Disciplinary Board Matters
Perhaps nothing is more unsettling to an attorney than receiving a letter of allegations (i.e., a Form DB-7 letter or “Request for Respondent’s Statement of Position”) from the Office of Disciplinary Counsel. Your career, your livelihood, your reputation – they are all at stake.There are several things you should NOT do if you receive such a letter.
Panic. Except in the most extreme cases, nothing “bad” will happen to you today, tomorrow, next week, or next month. In many cases, if handled properly, the disciplinary complaint will not result in any discipline at all. Even in the most serious cases, the process by which Disciplinary Counsel seeks public discipline is a relatively long one. It involves notification to the respondent-attorney, response by the respondent-attorney, additional investigation followed by an (ex parte) recommendation by Disciplinary Counsel and a formal review process, the filing of a Petition for Discipline, an Answer by the respondent-attorney, and then a three-tiered litigation process.
Ignore the matter. Many respondent-attorneys ignore the Form DB-7 letter, hoping it will simply “go away.” It will not go away. “Putting your head in the sand” will only make the problem worse. Moreover, mere failure to respond to the Form DB-7 letter, in and of itself, is now a punishable violation of the Rules.
Yell at, scream at, berate, or otherwise harass Disciplinary Counsel. They have a job to do, and they are simply doing it. Even if Disciplinary Counsel has alleged erroneous facts in the Form DB-7 letter, Disciplinary Counsel, at least initially and to a certain extent, has to rely upon what the complainant tells them.
Try to explain away the matter in a phone call to Disciplinary Counsel. Disciplinary Counsel requests a written response, and that is what you should give them. A written response allows you to carefully reflect on what you are saying, and also allows you to rely upon your file contents and other records to corroborate the accuracy of your response. Moreover, if you call Disciplinary Counsel, rest assured that they will be taking notes on everything you say during the conversation.
Try to lie your way out of a complaint. There is nothing wrong with presenting the facts in the light most favorable to your position, providing explanations or justifications for your actions, and presenting mitigation. However, I will not represent you if you intend to lie to Disciplinary Counsel, and I have in fact turned away potential clients who wanted to try to lie their way out of a complaint.
Try to “settle” the complaint with the complaining party. It is appropriate, and in fact desirable, to properly and promptly attend to your client’s interests upon receipt of the Form DB-7 letter, especially if the complaint alleges a failure to do so (i.e., neglect of a legal matter). You should not try to entice the complainant into “dropping” his or her complaint, however. Under the procedural rules governing disciplinary complaints, Disciplinary Counsel is authorized to continue its investigation even in the face of a refusal by the complainant to cooperate with Disciplinary Counsel.
Treat the Form DB-7 letter as a pleading. You should not respond as you would if you were a defendant in a malpractice action or a criminal case. Although the Form DB-7 letter will contain numbered allegations, it should not be treated as a pleading in a court of law. Usually, unless the complaint results in formal charges against you, your statement of position in response to the Form DB-7 letter will be the only opportunity you have to defend yourself. Moreover, in a complaint that does have the possibility of proceeding to formal charges (thereby exposing you to public discipline, including the loss of your license), your statement of position is your one chance to avoid the institution of formal charges. A complete and full knowledge of the Rules of Professional Conduct, the Rules of Disciplinary Enforcement, the Disciplinary Board Rules, case law, and “the ropes” is necessary to optimize your chances for a favorable outcome to the complaint based upon your statement of position.
Represent yourself. Yes, this sounds self-serving. But more importantly, you will serve your own interests in consulting with an attorney who concentrates his or her practice in attorney ethics and disciplinary law. As stated above, your career, your livelihood, and your reputation are all at stake, and a complete and thorough knowledge of the substantive rules, the procedural rules, case law interpretation, and the disciplinary system itself is necessary to optimize your chances for a favorable outcome to the complaint.
Frequently Asked Questions:
Who can file a disciplinary complaint?
The easy answer is anyone can file a disciplinary complaint. Keeping in mind that the disciplinary system is not designed to provide remedies to aggrieved parties, but rather is charged with protecting the public from unethical practices by attorneys, Disciplinary Counsel can, and will, entertain complaints from any and all sources. While most complaints are received from the respondent-attorney’s own client, complaints are also received from opposing parties, opposing counsel, judges, and third parties (such as beneficiaries of an estate in which the respondent-attorney represents the personal representative of the estate). Disciplinary Counsel is also authorized to open a complaint on its own motion, and often does so — for instance, based upon conduct of an attorney that is reported in the news media.
I understand that a large majority of disciplinary complaints are dismissed. Doesn’t that mean that the complaint against me is fairly likely to be dismissed, no matter what?
Not if you have received a Form DB-7 letter, requesting the respondent-attorney’s statement of position. The vast majority of complaints are dismissed, but most dismissals occur during the initial screening/investigation stage of a complaint. During the seven years I was employed by the Office of Disciplinary Counsel, roughly 85-90% of complaints were dismissed at that stage, and I suspect that the percentages have not changed much, if at all. Usually, the respondent-attorney never even knows a complaint was filed against him/her if it was dismissed after the initial screening and investigation. It is the remaining complaints that result in the issuance of a Form DB-7 letter to the respondent-attorney. The issuance of a Form DB-7 letter means that the complaint has survived the initial screening and investigation stage. Generally, this means that allegations have been made that, if true, constitute violations of the Rules of Professional Conduct, and that, after an initial review of the matter, Disciplinary Counsel believes that there may be sufficient evidence to prove the allegations.
Does the issuance of a Form DB-7 letter, then, mean that Disciplinary Counsel has “prejudged” the complaint?
No. It simply means that, based upon the information currently available to Disciplinary Counsel, it appears that there may be sufficient evidence to prove violations of the Rules of Professional Conduct. If the allegations brought to Disciplinary Counsel’s attention are inaccurate, a well-explained and well-documented statement of position often leads to a dismissal of the complaint. Presentation of mitigating factors and/or case law and other authority relating to the alleged Rule violations may also lead to a favorable outcome.
How soon after I file my statement of position will I learn of the disposition of the complaint?
There is no easy answer to this question, because so many variables are involved. In my experience, the average length of time between submitting a statement of position and learning of the disposition of the complaint is three or four months. However, I have been notified of dismissals of a complaint in as little as a few days after submitting a statement of position on behalf of a client, and I have waited as long as a few years for a disposition. (Fortunately, those have been very few and far between, and the length of time involved usually was due to some extenuating circumstance(s).) Of course, if a complaint results in formal charges, it will usually take at least a few years to “work its way through the system.”
What are the different levels of discipline which can be imposed against an attorney?
There are two levels of private discipline – an informal admonition and a private reprimand – and four levels of public discipline – public reprimand, public censure, suspension for any length of time up to five years, and disbarment – which can be imposed against an attorney.
Isn’t an informal admonition a mere “slap on the wrist?”
No. although it is the least severe level of discipline, the term “informal admonition” is, in my opinion, a misnomer. The term “informal” actually refers to the manner in which the admonition is actually imposed. The imposition of an informal admonition is intended to be a short and informal meeting with the Chief Disciplinary Counsel or his designate, at which time a frank and (it is hoped) amicable discussion of the misconduct takes place. However, the informal admonition nonetheless constitutes formal discipline of record, and while the imposition of the admonition itself is relatively “painless,” it does have certain “side effects.” Being discipline of record, you will be considered a “recidivist” (although Disciplinary Counsel does not generally use that terminology) in the event of future complaints against you. You will have to disclose the discipline on your malpractice insurance applications. You are also generally required to disclose the imposition of even private discipline if you seek admission to another jurisdiction, even if only on a pro hac vice basis. Disciplinary Counsel is also authorized to disclose private discipline to any authorized agency investigating the qualifications of judicial candidates.
What is the difference between an informal admonition and a private reprimand?
A private reprimand is a more serious level of discipline than an informal admonition. Instead of being administered by Disciplinary Counsel, the private reprimand is administered by the Disciplinary Board. The private reprimand is administered in a somewhat more formal and less amicable setting than an informal admonition.
Can I appeal the imposition of an informal admonition, private reprimand or public reprimand?
The determination that the complaint should result in an informal admonition, private reprimand or public reprimand cannot be “appealed,” but the respondent-attorney may elect not to receive the informal admonition, private reprimand or public reprimand and instead demand that a formal proceeding be instituted against him or her. This results in the formal three-tiered litigation process, which may result in a dismissal of the complaint, but also may result in the imposition of discipline greater than an informal admonition, private reprimand, or public reprimand. Therefore, the demand for a formal hearing should only be made after a very careful analysis of the facts, law, aggravating factors and mitigating factors.
What types of cases result in the institution of formal proceedings?
Aside from instances in which the respondent-attorney has demanded a formal hearing, formal proceedings are instituted in any case where it is believed that a public censure, suspension, or disbarment should be imposed. Examples of such cases include the mishandling of entrusted funds, criminal convictions of the respondent-attorney, matters involving egregious dishonesty, such as fraud, bribery or the subornation of perjury, or other egregious conduct involving the administration of justice. Even relatively minor misconduct can result in formal charges if the respondent-attorney has a prior history of discipline for misconduct.
How does the Disciplinary Board learn of a criminal conviction of an attorney?
An attorney has an affirmative duty, under the Rules of Disciplinary Enforcement and the Disciplinary Board Rules, to report to the Office of Disciplinary Counsel the conviction of a crime. A “crime” for the purposes of this reporting requirement is any offense that is punishable (not punished) by imprisonment. This includes convictions for DUI.
What if I fail to report a criminal conviction to the Disciplinary Board?
Disciplinary Counsel will generally learn of the criminal conviction on its own (among other ways Disciplinary Counsel learns of a conviction, clerks of courts are also required to report the conviction of an attorney to the Disciplinary Board). The respondent-attorney’s failure to report his or her conviction it is considered to be a violation in and of itself (of the Pennsylvania Rules of Disciplinary Enforcement) and an aggravating factor in the disciplinary proceeding relating to the criminal conviction.
If I am charged with a crime and am accepted into the Accelerated Rehabilitative Disposition (ARD) program, do I have to report that to the Disciplinary Board?
No. Acceptance into ARD does not constitute a conviction. Of course, successful completion of the ARD program becomes paramount in order not to trigger any reporting duty to the Disciplinary Board.
Are disciplinary proceedings public?
Formal disciplinary proceedings are now public once a Petition for Discipline is filed against the Respondent-attorney. Therefore, even if a complaint is dismissed following formal charges, the damage to one’s reputation may be done. To prevent damage to one’s reputation, it is more important than ever that the matter be handled properly following the issuance of a Form DB-7 letter. Most (although certainly not all) matters, if handled properly, can be “nipped in the bud” before they become public.
Other Practice Areas:
- Client Security Fund Claims
- Pennsylvania Board of Law Examiners Matters
- Judicial Conduct Board Matters
- Reinstatement Proceedings
- Ethics Advice/Consultation
If you have been contacted by the Disciplinary Board, the Client Security Fund, the Board of Law Examiners, the Judicial Conduct Board, or if you have any other ethical concerns or questions, contact Attorney Craig Simpson at 412-731-3100 to arrange an appointment at our convenient and confidential office. All inquiries are strictly confidential.