There are 75,600 lawyers in Pennsylvania. Last year, 3,818 disciplinary complaints were opened, and 132 attorneys were disciplined. Based on these numbers, it is safe to say that most of you reading this column will never hear from the Office of Disciplinary Counsel, the investigating and prosecuting arm of the Disciplinary Board. Even fewer of you will receive discipline from the board. As an attorney who represents attorneys facing disciplinary complaints, (respondents) I often ask myself—what makes this case one of the chosen cases?
Some respondents’ attorneys suspect that solo and small firm attorneys are more frequently targeted by disciplinary counsel and that big firm lawyers can avoid the consequences of their errors. In California, the bar is investigating whether there is an institutional bias against solo and minority lawyers and how that has affected the imposition of discipline. See https://abovethelaw.com/2021/02/inequalities-in-lawyer-discipline-demand-action.
In Pennsylvania, public discipline is prominently posted on the Disciplinary Board’s website; private discipline is summarized in the board’s Case Research Collection. A review of the cases does indicate that solo and small firm lawyers appear to make up most of the caseload. However, our conclusion from this fact could be, not that there is an institutional bias against solos or in favor of large firms, but that solos and small firms are inherently more vulnerable, and some are more vulnerable than others.
The first significant distinction between solos and big firm lawyers is the handling of money. Mismanagement of money in IOLTA accounts is a major issue in attorney discipline and the catalyst for investigation and discipline. The first purpose of attorney discipline is protection of the public and preventing theft of client funds is one of the most important jobs of an attorney regulatory scheme. In Pennsylvania, investigating and proving malfeasance in IOLTA accounts is enabled by a statutory scheme that requires that a lawyer maintain financial records and produce them upon request. Failure to produce these records is a violation of the Rules of Professional Conduct and the Rules of Disciplinary Enforcement. This failure can also be grounds for a temporary emergency suspension of an attorney’s license. See Pa. R. D.E. Section 208(f)(5).
Lawyers in large firms have accounting departments that are knowledgeable about the recordkeeping and other requirements of Rule of Professional Conduct 1.15. But—this fact does not relieve attorneys of responsibility for the management of client funds. No matter what size firm you are in, if you take in a retainer, ask to see the client sub-ledger monthly. Your responsibility for the protection of a client’s funds is not delegable. For solos, make sure that you fully understand the requirements of Rule 1.15 in terms of segregating client funds, maintaining accurate records, and reconciling the account every month. There are excellent CLEs on this topic.
Of course, recordkeeping is not the only way solos get into trouble with their IOLTA accounts. Solo lawyers can easily get into cash-flow issues and are tempted to “borrow” from the IOLTA, always intending to replace the funds when the situation improves. If the situation does not improve, a bounced check from an IOLTA account requires a letter to the IOLTA Board and may ultimately lead to a disciplinary complaint. Big firm lawyers simply do not have the same access to the funds, and therefore, avoid this temptation.
Cash flow is only one of the risk factors that solos may suffer from. Solos may not have sufficient backup or support staff to maintain client communication when they are on trial or out of the office unexpectedly. I can admit that as a solo myself, there is a challenge in maintaining a “busy enough” practice that doesn’t become a “too busy” practice with the onset of one client emergency.
Some areas of the law that lend themselves to solo or small firm practices come with their own specific risks because of the nature of the work and the undue emotional stress on both clients and the lawyers. Many disciplinary cases involve the areas of family law, estate law and criminal defense.
Because of my criminal defense background, I tend to be consulted by criminal defense attorneys. I have observed that criminal defense lawyers in particular have an abundance of risk factors in their practices.
First, defense lawyers frequently take cash and must deal with confusing IRS reporting requirements. This can be a first point of friction with a client who may not want the report filed, leading to ethical issues at the outset.
Defense lawyers often have volume practices that can create difficulty maintaining adequate communication with clients or conflicts in court appearances.
Criminal defense lawyers often are retained for discrete pieces of a representation that may then be expanded without the proper documentation or fee agreement. In fact, getting fee agreements at all is a challenge in many cases where the representation is made on an urgent basis and the client is in jail.
Defense attorneys also often have third-party fee payers who may not understand the limits of their right to client confidences or to drive strategy.
Some defense attorneys represent pools of clients, which has its own set of challenges around confidentiality and conflicts.
Difficult, complicated issues relating to possession of evidence or even contraband frequently arise.
And of course, sometimes, criminal defense attorneys get bad results because—facts—and their clients end up angry, with time on their hands, and nothing better to do then complain and demand back their fees.
You may be saying that some of these wounds are self-inflicted and that defense attorneys should manage with smaller practices and not take on limited representations or accept cash. But the truth is that the many dedicated criminal defense attorneys rushing from courtroom to courtroom in the Criminal Justice Center in Philadelphia, or from county seat to county seat elsewhere in this commonwealth, are providing an underserved population with excellent representation at affordable rates. These facts should mitigate in their favor when they are faced with a complaint.
I do not have data on this point, but I do have my unscientific belief that, in the field of solo and small firm lawyers, discipline also skews more harshly against women, minorities, and especially minority women. I can say with certainty that these lawyers are often under stress, and stress creates anxiety, which creates opportunity for errors. What we do know for sure is that representation at the initial disciplinary complaint stage is a huge factor in the harshness of discipline. It is indisputable—and unsurprising—that competent counsel, with experience in the disciplinary system, can get a better result than a pro se respondent. However, many lawyers get into trouble because they have financial problems and they can’t afford representation. For this reason, there is an ad hoc committee being formed by several of the stakeholders in the disciplinary process to investigate whether there could be help for indigent attorneys who face disciplinary complaints at this earliest stage of the proceedings. This committee is hoping to launch a program that will match willing respondents’ attorneys and (“wannabe” respondents’ attorneys) with indigent respondents to assist them in drafting their responses to disciplinary complaints, with the goal of making sure that a difficult situation doesn’t get worse and perhaps, can be ameliorated.
Two more points before I close my nonscientific study: one is a warning, one is advice. First, the warning: don’t let the informality of texting with your clients blur the boundaries of your professional relationship. To put it bluntly, don’t “sext” your clients. The board is looking at this conduct and I predict they will deal harshly with it. Second, even if it’s only $5,000—get disciplinary defense on your malpractice insurance. Whatever size firm you are in, you won’t regret having professional help on your side, in the unlikely event that you need it.
Ellen Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.
Reprinted with permission from the March 9, 2023 issue of The Legal Intelligencer. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.