WHAT ARE THE CRITICAL ASPECTS OF THE PROCESS BY WHICH A PA ETHICS MATTER PROCEEDS? FAQs

FAQ # 1 − What is the attorney-respondent’s obligation to provide discovery or other materials?

When compiling the responses to the discovery requested by the disciplinary counsel, the attorney must give full and complete disclosure. Obviously, that is not the standard by which civil litigation proceeds; in other words, there are far less scenarios under which the attorney can avoid full and complete answers and disclosure to basic discovery requests. As stated in Enforcement Rule 213(I),

Additionally, the records required to be maintained should be readily accessible and available for production to the ODC in a timely manner (within ten (10) business days) upon request. § 87.7(e). It is important to remember that the failure to produce the requested records is a violation of Pennsylvania’s ethics rules.

FAQ # 2 − What is the effect of the attorney not filing an answer in the Pennsylvania disciplinary proceeding?

Upon the filing by Disciplinary Counsel of a formal petition setting forth specific charges of misconduct, the respondent-attorney has twenty days after service to serve an answer upon the Disciplinary Counsel and the Board. Any factual allegation that is not timely answered shall be deemed admitted. § 89.54(d).

FAQ # 3 − Are subpoenas available as a discovery device in Pennsylvania attorney ethics disciplinary proceedings?

Yes. There are several instances in which the Disciplinary Board can issue subpoenas. For example, with respect to investigations concerning overdrafts of trust accounts, the Board can require production of bank records via subpoena. The attorney has a right to request and pay for copies of the produced records.

Additionally, as stated above, at any stage of an investigation and/or proceeding, the Disciplinary Board can summons witnesses or require production of records via subpoenas. On the other hand, the respondent-attorney’s right to subpoena is generally limited to summoning a witness to testify at a hearing.

FAQ # 4 − Is there a way of terminating the PA ethics disciplinary proceeding by stipulating to discipline by consent?

Yes. At any stage of the disciplinary investigation or proceeding, the respondent-attorney and Disciplinary Counsel may file a joint petition in support of discipline of consent. The petition should include the stipulated specific factual allegations committed and the ethical rules violated, as well as a specific recommendation for discipline. The petition is filed with the Board, and reviewed by a three-member panel that may elect to approve or deny the petition.