FAQs Concerning Defending Against Pennsylvania Attorney Ethics & Fee Arbitration Matters

The Nissenbaum Law Group has expanded its attorney ethics and fee arbitration defense legal practice to cover the entire tri-state area of Pennsylvania, New Jersey and New York. The benefit of doing so is that aspects of the firm’s ethics defense practice in one state can often be applied in some fashion to representing attorneys in another state. That is a key benefit of such a tri-state professional responsibility legal practice.

On the other hand, while there is a great degree of overlap among the three states, there are also key differences, especially with regard to the unique aspects of Pennsylvania ethics law and procedure. The following are frequently asked questions respecting that state.

 FAQ #1: What is the procedure for utilizing fee arbitration as an alternative to bringing a lawsuit for attorney’s fees that have not been paid?

Unlike New Jersey and New York, there is no mandatory fee arbitration in Pennsylvania. However, a variety of Bar Associations offer free mediation and arbitration services. Two of the more prominent ones are located in Allegheny County and Chester County.

FAQ #2: Are any of the assets or the ownership interest being sold subject to the jurisdiction of a bankruptcy court?

Agreements prospectively limiting a lawyer’s liability for malpractice are prohibited unless the client is independently represented in making the agreement because they are likely to undermine competent and diligent representation. As stated in Pa. RPC 1.8,

A lawyer shall not

1. make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or,
2. settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

This makes sense because clients may be unable to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are, at the time, represented by the lawyer seeking the agreement. As stated in the comments to Pa. RPC 1.8,

Limiting Liability and Settling Malpractice Claims

Agreements prospectively limiting a lawyer’s liability for malpractice are prohibited unless the client is independently represented in making the agreement because they are likely to undermine competent and diligent representation. Also, many clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are then represented by the lawyer seeking the agreement. This paragraph does not, however, prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and effect of the agreement. Nor does this paragraph limit the ability of lawyers to practice in the form of a limited-liability entity, where permitted by law, provided that each lawyer remains personally liable to the client for his or her own conduct and the firm complies with any conditions required by law. Nor does it prohibit an agreement in accordance with Rule 1.2 that defines the scope of the representation, although a definition of scope that makes the obligations of representation illusory will amount to an attempt to limit liability.

Agreements settling a claim or a potential claim for malpractice are not prohibited by this Rule. Nevertheless, in view of the danger that a lawyer will take unfair advantage of an unrepresented client or former client, the lawyer must first advise such a person in writing of the appropriateness of independent representation in connection with such a settlement. In addition, the lawyer must give the client or former client a reasonable opportunity to find and consult independent counsel.

FAQ #3: Once a Pennsylvania attorney ethics complaint is filed, and the determination is made to proceed to a hearing, is there a way to resolve the matter without that hearing taking place?

There is a robust procedure for seeking to resolve an attorney ethics complaint without the matter reaching a hearing. The procedure is contained in Rule 215 (d) (Discipline on Consent) which states:

Discipline on Consent: Rule 215(d)

(d) Other Discipline on Consent. 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. The Petition shall include the specific factual allegations that the attorney admits he or she committed, the specific Rules of Professional Conduct and Rules of Disciplinary Enforcement allegedly violated and a specific recommendation for discipline. The Petition shall be accompanied by an affidavit stating that the attorney consents to the recommended discipline and that:

(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.
(e) Handling of Petition. The Petition shall be filed with the Board. The filing of the Petition shall stay any pending proceeding before a hearing committee, special master or the Board. The Petition shall be reviewed by a panel composed of three members of the Board who may approve or deny.
(f) Private discipline. If a panel approves a Petition consenting to an informal admonition or private reprimand, with or without probation, the Board shall enter an appropriate order, and the Board shall arrange to have the attorney appear before Disciplinary Counsel for the purpose of receiving an informal admonition or before a designated panel of three members selected by the Board Chair for the purpose of receiving a private reprimand.
(g) Public discipline.
(1) If a panel approves a Petition consenting to a public reprimand, the Board shall enter an appropriate order, and the Board shall arrange to have the attorney appear before the Board or a designated panel of three members selected by the Board Chair for the purpose of receiving a public reprimand. (2) If a panel approves a Petition consenting to public censure or suspension, the Board shall file the recommendation of the panel and the Petition with the Supreme Court. If the Court grants the Petition, the Court shall enter an appropriate order disciplining the attorney on consent.
(h) Denial of Petition. If either the panel of the Board or the Supreme Court denies a Petition, the members of the Board who participated on the reviewing panel shall not participate in further consideration of the same matter. Any stayed proceedings shall resume as if the Petition had not been filed and neither the Petition nor the affidavit may be used against the attorney in any disciplinary proceeding or any other judicial proceeding.

 FAQ #4: Is there a difference in the procedures an attorney must follow if they are subject to a suspension of a year or less versus a suspension that lasts for a long period?

There is a major difference between the procedures applicable to attorneys who are suspended for a year or less versus those who are suspended for more.

An attorney suspended for a year or less can file a statement of compliance and filing fee. If it is accepted, the Disciplinary Board of the Supreme Court of Pennsylvania shall certify that submission and forward it to the Supreme Court which shall immediately enter an order for reinstatement. Pa.R.D.E. 218(g)(1). However, an attorney suspended for over a year must file a petition for reinstatement and bears the burden of demonstrating that they have the moral qualification and competency to resume practicing law. Pa.R.D.E. 218(c). That requirement also applies to an attorney who is disbarred, though the application for reinstatement should be made after the five year period has passed. Pa.R.D.E. 218(b).

FAQ #5:  Are there steps the Pennsylvania licensed attorney seeking reinstatement can take to begin the process even before retaining counsel?

Yes, there is, and it can be summed up in one word: witnesses. A key aspect of the attorney’s application for reinstatement will involve “demonstrate[ing], by clear and convincing evidence, that such person has the moral qualifications, competency and learning in law required for admission…and that the resumption of the practice of law…will be neither detrimental to the integrity and standing of the bar or the Administration of Justice nor subversive to the public interest.” Id. at (c)(3). In order to do that, it will often make sense to produce witnesses who can aver to the attorney’s “moral qualifications, competency and learning in law.” This can take the form of witnesses who may testify to the relevant public service and other activities in which the attorney has been engaging and other evidence of both their character and commitment to reentering the legal profession.

The Firm’s Approach to Pennsylvania Attorney Ethics Matters

The Nissenbaum Law Group stands ready to assist Pennsylvania attorneys in defending against Pennsylvania fee arbitration and attorney ethics proceedings. Learn more about the firm’s Pennsylvania ethics defense practice.