VOL P. 3899 M O N D A Y, D E C E M B E R 1 2 , 2 0 1 6 T H E L E G A L I N T E L L I G E N C E R • 7

P R O F E S S I O N A L C O N D U C T

BY ELLEN C. BROTMAN AND CHRISTINE E. WELLERSpecial to the Legal

As 2016 comes to an end, attorneys all across Pennsylvania are taking a moment to pause and re�ect on

the passage of another year. Nationally, the Trump presidency brings in an era of uncertainty and change that will impact our practices and the world for years to come. But 2016 also saw the resignation of a Pennsylvania Supreme Court justice for his participation in an email scandal and the conviction and sentencing of our attorney general. Another change, re�ected locally and nationally, is the steady move toward legalization for marijuana. While unrelated, all these events touch on cultural shifts and caused rule changes that we focus on here.

In March, former Justice J. Michael Eakin retired from the bench, ending the controversy over charges that he vio-lated the Pennsylvania Constitution, and Canons 2 and 5 of the 1974 code of Judicial Conduct, as amended, In re J. Michael Eakin, 13 JD 2015, 1 (2015). The com-plaint against Eakin stemmed from his role in “Porngate” (or “Hategate” as state Sen. Anthony Williams referred to it). In response to this controversy, the Judicial

Conduct Board adopted a statement of policy (SOP). This SOP explained how the board intended to interpret and en-force the Code of Judicial Conduct and the Pennsylvania Constitution with regards to judicial misconduct which stems from the use of electronic communications.

While the SOP does not have the force and effect of law, it clari�es the reach of the investigation into a judge’s per-sonal email traf�c. The SOP indicates that the board will only investigate complaints regarding email communications that pre-date an individual’s candidacy for judge or position as judge if the communication relates to the “trust-worthiness, integrity, or �tness of the in-dividual to serve as judge.” When inves-tigating an electronic communication of a judge or a candidate for judge, the board will consider the de-gree of the judge’s knowledge and par-ticipation in the com-munication including “whether the judge was a sender, for-warder” and whether “the judge was the “re-cipient.” The SOP also restates that except where the board determines otherwise for good cause, it will not consider complaints arising from acts or omissions occurring more than four years prior to the date of the complaint. This is consistent with Judicial

Conduct Board Rule of Procedure 15: Time Limitations. The SOP re�ects the board’s struggle with the tension between First Amendment rights and the need for our judiciary to demonstrate that our system is dedicated to equal justice for all, includ-ing minorities, women, and the LGBT

community. Notwiths tanding

the SOP’s limits, the board has rightly recognized that the communications in question were not in-appropriate because they were sexual in nature; they were in-appropriate because they embraced and validated a world view that white male superiority and entitlement—a view which is inconsis-tent with the state

and federal constitutions and which is directly related to pay equity and lack of diversity in our profession. The Porngate scandal, and the valuable and healthy dis-cussions it generated, underscored how far we still have to go in our �ght for equality.

Professional Conduct: Close the Curtain on 2016

ELLEN C. BROTMAN is a member at Griesing Law, where she focuses her practice on government investigations and white-collar criminal defense and representation of attorneys before the Disciplinary Board of the Pennsylvania Supreme Court. She can be reached at 215-501-7852 or ebrotman@griesinglaw.com.

CHRISTINE E. WELLER is an associate at the �rm where she focuses her practice on new media, intellectual property, nonpro�t, and employment law matters. She can be reached at 215-732-3923 or cweller@griesinglaw.com.

BROTMAN WELLER �e Porngate scandal, and the valuable and healthy discussions it

generated, underscored how far we still have to go in our �ght for

equality.

Professional Conduct continues on 8

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8 • THE LEGAL INTELLIGENCER M O N D A Y, D E C E M B E R 1 2 , 2 0 1 6 VOL P. 3900

believed that funding for HIV and AIDS should be redirected to conversion therapy and speci�cally that it should be mandated for LGBTQ youth.

IDS AND PASSPORTSIt’s important that all queer people, but es-

pecially transgender individuals whose legal documents may not accurately re�ect their name or gender, secure these documents for themselves. IDs and passports that ac-curately re�ect our identities are crucial tools for navigating our society and the world safely.

The executive director of National Center for Transgender Equality, Mara Keisling, told The Huf�ngton Post, “We just don’t know what’s going to happen. But, for now, I suggest that folks think about what they want their IDs to be. If you’re somebody

who has needed a passport for awhile, I would go do it. For sure. Now is always the best time to do something you’ve been stalling on.” Passports are especially im-portant because the ability to change your gender marker on passports was unilaterally granted by Secretary Hillary Clinton during her tenure and it is very likely that the abil-ity to do so will be rescinded under the new secretary of state.

NAME CHANGE COURT ORDERSIn the same vein of IDs and passports,

the transgender and gender-nonconforming community should consider obtaining a name change decree sealed by court order. Once you have that piece of paper, changing other documents becomes seamless, includ-ing your Social Security card, your driver’s license or state ID, your birth certi�cate and your passport.

Now, through the inauguration, myself along with a dedicated team of trained volunteers, will be providing pro bono

services to anyone in Pennsylvania and New Jersey seeking a name change, or gender marker changes to documents, including driver’s license, social security card and/or passport. Please, have anyone you know in need reach out, and we’ll make sure they get the assistance they need and deserve.

Let me try to end this on a good note. While things are going to get harder before they get better, trust in the fact that we’re a resilient bunch. We have fought to be seen together in public spaces. We fought to de-criminalize our sexual activity. We literally fought for our lives through the AIDS epidemic; and most recently we fought for the right to marry the person we love. Now, we’ve been tasked with �ghting hate at every level of society. I’m not worried that we’ll conquer this �ght because guess what? We’ve won every other �ght. And unlike supporters of hate, we win our �ghts using empathy, compassion and love as our ammo. Love really does trump hate. •

Unfortunately, the revelations about our incoming president’s own attitudes toward women and minorities have the potential to create a barrier to progress and push back gains we have already achieved. As lawyers, we have been in the vanguard of the effort to push forward to advance equal rights and equal opportunities for all. In the coming year, we must continue this important work, no matter what cultural shifts oppose it.

Another signi�cant cultural change is the wider acceptance of marijuana use for both recreational and medicinal pur-poses. With the passage of Pennsylvania’s Medical Marijuana Act in April, many prospective medical marijuana business-owners are increasingly seeking advice on proper compliance and certi�cation efforts in connection with the act (35 P.S. Section 10231.101). However, until recently, some question remained as to whether Pennsylvania attorneys could ad-vise these potential business owners under the Pennsylvania Rules of Professional Conduct. This is because marijuana remains a Schedule I drug under the Controlled

Substances Act of 1970, 21 U.S.C. Section 812 (a Schedule I drug “has a high poten-tial for abuse, has no currently accepted medical use in treatment in the United States, there is a lack of accepted safety for use of the drug or other substance under medical supervision”). Under federal law, this means that it is illegal to manufacture, distribute, dispense, or possess marijuana. As such, the tension between state and federal law had the potential of creating an ethical con�ict for a Pennsylvania lawyer under Pennsylvania Rule 1.2(d), which in-dicates in the relevant part: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.”

In response, the Pennsylvania Supreme Court adopted a change to Rule 1.2. The change added a new subpart (e) to the rule, which provides: “A lawyer may counsel or assist a client regarding conduct expressly permitted by Pennsylvania law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client’s proposed course of con-duct.” Pennsylvania attorneys can now rest assured that they will not receive discipline under the court rules for providing advice in this space provided they advise on the legal consequences of their proposed course of conduct under both laws. In practice, this will require advising a client of the tension

which exists between federal and state laws, and the potential legal repercussions of same.

Of course, if Jeff Sessions is appointed to be the attorney general, we as lawyers may have to fear not disciplinary enforcement, but federal enforcement. Sessions has called for more federal prosecutions of marijuana growers and businesses in states where it is legal. The only obstacle to this is the Rohrabacher-Farr amendment to the annual federal appropriations bill; this amend-ment prohibits the Department of Justice and the DEA from using federal money to target or prosecute state-compliant medical marijuana businesses. If that amendment is not renewed, the only thing protecting the state marijuana businesses is DOJ policy, which is subject to change. As you advise your clients, you may want to add a word in about the policy shifts the new administra-tion may bring.

The juxtaposition of the new SOP, the new Rule of Professional Conduct, and the effects that a new administration may have on both these issues raises some interesting questions and concerns about where we will be next year. We look forward with trepidation, but also with determination—determination to continue to �ght for the laws that protect and provide our freedoms. And so happy holidays and happy New Year to you all! •

LGBT Lawcontinued from 5

risk of cybertheft of IP data, IP attorneys and in-house counsel should play a part in managing how such data is handled and stored.

“One of the things that’s also important to see is the attorney regularly interacting with research departments so that they have an understanding of what’s happening, what re-search is being performed, who has responsi-bility for that research, and limiting or putting policies or products in place for how research-ers handle all their scienti�c logs,” he said.

Fancher also noted that should a successful breach of IP data occur, it may be months before the organization and those handling IP data become aware of the security incident.

Ricci Dipshan can be contacted at rdipshan@alm.com. •

Cyberattackscontinued from 4

Professional Conductcontinued from 7

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