DiBella Weinheimer

Bethann and Amy educating lawyers (and a couple judges) on emerging ethics decisions involving AI.

Happy Holidays from all of us at DiBella Weinheimer!

DiBella at the ball game. Madeline, Aaliyah and Amy! Let’s go Bucs!

Join us for an interactive discussion about 8.4(g), in person and virtual. Get your Ethics for Breakfast - and your ethics credits before the end of the compliance period!

Join me in welcoming our new to the profession, new to Pittsburgh, and new to DW associate - Aaliyah Hyacinthe. She and I went to the Allegheny County Bar Association Women in Law Lunch with the Judges where she got to meet several great Judges and bar Association supporters like her Honor Nicola Henry-Taylor who was so very gracious as usual!

Allegheny County Bar on Twitter “ Just Announced: “Tech Talk: 12 Ways to Reduce Your Professional Liability Risk” – a 1.5 ethics credit CLE – is set for 4/6. to cover more in this CLE. https://t.co/I75ztlDaeZ”

Happy holidays from DiBella Weinheimer!

DiBella Weinheimer shout out to Partner Katherine Berquist spotlighted PBA Member!

Pennsylvania attorneys, come and “see” DiBella Weinheimer’s Amy Coco, along with Ellen Brotman from Brotman Law, and Dana Pirone from the Office of Disciplinary Counsel, at the next installment of the Lunch and Learn webinar this Tuesday at 12 PM: Pennsylvania Bar Institute's "Attorney Discipline in Pennsylvania: Updates and Hot Takes." After discussing the nature of discipline (June 2022), the intake process for complaints against attorneys (July 2022) an overview of discipline imposed this year so far (August 2022) Amy, Ellen and Dana will be getting back to discussing process and focusing on the first step in the disciplinary process: the Request for Respondent’s Position. Learn how a disciplinary Complaint is investigated and drafted and what are the best ways for responding! They will also discuss a pretty scary but definitely real trend in temporary suspensions for record-keeping violations. It's going to be a fast hour packed full of important information! See you there!

Attorney Discipline in Pennsylvania Updates and Hot Takes | Pennsylvania Bar Institute Course | Pennsylvania Bar Institute

The Supreme Court and the Disciplinary Board made recent changes to the Rules of Professional Conduct and indicated an interest in other areas suggesting changes may come. Although summer brings a chance for relaxation, it is also an excellent time to review your practice and get your compliance in order.

Rule 1.5 Change: Counsel’s Obligations To Clients When Taking Over A Contingency Fee Case From Predecessor Counsel

When a contingency fee client fires one lawyer without cause and hires another, new counsel has obligations to his or her new client related to predecessor counsel. Those obligations are contained in a new Comment to Pa.R.P.C. Rule 1.5, which the Supreme Court ordered added on November 25, 2020. The new Comment to the rule provides:

New counsel must notify the client, in writing, that prior counsel may be owed a fee for services provided before termination.

New counsel must discuss the effect of prior counsel’s claim on new counsel’s fee arrangement with the client.

If new counsel undertakes to negotiate with prior counsel for the client, new counsel must consider the personal interest conflict, do disclosure and waiver.

If no agreement occurs with prior counsel, new counsel must hold the disputed portion of the fee in his or her IOLTA account until any dispute with prior counsel is resolved.

New counsel must consider ABA Formal Opinion 487 (June 18, 2019) (relating to successive contingent fee agreements). We previously reported on this opinion in our July 2019 update and the opinion can be found here:https://files.constantcontact.com/6d3dfdb5701/e595da1e-025c-4878-99da-cfd31e007399.pdf

The Comment and the Rules themselves require attorney conduct ensuring that the client understands their obligations and rights regarding fees. Counsel should advise regarding the total fee amount, how it will be computed, to whom it should be paid and the timing of payment. Ideally, the fee agreement with new counsel should address these issues and advise regarding the scope of counsel’s undertaking. Specifically, the fee agreement should address whether new counsel will negotiate with prior counsel on the client’s behalf regarding prior counsel’s claim.

When taking over a case from a prior lawyer, it may behoove new counsel to avoid later disputes and attempt to resolve the fee issue at the time of the transfer of the case. If there is no agreement, the fee agreement should state that any amount due to prior counsel will come out of the recovery, and new counsel must hold any disputed portion in his or her IOLTA account. In many circumstances, new counsel should hold both lawyers’ fees in escrow until the disputed fees issue resolves.

Keeping the client advised on fee issues makes it less likely that there is some misunderstanding resulting in an unhappy client who makes claims against counsel.

Disciplinary Board seeking to Overhaul to Advertising Rules

When you post on social media about your legal services or send an email to a prospective client, do you think about making sure those communications comply with the Rules of Professional Conduct regarding advertising? It may be necessary to do so. On February 20, 2021, the Pennsylvania Disciplinary Board announced its intent to recommend to the Supreme Court that the advertising rules be amended that in many ways will make it easier to make sure your communications about legal services comply. The amendments are intended to update and streamline the advertising Rules and to make them more consistent with the Model Rules.

In 2018, the American Bar Association updated the Model Rules to better reflect practice in a digital age. These proposed updates to the Pennsylvania Rules keep some of the Pennsylvania specific Rules, but recognize that lawyers in 2021 communicate about their services much differently than lawyers did when the Rules were initially adopted. The central focus of the Rules is to make certain that lawyers’ communications about their services are not misleading.

Anti-bias Rule Deemed Unenforceable

In June 2020, the Supreme Court directed the addition of Rule 8.4(g) which prohibits intentional harassment and discrimination in the practice of law. The Rule was to go into effect on December 9, 2020. However, on December 7, 2020, U.S. District Judge Chad Kenney of the Eastern District of Pennsylvania issued a preliminary injunction against the Rule finding that it was likely unconstitutional because it discriminated based on viewpoint and would chill speech. The Board appealed to the Third Circuit, but earlier this year, withdrew its appeal.

Although the anti-bias rule is on pause as an ethics requirement, lawyers who have employees must still be cognizant of the risk of an employment practices lawsuit. There are many federal, state and even local laws prohibiting harassment or discrimination. Accordingly, law firms and employers would be wise to ensure that they have up to date written anti-discrimination and anti-harassment policies in place and ensure compliance by all lawyers and all staff.

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ANNOUNCING “DIBELLA WEINHEIMER”

DiBella Geer McAllister Best, P.C. and Weinheimer Haber & Coco, P.C. are delighted to announce that they have joined together effective July 1, 2021. Both firms have strong roots in Western Pennsylvania and decades of experience. The blend combines trial ready defense lawyers with each firm’s robust existing practice groups. We are conveniently located in downtown Pittsburgh and we are open for business. Our mailing address is Law and Finance Building, 429 Fourth Avenue, Suite 200, Pittsburgh, PA 15219 and our new web address is www.dibella-weinheimer.com. Our existing email are still active, and we will also be providing you with new ones, over the next few weeks.
Katherine P. Berquist
Donald L. Best
Amy J. Coco
Richard W. DiBella
Paul K. Geer
Bethann R. Lloyd
Tara L. Maczuzak
Kathleen S. McAllister
Jason H. Peck
Robert A. Weinheimer
Holly M. Whalen
Jordan N. Winslow

DiBella Weinheimer | Pittsburgh | Trial Ready Defense With over 150 years of collective experience, DiBella Weinheimer serves clients in Pennsylvania, West Virginia and Ohio with proven success. Our attorneys offer trial ready defense and are consistent, patient and professional, giving every new case the attention it deserves by walking you through ea...

Pennsylvania Bar Association > News and Publications > News > News Releases > 2021 > May > Woman Governor Coco HARRISBURG (May 18, 2021) — Amy J. Coco, a shareholder in the Pittsburgh-based firm of Weinheimer, Haber & Coco PC, will begin a three-year term on the Pennsylvania Bar Association (PBA) Board of Governors at the conclusion of the association’s Annual Meeting on May 21.

We’re moved in! Please note our new direct dial numbers and our new address:
429 Fourth Avenue, Suite 200
Pittsburgh, PA 15219

BERQUIST, KATHERINE 412-586-2145
COCO, AMY 412-586-2142
LLOYD, BETHANN 412-586-2144
WEINHEIMER, ROBERT 412-586-2143
WHALEN, HOLLY 412-586-2141

Our assistants can be reached at:
Cathy Shuttleworth at 412-586-2147
Lindsey Seltmann at 412-586-2146

Please bear with us. We are moving! Effective April 1st, you will find us physically located at 429 Fourth Avenue, Suite 200, Pittsburgh, PA. That’s four floors below our current offices.

Within the past few years, the Pennsylvania Supreme Court accepted review of several cases of particular interest to lawyers. We view two recent decisions coming down right before the holidays as favorable to the practice of law.

Dragonetti Act

In the first key case, Raynor v. D'Annunzio (36 EAP 2019, Dec. 22, 2020) the Supreme Court held that intra-case filings do not give rise to a Dragonetti Act claim. In a nutshell, this means that discreet pleadings, motions, subpoenas, objections and other papers directed to the court as part of the larger proceeding do not individually give rise to a Dragonetti Act claim.

Raynor involved very contentious litigation of a medical malpractice claim, followed by a separate motion for contempt/sanctions against a lawyer. Two days of hearings were held on the motion for contempt/sanctions, leading to a sanctions award. While the appeal was pending, the adverse party began ex*****on proceedings, freezing the personal and business bank accounts of the lawyer, and also placing a lien on her house. The Superior Court reversed the sanction. The prevailing lawyer whose accounts had been frozen then filed a Dragonetti action against opposing counsel and their clients.

Two key legal issues arose in the proceedings that followed. First, whether a request for contempt/sanctions against counsel constitutes civil proceedings actionable under the Dragonetti Act. Second, whether an attorney who was not a party to the underlying action has standing to assert a cause of action under the Dragonetti Act.

As to the first issue, the Supreme Court held that intra-case filings, such as a post-trial motion for sanctions, do not constitute the procurement, initiation or continuation of civil proceedings as contemplated by the Dragonetti Act. The majority opinion noted ambiguity in the Act, but the Opinion also suggests that absent clearer language from the legislature, the Court was reluctant to endorse endless litigation over discreet parts of a civil litigation case.

We welcome this result, that hopefully, will reduce the temptation to file more litigation over litigation against lawyers.

A copy of the Opinion is available by following this link:https://files.constantcontact.com/6d3dfdb5701/2b36f1ac-20a3-4ce6-a5c5-db28bf32df39.pdf

Continuous Representation Rule

In an equally important case, Clark v. Stover (2 MAP 2020, Dec. 22, 2020), the Supreme Court rejected application of the continuous representation rule to extend the statute of limitations for bringing a legal malpractice claim against lawyers.

The underlying legal malpractice case involved the area of wills, estates and trusts, a hot area of legal malpractice litigation at present. Plaintiff in the case was aware of the alleged negligence more than 4 years before they filed the lawsuit against the lawyer. To avoid a statute of limitations bar, plaintiff alleged that because the lawyer continued to represent plaintiff, the statute of limitations did not begin to run until the representation ended. Other states apply this continuous representation rule. Although recognizing that there are mixed policy considerations, the Supreme Court rejected the rule.

While we welcome this decision, a word of caution is in order. The statute of limitations does not begin to run if a client is not kept informed about a case or matter. Not only do our rules of legal ethics require a lawyer to keep a client informed, but in doing so, the lawyer triggers the commencement of the statute of limitations on any future possible malpractice case. A lawyer concerned about a potential claim or alleged error would be wise to consult with independent counsel about when and how a client should be informed, and to navigate any conflicts that might arise from continuous representation.

A copy of the Opinion is available by following this link: https://files.constantcontact.com/6d3dfdb5701/d212499d-2c0c-4a96-8738-565c3452072b.pdf.

From all of us at the Firm, we wish you a safe and enjoyable
holiday season and a prosperous 2021!

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Weinheimer Haber & Coco, P.C. Proudly supports the Pennsylvania Bar Association!

Meet Amy J. Coco, a shareholder in the Pittsburgh firm of Weinheimer, Haber & Coco, P.C. She defends lawyers, particularly with respect to legal malpractice claims, professional responsibility, professional ethics matters, and represents lawyers in matters involving compliance with the Rules of Professional Conduct before the Disciplinary Board and the Client Security Fund.

She serves as program director for the Pitt Legal Services Incubator at the University of Pittsburgh School of Law helping lawyers start their solo practices. Amy has actively participated in the PBA since she became a member in 1995. Amy serves as the Zone 12 delegate and is a member of multiple sections and committees including serving as the co-vice chair of the Legal Ethics and Professional Responsibility and the co-chair of the Professional Liability Committee.

See more ways we are saying thanks to our members bit.ly/2IW2YTg

Our website is down and we are experiencing email difficulties because of the domain issues related to the website. If you sent us an email that you expected a response and have not received it, please call.

Weinheimer, Haber & Coco, P.C. is pleased to announce that Bethann Lloyd and Amy Coco are named as 2020 Pennsylvania SuperLawyers in Professional Liability Defense and Holly Whalen is named as a 2020 Pennsylvania SuperLawyer in Civil Litigation Defense.

: A lawyer having direct supervisory authority over another lawyer must work to ensure that the other lawyer conforms to the Rules of Professional Conduct. Get more ethics tips for working remotely: https://bit.ly/2VjRzlS.

Tip source: PBA Committee on Legal Ethics and Professional Responsibility Formal Opinion 2020-300, Ethical Obligations for Lawyers Working Remotely. Timely Tips is a project of the PBA COVID-19 Task Force.

See the May 8, 2020 Pittsburgh Lawyer’s Journal for an article by Amy Coco regarding the PBA Legal Ethics and Professional Responsibility Committee’s most recent formal opinion on lawyers practicing remotely.

www.acba.org

For the 2020-2021 Bar Year, Amy Coco will serve as co-chair to the Pennsylvania Bar Association’s Lawyer’s Professional Liability Committee and as co-vice chair to the Pennsylvania Bar Association’s Legal Ethics and Professional Responsibility Committee. Bethann Lloyd will serve as co-vice chair to the Pennsylvania Bar Association’s Lawyer’s Professional Liability Committee.

DiBella Weinheimer updated their business hours.

WORKING FROM YOUR KITCHEN TABLE:
NEW LOCATION, SAME ETHICS

Historically, lawyers are slow to adopt change. But COVID-19 thrust monumental shifts in the way lawyers practice in a short time and requires all lawyers to meet their clients’ legal needs in new ways.

While some lawyers are accustomed to working remotely, many are working from home or having their staff work from home for the first time. While ethics compliance may not be at the forefront of most lawyers’ minds as they struggle to handle the business disruption to themselves and their clients, taking precautionary measures now will strengthen the attorney client relationships and avoid inevitable disruption and costs in the future if the ethical obligations are not met.

Working remotely, especially when working with other family members in close quarters, using the same WiFi and even potentially sharing devices, raises ethical issues in the areas of competency, communications, supervision and confidentiality. The Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee issued Formal Opinion 2020-300 on April 10, 2020 to help lawyers maneuver these issues and handle the disruption. 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 work spaces 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."

The opinion does not recommend specific products or services, but it does outline reasonable precautions that lawyers should take. Following the guidance will enable lawyers to focus on the actual practice and minimize the risk of future disruption that lawyers experience when they fail to meet ethical obligations. Lawyers are, and will be, essential to help their clients negotiate the legal aspects of this crisis and they need to be able to assure their clients they are capable of doing so.

When COVID-19 is just a memory, the practice of law may ultimately be transformed to include more remote working features on a regular basis. Therefore, meeting the ethical obligations required of a remote practice now will allow lawyers to confidently and competently practice law throughout the coming months and years.

A copy of the Opinion is available by following this link: https://www.pabar.org/members/catalogs/Ethics%20Opinions/formal/f2020-300.pdf

www.pabar.org

Effective today, Weinheimer, Haber & Coco, P.C. will move to a modified remote working environment. You may email, fax and call as usual. Please bear with us as we transition as some responses might be delayed.

We installed all new computers in the office this week and this slowed progress a bit while bugs in the system shook themselves out during transition. However nothing stops production quite like this Pink Post It of Doom.

The PBA Legal Ethics and Professional Responsibility Committee issued Formal Opinion F2020-100 today which deals with using cc and bcc in email. The opinion concludes “that because attorneys risk divulging attorney client confidential information and privileged information when they communicate with opposing counsel and include their clients on the same email, they should, as outlined in Section III of this Opinion:
(i) limit the circumstances in which they include a client as a CC or BCC on an email,
(ii) when appropriate, specifically advise opposing counsel and their client of their inclusion, and
(iii) specify whether the client and/or the attorney may “reply to all” or must exclude the client in any responses.”

This never gets old.