The Legal Intelligencer Blog

After Convictions, Ciavarella and Orie Suspended From Bar

By Gina Passarella
Of the Legal Staff

The Pennsylvania Supreme Court issued two orders today placing former Luzerne County Common Pleas Court Judge Mark A. Ciavarella Jr. and state Senator Jane C. Orie on temporary suspension from the Pennsylvania bar because of their criminal convictions.

The orders, which stem from actions taken by the Office of Disciplinary Counsel, come after both Ciavarella and Orie were convicted of various corruption charges in separate and unrelated criminal trials. Supreme Court Justice Joan Orie Melvin did not participate in the court’s decision to suspend her sister Jane Orie.

Ciavarella was convicted for his role in the Luzerne County judicial corruption scandal and sentenced to 28 years in prison. Fellow former Judge Michael Conahan, sentenced to 17.5 years for his role in the scandal, was disbarred on consent from the bar in 2011.

Jane Orie was convicted on 14 of the 24 corruption charges she faced related to having her legislative staffers conduct campaign work on state time.

Gina Passarella is the senior reporter for The Legal. She can be contacted by e-mail at [email protected] or phone at 215-557-2494. Follow her on Twitter at @GPassarellaTLI.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story comes from PLW, as reporters Ben Present and Zack Needles write about questions looming over the Lackawanna County Family Court guardian ad litem program. A review of family court records by the reporters reveals that the court contracted one person to act as guardian ad litem an average of 88 cases per year between 2009 and 2011. This came after there were no such appointments in 2007 or 2008. There will be more on this story in subsequent issues of The Legal and PLW, so stay tuned.

Below the fold on Page 1, Ben Present writes that a trial court may not refuse to award contractual interest to a prevailing party if the agreement provides for a specific amount. The state Supreme Court reversed a split panel of the Superior Court in TruServ Corp. v. Morgan’s Tool and Supply Co.

On Page 3, reporter Amaris Elliott-Engel writes in an allocatur story that the state Supreme Court is going to consider if health care providers or their records-producing proxies must disclose their actual and reasonable costs of producing charts and records.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he discusses a county president judge interfering with a district judge’s constitutional rights; Brandon Swartz’s Personal Injury column on diagnostic testing and bone scans; a $2.6 million medical malpractice verdict heading back to trial court after a second appeal; and Shelly Pagac and Jennifer Russell’s commentary on Employment Law and English-only rules in the workplace.

The lead story in today’s Legal is a look at profit margins and how they relate to a firm’s fiscal health. As reporter Gina Passarella writes, the profitability of firms has become an increasingly important issue. Of the 10 Pennsylvania-based firms that have reported financials so far this year, profit margins range from 22 percent to 44 percent.

Also above the fold on Page 1, Zack Needles writes that a federal judge has preliminarily approved the $17.75 million settlement of the “kids-for-cash” lawsuit. Robert K. Mericle, the builder of two juvenile detention centers who allegedly paid millions in “finder’s fees” to former Luzerne County Judges Michael T. Conahan and Mark A. Ciavarella Jr., agreed to the settlement in December in a civil suit brought by a class of juvenile plaintiffs.

Below the fold on Page 1, Amaris Elliott-Engel writes that a Lehigh County judge has upheld a $23.1 million award in a medical malpractice case in which a woman had both of her legs and a finger amputated because of an infection that went septic and gangrenous.

In more Regional News on Page 3, Hank Grezlak has a From the Chief column in which he asks when men are going to put an end to the boys’ club and stop the misogyny that has become all too common.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

On Page 5 today is Peter F. Vaira’s look at the Eastern District, as he writes about the use and misuse of depositions in a conversation with Dennis R. Suplee, an expert in depositions from Schnader Harrison Segal & Lewis.

In a Business of Law column on Page 7, Frank Michael D’Amore writes the second in a series about the top areas where law firms differ, including their willingness to embrace change.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Conahan's Sentencing Set for Sept. 23

By Zack Needles
Of the Legal Staff

Former Luzerne County Common Pleas Court Judge Michael T. Conahan's sentencing has been scheduled for Friday, Sept. 23, in Scranton.

The news comes less than two weeks after Conahan's alleged co-conspirator and fellow former Luzerne County Common Pleas Court Judge Mark A. Ciavarella was sentenced to 28 years in prison following his convictions on 12 of 39 counts of corruption filed against him, including racketeering, racketeering conspiracy, honest services mail fraud, money laundering conspiracy and a host of tax fraud charges.

Conahan (pictured above), who faced an equally damning indictment, opted to plead guilty last year to one racketeering charge in relation to the alleged crimes.

U.S. Attorney Peter Smith said following Ciavarella's Aug. 11 sentencing hearing that no one should underestimate the "major role" Conahan played in the scandal.
 
Zack Needles can be contacted at [email protected] or at 215-557-2493. Follow him on Twitter @ZNeedlesTLI.

Fresh Ink: Inside Today's Legal

By Jaime Bochet 
Of the Legal Staff

Good Monday morning, and welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage.  (Some stories may require registration or a paid subscription.)

The lead story on today's front page is a piece by reporters Zack Needles and Ben Present and editor-in-chief Hank Grezlak: A Lackawanna County judge e-mailed fellow Democrats in 2004 advising them how to oppose a county voting redistricting plan and urging them to not "tell anyone this petition has been assigned to me." The redistricting plan had been proposed by a Republican county administration. The Scranton Times-Tribune first reported the story Aug. 18 regarding Lackawanna County Common Pleas Court Judge Terrence R. Nealon's December 2004 e-mail. In the article, Nealon admitted to writing the e-mail and to having committed "a lapse in ethical judgment." The newspaper also posted the e-mail on its website.

Also sharing the top of the page, senior reporter Gina Passarella writes that legendary Philadelphia attorney, humanitarian and former American Bar Association president Jerome J. Shestack has died at 88 from renal failure. A dean of the Philadelphia bar and advocate up to the end of his life, Shestack most recently worked as a retired partner at Schnader Harrison Segal & Lewis, the firm he left in 1991 to join Wolf Block and rejoined after Wolf Block's collapse in 2009.

Below the fold, U.S. Courthouse Correspondent Shannon P. Duffy writes that a lawyer who claims that his addiction to video games caused him to botch the handling of 17 cases has been suspended from practicing law for three years by the Pennsylvania Supreme Court.

Our Page 3 Regional News story today is a business of law story from Gina: Contingency fees not yet realized at the time of a law firm partnership dissolution must still be shared among the former partners, a divided Pennsylvania Superior Court panel has ruled. The court said in Huber v. Etkin that, under the Uniform Partnership Act, the trial court was correct to rely on the legal principle that "contingency fees realized after dissolution of a partnership are subject to distribution pursuant to each partner's share in the net profits after factoring in all proper charges or costs."

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

The Legal's contributed columns begin on Page 5, with our "Health Care Law" column by Vasilios J. Kalogredis and Karilynn Bayus of Kalogredis Sansweet Dearden & Burke: Recently, the Centers for Medicare and Medicaid Services (CMS) issued an advisory opinion (No. 2011-01) approving under the federal Physician Self-Referral statute (commonly referred to as the Stark Law) a physician recruitment arrangement that included a non-competition clause.

Page 7 is our "Public Interest" page, which features two articles: One by Baruch Kintisch of the Education Law Center, who writes that Pennsylvania lacks a long-term plan for preserving and strengthening its 3,300 public schools, which serve 1.8 million children in the commonwealth; and one by Mark J. Murphy of the Disability Rights Network of Pennsylvania, who writes that people with disabilities have been hurt by state budget cuts.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

Ciavarella Tells Court He's Broke

By Zack Needles
Of the Legal Staff

Former Luzerne County Judge Mark A. Ciavarella has filed an application asking the court to declare him indigent.

Ciavarella is currently serving a 28-year term in federal prison for his role in the Luzerne County judicial corruption scandal.

As part of the judgment of sentence, U.S. District Court for the Middle District of Pennsylvania Judge Edwin M. Kosik ordered Ciavarella to pay nearly $1.2 million in restitution.

According to the application filed Wednesday, Ciavarella, who is also the subject of a number of lawsuits and has "several judgments against him in excess of $100,000," has less than $300 in cash and less than $200 in his prison account.

Ciavarella "owns no real estate, stocks or bonds and his automobile is virtually valueless on the market," the application said.

The application also said Ciavarella's pension contributions are likley to be placed in a trust and "may be subject to various claims including one by the United States government."

Ciavarella's lawyers, Al Flora and William Ruzzo, also indicated in the application that they would seek to be appointed Ciavarella's appellate counsel by the U.S. Court of Appeals.

Zack Needles is a reporter for The Legal. He can be contacted at [email protected] or 215-557-2493. Follow him on Twitter at @ZNeedlesTLI.

Live Tweeting Ciavarella's Sentencing

Follow reporter Zack Needles on Twitter @ZNeedlesTLI tomorrow for live tweets from former Luzerne County Judge Mark A. Ciavarella Jr.'s sentencing hearing beginning at 9 a.m.

To check out our past coverage of Ciavarella and the Luzerne County kids-for-cash scandal, head to The Legal's homepage.

Fresh Ink: Inside Today's Legal

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

Topping our headlines this Monday morning, U.S. Courthouse Correspondent Shannon P. Duffy writes: A prosecutor has no immunity from a civil rights suit alleging that a material witness in a murder case was jailed indefinitely because the prosecutor failed to inform the court that the murder trial was delayed by several months, the 3rd U.S. Circuit Court of Appeals has ruled. "No reasonable prosecutor would think that she could indefinitely detain an innocent witness pending trial without obtaining reauthorization," U.S. Circuit Judge D. Brooks Smith wrote in the 47-page opinion in Schneyder v. Smith.

Below the fold on the front page is an update on the Luzerne County scandal from reporter Zack Needles: The state Supreme Court has approved about $65,000 in restitution for the victims of juveniles whose convictions were overturned following the Luzerne County "kids-for-cash" scandal.

On Page 3, senior reporter Gina Passarella has a "Dealmakers" story: Duane Morris' work on the sale of start-up company client Vicept Therapeutics is evidence that one good deed can lead to another, or, perhaps, one good deal to another.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

The first of our contributed articles today, found on Page 5, is our "Antitrust Law" column by Carl W. Hittinger of DLA Piper, who explains why antitrust defendants should applaud the June 20 U.S. Supreme Court landmark decision Wal-Mart v. Dukes.

Our Page 7 "Real Estate" column by Martin J. Doyle and Bruce P. Bowen of Saul Ewing is about letters of intent. What happens if one or the other party is under the impression that the letter of intent was in fact "the deal," and seeks to enforce this term sheet, following an acrimonious breakdown of negotiations? This can be an attorney's nightmare.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

Supreme Court Posts Amounts Paid to Luzerne County Victims

By Zack Needles
Of the Legal Staff

The state Supreme Court on Thursday posted three special master determinations that collectively listed the names of over 100 victims of juveniles whose convictions were tossed out following the Luzerne County "kids-for-cash" scandal and the amounts each will be compensated from the Special Juvenile Victim Compensation Fund, which was established in 2010 "solely to provide compensation to victims of juvenile crime in a county of the third class."

A quick scan of the lists shows the largest awards to be in the $1,200 to $1,500 range.

According to the documents, the amount to be paid to each victim is equal to what each would have been entitled to had a consent decree or adjudication of delinquency not been vacated in his or her case, minus any compensation that may have already been paid in connection with the alleged crime.

Watch The Legal's website Friday as well as Monday's print edition for more about the payments.

Zack Needles is a reporter for The Legal. He can be contacted at [email protected] or 215-557-2493. Follow him on Twitter at @ZNeedlesTLI.

Ciavarella's Post-Trial Motions Denied

By Zack Needles
Of the Legal Staff

U.S. District Judge for the Middle District of Pennsylvania Edwin M. Kosik has denied former Luzerne County Judge Mark A. Ciavarella Jr.'s post-trial motions.

As previously reported here, Ciavarella had petitioned either to be granted a new trial or to have his racketeering and honest services fraud convictions overturned, which would have left him guilty of only tax fraud charges.

But in a five-page order issued Thursday, Kosick said the former judge's arguments were groundless.

In February, a federal jury in Scranton found Ciavarella guilty of 12 of 39 counts of corruption filed against him, including racketeering, racketeering conspiracy, honest services mail fraud, money laundering conspiracy and a host of tax fraud charges. Ciavarella was cleared of extortion, bribery and honest services wire fraud charges, however.

In a series of motions filed in March, Ciavarella argued that the prosecution's evidence failed to prove that the allegations of racketeering and money laundering conspiracy occurred within the five-year statute of limitations or that money he received from the builder of two juvenile detention facilities was illegal in any way.

Kosik, in his order, sided with he prosecutors in the case, who had argued that this issue was waived because the defense failed to bring it up before trial. 

Ciavarella had also argued in his motions that Kosik had erred by not allowing him to introduce into evidence comments made by Assistant U.S. Attorney Gordon Zubrod during plea hearings for developer Robert K. Mericle and a former co-owner of the juvenile detention facilities, Robert J. Powell.

Ciavarella had hoped to use those statements, which included Zubrod saying Mericle's payments to Ciavarella amounted to nothing more than a finder's fee, in his defense.

Kosik, however, said in his order that Zubrod's statements "were not the equivalent of testimonial statements of fact" and that, even if the court had erred by not allowing those statements as evidence, "the exclusion of a statement by an attorney in another trial, while held to be a party admission, was ruled a harmless error."

Ciavarella had also hoped to keep out of the case any reference to civil cases he heard as a judge involving Mericle or Powell. Kosik let prosecutors mention those cases and, in Thursday's order, sided with their argument that the evidence was "intrinsic" and part of the proof of the charges.

Kosik also denied Ciavarella's motion for recusal, whichhad been part of the defense's pre-trial motion as well, saying the defense provided no new reasons for recusal.

Zack Needles is a reporter for The Legal. He can be contacted at [email protected] or 215-557-2493. Follow him on Twitter at ZNeedlesTLI.

Ciavarella Begins Appeals Process With Series of Motions

By Leo Strupczewski
Of the Legal Staff

Convicted last month of racketeering and honest services fraud, Former Luzerne County Common Pleas Court Judge Mark A. Ciavarella has filed a series of motions to have the most serious charges against him tossed.

Three separate documents filed by Ciavarella's attorneys Friday challenged the sufficiency of evidence presented by federal prosecutors and rulings made by the judge who oversaw the seven days of trial and two days of jury deliberations. In them, Ciavarella asks for an arrest of judgment, acquittal or new trial on seven of his 12 convictions.

Absent from the challenges are any mentions of Ciavarella's five tax fraud and fax fraud conspiracy convictions, to which he admitted near universal guilt while on the witness stand during trial.

Instead, the former judge has targeted the two counts of racketeering, four counts of honest services wire fraud and one count of money laundering conspiracy.

In his motion for acquittal, Ciavarella argued that the prosecution's evidence failed to prove that the allegations of racketeering and money laundering conspiracy occurred within the five year statute of limitations or that money he received from the builder of two juvenile detention facilities was illegal in any way.

Further, Ciavarella argued, the U.S. Supreme Court's decision last year in U.S. v. Skilling, which limited the honest services fraud to bribery and kickbacks, barred him from being tried on those charges.

Ciavarella argued the premise of his conviction on the honest services charges was "non-disclosure of conflicts of interest."

Ciavarella also argued in his motion for a new trial that U.S. District Court Judge for the Middle District of Pennsylvania Edwin M. Kosik had erred by not allowing him to introduce into evidence comments made by Assistant U.S. Attorney Gordon Zubrod during plea hearings for developer Robert K. Mericle and a former co-owner of the juvenile detention facilities, Robert J. Powell.

Ciavarella had hoped to use those statements -- which included Zubrod saying Mericle's payments to Ciavarella amounted to nothing more than a finder's fee -- in his defense.

He had also hoped to keep out of the case any reference to civil cases he heard as a judge involving Mericle or Powell. Kosik let prosecutors mention those cases.

Ciavarella was accused by federal prosecutors in January 2009 of concocting a "kids-for-cash" scheme with fellow former Luzerne County Common Pleas Court Judge Michael T. Conahan and taking more than $2.8 million from Mericle and Powell.

A jury, however, only found Ciavarella took $997,000 from Mericle in his capacity as a judge, conspired to launder that money and lied about it on his tax returns.

Conahan pleaded guilty to a racketeering charge in an open-ended agreement with federal prosecutors.

Mericle and Powell also admitted wrongdoing for their roles in the case.

A spokeswoman for the U.S. Attorney's Office, Heidi Havens, was not available for comment.

One of Ciavarella's attorneys, Al Flora, said briefs to support the motions must be filed within 14 days under court rules. Prosecutors are then able to file briefs in opposition and Kosik will make rulings on the issues.

Meanwhile, federal probation officials have already begun the process of putting together Ciavarella's pre-sentence report, Flora said.

Leo Strupczewski can be e-mailed at [email protected].