Vol. 71, No. 3 Philadelphia Bar Association Quarterly Magazine Fall 2008

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The PhiladelPhia

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Vol. 71, No. 3 Philadelphia Bar Association Quarterly Magazine Fall 2008

Departments

4 About This Issue by Adrienne CornwAll

6 From the Editor by Peter VAirA

Looking for perspectives from across the profession

8 Briefs and Necrology ComPiled by Adrienne CornwAll

10 Ethics by meredith brennAn

Are e-mails between an opponent and opposing counsel privileged?

12 Election Law by GreGory m. hArVey Lessons learned from the 2000 and 2004 elections

16 Advocate by JonAthAn m. Stein A dissenting opinion from the Tax Reform Commission offers his perspective on the Business Privilege Tax

18 Public Interest by mArtin CoStello

LawWorks keeps Philadelphia neighborhoods strong through legal assistance to homeowners and business

58 Technology by dAniel J. SieGel

Finding old versions of Pennsylvania regulations is a breeze with some online research tips

62 Book Review by hArold K. Cohen

Norman Pearstine, former editor-in-chief of Time Inc., gives a glimpse of the inter-nal back-and-forth over the Valerie Plame leak and gov-ernment involvement in the media’s use of anonymous sources in Off the Record

64 That Was ThenAfrican-American judges in Philadelphia gather at a 1978 Barristers’ Association luncheon

Features

20 Alive and WellThe Philadelphia lawyer upholds a tradition of representing un-popular clients by thomAS G. wilKinSon Jr. And JoSePh A. SulliVAn

24 Bull TrendRepresenting participants in an up-and-coming professional sport presents unique challenges by ChriStoPher J. CAbott

28 Annals of Justice: A Sentence for StructuringWhat determines a win or a loss is hindsight by SteVe lACheen

32 Diversity NowObstacles to diversity in law firms are evolving by dr. SeAn KAthleen linColn And Adrienne CornwAll

34 10 Questions for Louis S. RulliThe longtime legal aid services advocate becomes Penn Law’s clinical program director by miChAel J. CArroll

38 Local TreasuresPhiladelphia has an opportunity to refine its cultural heritage policy by ShAron m. erwin

42 Sticky Buns for Justice BlackmunA memorable trip to the Supreme Court by dAniel J. SieGel

44 Sustainable JusticeFirms can join the green movement by AlexAnder G. bomStein

50 The “American Dream” DeferredThe winning essay in the Ruth Bader Ginsburg “Pursuit of Jus-tice” Legal Writing Competition by mAry ClArK

2 the philadelphia lawyer fall 2008 cover photograph: john c. carlanoshot on location at monti-rago funeral home

© Images.com/Warren Gebert

© Images.com/Art Valero

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ABOUT THIS ISSUE

ThePhiladelphia

LawyerEditor-in-ChiEf

Peter F. VairaEditorial Board

Deborah WeinsteinNiki T. IngramKim R. JessumLewis RosmanDaniel J. Siegel

Jennifer J. SnyderJustine Gudenas

Arlene Rivera FinkelsteinSteven R. SherMay Mon Post

David I. GrunfeldStephen Robert LaCheen

Harold K. CohenJohn C. Gregory

Richard G. FreemanApril M. Byrd

Emmanuel O. IheukwumereAudrey C. TalleyMichael J. CarrollJames Backstrom

Editor Emeritus

Herman C. Fala

Managing Editor

Adrienne Cornwall

Philadelphia Bar Association

ChanCEllor

A. Michael PrattChancellor-Elect

Sayde J. Ladov

Vice Chancellor

Scott F. Cooper

Secretary

Kathleen D. Wilkinson

assistant Secretary

Sophia Lee

treasurer

Jeffrey M. Lindy

assistant treasurer

Joseph A. Prim Jr.

Executive director

Kenneth Shear

Yesterday, Today, TomorrowB y A D R I E N N E C o R N W A L L

Whether at home, at work or in the world at large, his-tory often repeats itself. By examining closely and learning from our past, the

future can hold different outcomes. Contributors in this issue of The Philadelphia Lawyer offer a perspective on how the world was, and how it can be in the future.

In our cover story, Thomas G. Wilkinson and Joseph A. Sullivan take us back in time to the days of Alexander Hamilton, the quintessential “Phila-delphia lawyer,” by visiting with some of today’s practitioners who are keeping his tradition alive. These standout attorneys eschew the cynicism surrounding the state of the legal profession and pursue justice for their clients without prejudice, proving that the Philadelphia lawyer is indeed “Alive and Well.”

In his retelling of a roller-coaster representation of a young Orthodox Jewish man, Steve LaCheen looks through the lens of hindsight to reveal that what he thought were wins were actually losses in the larger picture of his client’s mysterious and tragic life. “A Sentence for Structuring” follows the case’s ups, downs and ultimate consequences.

Fifteen years ago, law firms were just begin-ning the process of incorporating the concept of diversity into their business culture. At that time, the Philadelphia Bar Association’s Minorities in the Profession Committee drafted the Statement of Goals for the Retention and Promotion of Mi-norities, a landmark document that encouraged firms around the city to take a serious look at their cultures. Today, obstacles to diversity look and feel different as they have evolved along with the defi-nition of diversity itself. In “Diversity Now,” Dr. Sean Kathleen Lincoln and I try to paint a picture of the subtle differences between the obstacles of yesterday and today.

Philadelphia has the privilege and responsibility to maintain a rich inheritance of cultural treasures, from The Dream Garden to The Gross Clinic. In “Local Treasures,” attorney Sharon M. Erwin ana-lyzes local and foreign policies on cultural heritage

and ways in which Philadelphia can capitalize on its current absence of a work-specific crisis after a flurry of high-profile situations.

Looking forward to November, America has the benefit of two elections’ worth of case law from litigation resulting from contested presidential races. “History Lessons,” by Gregory M. Harvey, distills the major issues from 2000 and 2004, as well as the legislative remedies enacted in re-sponse to the lawsuits that may be tested in this year’s campaign.

Finally, offering an alternative perspective on our last issue’s Advocate piece on the city’s tax structure, Jonathan M. Stein revisits his role on the Tax Reform Commission by exploring the downside of cutting the Business Privilege Tax. In “No Magic Bullet,” Stein outlines the reasons behind his dissenting opinion on the commission and his recommendations on how the city can reach a brighter, more solvent future.

Exploring the past with objectivity can be chal-lenging, yet it can also reap great rewards for the future. Armed with awareness and an understand-ing of context, we can shape the course of our own legacy for future generations. n

Adrienne Cornwall is managing editor of The Philadelphia Lawyer. Her e-mail address is acornwall@philabar.org.

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The Philadelphia Lawyer, 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. Subscription cost: $45 yearly. 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. Advertising rates and information are available from Howard Hyatt, Senior Account Manager, MediaTwo, 1014 W. 36th St., Baltimore, MD, 21211, (410) 828-0120, ext. 250. Periodicals pending postage at Philadelphia PA and additional locations.

© Images.com/John Berry

“Diversity Now” offers a glimpse at how diversity efforts have changed since the issue became more prominent a few decades ago.

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n Law Firm Mergers and Lawyer Transfers. The practice of law has changed dramatically in the past fifteen years. Hundreds of firms have merged, creating megafirms with offices across the country. Mid-sized firms are drying up or being absorbed. Every year hun-dreds of partners and associates transfer from firm to firm and will continue to do so. Are partners now simply the equivalent of junior corporate vice presidents to be replaced as the economy dictates? Is this good for the bar? Is it good for the clients?

n Too Many Law Graduates? Are the law schools turning out too many lawyers? Will they all find jobs in the law profession? Are the law schools giving the graduates a realistic picture of the practice of law? Apparently there is a significant movement in this area, as the ABA publishes a book Non Legal Careers for Lawyers, now in its fifth edition.

n Contract Attorneys. Currently many large firms employ large numbers of what are described as con-tract attorneys who are employed on an as-needed basis, with no hopes of be-coming a partner or moving up in the firm. Is this a good practice? Is this a procedure that will become a permanent part of the law practice?

n The Disappearing General Practitio-ner. With the growth of the mega law firms, what has happened to the small-office general practitioner who has tra-ditionally served the general public and small businesses? Is this a dying breed? Do the law schools even mention this part of the practice?

n Alternative Billing. The law firms are wedded to billing by the hour. We have seen numerous articles suggesting alter-native billing. Is this realistic?

n Who Will Train the Trial Lawyers? Despite all the emphasis on mediation and settlement, some cases simply won’t

settle, and there must be qualified trial law-yers who can face a jury or complex bench trial. Where will those persons gain their experience? It is not a skill learned from a book or a CLE course. There are fewer and fewer skilled trial lawyers in the upper ranks of large firms. We can’t go on say-ing pro bono cases will provide that experi-ence.

n Appointment of Federal Magistrates to Federal District Court. In the Eastern Dis-trict of Pennsylvania there has never been a federal magistrate judge that has been appointed to the bench as a federal district

court judge. In some other federal districts, magistrate judges are selected as district judges, taking advantage of the training and ex-perience of the magistrate judges. The Northern District of Illinois has done it several times. We have very talented and experienced magistrate judges in the Eastern District. Why not here? We would like to hear from former magistrate judges and former district court judges, and especially the United States Senators from Penn-sylvania on the subject.

If you are interested in voicing your opinion on any of these sub-jects, or other topics you feel are relevant to the practice of law to-day, please contact me to discuss the requirements.

Peter Vaira, a member of the editorial board of The Philadelphia Lawyer, is a partner in the law firm of Vaira & Riley, P.C. His e-mail address is p.vaira@vairariley.com.

6 the philadelphia lawyer fall 2008

frOm THE EdITOr

Pen to PaperBy PETER VAIRA

6 the philadelphia lawyer fall 2008

I have the honor to serve as the editor of The Philadelphia Lawyer magazine for the next year. During this time, I would like to see the magazine become a forum to explore many of the major issues that face the legal profes-

sion today. I would like to see articles or commentaries from members of the bar or other professionals on the following subjects.

Jeff Lyons

“I would like to see the magazine become a forum to explore many

of the major issues that face the legal

profession.”