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When the Disciplinary Board Comes Calling: It Can Happen to You!

Ellen C. Brotman and Ashley Kenney Shea on 6/18/2015
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No matter how long you practice and how careful you are, someday it can happen to you: a letter arrives from the Office of Disciplinary Counsel advising you of a complaint. Recently in my practice, more than a couple of lawyers with decades of experience and no disciplinary history have received such letters. In the course of representing them, I have learned just how little most attorneys know about the Rules of Conduct and the Disciplinary System.

This article provides an overview of the disciplinary system, including its various actors and rules, advises on how to handle a complaint, and provides ways to avoid "typical trouble areas."

I. Overview of the System 1

The Constitution of Pennsylvania grants the Supreme Court of Pennsylvania the exclusive authority to regulate attorneys, including discipline. Discipline can either be private (private reprimand from the Board or private informal admonition from Disciplinary Counsel) or public (public censure by the Court, probation, public reprimand by the Board, suspension or disbarment.) The Court has the ultimate say on public discipline and reviews Disciplinary Board decisions on a de novo basis. The Court promulgates the pertinent rules and governs the Disciplinary Board, including the Office of Disciplinary Counsel and the Office of the Secretary. The Disciplinary Board is appointed by the Court, who also determines the Board Chair and Vice-Chair.

The Disciplinary Board administers the system through the Office of the Secretary, and appoints Hearing Committee members – all of whom are volunteer attorneys who provide their services on a voluntary basis. The Board reviews, also on a de novo basis, all disciplinary matters recommended by a Hearing Committee. A recommendation for public discipline is made through a written report, approved and voted on by the Board, and then submitted to the Supreme Court.

The Office of Disciplinary Counsel has four distinct district offices and acts as the investigating and prosecuting arm of the Disciplinary Board. Each office has a Disciplinary Counsel in Charge and reviews cases in their geographic region.

The Complaint Process

All disciplinary complaints are made in writing and are transmitted to the Secretary, who in turn, transmits the complaints to the Office of Disciplinary Counsel to conduct the initial review of the complaints.

Grounds for discipline include violations of the Rules of Professional Conduct; conviction of a crime; the willful failure to appear before the Supreme Court, the Board or Disciplinary Counsel for censure, public or private reprimand or informal admonition; or ceasing to meet the requirements for licensure, lying on your bar application, or failure to respond to Disciplinary Counsel's request for a statement of the respondent-attorney's position. Types of discipline include disbarment, suspension, public censure, probation under supervision provided by the Board, public reprimand, private informal admonition by the disciplinary Counsel or revocation of an attorney's admission or license to practice law.

How will you hear about a disciplinary investigation? The first indication that something is wrong will come in the form of a "Request for Respondent's Statement of Position." The Request for Respondent's Statement of Position will recite the facts of the Complaint and the rules allegedly violated. You will then have 30 days to respond, though the Office of Disciplinary Counsel is patient and reasonable with requests for extensions. You may also be asked to produce records and it is important to note that you must comply. The failure to produce financial records can now lead to a Petition for Temporary Suspension. Pennsylvania Rule of Professional Conduct 1.15.

Respondent's Statement of Position must be handled with great care: obtain counsel and make sure that your statement is completely accurate and supported by documents and facts. The response must answer each numbered paragraph of the Complaint.

In a best case scenario, the Complaint will then be dismissed. Dismissals of disciplinary actions are granted for a variety of reasons: lack of jurisdiction, frivolousness, prosecutorial discretion, or Board policy. For example, a complaint may be dismissed with a "letter of concern" if the conduct is not serious and has been honestly and thoroughly explained and remediated. The dismissal of a Complaint is an internal decision by the Office of Disciplinary Counsel and only needs approval of a supervisor.

In the event that there is not a dismissal, any recommendation of any conditional or unconditional informal admonition, private reprimand by the Board, or public reprimand by the Board requires approval by a designated hearing committee member. Approval is also needed for the prosecution of formal charges before a hearing committee or special master.

When the decision to prosecute formal charges is made, a Petition for Discipline is filed. An Answer is then due within 20 days, with one 20 day extension. At this stage the proceeding is no longer confidential, but is open to the public. A Pre-Hearing Conference is held 30 days before the hearing to discuss evidentiary issues, exhibits, stipulations, identification of experts, and discovery. At the hearing, the burden of proof is a "clear and convincing evidence" standard. The Hearing Committee hears the evidence and then writes a report that determines whether the Rules of Professional Conduct have been violated and, if necessary, provides, a recommendation for a sanction. Both ODC and the attorney then have a chance to brief the Board in response to the Hearing Committee Report. The Board reviews the Hearing Committee, the Supreme Court reviews the Board and makes its own determination of the appropriate disposition.

II. Common Complaints and Easy Fixes

The most common disciplinary pitfalls for attorneys are issues related to communication, see Pennsylvania Rule of Professional Conduct 1.4, fees, See Pennsylvania Rule of Professional Conduct 1.5, and the mishandling of third-party funds, See Pennsylvania Rule of Professional Conduct Rule 1.15. These pitfalls can be easily avoided.

With respect to communication, attorneys should communicate with their clients often and early, if only to say that you have received your client's call or email and will be responding as soon as possible. Client expectations should be set at the outset of representation: let your client know that there may be times when emails will not be responded to instantly and that good representation takes care, thought and time. If you have promised to get something to a client by a certain day and are going to miss that deadline, let the client know of the delay before it occurs.

With respect to fees, Pennsylvania Rule of Professional Conduct 1.5 provides that a fee should be calculated based on the time and labor required to perform the work, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. To minimize the risk of a misunderstanding, engagement letters should clearly set out all details related to attorneys' fees, invoicing, who will work on the case, methods of communication, costs, file retention, and termination of representation.

Rule 1.15 requires attorneys to keep third party and client funds separate, to give notice of the receipt of any funds or other property, to maintain appropriate records of any property held on behalf of another, a duty to render an accounting, and to promptly deliver any property that is not theirs. The requirement to retain records for five years has recently been added to 1.15, and the failure to do so may serve as a basis for the emergency temporary suspension of the lawyer's license to practice law.

The disciplinary system in Pennsylvania can be daunting to an attorney first faced with the dreaded letter from the Office of Disciplinary Counsel. However, with the proper understanding of the Rules and procedures, and the proper assistance, you will find that the system is geared towards protection of the public and the honor of the profession, and not to harshly sanction mistakes.

1The Pennsylvania Disciplinary Board has an excellent website that contains all the information included herein, including copies of all the pertinent Rules.

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