A Third Circuit bar member allegedly sent “sickening” messages from his government-email account; is that grounds for circuit discipline?

At 4:23 p.m. this past Friday afternoon, as the Labor Day holiday weekend began and few were paying attention to the news, Philadelphia District Attorney Seth Williams released a statement announcing that he would not fire the three lawyers in his office implicated in the Porngate scandal. Instead, the statement said, the 3 lawyers would undergo “sensitivity training.”

The most prominent of the three — and a member of the Third Circuit bar — is Frank Fina. Fina came to the DA’s office from the state Attorney General’s office, and it was while working in that office that he sent and received the emails. Here is how Fina was described in a well-reported Philadelphia Magazine article (link):

Fina was the star prosecutor under Tom Corbett — the guy who made the governor’s career, in fact, by taking on political corruption in Harrisburg and then sending Sandusky away for the rest of his life. Fina hates politicians in general and corrupt ones in particular; he put House Speakers John Perzel and Bill DeWeese, among others, in prison. Fina takes a special pride in how loathed he remains in the state capital, and his approach to skimming the top off Harrisburg’s political elite is infamous: Secretaries and other minions were often brought to tears by Fina or his investigators, who threatened them with jail if they didn’t rat on their bosses. Balls to the wall — that’s Fina’s style. And an atmosphere Fina and his fellow gunslingers called “fuck fuck” reigned in the office. It meant there were no holds barred on anybody who worked there — they could get busted or teased or ridiculed about anything.

Back to those emails. In the media coverage I’ve seen, some of the descriptions of been pretty bland, others more vivid, but nothing I’d read prepared me for what I saw when I actually looked at them online. Even in grainy black and white, it was disturbing. The Philadelphia Daily News called reviewing the Porngate emails “sickening.” (I strongly recommend against it, they are filled with graphic pornographic and offensive content, but, if you need to see them for yourself, the link is here.)

On a Thursday afternoon from his state account, Fina allegedly sent an email with the subject line  “FW: New Office Motivation Policy Posters,”:

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One of the attached images — I’m not re-posting them here — graphically shows a young woman performing oral sex on a man next to a desk. The caption reads: “PERFORMANCE: Monthly performance evaluations are mandatory for all secretarial staff.” Another is a woman, nude from the waist down, kneeling on the floor and performing oral sex on a man seated at a desk. The caption reads: “DEVOTION: Making your boss happy is your only job.”

Fina allegedly sent this email to two subordinates, agents in the AG’s office. Governor Wolf recently fired one of them for receiving this message and others.

And it’s not just pornography. Here’s one of many photos attached to an email (subject line “RE: Need Motivation for the Weekend?”) that Fina allegedly sent to an outside attorney from his official email account during business hours:

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If a high-level, high-profile city law-enforcement official did all that in his last government job, is the problem fixed by sending him to sensitivity training? The president of Philadelphia NOW doesn’t think so: “They get to keep their jobs and their salaries,” she said. “And we get to be demeaned.”

But this is a Third Circuit blog, so what’s it all got to do with the Third Circuit? Well, since 11/26/2001, Fina has been a member of the Third Circuit bar. He appeared for the AG’s office in several Third Circuit cases opened between 2000 and 2003: Fahlfeder v. Varner, 00-2227: Saranchak v. Horn, 00-9009; Gibbs v. Frank, 02-3924, Wenger v. Frank, 03-3014; and Eak v. Johnson, 03-4708. According to PACER, he has not appeared since.

So here’s the question: if Fina did what he’s accused of, did he violate the circuit’s disciplinary rules? Is he at risk of professional discipline by the Third Circuit? Let’s look at the rules.

First, Rule 2.1(b) authorizes circuit discipline  for “discipline, including disbarment or suspension, by another court.” Pennsylvania’s Rule of Ethical Conduct 8.4(e), in turn, provide that it is professional misconduct to “engage in conduct that is prejudicial to the administration of justice.” Could what Fina did here qualify? Maybe. The fact that he was and is a high-profile senior law-enforcement official could weigh against him here.

Another potential basis for discipline is circuit disciplinary Rule 2.1(e), which says that a member may be disciplined for “any other conduct unbecoming a member of the bar of this Court.” Is what Fina allegedly did conduct unbecoming a member of the Third Circuit bar? Again, I don’t know.

But I wonder if the District Attorney’s refusal to more seriously punish Fina will lead the Third Circuit to take a closer look at that question.

 

UPDATE: The Legal Intelligencer just posted an article headlined, “Williams Could Face Fallout From Porngate Prosecutors,” which asserts that the D.A.’s decision not to fire the prosecutors “will likely come back to haunt Williams if he decides to run for statewide office.”