For the Defense - Vol. 8, Issue 4 - 38

to California. Judge McClure approved the motion and scheduled
a hearing for 10:15 a.m. later that week. The court technology
people coordinated with the court in Los Angeles, and I emailed
a subpoena for the friend to appear. Only after the witness was
sworn in and remarked that it was " awfully early " did any of us
in Pennsylvania realize what we had done. It was 7:15 a.m. in
California! I have never felt more parochial than I did that day, but
at least the client was able to go back home.
What Can You Do With a Drunken Lawyer?
In 2014 the Marshall Project, a nonprofit news organization
covering the U.S. criminal justice system, published an article with
that title detailing cases where claims of a lawyer's ineffectiveness
for being drunk or high during trial were turned away by the
courts. The article begins with this paragraph:
Last night, at 10:51 p.m., Georgia executed Robert Wayne
Holsey, a man with borderline intellectual functioning
who was convicted of killing a sheriff's deputy in 1995.
Holsey was put to death despite concerns about the
quality of his defense. His court-appointed attorney,
who was later disbarred, admitted to trying the case
while drinking up to a quart of vodka each evening, the
equivalent of about 21 shots.12
But back to the question. I learned the answer to that question
in Pennsylvania in March of 1985-the lawyer with an alcohol or
substance abuse problem resigns and walks away in shame. In
1988, however, things in Pennsylvania began to change. We have
all attended CLE programs where Lawyers Concerned for Lawyers
(LCL) is discussed. Let me tell you the back story. A group of lawyers
met in Harrisburg in 1988 and formed LCL. I was privileged to be
at that meeting and have been on the Board of LCL ever since.
LCL now provides free, confidential, non-judgmental services to
lawyers, judges, law students and their families facing stigmarelated
illnesses.
Rule 8.3 of the PA Rules of Professional Conduct requires lawyers
to report a lawyer or judge that they know has engaged in
conduct that " raises a substantial question " as to their fitness. The
rule has a specific exception for information gained by a lawyer
or judge while participating in an approved assistance program.
Explanatory comment 7 points out that without this exception,
lawyers and judges might be reluctant " to seek assistance from
these programs, which may then result in additional harm to their
professional careers and additional injury to the welfare of clients
and to the public. " The Pennsylvania Code of Judicial Conduct,
specifically Rule 2.14, has a similar requirement that a judge must
take " appropriate action, which may include a confidential referral
to a lawyer or judicial assistance program. " Lawyers Concerned for
Lawyers (LCL), and Judges Concerned for Judges (JCJ) are the two
approved assistance programs in Pennsylvania.
The Pennsylvania Supreme Court also established a " sobriety
monitoring program " in 1990 and appointed the PBA " Drug and
Alcohol Committee " to operate the program. That committee
later changed its name to the " Lawyer's Assistance Committee. "
That Committee, not a part of LCL, continues to run the program
today. Instead of making a lawyer with a substance abuse problem
sit out for a year or longer, he or she can continue to practice
under the supervision of a court appointed " sobriety monitor. "
You can find details about the program in the Rules of Disciplinary
Enforcement.13
There is a similar program for judges under Chapter
11 of the Rules of the Judicial Conduct Board.14
38 For The Defense l Vol. 8, Issue 4
Lawyers and judges have a duty to the public, the profession,
and themselves to maintain the highest standards. That does
not include being drunk, high, severely depressed, or suicidal. If
you or a colleague are struggling, don't wait for a malpractice
lawsuit, ineffective assistance, or disciplinary claim to arrive, call
LCL (888-999-1941) or JCJ (888-999-9706). They are there to help
you or someone you are concerned about. You will be glad that
you called!
Driving Under the Influence
In the 1970s and 1980s, it was not unusual for a police officer to
drive a person home if they were pulled over for suspicion of drunk
driving. In 1980, the first Mothers Against Drunk Driving (MADD)
chapter started in California and soon spread across the country. In
1984, the " national drinking age " minimum was raised to twentyone.
States that did not adopt the limit could not receive federal
highway funds. Although Pennsylvania had long been a " twentyone "
state, until 1984 Ohio was eighteen for 3.2% beer and New
York was eighteen for all alcohol.
It is my recollection that throughout the 1980s the Ohio and
Pennsylvania BAC threshold was still above .15% BAC. In 1998,
President Bill Clinton began the push to have .08% BAC be the
national standard. The 2001 Department of Transportation Budget
Act required all states to have .08% BAC by 2004. Pennsylvania
changed from .10% to .08% in 2003.
In 2004, Pennsylvania added Ignition Interlock Device
requirements and the Occupational Limited License. In 2013, the
NHTSA proposed a national standard of .05% BAC for DUI cases.
Some states have adopted this standard, Pennsylvania has not, yet.
The Changing AG Criminal Division
Today, the Pennsylvania Attorney General regularly brings
headline grabbing criminal cases. That was not always the case.
Before 1980, the Pennsylvania Attorney General was appointed
by the Governor. I had the good fortune to work with Bill Sennett
(Attorney General from 1967-70 under Governor Ray Shafer)
while at the Knox firm in Erie. Bill was succeeded by Fred Speaker
who served as Attorney General for the last year of Shafer's second
term. There is a footnote to Fred's tenure that deserves retelling.
Back then the AG served until his successor was appointed,
approved by the Senate, and sworn in. Fred was a devout Catholic
and ardent opponent of the death penalty. Mindful that he would
continue to be the Attorney General until his successor had been
approved and sworn in, he did something both unprecedented and
audacious. Heading home after leaving the inaugural ceremony
for the new Governor, Milton Shapp, he got out of his car and
mailed an official letter to the Rockview prison warden, ordering
him to dismantle the electric chair, citing an accompanying legal
opinion he had signed declaring the death penalty in Pennsylvania
unconstitutional.15
The death penalty ban did not stand, but the
chair at Rockview was never used again.
A 1978 Constitutional Amendment and the 1980 Commonwealth
Attorney Act created the first elected statewide Attorney General
(Roy Zimmerman) as the state's chief law enforcement officer and
the separate Office of General Counsel as the Governor's lawyer.
Roy created the first criminal division and began using both
statewide and regional grand juries. His first term also saw the
implementation of the first Pennsylvania Wiretap Act.
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