REINVENTING ONESELF AFTER LOSS - 94TH CHANCELLOR LAUREN P. MCKENNA COVID-19 INTERNSHIP - FOX ROTHSCHILD LLP
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Vol. 83, No. 4 Philadelphia Bar Association Quarterly Magazine Winter 2021
Reinventing Oneself After Loss
94th Chancellor
COVID-19 Internship
By Brittany StokeS Lauren P. McKenna
By Hon. Wendy G. rotHStein
THE PHILADELPHIA
LAWYER
Vol. 83, No. 4
CONTENTS
Philadelphia Bar Association Quarterly Magazine Winter 2021
FEATURES DEPARTMENTS
12 When Two Public Health Crises Collide 4 From the Editor
The fatal shooting of Walter Wallace, Jr., who had a history of by Shelli Fedullo
mental illness, raises several questions including: Why did it
have to go straight to violence? 6 Briefs
by Karen Wheeler
7 In Memoriam
13 COVID-19 Internship
How an unconventional summer internship forced the writer 8 From the Chancellor
out of her comfort zone. by hon. a. MiChael Snyder (ret.)
by brittany StoKeS
9 Ethics
14 Honoring RBG by daniel J. SieGel
The two winners of the 2020 Justice Ruth Bader Ginsburg How to maintain an IOLTA account and keep the Disciplinary
writing competition are carrying on her legacy of scholarship, Counsel from knocking on your door.
provoking discussion of critical legal issues.
30 Technology
20 Trailblazer, Role Model and Advocate: by daniel J. SieGel
Introducing 94th Chancellor Just like their edible counterparts, using expired software could
Lauren P. McKenna make your computer sick.
Through continuous pursuit of work-life balance, 2021
Chancellor Lauren P. McKenna, Esq., has succeeded in 35 Extras
establishing harmony among family, career, communit,y and by robert J. Stern
self. A new “Philly Courts” crossword puzzle by Bob Stern
by hon. Wendy G. rothStein
36 That Was Then - The Philadelphia Lawyer
24 Chestnut Hill East as The Shingle
How the divide exemplified on the train line has become The magazine undergoes a name change.
starker during the COVID-19 pandemic.
by albert S. dandridGe iii
26 Annals of Justice: The “Why” and Some
of the “How”
On being a legal “chameleon”
bySteve laCheen
29 When Can Contract Duties Be
Suspended or Terminated Because of
the COVID-19 Pandemic?
Taking a closer look at when a party may have a legal defense
if it elects to not perform contract obligations.
by W. MarK Mullineaux
20
2 the philadelphia lawyer Winter 2021
FROM THE EDITOR
Amber
BY SHELLI FEDULLO
I
met Amber Racine for the absolutely no difference. Over the
first time about eight years years, we worked together around
ago at either a Philadelphia important, serious, sometimes difficult
Bar Association or a issues, especially last year when she
Barristers’ Association event. We was chair of the Board of Governors
were introduced by a mutual friend. I and I was Chancellor. Amber was my
am not quite sure which one made the touchstone, my trusted advisor. We also
introduction, but it was Regina Foley laughed together over silly things .As
or Kevin Mincey or Bernie Smalley. good friends do, we could look at each
Although I do not remember a lot of other and read the other’s mind. And
details, I very clearly remember that of course, there were the texts (many
I liked Amber immediately. She was of you know what I mean). I knew
friendly, high-energy, and radiant. She that Amber would always be a part of
struck me as being lit from within, but my life. She promised that when she
not in a “look at me” way. came to visit in my old age, she would
Our shared involvement in make sure I was wearing lipstick. As
professional activities often brought I told her, many times, I had claimed
Amber and me to the same events, her as my adopted “Bar Association
and because we shared many mutual daughter” who I loved and cherished.
friends, we would always have a “stop It was “please wake-me-up from
and chat” with a few of them. It didn’t this terrible dream” and unfathomable
take very long for our greetings to to have become part of a bereaved
include a hug, or very long for my community, joined together in
fondness of Amber to grow. I already heartbreak, bereft over Amber’s
knew from reputation that Amber was sudden passing on November 11. Our
a leader, but it was in 2014 when she Amber, this brilliant, vibrant, generous,
served as president of the Barristers’ compassionate, honest, funny, talented,
that I learned the depth of her talent. I luminous, loving woman. This person
learned how her commitment to the professional community was of grace, kindness, integrity, strength, and wisdom. This
matched by her service to the Philadelphia community. I learned accomplished lawyer, this “let’s make this happen” leader, this
that she knew how to get things done. I learned that she was respected role-model, this unselfish mentor. Amber, a woman lit
unafraid of speaking the truth. I learned how she inspired and from within and a source of light for all of us. Our beautiful,
motivated others. beloved, precious, once-in- a lifetime, Amber, always a blessing,
As our friendship grew, our 29-year age difference made and now of blessed memory.
The Philadelphia Lawyer (USPS #025-241), printed with soy inks on recycled paper, is published quarterly in March, June, September and December by the Philadelphia Bar
Association, 1101 Market St., 11th floor, Philadelphia, Pa. 19107-2955. Telephone: (215) 238-6300. E-mail: tplmag@philabar.org. The opinions stated herein are not necessarily those
of the Philadelphia Bar Association. All manuscripts submitted will be carefully reviewed for possible publication. The editors reserve the right to edit all material for style and length.
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4 the philadelphia lawyer Winter 2021
Grief and loss. Yes, we begin to move on
The
as well as we can. Time helps, but grief Philadelphia
is not linear. Sometimes we feel the loss Lawyer
as if it was new. But what we learn is that EDITOR-IN-CHIEF
love is forever, immutable, and that our
Rochelle M. Fedullo
memories are blessings. Editorial Board
Albert S. Dandridge III
Steven R. Sher
Jennifer Platzkere Snyder
Brian J. McGinnis
Over the last few years I find myself being asked. Still, having lived in Daniella Price
thinking about how we handle loss and Amber’s light, we each know what to do. Niki T. Ingram
grief. Our religious and cultural rituals Amber meant so many things to so John Gregory
and customs bring solace. Good and many, but above all, she was an adoring Jonathan Aronchick
Matthew Faranda-Diedrich
caring people envelope us with kindness and adored daughter. To dearest Juliana, Angela Giampolo
and sympathy, they offer charity to honor thank you for the precious gift of your Harold K. Cohen
our loved one. They comfort us and Amber. My sorrow for your loss is as deep Emmanuel O. Iheukwumere
share our tears. And then, within a few as my love for Amber. I hope knowing Daniel J. Siegel
weeks, even those whose loss is the most what she meant to all of us brings some
profound -- close family and dearest of comfort to you and to your family. Editors Emeritus
friends -- are expected at least to try to Grief and loss. Yes, we begin to move David I. Grunfeld
Stephen Robert LaCheen
start to do whatever it is we normally on as well as we can. Time helps, but Richard G. Freeman
do, to begin to “move on.” And in our grief is not linear. Sometimes we feel Michael J. Carroll
different ways and at different paces, we the loss as if it was new. But what we Justine Gudenas
each do -- what else can we do? learn is that love is forever, immutable,
And the rest of us, those in the wider and that our memories are blessings. We Director of Communications and Marketing
circle of loss, we grieve too. In the weeks learn that although relationships may no Rachel Kipp
since Amber’s passing, friends who longer live in the “now” they live in the
loved her -- those who, like me, are in “always.” Cover Design
Wesley Terry
this wider circle of loss -- have ourselves So Amber, my sweet friend Amber,
felt lost. We talk to each other. We cry. while you won’t be able to make sure I
We ask each other how can we manage am wearing lipstick when I am old, I will
Editing and Design
Brittany Anne Robertson
without Amber, what do we do? We all know you for always.
want to call Amber to ask her.
The truth is that we already know. We
know exactly what Amber would want us Rochelle M. Fedullo (rochelle.fedullo@
Philadelphia
to do, expect us to do. In being blessed
by her memory, we owe it to Amber to
wilsonselser.com) is Editor-in-Chief of
The Philadelphia Lawyer, Immediate-
Bar Association
keep her light alive, each in our own way. Past Chancellor of the Philadelphia CHANCELLOR
To be generous of time and spirit. To be Bar Association, and a senior counsel Lauren P. McKenna
a mentor. To help without being asked. at Wilson Elser Moskowitz Edelman & Chancellor-Elect
To bravely speak the truth. Yes, maybe Dicker LLP. Opinions are the Editor’s Wesley R. Payne, IV
no one aside from Amber would don own and are not intended to express views Vice Chancellor
a turkey headband and turkey glasses of the Philadelphia Bar Association, Marc J. Zucker
while at the podium at a meeting of the the Editorial Board, or those of her Secretary
Board of Governors to ask for donations professional affiliation. Michael J. Stackow
to the Barristers’ Turkey Drive. Maybe Assistant Secretary
only a few people aside from Amber Michael T. van der Veen
would happily ride around in a truck to Treasurer
hand out turkeys and food to families in Matthew S. Olesh
need. Maybe only Amber would ask the Assistant Treasurer
women she mentors to stand next to her Jennifer S. Coatsworth
when she accepted a mentoring award. Executive Director
Maybe Amber is one of the few people Harvey L. Hurdle, Jr.
who always intuitively knew when her
help was needed and helped without
the philadelphia lawyer Winter 2021 5
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COVID-19 Vaccine Rollout
temperatures, needing the aid of frozen
ice to keep it viable. Two shots are need-
ed, three weeks apart, to complete the *Sourced from the AP News article
vaccination. “‘Relieved’: US health workers start
The U.S. vaccination campaign—the getting COVID-19 vaccine” By LAU-
largest in the country’s history—comes RAN NEERGAARD — https://apnews.
on the heels of the vaccine already be- com/article/us-health-workers-coro-
ing authorized for administration in n a v i r u s - v a c c i n e - 5 6 d f 7 4 5 3 8 8 a 9 f-
other countries such as Britain and c12ae93c6f9a0d0e81f.
Canada, and during a fall/winter surge
in cases that are testing the limits of
medical professionals who have been
on the frontlines of treating COVID-19 Get Published in
patients since the spring. Incidentally,
these medical professionals are also on
I
t has been almost a year after the the frontlines of the vaccinations and are
COVID-19 novel coronavirus was being watched by a somewhat skeptical
first detected in the United States, U.S. population, with half of Americans
and in December 2020, the first vac- wanting the vaccination, a quarter not The Editorial Board of this
cines for the virus were administered to wanting it, and a quarter unsure, accord- magazine welcomes submissions
health care workers across the country. ing to an AP News poll. from attorneys and other
According to AP News, the vaccine that This is the light at the end of the tun- professionals who wish to share
is being administered was developed by nel. But it’s a long tunnel,” New York their expertise on law-related
Pfizer Inc. and German partner BioN- Gov. Andrew Cuomo said, according to topics.
Tech. It must be kept at extremely cold AP News. As policy, we do not compensate
our writers.
Animals on Flights
Articles must be original and
previously unpublished.
Manuscripts should adhere to the
Regulated
following word counts:
* Major Law-Related
Articles: 2,000 words
* Other Law-Related
I
n December 2020, the U.S. Trans- claiming them to be emotional support Features: 1,500 words
* General Interest: 1,500 words
portation Department issued final animals. Airlines are permitted to deter- * Fiction: 1,000 words
rules allowing only trained dogs mine what other species they can allow * Practice Areas: 750 words
to be categorized as service animals on their flights. * Essays or Humor: 750 words
on U.S. airlines. These regulations rule The distinction between the new * Book Reviews: 750 words
out other animals such as monkeys, regulations and the old lies in that, un-
cats, and birds, whom in the past had der the old rules, airlines were required For more information,
been brought on flights by passengers to treat emotional support as service e-mail: tplmag@philabar.org.
6 the philadelphia lawyer Winter 2021
DQLPDOV7KHQHZUXOHVFODULI\WKDWRQO\GRJVDUHFODVVLÀHGDV There was also a need to protect the rest of an airplane’s pas-
VHUYLFHDQLPDOV7KHUHDUHDGGLWLRQDOUXOHVDERXWWKHVSHFLÀF sengers and crew from untrained animals in the cabin, accord-
WUDLQLQJ WKDW D VHUYLFH DQLPDO KDV WR KDYH WR EH TXDOLÀHG DV ing to the industry trade group Airlines for America.
such: A service animal is a dog that is trained to assist visually
impaired persons or those with psychiatric or other disabilities.
Airlines have been losing fees over the years as passengers *Sourced from the Reuters article “Trained dogs, yes. But
have claimed pets as emotional support animals. According to other pets on board is U.S. airlines' call: regulator” By Da-
Reuters, “Spirit Airlines Inc told regulators it had lost ‘millions vid Shepardson — https://www.reuters.com/article/us-usa-air-
of dollars in pet carriage fees from passengers fraudulently lines-animals/trained-dogs-yes-but-other-pets-on-board-is-u-
claiming their “house pets are service or support animals.”’ s-airlines-call-regulator-idUSKBN28C346.
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cines contributed to a euphoric environment for risky
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Have you considered a contribution to the Philadelphia Bar
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For information, call Jessica Hilburn-Holmes,
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the philadelphia lawyer Winter 2021 7
FROM THE CHANCELLOR
Omelets
9 3 R D C H A N C E L L O R H O N . A . M I C H A E L S N Y D E R ( R E T. )
re-examining methods and philosophies also hampered in their ability to function
of policing and oversight of the police. without direct access to physical files.
As an Association, we’ve called out this With the creative input from the litigation
destructive type of behavior in society. community, programs were created in
We’ve seen that there was a need to which volunteer attorneys could serve
address issues involving the safety of the as judge pro tem discovery officers to
Bar Exam and spoke out on the need to help handle the backlog of motions that
have the Board of Law Examiners make had developed, thereby giving the courts
modifications to their procedures to time to put new processes in place so that
allow for a safe, remotely administered judges could resume effectively handling
examination. At the same time, we these motions.
realized that there was a need to address On a national basis, we have shown, as
some of the requirements of the way Americans, that it is possible to conduct
in which lawyers could get their CLE fair elections making expanded use of
credits, and so we successfully advocated mail-in ballots. When the White House
to allow all CLE credits to be delivered tried to argue that massive fraud was going
online during the pandemic, including to take place, especially in Philadelphia,
the Bridge the Gap program. We also we were clear in speaking out on the need
advocated for changes in the CLE rules to have every one of us feel that a mail-in
that would allow live, but online programs ballot was safe and fair, and we were clear
to be considered as in-person learning, in our statement that every vote needed to
I
providing more flexibility as we each be counted.
love omelets. They can be hearty move forward, recognizing that new rules This year has presented us with
or light, simple or complex, but of safe, social distancing might make challenges every step of the way. Every
completely satisfying. However, people less comfortable attending large, aspect of our lives has had to be reimagined
this column isn’t about food or in-person programs. to make sure that we can stay safe and
cooking. No, this column really got me The closures of businesses and layoffs healthy, but still be functional. If there is
thinking about the changes that have of employees have affected everyone, but one thing that I am especially proud of,
occurred for all of us this year, both those of limited economic means have it’s that all of us have worked together
locally and nationally, both personally been affected disproportionately. As a to create an Association that is stronger,
and professionally. I was reminded about result, a national eviction crisis developed. nimbler, and more relevant. This isn’t my
the old adage that sometimes you have to We saw this need and advocated with the accomplishment; it’s all of you that have
break a few eggs if you want to make an courts and state and local governments to come together to work as a community.
omelet. Well, this year certainly had all of enact moratoriums on evictions during I’ve been amazingly fortunate to be able
us breaking more than a few eggs to create the periods of lockdowns and massive to be your Chancellor this year; you’ve
an omelet that represented a world and a shutdowns of the economy. We also helped me to be part of a year in which
way of living that was safe and protective, successfully advocated for the creation we’ve succeeded in so many ways.
but still functional. of an eviction diversion program, similar I will forever be grateful to have had
Sometimes, we’ve succeeded in our to the widely successful mortgage this year at the helm of the Philadelphia Bar
efforts to find new ways of working, foreclosure diversion program. Based Association. I know that the Association
living, and relating to one another. But on our input, and the creativity of each will be in good hands under the leadership
the stresses of crafting these solutions, of you, we’ve succeeded in getting the of Lauren McKenna, the 94th Chancellor
and a national leadership that encouraged First Judicial District to modify some of of this Association. Thank you each for
uncontrolled violent dissent, have brought its processes so that landlord-tenant court helping me to make a few good omelets.
into the light levels of bigotry, racism, and proceedings could be conducted safely
hatred on a scale that is truly frightening. and fairly.
We’ve seen police brutality directed As we’ve had to transition to working Hon. A. Michael Snyder (Ret.) (msnyder@
against our citizenry, especially against from home on a massive scale, it adrdri.com) is the 93rd Chancellor of the
people of color, that has forced us to begin became obvious that the courts were Philadelphia Bar Association.
8 the philadelphia lawyer Winter 2021ETHICS By DANIEL J. SIEGEL
As Long as We Comply with All of the Rules
L
et’s take a short quiz. Think an IOLTA account with which a lawyer only at the “eligible institution.”
back to law school and must comply. And all too often, it is those • The funds must be held separately
your ethics/professional violations, which do not involve stealing from the lawyer’s own funds.
responsibility class. How and are often technical in nature, that can • A lawyer must maintain complete
many of you learned that one of the most lead to Disciplinary Counsel knocking on records of the receipt, maintenance,
important functions a lawyer performs is your door. and disposition of all funds for five
preserving client funds in what is known In my experience, representing years after termination of the client-
as either an IOLTA or a trust account? attorneys who are recipients of that lawyer or Fiduciary relationship or
I imagine nearly everyone raised their undesirable knock on the door, the majority after distribution or disposition of the
hands. of mistakes they make are minor, do not property, whichever is later.
Let’s move on to the second question. involve stealing, and are commonly the • A lawyer must also maintain the
How many of you learned how to result of not knowing the Rules. But once writing required by Rule 1.5(b)
maintain an IOLTA account? And I’ll Disciplinary Counsel knocks, you have to (relating to the requirement of a writing
broaden the question. How many of you open the door, and often hire counsel. communicating the basis or rate of the
have ever learned how to maintain an Despite the frequency of these Rules fee) and the records identified in Rule
IOLTA account, whether in law school or violations, lawyers are not required to 1.5(c) (relating to the requirement of a
after you graduated? In other words, how take any courses, CLE or otherwise, written fee agreement and distribution
many of you were taught which funds go about how to handle their trust accounts. statement in a contingent fee matter).
into the account, how to prepare ledgers I believe, however, that requiring lawyers • A lawyer must also maintain the
showing all the transactions, and how to who have signing responsibility for an following books and records for
balance the IOLTA account? Oh my. I IOLTA to take a course or demonstrate each Trust Account and for any other
suspect almost every hand went down. other knowledge and competence about account in which Fiduciary Funds are
But now the most important question. their accounts not only makes good sense, held:
How many of you are responsible for your but also will reduce the many accounting Ȣ All transaction records provided
firm’s IOLTA account? In other words, errors that arise from ignorance, and lead to the lawyer by the Financial
how many of you are authorized to sign to disciplinary hot water. Institution or other investment
checks on the account, and are doing so Consider, Pennsylvania’s Rule entity, such as periodic statements,
without any training? No need to raise of Professional Conduct 1.15, which cancelled checks in whatever form,
your hands. The answer is very few. outlines in detail the requirements a deposited items, and records of
We all learned that you cannot steal lawyer responsible for handling a trust electronic transactions;
from a trust account; that is a criminal account must follow. I know the following Ȣ A check register or separately
act that could land you in prison, and is lengthy, but it highlights SOME of the maintained ledger, which shall
certainly could lead to losing your requirements with which lawyers must include the payee, date, purpose,
license to practice law. But there is also comply under R.P.C. 1.15: and amount of each check,
a slew of other aspects to maintaining • “Qualified funds” must be deposited withdrawal and transfer, the payor,
the philadelphia lawyer Winter 2021 9When an account is used to hold funds of more than one client, a lawyer shall also
maintain an individual ledger for each trust client
date, and amount of each deposit, be produced. account. The reconciliation is not
and the matter involved for each • The required records must be backed complete if the reconciled total cash
transaction; and up in a secure manner, and must balance does not agree with the total
о When an account is used to hold always be available. of the client balance listing.
funds of more than one client, • When a lawyer only maintains • A lawyer must keep copies of all
a lawyer shall also maintain an electronic records, they must be records and computations sufficient
individual ledger for each trust backed up on a separate electronic to prove compliance with the Rule for
client, showing the source, amount, storage device at least at the end of five years.
and nature of all funds received any day on which entries have been • Upon receiving Rule 1.15 Funds or
from or on behalf of the client, entered into the records. property which are not Fiduciary Funds
the description and amounts of • A lawyer must maintain a regular or property, a lawyer shall promptly
charges or withdrawals, the names trial balance of all individual client notify the client or third person,
of all persons or entities to whom trust ledgers, where the total of the consistent with the requirements of
such funds were disbursed, and trial balance must agree with the applicable law.
the dates of all deposits, transfers, control figure computed by taking the • Except for limited circumstances, a
withdrawals, and disbursements. beginning balance, adding the total of lawyer shall promptly deliver to the
• IOLTA records be maintained in monies received in trust for the client, client or third person any property,
hard copy form or by electronic, and deducting the total of all moneys including but not limited to Rule 1.15
photographic, or other media provided disbursed. Funds, that the client or third person is
that the records otherwise comply with • A lawyer must perform a monthly entitled to receive.
Rule 1.15 and that printed copies can reconciliation for each fiduciary • Upon request by the client or third
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10 the philadelphia lawyer Winter 2021The need for lawyers to learn how to handle their trust accounts not only makes sense,
but it also is consistent with various Rules.
person, a lawyer shall promptly Pennsylvania continue their education adopted this CLE requirement. In 2016,
render a full accounting regarding the to have and maintain the requisite North Carolina amended its Rule 1.15-
property. knowledge and skill necessary to fulfill 2 to add a requirement that attorneys
• The responsibility for identifying an their professional responsibilities.” What attend a one-hour CLE program on trust
account as a Trust Account shall be greater professional responsibility is there account management at least once for
that of the lawyer in whose name the for maintaining the trust and integrity every law firm at which the lawyer is
account is held. of the legal profession than properly given signature or transfer authority.
• Only a lawyer admitted to practice law handling qualified funds in an IOLTA Similarly, effective December 31, 2016,
in Pennsylvania or a person under the account? New Mexico amended its Rule 17-204 to
direct supervision of the lawyer shall And finally, best practices mandate require attorneys to take a trust accounting
be an authorized signatory or authorize that those handling IOLTA funds receive CLE class once every three years, or
transfers from a Trust Account or any training and understand how they must within the first year of being licensed in
other account in which Fiduciary account for all such funds. Considering the New Mexico.
Funds are held. lack of training provided in law schools It is time for Pennsylvania to adopt
• A lawyer shall deposit into a Trust and in most CLE courses, mandating a Rule requiring, at a minimum, every
Account legal fees and expenses that a minimum level of competence is attorney with signatory or supervisory
have been paid in advance, to be necessary, and it should prevent lawyers responsibility on a trust or IOLTA to
withdrawn by the lawyer only as fees from pleading ignorance when they complete one hour of CLE to assure that
are earned or expenses incurred, unless discover that the Disciplinary Board is they understand their obligations to their
the client gives informed consent, investigating them. clients and to anyone else whose funds
confirmed in writing, to the handling North Carolina and New Mexico have they are maintaining.
of fees and expenses in a
different manner.
• At all times while a lawyer ATTORNEY DISCIPLINARY / ETHICS MATTERS Daniel J. Siegel (dan@
holds Rule 1.15 Funds, the danieljsiegel.com), a member
lawyer shall also maintain STATEWIDE PENNSYLVANIA MATTERS of the Editorial Board of The
another account that is not NO CHARGE FOR INITIAL CONSULTATION Philadelphia Lawyer, is the
used to hold such funds. principal of the Law Offices of
Daniel J. Siegel.
Representation, consultation and expert testimony in
Whew! That’s a lot
of requirements. Yet the disciplinary matters and matters involving ethical issues,
requirement that is missing bar admissions and the Rules of Professional Conduct
is that a lawyer overseeing
a trust account have any James C. Schwartzman, Esq.
knowledge or competence
about best practices and how • Judge, Court of Judicial Discipline
to handle an IOLTA account. • Former Chairman, Judicial Conduct Board of Pennsylvania
The need for lawyers to
• Former Chairman, Disciplinary Board of the Supreme Court of
learn how to handle their Pennsylvania
trust accounts not only makes • Former Chairman, Continuing Legal Education Board of the
sense, but it also is consistent Supreme Court of Pennsylvania
with various Rules. First, • Former Chairman, Supreme Court of Pennsylvania Interest on
Rule of Professional Conduct Lawyers Trust Account Board
1.1. requires lawyers to be • Former Federal Prosecutor
competent. If lawyers do not • Selected by his peers as one of the top 100 Super Lawyers in
know the applicable ethics Pennsylvania and the top 100 Super Lawyers in Philadelphia
rules, then how can they be • Named by his peers as Best Lawyers in America 2015 Philadelphia
competent to handle them? Ethics and Professional Responsibility Law “Lawyer of the Year,”
Second, Pa.R.C.L.E. and in Plaintiffs and Defendants Legal Malpractice Law
102 explains that the “rules
[were] adopted to assure that 1818 Market Street, 29th Floor • Philadelphia, PA 19103 • (215) 751-2863
lawyers admitted to practice
in the Commonwealth of
the philadelphia lawyer Winter 2021 11and is having a disproportionate effect on the same groups who
were impacted by the first wave of the virus: Black and Hispanic
communities, older adults, lower socioeconomic groups, and
health care workers. As Chuck Ingogla, president of the National
Council for Behavioral Health told The Washington Post, “We
are facing the loss of mental health centers and programs at a
time when we are going to need them more than ever.”
Some of my legal aid clients during the pandemic are
struggling to maintain their mental health treatment. Many
of my clients lost access to treatment when their providers
closed. I have been able to provide some clients with a list of
names of mental health providers offering therapy sessions
via teleservices, but not all facilities offer this much-needed
service, leaving some to wait months to get an appointment with
providers whose facility is short staffed. So how do we help
WKRVHLQQHHGRIKHOS"8OWLPDWHO\FDOOLQJWKHSROLFHPD\EHWKH
only option for families trying to care for their loved ones, but,
as we saw with the fatal shooting of Walter Wallace Jr., that can
By Karen E. Wheeler have tragic consequences.
People on social media have commented about Walter
A
Wallace Jr. having been in jail several times. It is not uncommon
s a paralegal in the SSI Unit at Community for people living with mental illness to encounter the criminal
Legal Services, I have clients, like justice system and to be arrested. While state and federal prisons
Walter Wallace Jr., with mental illness. have resources to provide mental health care to inmates who
In 2020, two public health crises collided: were not receiving treatment before incarceration, the same
cannot be said for local jails that are unable to meet the health
the COVID-19 pandemic and a mental health care needs of people with mental illness. As mental health crises
pandemic. worsen, we see the holes in the services provided by our criminal
legal system.
Good mental health is fundamental to overall health and well- In most cases, when police encounter a person whose behavior
being. COVID-19 has disrupted or halted critical mental health LV IUDQWLF DQG XQSUHGLFWDEOH WKDW EHKDYLRU LV QRW FULPLQDO³
services while the demand is increasing. Those already prone to EXW DQ H[SUHVVLRQ RI PHQWDO LOOQHVV³HYHQ LI WKDW SHUVRQ LV
mental illness are at the greatest risk during the pandemic, and holding a gun or knife. Walter Wallace Jr. was in the middle of
loss of social support can have an impact on people with mental an episode making it impossible for him to coherently follow
illness. As members of the legal community, it is important that police commands to “put the knife down.” The shooting of a
we recognize how these struggles can converge. person with a history of mental illness raises several questions.
People who suffer from mental illness often suffer in silence. Why did it have to go straight to violence? Why not taser him?
The number of mental health care providers in Pennsylvania Neither police officer had a taser gun. Why not fire a warning
is not sufficient to serve the population with mental health shot or shoot him in the leg? Or wait for backup from PERT, the
needs. According to SAMHSA (Substance Abuse and Mental Psychiatric Emergency Response Team in Philadelphia?
Health Services Administration), close to 4.06% of adults in Seeing the video of Walter Wallace Jr.’s shooting makes me
Pennsylvania live with serious mental health conditions, such frightened for my clients who are unable to access consistent
as schizophrenia, bipolar disorder, and major depression. mental health treatment during the pandemic. As the stress and
Philadelphia has the dubious distinction of being the poorest psychological impact continues to wear on all of us, especially
ODUJH FLW\ LQ WKH 86 +HUH RQO\ RI DGXOWV ZLWK PHQWDO those who already have mental health challenges, I worry that
illness receive services from the system or private providers. the next police encounter in the middle of a mental health crisis
The remaining 53.3% receive no mental health treatment. could be one of my clients. How would it end?
We are hearing from medical experts already that the current
wave of COVID-19 is, once again, overwhelming both medical
and mental health systems. The second wave is bringing more Karen E. Wheeler is a paralegal at Community Legal Services of
challenges like increased deaths from suicide and drug overdoses Philadelphia and a freelance writer.
12 the philadelphia lawyer Winter 2021COVID-19 INTERNSHIP
This article is dedicated to the late Amber Racine. B y B r it t a n y S t o ke s
Thank you for being a selfless mentor and for pushing
everyone to new heights.
L
ike many first-year law students, I spent my
winter break extensively searching for a sum-
mer internship. Two months into my search, I
came across a judicial internship at the Philadel-
phia Court of Common Pleas. I knew this would
be an excellent opportunity to experience criminal
law from a judicial perspective, observe trials, and edited legal documents to ensure case
become a better writer. Although I was nervous law was applicable and citations were
and uncertain about what I signed up for, I was accurate. I also participated in an
eight-week Virtual Summer Law Clerk
excited that my interviewers were impressed with Guest Speaker Program. Every week,
my qualifications and challenged me to distinguish an intern was selected to interview
a prominent Philadelphia judge
myself. or attorney about their law school
experience, career paths, the effects of
A few weeks after accepting my internship position, COVID-19 COVID-19 on their specific practice, and most importantly, to
plagued the United States. Law schools and criminal justice ask for advice for law students in the beginning stages of their
centers alike shut down, and internships were left in limbo. legal careers. Through this program, I met legal professionals
As I transferred to remote learning, I held out hope that my that looked like me and explored different career paths in
internship was not canceled. As finals concluded, I came across various offices around the city, including the Philadelphia
a CBS Philly article stating that the Philadelphia Courts were District Attorney’s Office, Philadelphia Defenders Association,
closed until September. Upon reading this information, I knew Kline and Specter PC, Comcast, and Akin Gump Strauss Hauer
my internship was canceled and immediately began to panic. & Feld LLP.
From the first day of law school, I learned the importance of Although my summer internship circumstances were
the first-year internship in advancing my legal career. At this unconventional, it forced me out of my comfort zone and
moment, I felt like I was losing one of only two opportunities challenged me to become a better version of myself. Within
I had to find my career path. Within minutes, I reached out eight weeks, I became a more confident writer, a new member
to the judicial secretary to reconsider my internship. In a of the Widener Law Review, and drafted a judicial opinion as a
detailed email, I explained that I was flexible and more than first-year law student. Further, I learned that attorneys and law
willing to draft opinions from home to gain the experience. students must always be adaptable and resilient so that justice
Shortly afterward, the judge’s law clerk responded to my email can prevail, even in a pandemic. After completing my judicial
with a new virtual start date and explained what my summer internship, I am no longer unsure of my calling. My place is in
internship would look like due to COVID-19. litigation. I am thankful for my virtual internship and learned
My internship was everything that I imagined. I expected a lot from crafting judicial arguments on paper. But now, I am
to observe criminal trials and motions in various courtrooms, ready to advocate for others.
assist the judge in legal research and writing, connect with
criminal law attorneys, and potentially find my career path.
During my virtual internship, I conducted extensive legal
research, analyzed trial transcripts, and drafted judicial opinions Brittany Stokes is a 2022 J.D. Candidate at Widener University
on complex legal issues from my living room. Each week, I Delaware Law School, staff editor for the Widener Law Review,
was given a new legal issue and a submission date. Throughout and a BARBRI Bar Prep student representative.
the summer, I worked on issues such as judicial discretion,
viable defenses, insufficient evidence, and ineffective trial
counsel. Upon completing my assignments, I reviewed and
the philadelphia lawyer Winter 2021 13Furthering the
‘Pursuit of Justice’:
The 2020 Ruth Bader
Ginsburg Writing
Competition Winners
age 87, many praised her sharp communication
skills as part of what made her such an effective
advocate for justice. The two winners of the 2020
W
hen the Philadelphia Bar Ginsburg competition are carrying on that legacy
Association presented the of scholarship, provoking discussion of critical legal
inaugural Justice Ruth Bader issues. Below are excerpts from their winning entries:
Ginsburg “Pursuit of Justice” Writing Competition “When They Come Home: Federal Responsibility
award in 2003, both RBG and her colleague, Justice for Offender Reentry,” by Sara Fishel, who will
Sandra Day O’Connor, were on hand to congratulate graduate in 2021 from Drexel University’s Thomas
the winner. O’Connor called the decision to name R. Kline School of Law, and “Out of the Looking
the award after Ginsburg “exceedingly appropriate.” Glass: Reassessing the Foreign Agents Registration
“Justice Ginsburg writes with a very deft and Act to Counter 21st-century Foreign Information
careful hand,” O’Connor told the audience that day. Warfare,” by Alexander Rojavin, a 2020 graduate of
“No one among us does it better.” Temple University’s James E. Beasley School of Law.
Indeed, when Ginsburg died in September at
14 the philadelphia lawyer Winter 2021When They Come Home: acknowledgement and encouragement. the man and starts walking with him
After everyone in the group has spoken, down the hallway. He reassures the man
Federal Responsibility for and their needs are all met, he steps that he came to the right place, he's going
forward. “I’ m not okay.” He tears up as to get the help he needs, to hold on just a
Offender Reentry he describes feeling overwhelmed and little bit longer, that the court will help.
stressed - he had lost his job and did not
By Sarah Fishel have the money to feed his family, “I’ m In 2020, the federal legal system
afraid I'm going to do something dumb.” held approximately 226,000 people
On a hot summer day, a group of The leader quickly makes his way to this in 110 prisons or jails. Since 2015, the
people gather in Philadelphia. One by man, offering his condolences, a hand Federal Bureau of Prisons has released
one, each person steps up and tells the on the shoulder, and immediate aid. The an average of 43,600 individuals back
group about their past two weeks. Some leader reminds him, “Once you’re in into their communities each year;
of the check-ins are short, “nothing new the family, you're always a part of the between January and May 2020, the
to report,” “I'm doing okay,” while family.” number of released individuals had
others take longer. Those gathered here As the meeting ends and participants already surpassed 17,000. But for many,
share successes and failures with the filter out of the room, a quick triage walking out of prison is only the first
group, and their laughter can be heard of the situation follows: a job will be step in their reentry process: the federal
outside the room. helpful but won't solve the immediate system maintains oversight of almost
Coordinators constantly move problem, but a small grant will help 115,000 individuals on supervised
around the outskirts of the meeting: if with food tonight. The office is closed, release. This large number is likely due
someone speaking indicates that they so he will have to wait a day or two for to the widespread imposition of post-
need help with food, work, clothing, a gift card in the mail. “That's going incarceration supervision: approximately
housing, mental health services, school, to take too long,” the leader says. “If I 80% of federal offenders are sentenced
or even services for their children or to walk over there right now, do you think to supervision, and the average term of
dispute a parking ticket, a coordinator the office will give me the gift card for supervised release is four years.
steps forward to make that connection in him so we can skip the mail?” Almost Traditionally, the responsibility of
real time. everyone except for the man, the leader, the federal government to these citizens
Sitting quietly, watching this and the support staff have left the room – has been relegated to United States
gathering, is a former member of the it’ s hot outside and late in the day. The Probation Officers. The vast majority
group. When he entered, coordinators coordinator pauses for a moment before of resources are spent on the “front
and group members patted him on replying, “Of course, Judge. ” end” of the judicial process and by the
the back and offered him smiles of The leader puts his robed arm around time the system releases an individual
the philadelphia lawyer Winter 2021 15“In considering the pursuit of justice, this Note will blend science and the law to argue that, in
committing to its responsibility to the people of the United States, the federal legal system has a
responsibility to all those it serves, including offenders.”
– Sarah Fishel, “When They Come Home: Federal Responsibility for Offender Reentry”
from custody, most of the legal actors - Out of the Looking Glass: purpose is to negate the effectiveness
the prosecution team, defense lawyers, of foreign-abetted disinformation
investigators, judges, etc. – have moved Reassessing the Foreign and maintain content neutrality while
on to the next case. At this point, many doing so, thereby staying abreast of the
would say that justice has been served – Agents Registration Act to First Amendment.6 Indeed, the federal
an individual was wronged, the offender government successfully brought FARA
was punished, and the responsibility of Counter 21st century Foreign to bear against several entities complicit
the legal system to preserve order and in disseminating the post-MH17
justice has been fulfilled. Information Warfare disinformation miasma and forced them
A new wave of thinking about to register as foreign agents, which
jurisprudence has challenged this By Alexander Rojavin necessitates their conspicuously marking
traditional notion of justice with a all disseminated communications as
simple question, “What comes next for I. Introduction representations made by an agent on
the offender?” Or, more specifically, behalf of a foreign principal.7 This main
“What happens to the man after he's left On July 17, 2014, Malaysia Airlines obligation that comes with registration
the group?” In considering the pursuit Flight 17 (MH17) was shot out of the is woefully insufficient in 2020 and lays
of justice, this Note will blend science sky over Eastern Ukraine, resulting in bare FARA’s fecklessness.
and the law to argue that, in committing the immediate death of all 298 people FARA needs to be reassessed and
to its responsibility to the people of the onboard.1 Mere hours later, broad updated to better enable the U.S.
United States, the federal legal system consensus among reputable news government to counter 21st-century
has a responsibility to all those it serves, sources indicated that a BUK missile foreign disinformation efforts. As
including offenders. Part I of this Note shot by Russian-backed forces from a arguments rage on front pages about
broadly discusses the responsibility of Russian-made missile system destroyed how to reform Section 230 of the
the Federal legal system to its citizens the plane.2 Then, the cacophony Communications Decency Act,8 FARA
and the impact of citizen's perceptions began. A sprawling, Kremlin-backed has slid out of attention, even though it
on the legitimacy of the institution. Part disinformation effort swept across has become the federal government’s
II discusses responsibility in the context the international information space, primary counter-disinformation tool.9
of the impact of the federal system spawning myriad narratives, each more Despite its primacy, however, its
on offenders, including the collateral phantasmagorical than the last. Logic and effectivity is in question.10 Part II of
consequences that involvement with reason receded as news consumers were this paper briefly surveys FARA’s
the federal system creates for offenders informed that the Ukrainian military had history, purpose, and disappearance
post conviction. Finally, Part III briefly mistaken the plane for a military target into virtual irrelevance. Part III then
explains the concept of therapeutic and shot it down in error; no, it was a explores FARA’s return to prominence,
jurisprudence and argues that it is the botched assassination attempt on Putin; notes how it is enforced today, and
responsibility of the federal legal system no, the plane had been stuffed with explains the probable inefficiencies of
to pursue applications of the legal corpses before takeoff and was destroyed its anachronistic deterrent mechanisms.
framework to the reentry process through in a cynical provocation designed to turn Part IV provides recommendations
programs such as Reentry Courts in order the world against Russia.3 We had fallen for ascertaining FARA’s utility and
to preserve and pursue justice for all. through a looking glass haunted by such updating its prescriptions for the 21st
nightmares that Alice could not even century. FARA can be an effective
imagine. anti- disinformation tool if it is first
Sarah Fishel is a Drexel University In the years since, though unshackled from remedies that were
Thomas R. Kline School of Law student. Congressmembers have introduced appropriate in the 20th century, but fail
For the complete essay, go to https://www. multiple bills addressing foreign to contend with the strategic and political
philadelphiabar.org/WebObjects/PBA. disinformation offensives,4 the federal realities of the 21st.
woa/Contents/WebServerResources/ government’s primary — and flawed
CMSResources/ginsburgessay2020_ — counter- disinformation instrument II. A Brief History of FARA
WhenTheyComeHome.pdf. has remained the Foreign Agents
Registration Act (FARA).5 FARA’s In 1938, President Roosevelt signed
16 the philadelphia lawyer Winter 2021“Congress had greatly strengthened America’s information space against foreign subversion
and ensured that the fourth estate—a most critical facet of a democracy’s immune system—
could function with significantly less disinformation inhibiting its work.”
– Alexander Rojavin, “Out of the Looking Glass: Reassessing the Foreign Agents Registration Act to Counter 21st-century Foreign Information Warfare”
FARA into law. This law — enacted as upset any legislative drafter,16 but it was Perhaps Congress’s most inspired
the Nazi regime steadily unfurled its an unfortunately logical consequence decision was its choice of countermeasure
war machine and as the Terror swept of the environment in which Congress for neutering propaganda-disseminating
across the Soviet Union — was intended was legislating: considering the many entities’ effectiveness: public shaming
to protect U.S. information space from channels through which disinformation and ostracizing. FARA demands that all
subversive entities abetting either the was disseminated,17 the many different communications issued by registered
Nazi or Soviet information war efforts.11 forms a foreign, disinformation-peddling foreign agents be accompanied by
With television still a technology of the entity could take,18 and the often murky “a conspicuous statement that the
future and newspapers and radio serving relationship between such an entity and information is disseminated by…agents
as the primary sources of information the authoritarian regime controlling on behalf of [a] foreign principal.”22
for most American families, the duties it,19 the breadth of FARA’s definitions Furthermore, foreign agents must make
imposed by FARA on entities that would reasonably equipped the federal periodic public disclosures of their
soon be classified as foreign agents government to take on a shapeshifting “identities, agency, activities, receipts[,]
were designed to neuter any influence and ill-defined series of actors. and disbursements.”23 Considering that
such entities could have on the national 1938 was a period of U.S. history when
discourse.12 B. State Department Oversight both sides of the aisle acknowledged who
the nation’s enemies were, being labeled
1. FARA Ascendant Congress made another important an agent of Goebbels or Beria would have
decision by initially housing FARA made one a pariah; such an entity—be it
FARA was simple yet effective for oversight and implementation within a person or an organization—would find
the time. Its strength stemmed from three the State Department until transferring few if any willing American listeners.24
things: broad definitions of key terms, responsibilities to the Department of In a single act of lawmaking, Congress
State Department oversight, and public Justice (DOJ) in 1942.20 There is a had greatly strengthened America’s
shaming as the primary countermeasure lamentable lack of scholarly analysis information space against foreign
to disinformation. or legislative history explaining either subversion and ensured that the
the original decision or the subsequent fourth estate—a most critical facet
A. Broad Definitions transfer of mandate, but it is safe to of a democracy’s immune system—
assume that the original decision served could function with significantly less
The law featured purposefully as an implicit acknowledgment of the disinformation inhibiting its work.
vague definitions of key terms, which importance of having the law be overseen Importantly, Congress had accomplished
allowed considerable flexibility in by foreign affairs specialists. After all, this while keeping FARA content-neutral
enforcement. Though this ambiguity is FARA was a statute borne of foreign and thereby staying abreast of the First
widely viewed as deleterious today,13 policy considerations—it was meant Amendment—public disclosures and
having broad definitions of terms as a tool to counter foreign propaganda conspicuous statements do not force
like “foreign principal” and “political efforts. 21 Who better to identify foreign foreign agents to alter the content of
activities” accorded the government “a propaganda strategies and actors than their disseminated communications,
wide net to capture the propaganda of the State Department’s expert analysts and their status as foreign agents was
adversaries.”14 For example, an “agent and diplomats, who presumably had a determined without consideration of
of a foreign principal” is defined as any comprehensive understanding of German the communications’ content.25 FARA
“person”—in turn sweepingly defined as and Soviet propaganda campaigns? By was completely blind to content—and
“an individual, partnership, association, granting the original mandate to the therefore constitutional.26
corporation, organization, or any other State Department, Congress implicitly
combination of individuals”—operating highlighted the most important
per the order, request, direction, or competencies and areas of expertise Alexander Rojavin is a graduate of Temple
control (none defined) of a foreign that were necessary to implement FARA University’s James E. Beasley School of Law.
principal or any person under the direct or effectively and appropriately; counter- For the complete essay, go to https://www.
indirect (neither defined) “supervis[ion], propaganda efforts should be a concern philadelphiabar.org/WebObjects/PBA.
direct[ion], [control], financ[ing], primarily for foreign affairs experts. woa/Contents/WebServerResources/
or subsidiz[ation]” of a foreign CMSResources/ginsburgessay2020_
principal.15 The lack of specificity in C. Public Shaming as Countermeasure OutoftheLookingGlass.pdf.
this “definition” alone is enough to
the philadelphia lawyer Winter 2021 17You can also read
