditious libel. While we take this for “false, scandalous, malicious and Andrew Bradford for seditious libel. point as axiomatic, it was not so then. seditious” content in Issues #13 and #23. But Hamilton knew the value to a In fact, truth was clearly then not a Although the trial judge was a lawyer of a cause celébre and agreed to defense, so what Hamilton (channeling loyal Cosby man, public opinion was defend Zenger for no fee. Alexander had Alexander) sought and secured was jury decidedly with Zenger. Alexander offered him a starring role in the case nullification. honored his secret bargain with Zenger of the century—an offer he could not Since Zenger admitted the and mounted a vigorous defense, filing refuse. publications, no witnesses were called. exceptions challenging the Court itself. What Hamilton probably did not The jury of 12 men deliberated for only Not amused, the Court barred both appreciate until he made his surprise 10 minutes, voting, as Hamilton asked Alexander and his associate William appearance in Court was that Alexander them, to “their conscience!” Smith from practicing law in the had masterminded, orchestrated, and Zenger had spent nine months colony—an extraordinary turn of events scripted almost every detail of this in prison. He became a martyr and evidencing the bitter partisanship afoot. affair from the beginning, all behind the Hamilton a revered hero. Alexander The Court then appointed a young scenes, including virtually every aspect remained in the shadows, smiling but, John Chambers to represent Zenger. of Zenger’s defense. Although eloquent unheralded. Alexander and Smith quickly determined and brilliant in his own right, Hamilton If he had chosen the limelight, today that Chambers was not up to this task. would be playing a part written by we might be telling stories of the first So Alexander did what he did best: he another. Yet, only he would get the “New York Lawyer” James Alexander, ghostwrote a lengthy statement for credit and the glory, while the real hero instead of Andrew Hamilton, the first Zenger to make to the Court and another remained in relative historical obscurity. “Philadelphia Lawyer.” for Chambers. The defense that Hamilton mounted And, he did one more thing: he had been devised in great detail in secretly engaged “the most accomplished Alexander’s notes written before his M. Kelly Tillery (tilleryk@pepperlaw. barrister in the American colonies,” disbarment. Alexander shared them com) is a partner in the Intellectual Philadelphia lawyer Andrew Hamilton. and his experience and wisdom, which Property Department at Pepper Hamilton Curiously, Hamilton actually had Hamilton used to achieve victory. The LLP. a reputation for opposing a free press, defense was simple, albeit illegal—

Ethics continued from page 35 by itself, makes the ethical decisions easier, because: 1) I wasn’t greedy; 2) I had no just because they have less consequence student loans; and 3) my spouse had ten- a pig about money; second, my spouse had for me personally, economically, and ca- ure. The only thing that’s changed is that great jobs and, eventually, tenure. Those reer-wise. A friend put it this way: “it’s she is emerita. I still speak my mind, and— both made the task of being ethical and no biggie if there’s a problem.” And that’s mostly—give the advice the client needs professional easier; the potential personal something we all need to keep in mind, rather than what they want. I hope there consequence of tough decisions or advice both when evaluating our own responsibili- has been a slight reduction in my callow- now are not so dire.2 But still, there were ties and adherence to rules and norms, and ness and incivility. But I know that I have tensions between the profession and the particularly when critiquing the actions of clients, partners, judges, and friends who business. Now, after 40-some years, those others. I am no braver than I was years ago. say otherwise. But I am no longer quite as potentially “career-ending” or “job-end- But there is less consequence for me. Peri- frightened when they do, and that makes all ing” decisions don’t mean the same as they od. Sure, I can still lose a client or a job, but the difference. did when I was a 30-something lawyer. I’m not a career, because of where I am in life. not looking at more decades of lawyering; I will not be betting the “ranch” (actually, who knows? So whatever the economic in my case, apartment) with my choices, 1“Obstreperosity,” 33 ABA Litigation, and personal risks are of doing the right because the economics are, for me, pretty No. 1, Fall 2006 thing and not bending to expediency, those well set. I might lose some income or piece risks now carry less personal consequence. of economic security, but I am no longer in 2 Gilbert and Sullivan, “I am the Captain of It has nothing to do with being “older and danger of having to start over. the Pinafore” (1878) wiser;” just older. The children are grown, So, what does that mean, day-to-day? mortgages are paid, and we are learning It seems less threatening to speak my mind, about RMDs. though I feel like I always did. In a light- Johnny Myers is presently Of Counsel at That profession/business dichotomy hearted way I was always telling lawyers Montgomery McCracken in Philadelphia. referenced at the beginning of this paper who asked that it was easy for me to fol- He has been a lawyer since 1972. You do just doesn’t loom as large now. And that, low my notion of the “right thing to do” the math.

38 the philadelphia lawyer Spring 2020 EXTRAS By ROBERT J. STERN BOB STERN’S FIGURE 8 PUZZLE

For this puzzle, place one word (or one part of a compound word) in each box. The adjacent boxes will form a two-word phrase or compound word.

For example, if the clue for boxes 1-2 was “Lawyer representing the state in prosecuting criminal cases,” the answer would be Attorney General. Attorney would go in box 1, and General would go in box 2. If the clue for boxes 2-3 was “Bailed-out American automobile company,” the answer would be General Motors. The word General, is already in box 2; you then insert the word Motors in box 3, and so on. Good luck!

Upper

1-2 Result 2-3 Change to another side 3-4 From a ship into water 4-5 Promenade along a beach 5-6 Available without an appointment 6-7 Relative by marriage 7-8 Assistant to a judge 8-9 Job with a judge 9-10 Place where boats are built 10-11 Measuring rod 11-12 Armed robbery 12-13 Confirm, support, or maintain 13-1 Person who resists

Lower

1-2 Live longer than 2-3 Final item 3-4 Do better than someone 4-5 Positive aspect of something 5-6 Support the opinion of another 6-7 Refuse to give something 7-8 Hesitate to act or speak 8-9 Directed behind or to the rear 9-10 Push back against someone 10-11 Not having correct tone 11-12 Wedge-shaped piece at the crown of an arch 12-13 Path made of rocks 13-1 Depart suddenly

The Figure 8 Puzzle answer key can be found on page 34.

the philadelphia lawyer Spring 2020 39 1996 That Was Then Law Week 1996

Attorneys (L to R) William F. Detwiler, Charisse R. Lillie, Joe YLD Executive Committee member Linda J. Hibbs Stapleton, and Leanne L. Litwin took phone calls from the wrapped up the Lawyer for a Day program at Bar public during the All-Day LegalLine at Bar Headquarters on Headquarters on May 3, 1996. May 1, 1996.

During the May 1, 1996 naturalization ceremony, attorney Morris L. Forer Attorney Mary Gay Scanlon spoke with students (right) presented an award to George Washington High School senior about legal issues during the CLASS outreach Sherri Lauren Toub for her winning essay in the Lois G. Forer Memorial program at Benjamin Franklin High School on Essay Contest. Joining them was Sherri’s father, Paul Toub. April 30, 1996.

40 the philadelphia lawyer Spring 2020