05/03/2008 83:89 7177853699 PATRIOT-NEWS CAPITOL PAGE 81/21 CoV MONWEALTH OF PerNsYLvANIA Orrice oF ATTORNEY GENERAL lem rico Hagmisaurc, PA I7120 sreswsenny £6405 Katntsen G. Kare aa November 13, 2015 Chair of the Special Committee on Senste Address The Honorable John i, Gordner Room 177, Main Capito! Building Harrisburg, PA 1712:-3027 RE: Subpoena Duras Tecum Response The Special C 2 nmittee on Senate Address Dear Senator Gordne: ‘As discussed in my eltsr of November 6, 2015, the Pennsylvania Consti ution and the long standing precedent ev: forth from various attempts for direct address by th: Governor and the Senate, both for the taper use of direct removal in the case of senility or saysical incapacity, and in the improper vse of side stepping the Impeachment process, it continues to be my position that this Spe sia! Committas on Senate Address lacks the juriscieticn, under Article VI, Section 7 of the Const'tution in this proceeding to inquire into, hear and determine said action and thal this proces: :leprives an electzd official the right fo trial by jury guaranteed under Article 1, or to a trial regular ptcceecings by impeachment in accordance with Sections 1, 2, and 3 of Article VI of the Pennsy'vania Gonstitution. Said action deprives Office of Attormey General following the suspens:cn of the Attorney General's law. isense which became effective on October 22, 2018. Response: £ svond the document provided pursuant to your requesi #3, | am not aware of any other c'acuiments that exist. Any and all cn munications from the Attorney General to the emplo; ces of the Office of Atiorney Gens related te the suspansion of the Attorney General's law license, Response: ['c document axists. any and all communications sent to the Attorney General fron or produced by ‘employees 0° ‘ne Office o* Attorney General related to the suspen ian of the Attomey General's law licanse, Response: £2+ Attachment #1 A description «i any duties or functions the Attorney General has delegated to other employees 0° the Office of Attorney General which cannot be perfc med or effectuated due to the su:pension of the Attorney General's law license. Response: £9: Attachment #2 ‘Any opinion n° planation of the legal authority of the Attorney Genisral to deleaate any duties or furssinns to the First Deputy since there has not beer a “vacancy in the position of At:s-rey General’. Response: F'xsuant fo the Commonwealth Attomey’s Act, this age ey may not provide legal opinions: t: anyone other than a Commonwealth Agency, after raper request. ‘A common esse reading of thet Act faile to identify any provision which prohibits the Attomey Ger'z-al from cesignating any deputy or employee to erform the various functions of ‘1: office. Practically speaking, it would be impossi! i for the Attorney General to orerate withou' delegation of duties to the approximatel r (835) members of OAG, with state wide jurisciction, deafing with numerous divisions in the agency. I have enclosed the orass releases of the activities of AG on behalf of Po) nisylvaniane for this past week, £2e Attachment #3 All filings anc socumentation require under Section 217 of the Pe insylvania Rules of Disciplinary E-v‘oreement related to formerly adiritted attorneys.05/03/2008 83:89 7177853699 PATRIOT-NEWS CAPITOL PAGE 83/21 Subpoena Dues: Tecum Response The Special Committee in Senate Address Tavember 13, 2015 Page 3 of 3 Response: T: “ny knowlec'ge, all proceedings related to the Discip'riary Counsel and related procencings are “confidential”, Therefore, 1 will not further subject myself to possible discijiinary action or create a perceived waiver of confientiality of these proceedings. | am confident that this Specie! Committee will respr.ct the rules of the Disciplinary C:vrsel, and “.rther will not demand @ document that y ill affect my rights with regard to unlher disciplinary action Sincerely, sth, m fiona KATHLEEN ill Attomey Ceneral KGKijima ENCL\(1) Attach -yent #1 (1) Attach smt #2 (1) Attachaent #3 cc: wlattachments {2 Honorable Josenh B. Searnati, Il, President Pro Tempore » sfignarable Kes. Saker [Gnorable Geiss Paw Honorable Juvitit L. Schwank Honorable Sein Wiley Honorable Ari F sywood Honorable Mike Turzal, Speaker of the House Governor Ton? Viol, Gaveror of Pennsylvania File (1413201 'i,:19ex)05/03/2008 83:89 7177853699 PATRIOT-NEWS CAPITOL PAGE 84/21 ATTACHMENT #4 ‘COMMONWEALTH OF ?:INSYLVANIS OFFICE OF ATTORNEY ‘if VFRAL ‘October 22, 2015 suBlect Procet vas During License Suspension To: Kathlesn 6, Kane Attorney General FROM: Bruce *. Ssemer Jy. 0 First B -puny Attornby Génerel James 2onanue, 1) > ‘heures Depry Ay anerl Ate Rober: A. multe Ci" Execute” Deputy Att-imey General Giall L-e Division Lawrence Cherbs 77 ‘Executive Deput\,Attamey General Criminal Laws Division ‘We are writing: 2: a follow-up to the brief discussion on this subject at yeste tay’ senior staff meeting Based on th, ules of Disciplinary Enforcement and the governing decisior 1 law, we cannot agree with your assescincnt that few adjustments to office operations are required « uring the term of your license suspensia'. To the contrary, we believe those authorities require immediate implementation of the c'vnges outlived below. We stand ready to work with you « Implement the rneeded changes. Feilu's ‘n make those changes has already begin to generate serlou problems for our ‘agency end the work v2 do in aur var'ous divisions, for our attorneys and also for yat rielf. Malking the necessary adjustments. onthe other hand, will obviate these problems and allow the # zzncy to continue its important work will-t undue exnplications. itis our goal to protect both you ind the attorneys who wark for you from -vccessful clsims thet you are practicing law without a licer-xe or that agency sttomeys have unlaw lly aided you in doing so. We will address: first, pressing legal issues your suspension presents; s°fond, the applicable legel standards; and finally, prop-3sed operational procedures. © ISSUES RAISED BY Li:E:VSE SUSPENSION Numerous Isstirs are raised ky your license suspenston, including 1) compliance si!“ Rule 3.8 of she Aules of Professional Conduct; 2) the scope ot “1:3 suspensien: 3) the Imoact c" ie suspension on the office's decision making process 4) the notice ts: rust be given to the Offiee's clients of your suspension; and 5) the relation: si of the attorneys n the office to you.05/03/2008 83:89 ATTAGHI TENT #1 ‘The Supreme Court Issued en order which susuended you from the or: zee of law, but specifically stated th: : sou were not being removed fram office. The Court did r 3: draw the lines between your legal fi.v-tions and elacted functions as Attorney Generel, Your susy-znsion references Rute 247 of the Penn:sl.ania Rules 0* Disciplinary Enforcement. That rule requires 2 umber cf things, including notice to your -lients of your suspension, giving your clients the opportunity to find additional counsel and you need ic cetalt your campllence with the rule, i As has alread t agpened in one chevities case, but we expect to happen ih ther cases across the thre2 legal divisions, opposing cc»nsel as challenged any “legal” decisions you rr ike with regard to 2 decision to bring 0: suitle caso. iia recognize that this is not simple problem. { may be a policy decision to emphasi2 «timinal enforcement in one area 25 opposed to another, cr to clesn up a particular line of busivess which fs ‘rating consumers poorly like contractors, for e ample, and move resources from litiget 2: of claims erainst auto dealers to do that, but there are al: legal Judgments made in the decision ts ‘ilz each case, ‘We have recel.v-lan ingulry trom the Office of General Counsel as to when it ill receive Notice required of you by Pa F.01.. 217 (clit) and (2). We also need to be careful of apne sing eaumsel using ‘your conduct to accu: staff attorneys in the office of aiding someone in the practic: of law without a license by allowing yc. i: make lega! decisions. To the extent you engage in the pra t'ce of law during your suspension and wr attorney fo- the office does not report it, they too coul ba hold to have vlolated Rule of Profer. onal Conduct #3." © LEGAL ANALYSIS The Pennsylve iii supreme Court has explained that the practice of law ctcur: where a situation involves “the abstract x farstanding of legal principles and a refined skill fr their ea screte application, the exercise of legal juskirentis called fos." Dauphin County Bar Ass‘n v. Mazzacaro, 455 Pa, 545 (1976). This same analysis Fis been adopled by several other courts. For example, ‘he United States Bankruptcy Court fort-e Western District of Vennsylvanis has stated that: he standard °>) determining when an individual is practicing law is whan 112 servica requires legal koowledge, taining, skill and ability beyond those possess il by the average perse!.. Matter of Arthur, 15 B.R. 544 (Bankr.£.0.P2.1981). Corseqi ently, the practice of lav‘: not confined to carviess rendered in relation to a particular court proceeding, lf 2.545 In re Benninger, 357 8.1. 137, 352 (Benkr, W.0. Pa, 2006) While some of the decisional law identifies services that are rendered by an tlorney, see, e.g., Blair v. Service Burea.., 87 Pitts.LJ. 155 (1939){"{t}he lawyer engages in three typ « of professional Rule 8.3 states: “A lawn or he knows thet another lawyer has committed-a violation of the Ris of Professional Conduct that razz eeubs:tal qugstion as ta that lawyer's... fitness 25 2 lawyer in other ros anets, shall inform ‘the appropriate professte authority.” Fa, Rule of Professional Conduct 8.3(¢). The rule gos: cn wo say that Goes not requite disclosuie 0" Information otherwise protected by Rule 1.6, which deals with c| ext confidentiality, ‘The decision ta camman>+ iil oF crimine litigation, should you make such a decision during y ue suspension, would be a publ act an tus not subject to client confidentiality. 7177053699 PATRIOT-NEWS CAPITOL PAGE 85/2105/03/2088 83:89 7177853699 PATRIOT-NEWS CAPITOL PAGE 86/21 ATTECHMENT #1 activity: (1] he appe-r: hefore puble tribunals and prasents evidence and argurr ants on behalf of clients; (2) he prepan:s “bcuments fcr clients; and (3) he advises clients in regard to|:gal matters ..."), ‘our Supreme Court his algo emphasized that there is no one, universally-epplicabl - definition of the term “practice of lew Rather, as Mzzzacaro instructs, there must be a case-by-cosi etermination a2 to whecher 3 particular stance Involved the practice of lev. This assessment "mus turn on a careful ‘analysis of the partici judgment volved and the expertise that must be brou tt to bear on its exercise.” Mazzacar. +) 553. Thut, the governing rule in Pennsylvania require: un eveluation of whether a matter reqives fegal knowledge, training and skill beyond what 4 lay per: on might possess, and a determination {2 depends on the facts and circumstances of the case, Notably, stans'cs governing the practice of law are aven higher for gove rment attorneys. There i, 25 our Supr'-v Court has made ciear, a significant difference between pr vate practitioners and attorneys in gowr +'nental practice. See In re Thirty-Third Statewide Investiaat-»9 Grand Jury, 86 4,3 204, 221-223 (Pa. Ci). Importo-tly, Government iuv2rs have responsibilities and obligations different from the se facing membe:s ofthe privat-bar, While the latter ore oppropriately concern 1 first and foressost with protecting their clients — even those engoged in ‘wrongdoing - fron eriminal charges and publie exposure, government Jawy rs ave a higher, ceapeting duty to act in the public interest, In Re; A Witness Be'2°2 The Speck! Grond Jury, 288 F.3d 293-224 {7 Cir, 2002 internal citations ‘omitted; emphasis adi:2 th. This already-tuisttened starierd of professional behavior is increased evei_ more where the government attorneys: | matters must lie with the First Deputy. The types of de ision that should ultimately be decided 117 the Fitst Deputy should include 4) a decision »rvthether to ing a ei or eriesinal action; 2) decision ¢" whether to settle cull actions; 3) decisions na whether ta offer ar accent a plea bargain: 4) any decishyn‘avolving the grans juries; 5) decisions cn whether to jain amicus briefs, and €) decislons ¢ whether to une particular defenses in the casos the office [sd fending. * Numerous case are ann sd by Attornesin-charge and Chief Deputies under enisting opera’ onal standards,8/21 05/03/2008 83:89 7177853699 PATRIOT-NEWS CAPITOL PAGE 4 TTACHMENT #1 The Press Oftis: should not say that you approved, initiated or decided to tec action Ina iegal matter. We would sucect that iv those situations where the office is acting :s counsel for the Commenwealth, the Sovemor or Commonwealth Agencies communications betw en our office and those ertities would «tinue unless they choose other counsel. ‘These change: we made wit> the intent of insuring that nelther you ner othe sin the office face any further sanction r[it2d to the stispension of your law license. We are availa. lo discuss at your convenience.05/03/2008 83:89 7177853699 PATRIOT-NEWS CAPITOL PAGE 99/21 ATTACHMENT #2 Coumanwenirt oF Prasiensauin OF fice oF ATTORNEY GENERAL remnoee Horteen 6, Kase areata oe a san on Soptomber 25, 2015 Bruce R: Beemer . First Deputy Atto:y General Office of Attorney: General 16" Floor, StrawT ry Sop Harrisburg, PA 1/19 Dear Mr. Beemer In eccordercs with 18 Pe O.S.A. § 5708, Thereby designate to you the ai rity toxmake ‘written applications ic any Superiat Court judge for orders authorizing the inten eption of wire, electronic or oral «x rmumnications, “Very aly yours, WA \ fect Gb Kethleen G. Kane Attomey General05/03/2008 83:89 7177853699 PATRIOT-NEWS CAPITOL PAGE 16/21 ATTACHMENT #2 L ComMONWEALTH OF PENNEYLVARIA Ormee oF Arrorney GENERAL ra oon Karmzens G. Kane Haarissure, PA 17/20" sayy ean Fintan 09 2015 Lawrence M. Che 1 Executive Deputy \tomey Geneval i Director, Criminal Lew Division i Office of Attorne: Coneral : 16* Floor, Stiawt -n'7 Square ~ Harrisburg, PA 17420 In eocorda’c) with 18 Pa.C.8.4, § 5708, [tiereby designate to you the ax Roity to make ‘written applications on any Superior Cont judge for anders anthorizing the interc »ption of wire, ‘Dear Mr. Cherbaz electronic or oral «7 rammications ‘Very truly yours, os Karhleea G. Attorney General :