Josh J.T. Byrne, Swartz Campbell

The mighty are falling this spring. The list of recent actions by the Disciplinary Board of the Pennsylvania Supreme Court includes an unusual number of big names. The recently disciplined include the former attorney general of the commonwealth, a former Philadelphia Court of Common Pleas judge, two former Philadelphia Municipal Court judges, a former Centre County district attorney, and a former aide to retired Congressman Bob Brady.

The biggest name does not come as any surprise, former Pennsylvania Attorney General Kathleen Kane was convicted in August 2016 of perjury, false swearing, obstructing administration of law, conspiracy to obstruct administration of law, official oppression and conspiracy to commit official oppression to deny rights. Kane filed her resignation from the practice of law in the commonwealth of Pennsylvania on March 12. Kane acknowledged her convictions were a per se ground for discipline and that she could not successfully defend the disciplinary charges against her. The attached petition for discipline asserted Kane violated Pennsylvania Rule of Professional Conduct 8.4(b), which states that it is professional misconduct for a lawyer to commit a crime that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, and Pennsylvania Rule of Disciplinary Enforcement 203(b)(1), pursuant to which the conviction of a crime is a ground for discipline.

On April 9, former Philadelphia Court of Common Pleas Judge Angeles Roca was suspended on consent for a year and a day. Roca was previously removed from office and deemed ineligible to hold judicial office in the future following a trial in the Court of Judicial Discipline. Roca's difficulties arose when she requested assistance from former Municipal Court Judge Joseph Waters Jr. to deal with the failure of her son to file a business privilege tax return for his barbershop. Roca's son filed a pro se petition to open judgement, which was denied by (former) Judge Dawn Segal. Roca called Waters to ask about filing a motion for reconsideration with Segal (referring to Segal as a “bitch” in the process). Waters stated he would talk to Segal. Segal granted the motion for reconsideration and Waters called Roca to state Segal “took care of that thing.” Roca was unaware that Waters' telephone was tapped by the FBI as part of an unrelated investigation. Roca subsequently lied to an FBI agent in response to whether judges call one another to ask for favors. Roca also denied any inappropriate communication between herself and Waters in response to an inquiry by the Judicial Conduct Board.

Roca was accused of violating Rules of Professional Conduct 3.5(a), which states a lawyer “shall not seek to influence a judge … by means prohibited by law”; 8.1(a), which holds in relevant part that a lawyer shall not “knowingly make a false statement of material fact” in connection with a disciplinary matter; 8.3(b), which requires a lawyer who knows a judge has violated a rule of judicial conduct “that raises a substantial question as to the Judge's fitness for office” to inform the appropriate authority; 8.4(c), which prohibits lawyers from engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation”; 8.4(d), which prohibits conduct prejudicial to the administration of justice; and 8.4(f), which prohibits knowingly assisting a judge in conduct that is a violation of the rules of judicial conduct or other law.

Former Philadelphia Municipal Court Judge Segal's joint petition in support of discipline on consent was also granted on April 9. Segal was also suspended for a year and a day. Segal had several interactions with Waters in which Waters requested favors for parties appearing in front of Segal. When confronted by the U.S. attorney and the FBI, Segal acknowledged she understood Waters was attempting to influence her and she should have recused herself. Segal was accused of violating Rules of Professional Conduct 8.3(b) and 8.4(c), (d) and (f).

Another former Philadelphia Municipal Court judge, Jimmie Moore, was placed on temporary suspension after entering a guilty plea in the U.S. District Court for the Eastern District of Pennsylvania to the criminal offense of false statements, for concealing payments to his campaign from the Federal Election Commission. Moore pleaded guilty of concealing more than $90,000 of payments to his campaign for Pennsylvania's First Congressional District. Moore was running against incumbent Bob Brady, and the $90,000 was paid by Brady's campaign. Kenneth Smuckler, a longtime Philadelphia political consultant and aide to Brady, was also placed on temporary suspension after he was convicted on charges that included conspiracy and causing unlawful campaign contributions related to the payments made to Moore.

Of the recent disciplinary actions against big names, one of the most interesting is the suspension of Centre County District Attorney Stacy Parks Miller for a year and a day. Miller engaged in a number of ex parte communications with judges in cases where she served as district attorney. In response to multiple motions to recuse, Miller falsely denied she exchanged ex parte communications with the judge in question. Miller also did not correct the judge's statements in open court that he had not engaged in ex parte communications with Miller. In response to the petition for discipline, Miller acknowledged she engaged in ex parte communications.

Miller was also suspended in part due to her creation of a fake Facebook account that she utilized to investigate the sales of “bath salts.” At the time the Facebook account was created, bath salts were not illegal, but legislation had been introduced to make them illegal and the judiciary in Centre County had issued an injunction to prevent the sale of bath salts. Miller created a Facebook page for a fictional individual, “Brittany Bella,” and “friended” the stores suspected of selling bath salts and individuals who had “liked” those stores. Miller encouraged attorneys in her office to utilize the profile to “befriend defendants or witnesses if you want to snoop.”

The alleged violations of the Rules of Professional Conduct relating to the ex parte communications are standard violations of Rules 3.5, 4.1, 8.1 and 8.4. The alleged violations related to the fake Facebook page are more interesting, and include violations of Rules 4.3(a) and (c), respecting dealing with unrepresented persons; Rules 5.3(b) and (c) regarding responsibility for conduct of others; and violations of Rules 8.1 and 8.4. The Hearing Committee of the Disciplinary Board did not find any violations related to the fake Facebook page, and recommended a three-month suspension. The Disciplinary Board disagreed with the Hearing Committee finding that the fake Facebook page constituted a violation of the Rules of Professional Conduct. While the Disciplinary Board acknowledged that covert operations are permitted in criminal investigations, it stated “attorneys themselves are prohibited from participating in such activities.” The Disciplinary Board cited to two Philadelphia Bar Association Professional Guidance Committee opinions regarding use of social media to friend witnesses. The Disciplinary Board recommended a suspension of a year and a day that the Supreme Court adopted.

These recent disciplinary actions demonstrate the Pennsylvania Supreme Court will hold all attorneys in the commonwealth accountable to the high level of conduct required under our Rules of Professional Conduct. One of the themes that runs through these cases is accountability for abuse of power. Maintaining the integrity of our profession is an overarching concern of our Supreme Court. The Supreme Court will not permit attorneys to abuse the powers and privileges given to them unchecked.

Josh J.T. Byrne, a partner in Swartz Campbell's professional liability group in the firm's Philadelphia office, is also co-chair of the Philadelphia Bar Association's professional guidance committee and the incoming chair of the Pennsylvania Bar Association's professional liability committee.