DISCIPLINE, ETHICS, CHARACTER AND FITNESS
Ethics Lawyer & Failed Character and Fitness Defense in Pennsylvania
Attorneys Facing Disciplinary Issues – Frequently Asked Questions
If you are in the uncomfortable position of facing a disciplinary action, there are a number of things you need to know. Typically, your first notice of the action against you will be a telephone call or an initial “complaint” in the mail from the Office of Disciplinary Counsel (ODC). The initial complaint is also called a Form DB-7, “Request For Statement of Respondent’s Position.” The DB-7, and all subsequent documents will refer to you as the Respondent.
Many complaints are dismissed before a Respondent is even contacted. It is also common for ODC to dismiss a DB-7 after reviewing the Respondent’s well crafted written response and conducting any further investigation it deems necessary before deciding on a final disposition of a DB-7. The Disciplinary Board of the Supreme Court of Pennsylvania’s website, www.padisciplinaryboard.org, and the complaint explain that a Respondent is not required to have an attorney. However, the suggestion that a Respondent may want to consult an attorney, preferably one who is knowledgeable in this area of practice, before responding to ODC should be taken seriously. Anything a Respondent says either orally or in writing to ODC may affect your livelihood, professional reputation, and your ability to practice law in this jurisdictions and others.
Here are some frequently asked questions by attorneys facing a DB-7:
Is an attorney required to speak with an investigator or prosecutor from ODC?
No. But, the attorney should remember that a telephone call from either an investigator or prosecutor from ODC means that someone (usually a client) has already contacted ODC with a complaint about you.
With this in mind, there are several things that you should NOT do:
- Panic and try to talk your way out of the situation.
- Volunteer information to an investigator or prosecutor. This may result in the attorney making the situation worse, i.e., blame the client or provide the caller with inaccurate information.
- Ignore the telephone call. This may make matters worse because ODC may think the attorney is intentionally ignoring its staff and it may result in further violations during the disciplinary proceeding.
- Before providing ODC with any information, it is in your best interest to seek the advice of an attorney who specializes in attorney disciplinary matters.
What should an attorney know if ODC issues a DB-7 to an attorney?
Receiving any type of complaint is upsetting, let alone a disciplinary complaint. Even when an attorney receives a DB-7, the attorney should not panic. Often, after ODC learns all of the facts from the Respondent’s well-crafted written response to the DB-7 and conducting its own investigation, the prosecutor may decide to dismiss the complaint. A prosecutor may also decide against further prosecution but feel that a written warning is necessary. The prosecutor may also recommend private discipline. Should the Respondent disagree with the recommendation of private discipline, the rules allow for a Respondent to request that ODC file formal charges referred to as a Petition for Discipline. See below for further explanation.
Do not ignore the DB-7. The written response to a DB-7 is the only procedural opportunity a Respondent has to defend himself against the allegations and charges in the DB-7. At this stage in the disciplinary process, the rules do not permit or provide for a hearing. As such, a Respondent would be wise to hire an attorney who understands the disciplinary process and governing rules.
Once ODC issues a DB-7, the disciplinary process must be followed until the complaint is resolved, even if the complaining party no longer wants to pursue a complaint
Who can file a disciplinary complaint?
Anyone. Common sources of disciplinary complaints are made by current clients, former clients, judges, opposing counsel, former colleagues, the Client Security Fund, and anyone associated with a case or matter handled or being handled by the Respondent
What will happen to my ability to practice if I receive a DB-7 ?
Nothing. The mere receipt of a DB-7 does not prevent an attorney from practicing law while the complaint is pending. There are procedural rules, the Rules of Disciplinary Enforcement and the Disciplinary Board Rules, which must be followed before ODC may make any recommendation concerning the disposition of a DB-7.
May a Respondent engage in discovery after receiving a DB-7?
Unfortunately, discovery in disciplinary matters, at any stage of the proceeding, is extremely limited, unlike in civil and criminal law
What should an attorney know if ODC issues a DB-7?
Unfortunately, the rules do not provide for a time limit. The process takes time and the Respondent must be patient. It is common for ODC to have supplemental questions after receiving a response to the DB-7. Similarly, it is common for ODC to request documents from the Respondent during its investigation or to issue an amended DB-7, similar to an amended Complaint
What may happen to a Respondent after ODC completes its investigation?
There are several possible outcomes. ODC may dismiss the DB-7 outright or dismiss the DB-7 with a letter from ODC concerning action that Respondent should take to avoid similar misconduct in the future, or recommend private discipline (an informal admonition or private reprimand).
An informal admonition is typically administered at a meeting with the Chief of the Disciplinary System. It is part of the attorney’s disciplinary file (and will be viewed as an aggravating factor if the attorney is a repeat offender in the disciplinary system). This may require the attorney to notify his malpractice carrier and the other jurisdictions where the Respondent is admitted to practice.
A private reprimand is more serious. It is administered by the Disciplinary Board at a regularly scheduled session. Like the informal admonition, the private reprimand may need to be disclosed to the Respondent’s malpractice carrier and to the other jurisdictions where the Respondent is admitted to practice.
Does a Respondent have a right to a hearing concerning the allegations in a DB-7?
No. The rules do not provide for a hearing in connection with a DB-7. The recommendation for discipline is made solely upon the Respondent’s written response, ODC’s investigation and/or negotiations with Respondent’s counsel
Is a Respondent required to accept private discipline?
No. A Respondent who strongly believes that no discipline is warranted, even private discipline, may decide to take his or her chances at a hearing. There is no right to appeal from the recommendation of private discipline. As such, the only recourse a Respondent has is to request ODC to file formal charges (a Petition for Discipline) which will result in a public hearing. Depending on the facts of each case, a Respondent who undergoes a hearing may be exonerated of the charges, receive private discipline or public discipline.
What is public discipline and what types of cases may result in public discipline?
Public discipline, following a hearing, is limited to a public censure, where the charges and censure are read by the Supreme Court and televised on PCN, suspension of 1 day to 5 years, or disbarment of at least 5 years. Any suspension of more than 1 year or disbarment requires the Respondent to seek reinstatement to practice law. The reinstatement process moves slowly and there are no guarantees that a former attorney will be reinstated. During this time period, the former attorney may not engage in any activity that is considered the practice of law as explained in the disciplinary enforcement rules.
These cases typically involve repeat offenders in the disciplinary system, unreported criminal convictions, criminal convictions which can result in incarceration of 12 months or more, failure to report a serious crime to the Disciplinary Board as required by the rules, improper handling of an escrow or IOLTA account, just to name a few.