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At this time of year, I usually write a column with a list of New Year’s resolutions for best ethical practices in the year to come. (You can see last year’s column packed with good intentions here.) This year, I’m departing from that tradition to predict the future in the field of attorney discipline. However, for those of you who like your new year column with a side order of resolutions—I promise, you will find some throughout!
In fact, let’s start with: resolve to help a struggling attorney. While it is true that only a small percentage of Pennsylvania attorneys ever receive a disciplinary complaint, those that do are disproportionately unable to afford representation. These attorneys often represent themselves, or a friend or relative with no experience in the area will offer to assist. This often does not end well.
Next year, the Pennsylvania Bar Association’s legal ethics and professional responsibility committee is starting a new program to train pro bono volunteers to assist indigent lawyers responding to disciplinary complaints. The program starts in January with a training offered by the committee and PBI, which you can sign up for here. This program will describe the disciplinary process and focus on how to answer a disciplinary complaint.
A disciplinary complaint comes in the form of a request for a statement of respondent’s position from the Office of Disciplinary Counsel. This request includes numbered allegations of fact that must be admitted or denied. Unfortunately, disciplinary defense is very different from civil defense and “demanding strict proof” in response to a complaint’s allegations is not a winning strategy. There is both an art and a science to responding to a disciplinary complaint and nondenial denials are not welcome.
Because the response to this request is often the inflection point of the investigation, the initial training will focus on this aspect of the case. Here’s a mini-training: a response should state the facts with corroborating documentation, admit to and accept responsibility for any violations, and offer proof of efforts to proactively remedy any harm. In my experience, and the experience of the other respondents’ counsel on the Professional Responsibility and Legal Ethics Committee, this phase of the investigation is often where the bulk of the representation occurs and can “make or break” the outcome. Therefore, volunteer attorneys should consider limiting their representation to this phase of the matter.
“Reasonable” limitations of representation are permitted by Rule of Professional Conduct 1.2 (c) but require informed consent. Informed consent is defined by Rule of Professional Conduct 1.0 (e) as “the consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
Neither RPC 1.0 nor 1.2(c) require that this consent be in writing. Nevertheless, here comes another resolution: resolve to put any limitations on your representations into your engagement letters and get them counter-signed. (Criminal defense attorneys, small firms, and solos—this is especially important for you and extremely helpful in case load management.)
One of the interesting challenges that new volunteer attorneys will face leads me to another predication: two issues fundamental to disciplinary defense are going to be argued before the Pennsylvania Supreme Court next year. The case is Office of Disciplinary Counsel v. Rayz, 2947 DD 3, 11 DB 2022 (D.Bd. Rpt. 1/26/2023). (Petition for Review accepted) (Rayz is now fully briefed but has not yet been scheduled for oral argument.).
The first issue raised in Rayz concerns the application of offensive collateral estoppel in disciplinary proceedings. In Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 47 (Pa., 2005), the court first approved the use of offensive collateral estoppel in disciplinary cases. There, respondent Kiesewetter had been found liable as the defendant in a civil fraud case. As the court noted, “the burden of proof utilized in the civil proceeding to determine that Respondent engaged in fraud satisfied the burden of proof employed in a disciplinary proceeding.” As the application of offensive collateral estoppel in Kiesewetter met all the other requirements, including the foreseeability of disciplinary proceedings as a result of the fraud verdict, the elements of the doctrine and the requirements of due process were met.
The question that we hope will be answered in 2024 is, whether and to what extent should the Kieswetter holding be extended? For instance, when a lawyer is representing a client, can a court’s factual findings imposing a sanction on either the attorney or the client preclude the attorney from defending his conduct later at a disciplinary hearing? While I make no predictions about this case, this issue is of vital importance to every litigator who could potentially be subject to sanctions by a judge—in other words—almost all of us.
The second related matter in Rayz is, what burden of proof must the Office of Disciplinary Counsel meet to prove a rule violation? This latter issue should be settled law, but during the litigation of the estoppel issue, the Office of Disciplinary Counsel maintained that the burden of proof in disciplinary cases is “a preponderance of the evidence” rather than a preponderance of clear and satisfactory evidence, as the board has always described it. This is clearly a case to watch in 2024.
Other trends that I predict we will see in 2024 are coming from the Disciplinary Board itself. First, the board is working to make the disciplinary process more transparent for the public and the profession, for example, by broadcasting all disciplinary proceedings on YouTube, here. The broadcasting of proceedings follows the decision, a few years ago, to publish matters resulting in private discipline on the board’s website. This publication has made the whole system fairer.
In the “olden days,” all discipline was anonymous and so all discipline was available to be argued as precedent. Then, only “public” discipline became available. The inaccessibility of private discipline created a situation where neither advocates nor adjudicators could find “private” precedent to support more lenient sanctions. Now, you can find private discipline cases going back to 2016 by going here. It’s not perfect, as the level of detail in the reports varies greatly, but the trend is upward.
Consistent with these efforts at transparency, I also predict that the board will issue more opinions in which it demystifies the “elements” of important disciplinary concepts. For instance, in In Re Staub, 36 DB 2010 (Bd. Report 5/12/2023) (S.Ct. Order 8/10/2023), the board explicitly defined the typical “elements” of rehabilitation required for reinstatement purposes. This definition helpfully collected, explained, and prioritized factors that had been relied on through decades of precedent, including “acceptance of responsibility,” “seeking professional help,” “continuing to work in the law competently,” “getting one’s own life in order,” “compliance with rules,” “community service,” “character evidence” and “sufficient time.”
This trend of more transparency is consistent with another trend that I predict will continue in 2024: the board acting as a “regulator” and not just as an “enforcer.” The board is now proactively advising attorneys on wellness and has dedicated a page of its excellent website to this effort. In the same vein, I predict the board’s emphasis on succession planning and practice management will expand. All of these changes augur well for the future of attorney regulation in Pennsylvania.
With a prayer for the preservation of the Rule of Law in 2024 and mutual respect and kindness for all of us—Happy Holidays and Happy New Year to all.
Ellen C. 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 January 5, 2024 issue of The Legal Intelligencer. © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or [email protected].