The Importance of Private Discipline and Confidentiality in the Regulation of Attorneys

On Oct. 24, House Resolution 231 narrowly passed out of the House Judiciary Committee by a vote of 13-12. The resolution is titled: “A Concurrent Resolution Encouraging the Pennsylvania Supreme Court to make the investigation and disciplinary process of lawyers more transparent.” This resolution is misguided, unnecessary and is a threat to the legal profession.
The resolution was introduced by Rep. Timothy J. O’Neal, R-South Strabane. In a memorandum issued prior to the vote, found here, O’Neal stated that he was “recently made aware that during the COVID-19 pandemic … licensed attorneys, who were working as solicitors for school boards … were not following proper legal protocols … I was concerned to discover the limited public transparency utilized by the Disciplinary Board in their investigations and discipline of lawyers such as these solicitors. My resolution will encourage the Pennsylvania Supreme Court to provide greater public transparency of the investigation, adjudication and discipline of lawyers.
O’Neal sponsored the resolution to bring “sunlight to the work of the Disciplinary Board.” In response to questions about what specifically he hopes the court would do to spread the desired “sunlight,” he stated that complaints against lawyers and the resolution of those complaints should be public. O’Neal also objected to the fact that the board can impose private discipline, not accessible to the public.
The resolution was narrowly voted out of committee, but the House has not taken it up. If this Resolution does get approved by the House, what are the possible consequences for the regulation of Pennsylvania attorneys? Before answering that question, let’s take a look at the resolution; it’s description of the disciplinary process and the important place of confidentiality and private discipline in the regulation of attorneys.
We start with HR 231. A House resolution is intended to express the collective sentiment of the House on a particular issue and, generally, provide an impetus to another branch of government to act in accordance with that sentiment. HR 231 raises an interesting separation of powers question. The resolution begins by recognizing the Supreme Court’s constitutional authority to regulate the practice of law. However, it does not characterize this authority as “exclusive,” despite long-standing precedent. See Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780, 783 (Pa. 1977), (“any encroachment” upon the court’s exclusive authority to regulate attorneys “is offensive to the fundamental scheme of our government.”). However, until the resolution is adopted by the House this separation of powers issue is probably not ripe.
After its limited acknowledgement of the court’s authority, HR 231 then describes the disciplinary process: “The disciplinary process begins when a formal complaint is filed with the Office of Disciplinary Counsel (ODC), which initiates an investigation.” Yes, the process begins when a complaint is filed, though there is no necessary formality. ODC has an intake staff of experienced ODC counsel who review complaints that arrive in a variety of ways, including through the Disciplinary Board website portal.
“ODC sends a notice of the complaint to the respondent and requests a formal statement of the respondent’s position.” This is correct. However, most complaints received by the board never advance to this step. In the vast majority of cases, ODC finds that the complaints are frivolous, unsupported, vindictive or simply fee disputes. Some statistics provide useful context: the 2021 Annual Report of the Disciplinary Board discloses that in 2021, 75,600 attorneys were required to register in the commonwealth, 3,818 complaints were received and reviewed and 132 attorneys were disciplined. Of those 132, 52 received private discipline. (It should be noted that disciplinary matters can be opened in one year and resolved in an ensuing year.).
“ODC prepares a document which provides justification and a recommended resolution which is provided to a review hearing committee member.” According to the board’s annual report, in 2021, 83 reviews of proposed discipline were conducted.
“The review hearing committee member reviews the document and approves or modifies the ODC’s recommendation or directly dismisses the complaint.”
“If the initiation of formal charges is approved, the ODC prepares a petition for discipline, which specifies the charges of misconduct, and the respondent is given 20 days to file a response.” This is correct. At this point, the proceeding is still confidential and not visible to the public. Once the answer is filed, this becomes a “formal proceeding,” which is open to the public. The board’s website entry on the respondent attorney is updated to include the fact that the attorney has a “pending proceeding.” Here, the confidentiality of the investigation ends. After the answer is filed, both the petition and answer can be obtained from Disciplinary Board.
HR 231 concludes that “recent concerns have arisen regarding the level of public transparency utilized by the Disciplinary Board throughout its investigation and discipline of lawyers; therefore be it resolved (the Senate concurring), That the General Assembly encourage the Pennsylvania Supreme Court to make the investigation and disciplinary process of lawyers more transparent; and be it further resolved, that the General Assembly encourage the Disciplinary Board of the Supreme Court of Pennsylvania to provide greater transparency when investigating, adjudicating and disciplining lawyers.”
It seems the Judiciary Committee is unaware that the Disciplinary Board and the court have recently been working to strengthen the confidentiality protections for complainants and amplify its efforts to ensure that nonconfidential proceedings are more accessible to the public. The “pending proceedings” section of each attorney’s entry on the board’s website, with its posted docket sheets, is an innovation that was completed this year. During COVID, public hearings on disciplinary petitions were streamed live on YouTube, sometimes viewed by over a 100 individuals at a time. This is in stark contrast to the fact that previously, though public, only a tiny percentage of disciplinary hearings were ever attended by anyone but the interested parties. Public reprimands are also now streamed live on YouTube. The board has decided to continue this public access to the proceedings, even as we move back to in-person hearings.
Also, this year, the court amended the board’s Rules of Disciplinary Enforcement to provide further protection to the complainant’s initial complaint while expanding the board’s ability to disclose complaints and private discipline, if necessary: Pa.R.D.E. 402 governs access to disciplinary information and confidentiality. New subsection 402(d)(4) states that Enforcement Rule 402, providing for confidentiality of proceedings prior to the filing of an answer, shall not be construed to prevent notifying a complainant of the disposition of a complaint and specifically authorizes the notice to include the type of discipline imposed and any condition attached to the disciplinary sanction.
New subsection 402(d)(5) states that Rule 402 shall not be construed to prevent the board from exercising its discretion to disclose a complaint or portions thereof, in the interests of justice, and that the affected parties shall be notified in advance of the board’s intent to disclose otherwise confidential material.
Subdivision (e) of Pa.R.D.E. 402 provides that the public is not permitted access to certain types of information, such as work product and deliberations of the Board and Disciplinary Counsel, and information subject to a protective order. The board added a new subsection (e)(4) to clarify that public access to complaints submitted to the Board or Disciplinary Counsel is prohibited. This new language reinforced the proposed amendment to Pa.R.D.E. 209(a) that makes complaints confidential.
Confidentiality of the investigative phase of a disciplinary proceeding is vital to the complainant and the attorney. A complainant has provided information about the attorney-client relationship that almost always includes private affairs, not intended for public consumption. For the attorney, the mere fact that a complaint has been made, no matter how frivolous, can have a significant chilling effect on that attorney’s livelihood. After a rigorous investigation by ODC counsel, all of whom have experience and expertise, only a tiny percentage of complaints result in public discipline. As stated above, 3,818 complaints were received in 2021 and 80 public sanctions were imposed.
This brings us to the issue of private discipline. Should the imposition of discipline ever be private or is it always a matter of public concern? Discipline “is not intended to be punitive in nature, rather … the primary purpose of the disciplinary process, … is the protection of the public, the preservation of the integrity of the courts, and the deterrence of unethical conduct.” See Office of Disciplinary Counsel v. Czmus, 889 A.2d 1197, 1203 (Pa. 2005).
The protection of the public is served by providing attorneys with education and deterrence that does not unnecessarily stigmatize them and limit their ability. A regulator should also seek to help lawyers grow as professionals and continue to provide legal services. A private sanction recognizes that lawyers have stressful jobs that can subject them to unreasonable demands from their clients, incivility from adversaries and a lack of patience or sympathy from the courts. Many of the 75,600 attorneys in this commonwealth are struggling to make ends meet in small or solo practices. Some of these attorneys are unaware of the stringent rules applying to fee agreements, record-keeping and IOLTA accounts. (Hat tip here to the Pennsylvania Bar Association and the IOLTA Board for increasing its educational efforts on these issues!) Many rule violations can occur without bad intent, through mistake. Attorney regulation should include instruction and support, as well as sanctions.
Perhaps, HR 231 will never go to the floor; perhaps it will not pass. If it does, the court may deem that, considering its own recent efforts, any further action is unnecessary. But the resolution itself poses a danger to the court, the board and the profession. HR 231 casts doubt on the board’s robust procedures and protections and asserts a lack of transparency where no such lack exists. At a time where lawyers are on the front lines of every battle to defend our individual rights, including our right to participate in democratic process, it is wrong for the legislature to further undermine the public’s faith in our legal institutions and our system of justice with its cavalier assertion of “recent concerns.” I hope that, in the new year, this resolution is defeated, as it deserves to be.

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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 December 2, 2022 issue of The Legal Intelligencer. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.

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