By Daniel J. Siegel
It sounds like a bad joke. How do you scare lawyers? Tell them that the Disciplinary Counsel is on the phone, or that they just received a letter from the Disciplinary Board. Many recipients will assume that they did some- thing wrong and immediately jump to the almost always incorrect conclusion that they are in trouble and will lose their license. While that scenario is possible, it is far from reality. To most lawyers, the disciplinary system in Pennsylvania, and most states, is an alien process about which they know nothing and prefer to remain ignorant. As a result, attorneys often jump to incorrect conclusions rather than respond appropriately when the call or letter arrives. That is a mistake. In this column, the first of a series, I will outline the basics of the attorney discipline process in Pennsylvania using a question-and-answer format. Feel free to contact me if there are questions you want to be answered in future columns.
What rules apply to attorney ethics matters?
The Pennsylvania Rules of Professional Conduct govern attorney conduct for Pennsylvania-licensed lawyers. Each state adopts its own version of the Model Rules of Professional Conduct, which the American Bar Association promulgates. The Rules of Professional Conduct set forth the minimum standards of ethical conduct for attorneys and apply to their conduct as an attorney and in their personal lives. Because every state adopts its own version of the Rules, by modifying or deleting provisions of the Model Rules, lawyers who practice in more than one jurisdiction must verify which specific Rules apply in each state. For example, Rule of Professional Conduct 1.6 defines how attorneys must handle confidential information, although the definition of confidential information may differ from state to state.
The Pennsylvania Rules of Disciplinary Enforcement govern the conduct of disciplinary proceedings and are the disciplinary version of the Rules of Civil Procedure. They outline how disciplinary proceedings occur. They also specify how attorneys subject to disciplinary matters must conduct their affairs while licensed and after they are no longer licensed.
What are the grounds for attorney discipline in Pennsylvania?
Attorneys are subject to discipline for multiple reasons. These include misconduct such as (a) violating or attempting to violate the Rules of Professional Conduct, that can be used to file a complaint. Complaints may be submitted in other formats, provided they are written and contain all the required information. After it receives a complaint, the Disciplinary Board reviews it to determine whether it falls within its jurisdiction and contains sufficient information to warrant an investigation. The Board may dismiss a complaint if it concludes that there is no evidence of misconduct or that the complaint does not meet the requirements for filing. The Board may also contact the attorney at issue to obtain additional information, although the Board may investigate an attorney without advising the attorney.
If I hear from the Disciplinary Counsel, does that mean I am in trouble?
No, not necessarily. Receiving a call or letter from the Disciplinary Counsel does not mean that an attorney will be the subject of disciplinary proceedings. In many cases, the Disciplinary Counsel determines that a complaint does not warrant discipline, and the subject attorney may never learn that a complaint was filed. However, an attorney must respond if the attorney receives a Request for Statement of Respondent’s Position, also known as a DB-7. Failure to respond is, by itself, a basis for discipline.
What types of discipline can be imposed in Pennsylvania?
If the Disciplinary Counsel proceeds with further action, the types of discipline that may be imposed range from a private reprimand to disbarment. The severity of the discipline depends on the nature and severity of the misconduct. The following are some of the most common types of discipline:
-
Private Reprimand: This is the least severe form of discipline and involves a private reprimand from the Disciplinary Board to the attorney. Private reprimands are not made public and do not affect an attorney’s ability to practice law.
-
Public Censure: A public censure is a public proceeding by the Disciplinary Board, where the nature of the misconduct is public. Although a public censure is a more serious form of discipline than a private reprimand, it does not affect an attorney’s ability to practice law.
-
Suspension: A suspended attorney may not practice law for a specified period of time. The length of the suspension depends on the nature and severity of the misconduct. During a period of suspension, an attorney may be required to complete certain conditions, such as ethics training or community service, before being reinstated. If a suspension is for one year or less, an attorney may complete an application for reinstatement without needing a hearing. If the suspension is for one year and one day or longer, the attorney must file a petition for reinstatement, a more rigorous process.
-
Disbarment: Disbarment is the most severe form of discipline, prohibiting an attorney from practicing law in Pennsylvania. It is typically imposed for serious or repeated misconduct, such as theft or fraud, or violations of the Rules of Professional Conduct that demonstrate a lack of fitness to practice law. While a disbarment is considered permanent, an attorney may petition for reinstatement once five years have elapsed since the disbarment was imposed.
Are disciplinary proceedings public?
The Rules of Disciplinary Enforcement require that all disciplinary proceedings be kept confidential unless and until formal charges are filed against the attorney. If formal charges are filed, the matter is public, with limited information made public on the Disciplinary Board website.
Do I need to have counsel in disciplinary matters?
Because the attorney disciplinary pro- cess can be confusing, it is generally recommended that attorneys retain counsel. After all, it has been said that an attorney who represents himself has a fool for a client.
Is there insurance coverage under my malpractice policy for disciplinary matters?
Some legal professional liability policies provide coverage for disciplinary matters. In some instances, you may be covered in full under the policy. Other policies provide coverage up to a specific dollar limit, after which payment for counsel and related services is the insured’s responsibility. In addition, some policies permit lawyers to request specific counsel, including counsel not on the carrier’s list of approved attorneys. You may need to obtain a choice of counsel endorsement if you wish to specify which attorney you want as your counsel.
In the next installment of this feature, I will discuss the disciplinary process in greater detail and answer other questions presented by readers. If you have questions, please send them to me at the email address below.
Daniel J. Siegel, a member of the Board of The Philadelphia Lawyer, is the principal of the Law Offices of Daniel J. Siegel, LLC, and chair of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility. He provides ethical, techno-ethical, and disciplinary guidance and representation, as well as appellate, writing, and trial preparation services to other attorneys. He can be reached at dan@danieljsiegel.com.
