Overregulation has a way of preventing lawyers from wanting to continue in areas where their skills are needed.

I am an older attorney and I constantly feel the court system is placing too much financial burden on the attorneys and, therefore, greatly increasing the cost of representation. Is there a problem?

The overregulation of the legal profession is of some concern. The Pennsylvania Supreme Court regulates the legal profession to maintain the independence of the bar. But, when the courts start to overregulate the legal profession and also place burdens on the profession, which perhaps should be the court's responsibility, then it becomes a problem. Sometimes the Justices and Judges who have not been in private practice for many years, don't understand how difficult it is presently to engage in the private practice of law. Also, lawyers who work for the government, such as U.S. Attorneys or district attorneys or solicitors or attorneys general do not always appreciate the difficulties of the modern private law office.

Practicing law is 50 percent being a good lawyer and the other 50 percent is running the business and getting clients. With the large lawyer overpopulation, getting clients is difficult at times. Once a client comes in the door, the next big issue is getting paid.

The financial crisis that began in 2008 had as serious impact on many lawyers. Perhaps corporate clients can pay monies, but the average person has very little money to pay lawyers. The old rule of getting one's fee up front, which used to be the norm, no longer really exists. If one wants to get their money up front, one might wait for years for the next client because almost everyone is going to need a payment schedule.

Over the years, the Pennsylvania Supreme Court has begun to micro manage the legal profession through rule changes. When the court required written fee agreements or else there would be professional discipline under Rule 1.5(b), this writer objected strongly. Obviously, it's a good idea to have a fee letter or fee agreement, but it should not be the basis for discipline. In more recent years, there have been specific record-keeping requirements under Rule 1.15 of the Rules of Professional Conduct and Rule 221 of the Rules of Disciplinary Enforcement. Now, lawyers have to maintain these records and make them available in 10 days. Failure to do so can result in professional discipline. These rule changes had a good purpose since many lawyers didn't keep any records. But, for most lawyers who did, this was an extra burden. Further, one's escrow account now has to be reconciled each month. One has to keep a ledger sheet with a running total for each client, etc. Failure to maintain these records in that fashion can result in professional discipline, sometimes severe.

Another frustrating regulation recently is the fact that the Pennsylvania Supreme Court has now adopted confidentiality rules adding additional burdens on lawyers when filing pleadings not only with the Pennsylvania Supreme Court, but in also the lower courts. These protocols take effect Jan. 6, 2018. Each County Common Pleas court is developing their own rules pursuant this requirement. It would be nice if there was a standardized filing system across the state. There isn't and if one practices in multiple counties, this can be a burden.

The administrative order by the Supreme Court now requires certain documents to be removed and redacted. It becomes difficult at times because trial transcripts, for instance, have names of minors, which were mentioned during trial. What does one do with a transcript of hundreds or thousands of pages? Requirements to file separate sealed documents is burdensome.

The point is, just like financial records, clearly there is a good purpose to these new confidentiality rules. There is a good purpose for having more enhanced rules of confidentiality. But, the problem is the expense and time and effort to make these changes, which falls directly on the legal profession.

As noted, many judges don't realize that many members of the bar are not making huge amounts of money. Many firms have cash flow issues. Yet, the court seems to think that all problems can be resolved by placing the burden on the lawyer. It's one thing to make suggestions and it's another thing to make requirements.

When, for instance, the privacy rules were made, it would have been nice if the solo practitioner and others could have had some input. It is one thing to have lawyers from major firms who are making money. It's another thing for the small firms that do appellate work to be burdened with all these new requirements. All that does is ultimately deter and prevent very good lawyers from wanting to do appeals anymore or to be involved in multiple counties. That could be a loss to the profession. For example, in Lancaster County, with their electronic filing system, when notice is given of documents, one has to go on the website and print them out. Then at the end of the month, one gets a bill for $50, $100 or $200.

In other counties, there is no such bill. The lack of a unified system placed additional burdens on the practicing bar.

It's difficult enough to get an appellate brief or a reproduced record together, but now to have to have separate documents and confidential forms and everything else is very difficult. Most lawyers don't have a staff of five paralegals and 10 secretaries or hundreds of thousands of dollars on income where they can spend the time. Many lawyers are very busy and do these appellate briefs at very reduced fees. It's not something one spends weeks on; it's usually a day or two under great pressure to get it done. Now, these new rules are going to make it difficult to timely file. Further, the rules will increase the fees to the client. Many clients can barely afford appellate costs now.

An over-burdened legal profession is not going to be independent. The court should be encouraging lawyers and small firms to continue to participate, to practice statewide, to do appeals, and represent their clients to the fullest and do more pro bono work. But, to add more rules and burdens has the opposite effect.

Perhaps this article is just an example of an older lawyer howling in the wind. But, there are serious concerns. As the court moves to have a unified system with hopefully a unified filing system, the court has to consider the cost and expense of their new rules and regulations on the bar. This analysis should be done taking into account the impact of small firms and solo practitioners. It is often the small firm that takes on a matter of injustice and makes the change. But, overregulation has a way of preventing lawyers from wanting to continue in multiple areas where perhaps their skills are needed by clients. There seems to be a modern rule that everything has to change at least every one or two years, whether it's electronic filings or forms or formats, etc. There might be good bureaucratic reasons for that, but it is a killer for the existence of small firms. Law is traditional business and practice and customs are important. It is how a lawyer can make predictions. The role of customs and traditions seem to be lost in this world of modernization.

Explain all options to the client before agreeing to the terms.

I am a criminal defense lawyer. As part of the plea agreement, can a client agree to waive any PCRA or ineffective assistance claims?

The question is an interesting one. That condition is often not seen in the state courts, though in the federal courts there are times when appellate rights or Habeas rights are asked to be waived where effective assistance of counsel is a potential issue.

It would appear that a lawyer cannot agree to such a waiver. The basis for this contention is Pennsylvania Rule of Professional Conduct 1.8(h). That reads as follows: “A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement.”

Comment 15 to Rule 1.8 notes as follows: “Agreements settling a claim or potential claim for malpractice are not prohibited by this rule. Nevertheless, in view of the danger that a lawyer will take unfair advantage of an unrepresented client or former client, the lawyer must first advise such a person in writing of the appropriateness of independent representation in connection with such a settlement. In addition, the lawyer must give the client or former client a reasonable opportunity to find and consult independent counsel.”

With the way the comment is written, it appears that a lawyer cannot acquiesce or have a client enter into a plea agreement where they would waive any future claims of ineffective assistance of counsel. Although the rule does not specifically talk about the ineffective assistance, at least in Pennsylvania, there has to be a finding of ineffective assistance before a client can obtain any legal malpractice relief against their former lawyer.

Therefore, to answer the question, it appears that the lawyer should not have a client agree to that kind of condition, at least without having the client sent to independent counsel to review the issue. The problem is if one suggests independent counsel to a criminal defendant, who is perhaps unsophisticated and incarcerated, that it's going to create a problem and may result in the client turning down a good plea offer. On the other hand, the client is not in a position to really appreciate what rights they may be giving up. It's possible they are not giving any rights up. There apparently is an opinion by the Pennsylvania Bar Association's Ethics Committee Opinion 2014-100 that suggests that Rule 1.8(h) would preclude entering into such an agreement unless the lawyer recommended the client be given an opportunity to consult independently with counsel.

There are apparently no court decisions on this particular issue.

The bottom line is any time such a waiver is in the plea agreement, the lawyer, in writing, should fully explain all options to the client and recommend the client seek independent legal advice before agreeing to the terms.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.