PENNSYLVANIA ATTORNEY ETHICS & DISCIPLINARY DEFENSE

Five Aspects of the Pennsylvania Disciplinary Board Rules and Procedures That Every Attorney Should Know

There are a number of important ways in which the Pennsylvania Disciplinary Board Rules and Procedures are unique. A few of their more interesting nuances are as follows.

I. There is a Statute of Limitations for Pennsylvania Ethics Matters.
It is not widely known that there is actually a statute of limitations that applies to ethics matters: four years after the incident(s). There are a number of exceptions that apply, as well. They are contained in Section 85.10 of the Disciplinary Rules, to wit:

85.10 Stale matters.
(a) General rule. The Office of Disciplinary Counsel or the Board shall not entertain any complaint arising out of acts or omissions occurring more than four years prior to the date of the complaint, except as provided in subsection (b).

(b) Exceptions.

(1) The four year limitation in subsection (a) shall not apply in cases involving theft or misappropriation, conviction of a crime or a knowing act of concealment.
(2) When litigation has resulted in a finding that the subject acts or omissions involved civil fraud, ineffective assistance of counsel or prosecutorial misconduct by the respondent-attorney, a complaint may be entertained if filed or opened within: (i) four years of the subject acts or omissions; or (ii) two years after the litigation in which the finding was made becomes final, whichever date is later.

(c) Litigation “becomes final” within the meaning of subsection (b)(2)(ii) at the conclusion of direct or collateral review, including discretionary review in the Supreme Court of the United States and the highest state court, or at the expiration of time for seeking the review.

Note: Litigation resulting in a finding of civil fraud, ineffective assistance of counsel or prosecutorial misconduct is not a prerequisite to Office of Disciplinary Counsel’s or the Board’s entertaining a complaint involving one of those three forms of misconduct, and subsection (b)(2) should not be read to impose such a requirement.

II. The Complainant has no Right to Appeal, but can Request a Review of, a Dismissal.
If an ethics matter is dismissed by the District Office or Chief Disciplinary Counsel, the complainant is promptly notified of the disposition. They do not have the right to appeal, but may either (a) bring the matter to another agency or other body having jurisdiction (such as the Fee Disputes Committee) or (b) request that the Office of Disciplinary Counsel review the complaint itself. As to the latter, the Disciplinary Rules state at Section 87.9 (c):

(c) Review of dismissed complaints. The Office of Disciplinary Counsel will review complaints dismissed under subsection (a) of this section upon request of the complainant. The request shall be in writing and submitted to the Disciplinary Counsel-in-Charge of the district office that dismissed the complaint. The request should specify the reason or reasons why Office of Disciplinary Counsel should reopen the investigation under § 87.6 and include any evidence that was not previously brought to the attention of Disciplinary Counsel. The Disciplinary Counsel-in-Charge or designated Disciplinary Counsel who concurred in the recommendation to dismiss the complaint pursuant to § 87.8(c) shall conduct the review and notify the complainant in writing of the decision to grant or deny the request. Where the request is denied by the Disciplinary Counsel-in-Charge, the complainant may direct a written request for further review to the Chief Disciplinary Counsel or his or her designee. The decision of the Chief Disciplinary Counsel or the designee shall be final for purposes of this subsection.

III. If an Attorney is Given a Private or Public Reprimand, They May Demand a Formal Proceeding or Accept it and Appear Before the Board to Accept Their Discipline.
When the respondent-attorney is given a private or public reprimand, they have a choice. They can demand a formal proceeding or they can accept the reprimand. If they elect the latter, they are required to personally appear before the Board. As stated in Section 87.53 of the Disciplinary Rules,

(a) General rule relating to private reprimand. A respondent-attorney who is given notice of private reprimand pursuant to § 87.51 (relating to notification of disposition of complaint) and who does not timely demand the institution of a formal proceeding pursuant to § 87.54 (relating to demand by respondent-attorney for formal proceedings) shall appear in person before the Board, at the time and place fixed for the administration of the private reprimand. A record shall be made of the fact of and basis for the private reprimand, which record shall be available only as provided in § 93.104(d) (relating to restrictions on available information).

(b) General rule relating to public reprimand. A respondent-attorney who is given notice of public reprimand pursuant to § 87.51 (relating to notification of disposition of complaint) and who does not timely demand the institution of a formal proceeding pursuant to § 87.54 (relating to demand by respondent-attorney for formal proceedings) shall appear in person before the Board, at the time and place fixed for the administration of the public reprimand, which proceeding shall be open to the public as provided in § 93.102(a) (relating to access to disciplinary information and confidentiality). A record shall be made of the fact of and basis for the public reprimand, which record shall be public.

IV. There is a Method of Resolving Disciplinary Matters by Consent.
So long as both the respondent-attorney and the Disciplinary Counsel agree to file a joint Petition in Support of Discipline on Consent, the ethics matter may be resolved either at the disciplinary investigation stage or in the course of an actual proceeding. As stated in Disciplinary Rule 87.74,

(a) General rule. Enforcement Rule 215(d) provides that at any stage of a disciplinary investigation or proceeding, a respondent-attorney and Disciplinary Counsel may file a joint Petition in Support of Discipline on Consent; and that the Petition shall be accompanied by an affidavit stating that the attorney consents to the recommended discipline and that:

1. 1. the consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of submitting the consent; and whether or not the attorney has consulted or followed the advice of counsel in connection with the decision to consent to discipline;
   2. the attorney is aware that there is presently pending an investigation into, or proceeding involving, allegations that the respondent-attorney has been guilty of misconduct as set forth in the Petition;
   3. the attorney acknowledges that the material facts set forth in the Petition are true; and
   4. the attorney consents because the attorney knows that if charges predicated upon the matter under investigation were filed, or continued to be prosecuted in the pending proceeding, the attorney could not successfully defend against them.

V. Most Prehearing Motions That Would be Appropriate in the Court System are not Allowed in the Ethics System.
Virtually all of the motions familiar to attorneys who practice in the civil and/or criminal courts are unavailable in disciplinary matters. As set forth in Section 89.2 of the Disciplinary Rules, these include

(b) Limitations on prehearing motions. A motion for summary judgment or judgment on the pleadings, a motion to strike the petition for discipline or portions thereof, a motion to dismiss based on insufficient evidence to proceed with formal charges, any motion attacking the validity of the proceedings or pre-petition procedures, or any similarly-styled motion, shall not be accepted for filing, but if accepted for filing, shall not be entertained.

(c) Limitations on hearing motions. A motion for directed verdict or nonsuit, a motion to dismiss based on insufficient evidence, any motion attacking the validity of the proceedings, or any similarly-styled motion, shall not be accepted for filing, but if accepted for filing, shall not be entertained.

As the above list indicates, the procedure utilized by the Pennsylvania ethics system is significantly different than that of its civil or criminal courts. It is a complicated and nuanced process to navigate. The Nissenbaum Law Group stands ready to assist Pennsylvania attorneys in the defense of such matters.