Pennsylvania Rules of Professional Conduct

Yes, You Can Pay A Fact Witness – Sometimes

Whether, and when, and how much, you can pay a fact witness who is testifying is an ethical dilemma for lawyers. Fortunately, there is guidance for attorneys to help them figure out when they can, and when they can’t pay a fact witness. Attorney Daniel J. Siegel, Chair of the Pennsylvania Bar Association Legal Ethics Committee explains the ins and outs of the situation in his column in the Summer 2020 issue of The Philadelphia Lawyer, the quarterly magazine of the Philadelphia Bar Association.

Siegel’s article focuses on Pennsylvania Rule of Professional Conduct (RPC) 3.4, which seems to prohibit paying fact witnesses. However, there are circumstances where it is allowed. According to the Pennsylvania Bar Association Legal Ethics Committee Formal Opinion 2019-100, lawyers can pay a fact witness for two reasons. First, for expenses reasonably incurred in attending and testifying. Second, reasonable compensation for loss of time in attending and testifying.

What is considered reasonable will vary on a case-by-case basis, but payment of fact witnesses will always be subject to RPC 3.4(b)’s explicit disallowance of compensation that is “contingent upon the content of the witness’ testimony or the outcome of the case.” Since payment arrangements may be disclosed during discovery or cross-examination, these arrangements must be transparent.

Click here to read Dan Siegel’s column. Dan’s and his firm, the Law Offices of Daniel J. Siegel, LLC, provide ethical, and techno-ethical guidance and disciplinary representation for attorneys. Give them a call at (610) 446-3457 or click here to send an email.

Read More

New Pa. Bar Ethics Opinion – Obligations of Lawyers Working Remotely

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility today issued Formal Opinion 2020-300 – Ethical Obligations of Attorneys Working Remotely. The Opinion is intended to provide global guidance to attorneys working from home, not only during the COVID-19 pandemic, but also for those who will work remotely even after the situation returns to “normal.” I am a Vice Chair of and the incoming Chair of the PBA Committee and a contributor to the Opinion. Click here to read the Pa. Bar Association Formal Opinion.

The Opinion provides an ethical analysis of the obligations of attorneys and their staff about how to best comply with their obligation to preserve client confidentiality. In the Introduction, the Opinion states:

“At a minimum, when working remotely, attorneys and their staff have an obligation under the Rules of Professional Conduct to take reasonable precautions to assure that:

  • “All communications, including telephone calls, text messages, email, and video conferencing are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information;
  • Information transmitted through the Internet is done in a manner that ensures the confidentiality of client communications and other sensitive data;
  • Their remote workspaces are designed to prevent the disclosure of confidential information in both paper and electronic form;
  • Proper procedures are used to secure and backup confidential data stored on electronic devices and in the cloud;
  • Any remotely working staff are educated about and have the resources to make their work compliant with the Rules of Professional Conduct; and,
  • Appropriate forms of data security are used.

This Opinion adopts conclusions from the American Bar Association’s Formal Opinion 477R and provides practical – use-it-now – suggestions for how attorneys can adopt best practices.

My law firm, Law Offices of Daniel J. Siegel, LLC, and my consulting firm, Integrated Technology Services, LLC, provide techno-ethical guidance to attorneys about the issues addressed in the Opinion, and I have been writing and lecturing about these topics for more than a decade.

If you are a lawyer or firm administrator and need guidance on the ethical and/or the technological issues confronting attorneys and staff working remotely, contact Dan Siegel, Christa High or Pam Myers; we are the pioneers of techno-ethics and are here to help you.

Read More

May I instruct the witness not to answer?

Even seasoned attorneys sometimes struggle with whether a communication is privileged or protected by the work product doctrine. Whatever the attorney decides can have significant implications in discovery and the trajectory of a case.

In Cohen v. Ellwood Crankshaft and Machine Co., No. 11212 C.A. 2016 (Pa. Ct. Comm. Pl. Lawrence Cnty. Aug. 29, 2019), the trial court denied a motion to compel a witness to answer questions that called for privileged information. Plaintiff had alleged a claim for premises liability against the property owner (Ellwood) because he was injured at work. Ellwood then filed a third-party complaint against Plaintiff’s employer (Mascaro) seeking indemnification based on their contract. During the deposition of Mascaro’s corporate designee, who was its corporate counsel, Ellwood’s attorney asked questions regarding the applicability and enforceability of the indemnification clause. The designee answered questions concerning the factual basis for the denial of indemnification, but Mascaro’s attorney instructed the witness not to answer questions concerning the legal basis for the denial, arguing the questions called for “mental impressions or opinions concerning the ultimate legal issues of this case.”

The trial court agreed with Mascaro that the questions sought “conclusions and opinions regarding an issue of law that will ultimately be decided by the Court,” and therefore are protected by Pa. R. Civ. P. 4003.3. Rather, such questions would only be proper in actions for malicious prosecution or abuse of process.

The applicability of the attorney-client privilege and work product doctrine is fraught with serious implications. Our office regularly assists attorneys encountering these and other difficult questions, and can assist at any point in the litigation. Just give us a call at (610) 446-3457.

Read More

Available Soon – Fee Agreements in Pennsylvania (6th Edition) – Edited by Attorney Daniel J. Siegel

Almost hot off the presses. I just received a copy of the cover of my newest book, Fee Agreements in Pennsylvania. I edited the book (now in its 6th edition) and authored one chapter. The book will be available for purchase in the next few weeks from the publisher, the Pennsylvania Bar Institute. The book provides practical and ethical guidance that will help attorneys draft comprehensive fee agreements, and contains sample fee agreements covering a wide range of practice areas. My office regularly provides guidance to attorneys about how to improve their agreements and avoid fee disputes with clients.

Read More

Dan Siegel Featured in Legal Intelligencer, Discusses New Ethics Rule Relating to the Sale of Law Practices

The September 28, 2016 issue of the Legal Intelligencer, the daily newspaper of the Philadelphia legal community, features comments by Havertown Attorney Dan Siegel. The article, “Rule Change Allows New Retirement Route for Solos,” discusses the amendments to Pennsylvania Rule of Professional Conduct 1.17, which regulates the manner in which attorneys may sell all or a portion of their law practices.

Previously, Rule 1.17 drastically limited the ways solo attorneys could sell their practices. Siegel, who is the author of Changing Law Firms: Ethical Guidance for Pennsylvania Law Firms and Attorneys, Second Edition, regularly represents attorneys who are impacted by this Rule. The article notes that Siegel “has been advocating for a change in the rules ‘for some time.'” The article also quotes Siegel, who explained that “The old rule created significant obstacles that basically only existed for solo attorneys who were trying to wind down practice or change practice areas.”

The new Rule becomes effective on October 24, 2017.

Read More

Sign Up for Our Newsletters

I would like to receive...