Samuel Stretton ()
Attorney discipline should not
be on a progressive scale.
In attorney disciplinary matters, is there any set discipline for certain types of misconduct?
The answer traditionally has been no in Pennsylvania. The Pennsylvania Supreme Court and the Pennsylvania Disciplinary Board, since 1972, have taken an innovative approach to attorney discipline. Each case is viewed individually. There is no per se discipline.
This was confirmed by the Pennsylvania Supreme Court in the case of Office of Disciplinary Counsel v. Lucarini, 472 A.2d 186 (Pa. S.Ct. 1983). Lucarini involved the misuse of clients’ funds. The Office of Disciplinary Counsel wanted disbarment to be the discipline for any misuse of funds, as it is in New Jersey and some other states. The Supreme Court rejected that approach to professional discipline and rejected per se discipline. The court noted each case had to be viewed individually, that disciplinary proceedings were not punitive in nature, and the primary purpose was to determine the fitness of an attorney to practice law and to protect the public.
The Lucarini concept of individual discipline has been reviewed and affirmed over the years by the Supreme Court, most recently in the case of Office of Disciplinary Counsel v. Cappuccio, 48 A.3d 1231 (Pa. 2012). It should be noted in both Lucarini and Cappuccio, the court ultimately entered disbarment. But the disbarments were not because of a general category of misconduct—only after reviewing all of the information and facts.
Having said that, there is some concern recently in the dissenting opinion of Justice Max Baer, which was joined by Justice Correale F. Stevens in the case of Office of Disciplinary Counsel v. Quinn, ____ A.3d ____ (Supreme Court Docket 2008 Disciplinary Docket No. 3) (March 31, 2013). The Supreme Court suspended Thomas Russell Quinn for one year and one day. He had several prior disciplinary matters, including an informal admonition in 2002, a private reprimand in 2005, and a stayed suspension in 2008. Baer, in a dissenting opinion, joined by Stevens, believed a three-year suspension would be appropriate and found one year and one day insufficient. What is of interest is Baer’s concluding sentence that if the respondent would again appear before the court, he would disbar him.
Such a blanket statement would appear contrary to a 40-year tradition in Pennsylvania disciplinary law where, despite the nature of the misconduct, there is individual review. Perhaps if the attorney came back again, it would be warranted. But a blanket statement that multiple acts of misconduct over a period of time warrant disbarment or serious discipline is contrary to established disciplinary case law.
Pennsylvania has always been innovative in many areas of the attorney disciplinary system. The nature of discipline in Pennsylvania has always been respected nationwide and is different from many other systems where, as noted, there are categories that receive the same type of penalty. Pennsylvania has always been unique since, despite the nature of the misconduct, the court recognizes the unique mitigating and aggravating factors pertaining to each case in determining the ultimate discipline.
There has been a trend in the last 10 or 15 years in Pennsylvania for much harsher discipline than in the first 20 or 30 years of attorney discipline. Although recognizing the need to maintain the public confidence in the legal profession, the trend toward harsher discipline has been worrisome, particularly since it falls primarily on sole practitioners, who are the most vulnerable. This trend toward harsher discipline has been compounded by the fact many hearing committees now have younger members of the bar, many with fewer than 10 years of practice. Also, many hearing members are not sole practitioners, but are from larger firms where the world of practicing law is light years different from that of a sole practitioner.
Unfortunately, in this fast-paced modern world where lawyers are often overextended, it is not necessarily unusual that a lawyer might end up neglecting several cases over a five- or 10-year period. It is certainly not desired, but if lawyers are handling heavy caseloads with limited funds, it is not unexpected, even for the best of practitioners. Under Baer’s theory, a sole practitioner who, perhaps over 10 years, has neglected six or seven cases with resulting increased discipline should be disbarred. That would be a travesty of justice. It also shows the danger of discipline by category, such as the category of repeat offender must have severe discipline or disbarment per Stevens and Baer.
Judges who have not practiced law for many years or who practiced law only in government employment or a major firm environment would not be able to conceive of the pressures and difficulties and expenses of a sole practitioner in this current age.
Therefore, the dissenting opinion is worrisome. Certainly, no one disagrees with the need to maintain the public’s confidence in the bar and no one disagrees that lawyers should not violate the Rules of Professional Conduct. But there has to be a sense of realism and a sense of what it is like to have to make a living in a full-time, sole practice, with the pressures, overhead and significant cash flow problems most small practitioners are facing on a regular basis.
Under Baer’s theory, a lawyer could handle 50,000 cases perfectly, and over a period of five or six years perhaps neglect five or six, resulting in progressive discipline, which would then cause disbarment the next time around. Looking through that perspective demonstrates the fallacy of this kind of per se discipline.
Hopefully, the Disciplinary Board and, ultimately, the Supreme Court, will reflect some of these concerns and maintain the individual review of disciplinary matters. But this trend does not appear promising based on the dissenting opinion of Stevens and Baer.
Attorneys need to understand technology to avoid potential discipline.
What is an area in the practice of law that could cause problems or result in discipline for many attorneys in the future?
There are many problem areas where lawyers can get in trouble, but the one area whose time has come is modern technology. The Rules of Professional Conduct were recently amended at the prodding of the American Bar Association to include knowledge of technology as part of competence for an attorney. Comment 8 to Rule 1.1 reads:
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
Under Rule 1.6, a lawyer has to make reasonable efforts now to prevent inadvertent, unauthorized disclosures and unauthorized access of information relating to a client’s representation. Under Comments 19 and 20, there are detailed discussions as to the disclosure. Under Comment 25, there is specific discussion as to unauthorized use and the need to ensure security and confidentiality of electronic communications.
Pennsylvania is now requiring lawyers to maintain knowledge of technological changes and to understand them, at least to the extent necessary to protect confidentiality.
The problems with modern technology were seen at a recent criminal law seminar I attended. One of the attorneys who spoke and was very competent and knowledgeable on computer and technology usage pointed out that during the seminar he was able to access the emails and communications of other lawyers in the seminar who were apparently communicating either on their tablets, computers or phones. He was able to read off the names of the lawyers and could read exactly what they were telling their clients. That obviously was a shock to a number of attorneys present. This was a true wakeup call that modern technology and communications have to be taken seriously by all lawyers to protect confidentiality. The Rules of Professional Conduct now require lawyers to prevent what happened at the seminar. These breaches of confidentiality through careless use of technology could have serious consequences. No longer is it a good excuse to say you don’t understand technology.
Recently, it was reported that a federal judge criticized attorneys who were not up to date on technology as not being able to competently represent clients because the attorneys won’t understand the nuances in modern electronic discovery. That may well be true, but I am not sure it renders the attorney incompetent. Old-fashioned trial skills are still the most important ingredients for being a good trial lawyer.
But the technology push is on. I had my office staff file some pleadings electronically with the Environmental Hearing Board and there was a question. When the office staff called, they were told by the board that only lawyers could do so. Since the office staff understood more about how to file electronically than I did, it highlighted again that technology is now becoming an important part of legal training.
Having said that, most of the Pennsylvania Bar Institute courses on technology are great for those who grew up and were weaned on modern technology. But for older members of the bar, it might be worthwhile to have a boot camp for technology.
There is no getting away from it now. All lawyers have to start to understand not only how to use technology, but also the theories behind it to protect the nature of confidentiality. The days of lawyers communicating at seminars or hotel rooms or in their car and other people picking up that material are gone and could result in rather serious discipline.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.