The Use of Stayed Suspensions in Disciplinary Proceedings is a Definite Thing

Blogs start with the best intentions but often move to the back burner and then fall off the stove altogether! Mine is no different. However, the good news is that I have both a renewed commitment to this Blog and a new assistant to help with the labor (more about my new assistant later – she is also a very talented musician). My plan is to keep you posted on all things disciplinary in Pennsylvania – including the newest discipline cases. My goal is to make the disciplinary system more transparent to Pennsylvania lawyers, but not to amplify the harm to reputation that individual attorneys experience; therefore, I will not be using lawyers’ names.

               This post focuses on a recent matter resolved through a Joint Petition in Support of Discipline on Consent which approved an interesting hybrid suspension of attorney A: a two year suspension, with one year to be served and one year to be stayed, with terms of probation. The Board and the Court are imposing more of these “combination” suspensions. This is a welcome development as it shows a creative effort to protect the public and the profession while providing attorneys with the opportunity to demonstrate their fitness to practice and worthiness of compassion. We now turn to Attorney A, who was a perfect candidate for this mixed approach.

A was admitted to practice law in the commonwealth less than two years ago, on October 15th, 2018, and self-reported his own “omissions and misrepresentations” on applications to sit for the Pennsylvania and New Jersey bar exams.  A attended Rutgers Law School and was scheduled to graduate in May 2017, which he indicated on his application to sit for the New Jersey bar examination. However, he withdrew from a three-credit course in April and as a result did not have enough credits to be awarded his Juris Doctor degree the following month. A continued to misrepresent his education, indicating on an employment application for a law clerk position in May 2017 that he had completed 84 credits at Rutgers Law School and had graduated with a JD degree, and was hired.

In January 2018, A was diagnosed with and began treatment for clinical depression. He also re-enrolled at Rutgers to complete his credit requirement and was awarded his Juris Doctor degree on May 17, 2018. Unfortunately, he continued his failure to accurately report his educational history, stating on his April 2018 application to the Pennsylvania bar that he had attended Rutgers from 2014-2017 and was awarded his degree in May 2017. Additionally, as to New Jersey, he stated only that he had applied and that the status was “exam results pending.” When A took steps in June 2018 to reactivate his New Jersey bar application, he was carefully scrutinized by the NJ Committee on Character but failed to amend his Pennsylvania application to disclose any information related to the ongoing investigation. He was admitted to the Pennsylvania bar in October 2018.

A’s failure to disclose his misconduct runs afoul of Rule of Professional Conduct 8.4(c), prohibiting dishonesty,as well as Pa.R.D.E. 203(b)(6) which establishes that “making a material misrepresentation of fact or deliberately failing to disclose a material fact in connection with an application submitted under the Pennsylvania Bar Admission Rules” warrants discipline.

In their Joint Petition, Respondent and Petitioner offered A’s mental health diagnoses as mitigating factors, as well as his admission and self-reporting of, and remorse for, his misconduct. (In future blog posts, I will explore the “Braun” mental health defense more thoroughly and the advent and use of the Joint Petition for Discipline on Consent.) The agreed upon discipline, approved by the Board and the Court, was a suspension issued is for a period of two years. The first year is to be served and the second year is to be stayed, in favor of a one-year probation period, with appropriate conditions.

 This stayed period of suspension acknowledges the causal connection between A’s actions and his impaired judgment at the time due to his then-untreated mental illness. Importantly, it permits A to return to practicing without having to go through the reinstatement process, which, can extend a given suspension by many months.  Stayed suspensions that permit the Board to monitor an attorney’s recovery from a mental illness or an addiction or even to ensure that an attorney is fulfilling his financial record-keeping obligations are definitely becoming a thing – and this is a development that we can all support.

With over 25+ years experience, Ellen C. Brotman began her career as a law clerk in the United States District Court, Southern District of New York. She has served as an Assistant Federal Defender in Philadelphia, PA and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics. She has defended a wide variety of high-profile criminal cases, including political and public corruption, securities fraud, tax fraud, money laundering, currency structuring and other white-collar crimes involving complex trial, sentencing and appellate issues. Ms. Brotman also has extensive experience representing lawyers before the Disciplinary Board of Pennsylvania. She has been recognized as a Best Lawyer and SuperLawyer since 2007 in the area of criminal defense and has served on the boards of the National Association of Criminal Defense Lawyers and the Pennsylvania Association of Criminal Defense Lawyers. She is the founder and owner of BrotmanLaw, Philadelphia, PA.

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