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In the past two years, the attorney disciplinary process has undergone a quiet revolution brought about by two separate, yet related, changes. First, in June 2005, the Pennsylvania Supreme Court adopted changes to Rule 215 of the Pennsylvania Rules of Disciplinary Enforcement allowing the Office of Disciplinary Counsel (ODC) to negotiate with respondents and reach joint recommendations of discipline upon consent in all cases. Before this change, the only discipline that could be negotiated and jointly recommended to the disciplinary board and the Supreme Court was disbarment. Negotiated discipline on consent is, simply put, plea-bargaining for disciplinary charges, and it has significantly affected practice and procedure before the board. The second change in the rules, effective Nov. 12, 2005, was the “opening” of disciplinary proceedings to the public. The rules intersect when attorneys are confronted with a choice between accepting the ODC’s recommended sanction or facing a public hearing. For some attorneys, the public nature of the proceedings is often a critical factor in deciding whether to accept the proposed sanction. We will save a discussion of the opening of the system for a future column; this column focuses on the changes in the discipline on consent rules, and how to best take advantage of them. First, why the change? The overriding motivation for the change to permit discipline on consent was to streamline the process for all the players: the ODC, the disciplinary board and respondents. Prior to the rule change, the average time for resolving attorney complaints in Pennsylvania was above the national average, undermining the public’s confidence in the disciplinary process. Another motivating factor was the fear that some respondents were accepting disbarment on consent simply to avoid the stress and expense of litigating the issues raised by the complaint. Just as in the criminal context, the disciplinary system is not well served if the accused accepts a punishment that is more severe than warranted in order to avoid the difficulties of the process. The new rule permits respondents to agree to the full spectrum of sanctions described in Rule 204 of the Pennsylvania Rules of Disciplinary Enforcement, ranging from a private informal admonition to disbarment. How does the new rule work? Under Rule 215(d), disciplinary counsel and a lawyer facing disciplinary charges may jointly petition the disciplinary board for discipline on consent at any stage in the disciplinary or investigative process. This joint petition in support of discipline on consent must include – among other requirements – the specific factual allegations that the attorney admits to committing, the Rules of Professional Conduct and Rules of Disciplinary Enforcement allegedly violated, and a specific recommendation for discipline. The attorney also must provide an affidavit stating that he freely and voluntarily consents to the recommended discipline; acknowledges that the facts in the petition are true; and consents to the recommended discipline because he knows that he could not successfully defend against the allegations or charges if they were to be prosecuted. The agreement, however, is only a recommendation. The joint petition in support of discipline on consent is filed with the board. Filing stays any pending proceeding before a hearing committee, special master or the board. A panel composed of three members of the board, who have the power to approve or deny the recommendation, reviews the petition. If a panel approves a petition consenting to an informal admonition or private reprimand, with or without probation, the board enters an appropriate order. If the discipline is an informal admonition, the attorney appears before disciplinary counsel to receive the sanction; if the sanction is a private reprimand, the attorney appears before a designated panel of three members selected by the board chair. If a panel approves a petition consenting to public censure or suspension, the board files the recommendation of the panel and the petition with the Supreme Court for further approval. If the court grants the petition, the court enters an appropriate order disciplining the attorney on consent. If the court or the board denies the petition, any stayed proceedings resume as if the petition had not been filed. The rule wisely ensures that an attorney who has a joint petition denied suffers no prejudice in the resumed proceedings. 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 must recuse themselves from further consideration of the matter. It is also important to note that neither the joint petition nor the affidavit may be used against the attorney in any disciplinary proceeding or any other judicial proceeding. Thus, any statements made by the attorney in the process of agreeing to discipline on consent are effectively immunized. How well is the new rule working? Measured by a decrease in work for the board and the number of joint recommendations that have been approved, the answer is so far, very well. In 2005, with the rule in effect for only part of the year, the disciplinary board adjudicated 92 matters. In 2006, the full board adjudicated only 58 matters and 33 joint recommendations were submitted to board panels. From June 2005 through December 2006, 51 joint petitions were filed with the board; six were denied, and one is pending. Of the six denied, the court denied five after approval by a board panel. How has the rule change affected ODC’s workload? Of the 33 joint petitions filed last year, 21 were filed prior to a hearing, saving disciplinary counsel trial preparation and briefing time. However, this phase of the case is only a portion of disciplinary counsel’s job. The process of determining whether an initial complaint should be the subject of a formal prosecution remains time consuming and labor intensive. Also, in order to arrive at the appropriate sanction to offer to a respondent, the ODC attorneys have to thoroughly investigate the facts and research the law relating to each complaint. As with any negotiation, the ODC must have a solid understanding of the case to back up its offer. What effect has the rule change had on respondents? The numbers tell us that a significant percentage of respondents are taking advantage of the change, and as a result, reaping several benefits. First, like a guilty plea agreement or any civil settlement, discipline on consent provides a degree of certainty for attorneys facing potential disciplinary sanctions. This certainty permits the attorney to plan for the future and provides time to wrap up a practice in an orderly fashion, if necessary. At the same time, lawyers under investigation can substantially reduce the costs associated with defending disciplinary charges by negotiating discipline on consent early in the process. Finally, lawyers can avoid much of the negative publicity and public embarrassment that comes as a natural byproduct of the open disciplinary process. Our investigation of this topic has revealed another unique aspect of disciplinary proceedings: This is probably the area of the law where the defending party most often tries to represent him or herself. As attorneys who represent respondents, we are not speaking only out of self-interest when we say that self-representation in disciplinary proceedings – whether in a full-blown hearing or in a negotiation for discipline on consent – is not a good idea. Practice before the disciplinary board is a highly specialized practice area, filled with arcane rules, procedures and precedents that you will not find in the A.2d Reporter. The negotiation of discipline on consent is an especially delicate matter. It requires counsel who can be objective about the respondent and realistic about his misconduct, one who will not take things personally but can concede the case’s weaknesses and move ahead. A positive professional relationship with the ODC is also important; just like a prosecutor in a criminal case, disciplinary counsel is not required to enter into a negotiated resolution and can choose to proceed to a hearing. An inability to admit certain aspects of the offense – or its harmful effects – or difficulty communicating with disciplinary counsel can irrevocably harm the negotiation process. One more problem with self-representation occurs when the misconduct is caused by an addiction or mental illness, and the respondent does not admit that such an illness exists. An experienced attorney in this area can recognize these problems, guide a client through a rehabilitative process and knowledgeably seek mitigation of the sanction. In order for a psychiatric infirmity to be considered in mitigation in a disciplinary proceeding, the respondent must establish that the disorder was a causal factor in producing the misconduct. This usually requires presentation of expert testimony, but in negotiating discipline on consent, an expert report can serve that purpose. In our view, the changes in Rule 215 making discipline on consent more widely available are beneficial and sensible. The new procedure has demonstrated its potential to streamline the disciplinary process, lessen the administrative burden on the system and reduce the costs associated with disciplinary proceedings. We predict that as time passes, a higher percentage of attorneys facing the prospect of disciplinary sanctions will elect to pursue discipline on consent with the ODC, saving themselves wear and tear on their psyches, their wallets and their reputations. Litigation associate Karen M. Ibach assisted with the research and drafting of the column. ELLEN C. BROTMAN serves as of counsel to Montgomery McCracken Walker & Rhoads’ whitecollar crime and government investigations groupand chairwoman of its professional responsibility group, after several years of being a principal in the firm of Carroll & Brotman. Brotman is also a former assistant federal defender with the Philadelphia Community Defenders Organization. MICHAEL B. HAYES is a senior litigation associate with the firm and is a member of the firm’s professional responsibility practice group. Prior to joining the firm, Hayes served as a law clerk to Justice Russell Nigro of the Pennsylvania Supreme Court.

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