Ethics Forum: Questions and Answers on Professional Responsibility

Samuel C. Stretton.

The court is a place for fair, just and independent decisions where the judge protects the constitution and the law.

I am a newly elected judicial officer. What is the most important aspect of consideration in being a judge?

Two things a judicial officer must do. First, is to be fair and just. The second is to protect the judicial institution.

A judicial officer plays a rather unique role in a democratic society. At least until recently and hopefully in the future, judicial officers were seen differently by the public in a different manner than other political office holders. Obviously, many judges are appointed and in Pennsylvania, of course, they are elected.

Judicial independence is the guiding star. But, to maintain that, the Judges have to be above political concerns to be considered fair and just. Max Lerner noted once in his interesting book titled, “Nine Scorpions in a Bottle,” in many ways judges and justices are viewed to be “the exclusive guardianship of the constitution,” and must maintain the “tradition of judicial neutrality.” This guardianship and need to protect the constitution is why judges are often viewed differently than other elective and political office holders. Obviously, it is even more so for appellate justices. As Lerner noted in his interesting book, the guardianship role in the mind of the public causes the public to view the court as protecting the constitution and above their power struggle.

As Lerner points out, a judge cannot be a proper guardian of the constitution and the law if there is not “a tradition of judicial neutrality.” That is why the current debates and appointments in the U.S. Supreme Court raised such concern because politics more and more is becoming the guiding star in judicial appointments at every level and that ultimately is going to undermine the concept of judicial neutrality and undermine the public’s support for an independent judiciary.

Of course, in the real world, this concept of guardianship is perhaps flawed and neutrality is something to aspire toward, but sometimes difficult to do. But, it’s important for courts to try and it’s important for new judges to recognize the symbolic aspects of their judicial office. These symbolisms help to maintain the support and respect of the public and also enhance the need for an independent judiciary.

The current Code of Judicial Conduct has its purpose of assuring that the judicial office is the guardianship of the constitution and law and the judicial officer is operating in a fair and neutral manner. The current Code of Judicial Conduct in Pennsylvania goes a long way toward fulfilling these qualifications. The new code prohibits joining discriminatory organizations, prohibits arbitrary behavior and retaliatory behavior, and requires calm and dignified treatment of staff and litigants and lawyers.

Sometimes in the hustle and bustle of the modern world of judging, it’s difficult to maintain these roles when there are so many cases listed each day. Judges are human and, at times become frustrated and worn out, particularly from seeing the same problems day after day, week after week.

But, to be a good judge, one not only has to read the Code of Judicial Conduct and have the background and experience in practicing law, one also has to have an understanding of the role that the judicial office and the importance in the public’s mind of the judicial office. When a judge has the understanding of his or her role of guardianship of the laws and the constitution and the need for neutrality and independence, that goes a long way toward helping a judge be fair and just. It also goes a long way in protecting the judicial institution.

That’s why judges wear a robe. There is a real symbolism. That’s why courtrooms should be run with dignity where people rise and stand when they address a judge. That’s why “your honor” is used. That’s why judges should call lawyers by their last names, not their first. That’s why a judge should take note to not raise his voice or to express extreme anger. That’s why judges should not berate lawyers in front of their clients. If there is criticism, do it privately. That’s why courtrooms are conducted with dignity. That’s why people are not allowed to bring food or drink into a courtroom nor should judges be eating or drinking on the bench other than a cup of water. That’s why judges in a courtroom, at sidebar or chambers meet with both lawyers from each side and there is no ex parte conduct.

All of this goes to protect the institution and the symbolism that the court is a place for fair, just and independent decisions where the judge will protect the constitution and the law. That is the best advice that can be given to any young judicial officer. With that philosophical model in mind, it’s very easy to comply with the Code of Judicial Conduct and ensure that one is doing their best to provide just and fair decisions.

When seeking reinstatement, show that you are competent in the learning of the law 

I am an attorney who is suspended and I am seeking reinstatement to the practice of law.  What must I do to ensure I will have a clear shot at being reinstated?

The requirement for reinstatement is set forth in Pennsylvania Rules of Disciplinary Enforcement 218(c)(3). The suspended or disbarred lawyer has the burden of proof by clear and convincing evidence to show a person has moral qualifications, competency and learning in the law. Further, the lawyer has to show that their admission will not be detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest. If one is disbarred, there is a threshold issue whether or not the conduct is so egregious that the person should not be admitted again, as in Office of Disciplinary Counsel v. Keller, 506 A.2d 872 (Pa., 1986). This Keller rule has only resulted in the denial of one person so far by the Pennsylvania Supreme Court, though there were one or two Hearing Committee reports that recommended a Keller denial, but no further appeals were taken.

The learning in the law requirement is met by taking the required 36 hours of CLE courses, which includes four hours of Bridge the Gap and 12 hours of ethics. One can enhance that requirement by continuing to read advance sheets or studying cases regularly over the years of suspension or disbarment.

The former attorney also helps meet the burden by presenting character witnesses as to their good reputation in the community as a peaceful and law-abiding person and as a truthful and honest person. Character witnesses are important in these reinstatement hearings and a failure to present character witnesses would be glaring.

The former attorney must show that any judgments against them have been resolved or reasonable steps are being made to resolve them. If there is any pending litigation there has to be good and clear explanations. When answering the reinstatement questionnaire, the former attorney should take some time. There is some older case law that states any false answers on the reinstatement questionnaire can bar reinstatement. Many former attorneys, perhaps because they are embarrassed about their past, seem to rush through the reinstatement questionnaire when they are seeking reinstatement. That’s a major mistake. The reinstatement questionnaire is going to take about 10 to 15 hours and it’s better to spend the time and answer it correctly than have to make amendments later and face questions why information was left out.

If one has acted as a paralegal during their suspension or disbarment, that is always an issue which is explored in the reinstatement hearing. Obviously, during that time, the suspended lawyer cannot hold themselves out as a lawyer or give legal advice. Under Pennsylvania Rules of Disciplinary Enforcement 217(j), a suspended or disbarred lawyer is restricted in what they can do as a paralegal. In other words, what a normal paralegal can do, a suspended or disbarred lawyer can’t. A suspended or disbarred lawyer has to register when they are acting as a paralegal as does the law firm. Failure to register could be the basis to preclude reinstatement. Second, the suspended or disbarred lawyer as a paralegal cannot have any client contact unless the supervising lawyer is present or unless it’s just on administrative matters such as confirming deposition times, reminding of hearing dates, and things of that nature. In other words, the suspended or disbarred lawyer who is a paralegal can’t make an appointment to meet with a client to say go over Interrogatory answers face-to-face. Although a normal paralegal can do that, a suspended or disbarred lawyer cannot unless the supervising lawyer is present. Obviously, the suspended or disbarred lawyer cannot go to court and ask for continuances. The paralegal might be able to do that, but certainly a suspended or disbarred lawyer doesn’t want to do that.

When filing tax returns and things of that nature, it’s important not to list the occupation as attorney. Sometimes one’s accountant just continues the way they did in the past, but that has to be stopped since the returns will be checked by the Office of Disciplinary Counsel. The suspended or disbarred lawyer has to make sure all advertisements and all Internet matters advertising them as a lawyer are removed and taken down if it’s humanly possible to do so. In the legal directories, a suspended or disbarred lawyer has to have their name removed from legal directories or else that will be an issue they will have to answer during the reinstatement hearing.

Acceptance of responsibility is absolutely critical. If there was a criminal conviction or just misconduct under the Rules of Professional Conduct that resulted in suspension or disbarment, the former lawyer has to accept full and complete responsibility. In Pennsylvania, the case law is very clear that if one doesn’t accept responsibility for the misconduct and/or the criminal conviction that resulted in the suspension or disbarment, they are not going to be reinstated. During the reinstatement hearing, a lawyer who testifies and tries to minimize their misconduct or indicate it wasn’t their fault or indicate that they were set up or their involvement was minimal, may well find that they are not going to be reinstated.

It is important during the reinstatement hearing to indicate that the attorney is fully reformed and changed and able to practice. To go in and suggest that the lawyer is ready to practice, but only in a law firm setting or couldn’t be a sole practitioner is not going to work. Pennsylvania doesn’t have conditional reinstatements where one can be admitted, but only if they practice with a law firm or if they don’t handle clients’ funds or things of that nature. In other words, when a lawyer goes into that hearing even though he or she may not want to practice as a sole practitioner, they have to make it clear that they are capable of doing so even though their preference would be to work with a firm or work in a government office or something of that nature where they don’t have to handle funds.

One critical thing is restitution. This is particularly so with the Client Security Fund. The Client Security Fund has to be fully reimbursed before one can file a reinstatement petition. Sometimes there are costs that are owed to the Disciplinary Board from the prior disciplinary hearing. Those have to be paid, but at times one can work a payment plan with the Disciplinary Board to pay those costs and still be allowed to file a reinstatement petition. But, for the Client Security Fund, if monies are still owed then the former lawyer isn’t even allowed to file the reinstatement petition until those funds are reimbursed. This is a very harsh rule. Obviously, it’s important to reimburse the Client Security Fund since that is the fund created by the annual fee paid by lawyers to reimburse clients and other persons when their lawyers misused their funds. But, to deny someone reinstatement when they have met all other requirements because they don’t have the finances to reimburse at that point appears to be wrong. Some lawyers are never going to be able to reimburse unless and until they are reinstated and start to earn money again in the practice of law. Even more importantly, assuming the former lawyer has changed, reformed, and then has done good things during their suspension, it seems very unfair to preclude a person from coming back if they are not in a position to pay the monies. One must remember the Client Security Fund also has a 10% interest rate each year. Therefore, a fairly small amount of money misused can be a fairly large mount if 8-10 years go by before the reinstatement petition is made. It is hoped someday that the Pennsylvania Supreme Court will reconsider that punitive interest rate because it has really hurt a number of lawyers. But, more importantly, the Pennsylvania Supreme Court should reconsider its absolute denial of reinstatement petitions if there’s still money owed to the Client Security Fund. Instead there should be an analysis of the suspended or disbarred lawyer’s financial situation. If the lawyer has otherwise acted well and meets the burden of proof, then the lawyer should be reinstated unless it’s clear that their financial situation would allow them to repay the monies. Otherwise, there is almost a situation where the Equal Protection Clause of the U.S. Constitution and related provisions in the Pennsylvania Constitution could be violated. It’s unfair if a former lawyer is wealthy or has a wealthy family that reimburses for them to the Client Security Fund to allow that person back while someone else who is poor and otherwise meets all requirements can’t be because they don’t have the monies.

One of the big issues now that the Office of Disciplinary Counsel is looking at is law-related activities. Under Pennsylvania Rules of Disciplinary Enforcement 217(j), obviously a lawyer is prohibited from practicing law during suspension or disbarment. The unauthorized practice of law during suspension or disbarment surely will be a major issue and normally a preclusion from being reinstated at least at that point. But, there is secondary issue that until recently was not often pursued. That is Rule 217(j) prohibits law-related activity during the suspension or disbarment. Also, that prohibition of law-related activity applies to administrative suspensions when a lawyer doesn’t pay their annual fee or doesn’t take their CLEs or places themselves on inactive status and then seeks to come back for reinstatement.

Unfortunately, law-related activity is not really defined in the rule and the Pennsylvania Courts have not really done so. It’s almost a due process argument there because one doesn’t know necessarily what it means and whether they’re violating it.

Similar examples of the confusion and problems are necessary. Obviously, one wants a lawyer during their suspension or disbarment to have gainful employment and that employment is part of the change and reform. But, at times, if one is working for a business or doing business consulting, where is the line between consulting and law-related activity? This writer over the years often had suspended or disbarred lawyers obtain a real estate or insurance license. Of course, the lawyers fully revealed their suspension or disbarment. Once with the insurance or real estate license, that would provide a former lawyer another means of making a living during their suspension or disbarment and aid in their reform and rehabilitation and also give them the means to support their family. Now, the Office of Disciplinary Counsel is taking positions the jobs such as a real estate agent reviewing an agreement of sale is law-related. Real estate agents use pre-printed agreements of sale and fill them out. If the former lawyer who is suspended or disbarred is doing that now, the Office of Disciplinary Counsel is suggesting that is law-related activity and is going to use that to vigorously oppose their reinstatement. Similarly, a lawyer who is now doing insurance agency type of work could face the same situation in terms of explaining insurance policies. It could include a former lawyer who works in a business and is doing executive business type of work which might include reviewing contracts. Or if that former lawyer is working in the Human Relations Department of a business that might include reviewing contracts and regulations. This could now be considered law-related activity. A suspended or disbarred lawyer who is working for an insurance company and is reviewing bills of the insurance company’s outside counsel now could be considered law-related activity. If a suspended or disbarred lawyer sets up a business consulting plan where he or she advises businesses how to raise money, how to structure their business, how to develop business, how to market their business, Disciplinary Counsel is taking the position that is law-related activity.

The problem is what isn’t law-related activity? Unless the former lawyer works in construction and/or is stocking shelves in a supermarket or acting as a clerk in a retail store, everything else is law-related activity. That makes it almost impossible for a former lawyer to rehabilitate because they’re not going to be able to support their family. Further, unlike 10 years ago, lawyers now who are suspended or disbarred usually are often prevented from even low-paying jobs such as working the cash register or working in the supermarket.

There are one or two cases working their way up through the Disciplinary Board and presumably to the Pennsylvania Supreme Court that may resolve this issue. But for any lawyer applying for reinstatement, they must keep in mind the “law-related activity” prohibition and attempt to avoid any such activity, assuming one can figure out what it means and what it is.

In conclusion, the reinstatement process is not a guarantee of being readmitted to practice law. A former lawyer can be aware of the some of the issues and problems and deal with them in advance. There are times, unlike years past, where the reinstatement process is one of a “I got you” process as opposed to a true overall look and review of what a person has done during the time of their suspension or disbarment.