Commentary

Leadership

I’m no expert, but to me a leader is someone who leads by example – and who builds support by demonstrating to others the value of his or her actions. A leader builds by creating a coalition, and by embracing others. Sadly, many of today’s leaders believe that they only can lead by having friends as supporters. Or just as bad, they view their role and make decisions based upon other factors. One local “leader,” for example, declined to attend a meeting because his “attendance really depend[ed] on the agenda and who else is there. ” He said he was “not likely going to make it if there are only 3-4 others in attendance.”  This same “leader” also believes that those people who aren’t friends will not support his leadership goals and has generally excluded those people from his plans as an association leader. It’s a shame because, in my experience, leaders need to broaden their reach – not put up artificial barriers.

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Wolf Block – RIP

When I was in law school, Wolf Block (whose name was longer then) was the law firm to join if you wanted to be in a big firm. My parents even mentioned that to me a few times, although big firm life was not my style. And the firm’s history is well-chronicled. That’s why it’s so sad to read of its demise.

The status of the entire legal community is in flux, and Wolf Block appears to be the most obvious example. Firms are laying off attorneys almost daily, and then claiming it’s not because of the economy, it’s just to be more economical. For my two cents, I have never understood how firms justified paying $125,000.00 or more to newly-minted law school graduates who (like every other law school grad) don’t know anything about the practice of law. These attorneys may be bright, but that’s a large expense for on-the-job training, especially for the clients who pay the freight. Perhaps some reality will set in.

As we deal with the ever-increasing glut of lawyers on the market, I’m perplexed. My office building suddenly has space available and I have been searching for a “downsized” lawyer with some business who wants to have a suburban-based practice to join me here. I can’t find anyone interested. I can’t even figure out where all the downsized lawyers are. They can’t all be using placement services, and most firms aren’t hiring. And I sincerely doubt that all of these lawyers are looking for new careers. It’s as though they have instantly disintegrated.

Who knows where all of this will lead the legal market in Philadelphia? I don’t know, that’s for sure. But when a firm like Wolf Block says it’s closing the doors, it’s an ominous sign for everyone.

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A Georgia Case – HIPAA for Pa. Lawyers?

I have authored a newsletter primarily summarizing Pennsylvania appellate court decisions for over two decades. Every once in a while I include cases from other states. The January 2009 newsletter includes a Georgia Supreme Court case. Why?

The Georgia case, Moreland v. Austin, is important because it is one of the few cases addressing HIPAA ( the Health Insurance Portability and Accountability Act) in the context of personal injury/malpractice litigation. In Moreland, the Georgia Supreme Court ruled on November 3, 2008 that HIPAA’s Privacy Rule  precludes a defendant’s attorney from informally interviewing a plaintiff’s prior treating physicians in a medical malpractice action. The Court specifically found that “[a]fter reviewing HIPAA, Georgia law, and the case law of other jurisdictions … HIPAA preempts Georgia law with regard to ex parte communications between defense counsel and plaintiff’s prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians.” This is a well-written opinion that has implications in litigation throughout the country, including Pennsylvania.

It’s safe to say that Georgia cases aren’t cited often in the Keystone State; Moreland may well be the exception. 

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Surprise? – There’s a Backlog in Social Security Disability Cases

As if it were “new” or “news,” an Associated Press report in the January 2, 2009 Philadelphia Inquirer discussed the “huge backlog of [Social Security disability] cases.”  Unfortunately, this isn’t news, it’s “olds.” For years, the Social Security system has been plagued with delays, and the backlog ebbs and flows with the economy and with the amount of funding SSA receives. Currently understaffed and facing an onslaught of claims, the system is way behind. On average, it now takes 480 days for an Adminsitrative Law Judge (ALJ) to rule on a claim. In the Philadelphia area, the average delay is only about one year.

 Here’s the problem. When workers pay into Social Security, they are buying both old age benefits and disability coverage. If they cannot work because of a disability (before their retirement age), workers can apply for Social Security disability benefits. Their claims are processed by an agency in their own state, which denies the majority of the claims. From that point, they can request a hearing before an ALJ. The one year delay, therefore, is calculated after the ALJ’s office receives the applicant’s file – and that, of course, is months (or a year or more) after the initial application is made. So, in reality, an SSD claimant can wait two or more years for benefits.

Having represented SSD claimants for nearly a quarter of a century, I have seen the average “delay” shrink and increase – although the current delays are some of the worst ever. Clients are not happy when I explain how long the process takes, but I don’t want them getting frustrated with me, so I believe it’s important to let them know what they face up front. In the long run, they appreciate the candor, even if they don’t appreciate the message.

It will take money – to pay for increased staff – to start to fix the system. Fortunately, in the Philadelphia area, our delays are shorter than  the national average, and hoepfully they will be reduced even more. Let’s hope so. Most Social Security disability claimants have worked most of their lives and need the SSD benefits to survive. Plus, they receive Medicare after being on SSD, and that can be an enormous benefit. Let’s hope the Obama adminstration addresses the situation.

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Last Minute Surge in Appellate Decisions Unlikely

As the end of 2008 approaches, I harken back to prior years, when Justices were leaving the Pennsylvania Supreme Court (generally as the result of mandatory retirement). In each of those years, the Court would issue a flurry of decisions, presumably so that the departing Justice’s vote would “count.” Oddly, many of these December 31st opinions were not released until days (or weeks) into the new year, but always dated the 31st; the assumption among attorneys has traditionally been that the Court had agreed on the opinions but needed to “finish” their content. Regardless, for Court watchers, it was an interesting time. For me, as the author of a Newsletter analyzing appellate decisions, it was difficult to know when the Court’s calendar was “complete.” This year, with no Justices retiring, the Court has been relatively quiet, issuing its regular complement of decisions. That said, the Court’s docket (as well as the Commonwealth and Superior Court’s) is filled with interesting cases, many relevant to civil practitioners who handle motor vehicle, malpractice, products liability, workers’ compensation and other cases. 2009 should be an interesting year for court watchers. Time will tell.

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Where Is the Legal Profession Heading?

As 2008 comes to a close, I have mixed thoughts about the state of the profession. In many ways, practicing law has become a greater challenge — with issues of civility and professionalism making the difference.

When I began practicing, lawyers were still under the illusion that law was a profession, not a business. Clearly, it is both. After running my own law firm for more than 3 years and working with attorneys as a technology consultant for the same period, I have seen the transformation of the profession.

Civility and professionalism are still hallmarks of being an attorney, and while we all can disagree, most attorneys (and judges) do so without rancor or personal attacks. I know I am a zealous advocate for my clients, but I’m most proud that Jeff Zeitz, Esquire and I were complimented by the President Judge of the Commonwealth Court earlier this year (before we argued a workers’ compensation case en banc) because we shook hands prior to the argument. To me, it was a courtesy to a colleague, albeit an adversary, whom I respect, despite the fact that we were on opposite sides of a legal issue.

That courtesy is not always present. Most recently, an attorney with a mid-size firm took umbrage with the fact that we opposed his Petition to Withdraw as Counsel. In fact, my opposition was based upon my client’s wishes. The attorney felt that we should not have opposed his petition. So what did he do? He called me and immediately launched into a tirade, using the “f” word frequently, and characterizing anything I said as “bull….” This went on for a few minutes and, when I asked him to stop using profanity, this lawyer refused, telling me he would talk to me any way he wanted. I terminated the conversation. I then discussed this incident (anonymously) with multiple colleagues, and the consensus was that I should contact his firm’s managing partner, and I did (the first time I had ever done this in my career). Did the managing partner acknowledge my letter? No. Instead, the offending attorney sent me a fax characterizing my client’s opposition to his petition as frivolous and accusing me of unethical conduct. Of course, he did not apologize for his foul language.

Similarly, in another case in federal court, two attorneys from a prominent large firm in Philadelphia filed pleadings that were rife with comments that were completely baseless. They also wrote the judge and informed him that they had conducted a search of Philadelphia Family Court dockets online to verify some of their statements. The only problem was that Philadelphia Family Court dockets are not and have never been available online – the lawyers cared not a whit that their letter was clearly less than truthful, and never rescinded their comments. But, of course, their large firm prides itself on its “ethics,” and even has an “ethics counsel.”

Finally, as a consultant, I was asked to provide Concordance software training to a young lawyer at a small personal injury firm in Center City. I provided two sessions, and the attorney thanked me profusely for the training. Unfortunately, her firm has ignored my bills for services (since the spring), despite issuing press releases trumpeting their enormous verdicts and settlements; their website even says that they have the “resources to take on even the largest companies.” Apparently, they acquire their resources by electing not to pay small businesses who provide services designed to enhance their skills and bottom line.

It’s unfortunate that there seem to be more “bad apples” in our profession, who would rather fight than resolve issues amicably. Courts and bar associations have long emphasized the need for civility and professionalism. Let’s hope that 2009 shows an increase in civility and professionalism and that the rotten apples choose another profession — perhaps they might run for office in Illinois.

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Greetings from Dan Siegel – Please Join in the Blog

Welcome to the Pennsylvania Law Blog, a service of the Havertown Law Offices of Daniel J. Siegel. The Pennsylvania Law Blog is designed to spur debate about issues confronting Pennsylvania legal practitioners, including case law, trends in the law, new or revised rules, ethics and professionalism. Please feel free to join in the discussion (no personal attacks, please) and to offer your views about Pennsylvania law.

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