A lawyer cannot ask a client to withdraw a disciplinary complaint.
I received a letter from the Office of Disciplinary Counsel about a client. Can I meet with the client or should I have no further contact since there is a disciplinary investigation? Further, if I can meet with the client, can I resolve the issues and have the client withdraw the disciplinary complaint?
If a client has complained to the Office of Disciplinary Counsel and what is called a DB-7 or 30-day letter has been issued, there is no prohibition about contacting the client. In fact, if the client’s case is still ongoing, the lawyer has a duty to contact the client not only to resolve any misunderstandings and/or correct any problems if they can be corrected. The lawyer also has the duty to continue to represent the client.
For some reason, lawyers seem to believe if there is a disciplinary complaint then they can no longer have any contact with their client. That’s not the case at all. In fact, the Office of Disciplinary Counsel would hope one would have contact with their client, so the client’s case could proceed, if it’s humanly possible, or at least the client can get all relevant information from the lawyer.
Assuming that the lawyer does meet with the client, the one thing the lawyer cannot do is ask the client to withdraw the disciplinary complaint. Once a complaint is filed with the Office of Disciplinary Counsel, the only person who can decide to withdraw the complaint is the Office of Disciplinary Counsel and/or a Hearing Committee member or Disciplinary Board member, depending on where the case is in the review process. This is similar to a district attorney where the victim makes a charge of criminal misconduct against someone. The victim has no right to withdraw those charges, but instead only the District Attorney’s Office can make that decision.
One of the worst things a lawyer can do in terms of a client who has made a complaint is to attempt to get the client to withdraw the complaint. That is forbidden and also is wrong. It can create a conflict between the lawyer and the client and, further, will not endear the lawyer to the Disciplinary Counsel who is assigned to the case. There is no reason to ask a client to withdraw the complaint. But, if the lawyer meets with the client and can resolve the issues and the client is satisfied with the resolution, the client certainly can express their satisfaction or advise the Office of Disciplinary Counsel that the lawyer has met with the client and resolved at least the issues that were concerning the client. The client’s satisfaction certainly goes a long way to help resolve the complaint. That will be one of several factors which the Office of Disciplinary Counsel will consider in terms of recommending what to do or not do in the resolution of the case.
Therefore, to answer the question, a lawyer always has the right to contact a client, even if the client has complained. Presumably, the contact will be done in a professional fashion and without any anger expressed to the client about complaining. The purpose of meeting with the client is to try to resolve the issues and get the case moving forward or resolve the client’s concern. But, at the same time, the lawyer cannot ask the client to withdraw the disciplinary complaint. Withdrawing a disciplinary complaint is solely in the discretion of the Office of Disciplinary Counsel.
It is important to be honest on your law school, bar applications.
I am a law student who will be completing the Pennsylvania Bar application shortly. What are considered issues that might result in a character or fitness hearing?
Character and fitness hearings occur after someone has passed the bar examination. Based on the application and what’s discovered during the investigation, there are times when a hearing is required to see if the future lawyer meets the high standards required of someone being admitted to the legal profession.
There are many reasons for a character and fitness hearing. Past criminal convictions or even past summary convictions can result in a character hearing. Plagiarism during law school or acts of dishonesty in law school or college can result in a character or fitness hearing. Cheating on examinations or copying papers can result in a character and fitness hearing. Sexual harassment or discriminatory conduct can potentially result in a character and fitness hearing. Financial irresponsibility such as one or two bankruptcies or having massive debt and not paying it are all areas of concern that could result in a character and fitness hearing.
The key thing is to be candid on the application. So many times law students rush through the application and then forget about that underage drinking when they were 15 or 16 or the retail theft when they were freshmen in college. One can’t forget those matters and, therefore, when completing the application for admission, a law student should spend the required time and perhaps speak with their parents or friends to see if there is anything they have forgotten.
One of the major concerns recently is not accurately answering the Pennsylvania bar examiner’s application or not answering the application for law schools. The Board of Law Examiners will compare the answers provided to them on the bar application with the answers provided in the law school admission application. If there are major discrepancies, that could become a major issue and a character and fitness hearing will normally be requested. Also, if important information was omitted on the law school application, the potential lawyer or law student has to go back and correct that. A full disclosure by amendment has to be made and then, of course, the law school has the right to revoke admission and discipline someone or delay the graduation if the requested information was not included. Most law schools will accept the application after the fact. They key is to make the corrections as soon as possible.
Many of the law schools now have first-year orientation where the dean of the law school or dean of students will give a speech and remind all students that their application for admission to law school has to be accurate and if they did not reveal pertinent information, they should correct it immediately. One of the problems often seen is if someone had an arrest or conviction expunged. For instance, a person could have been charged with DUI and then have been placed in ARD with the case being expunged. But, depending on how the question is asked, there might have to be an answer. Expungements don’t change the fact that someone was arrested and even convicted. If the question was have you ever been arrested before, then the answer has to be yes even if the case was later dismissed and expunged. Even if received a pardon, depending on how the question is worded, it should be answered fully and completely. In fact, when in doubt, provide more information. Providing more information is not going to result in a denial, it’s the failure to provide information that gets potential law students in trouble.
Failure to include significant arrest history or information can be a real problem, particularly if it’s not disclosed to the law school initially and only after the bar examiners have raised the question. The sooner, the better if something is omitted. If the law student during the orientation session realizes they forgot to put in an old underage drinking or retail theft or harassment, then amend the application right away. Don’t wait until two or three years later.
The omission of information goes to the whole issue not only of competency, but of truthfulness and honesty. It is absolutely critical that future lawyers demonstrate a high level of integrity and the Board of Law Examiners are certainly looking at that issue carefully. On the other hand, that doesn’t mean the board will not admit someone who has made omissions but subsequently accepted responsibility, corrected the situation and presented ample evidence to show their change and reform.
But, anyone who is applying for law school or later is accepted and graduated from law school must keep in mind that what they put on their law school applications and what they fill out on their bar admission applications are information that is going to be carefully scrutinized. Discrepancies or omissions can create a major problem requiring a character and fitness hearing. It’s easier to take the old ounce of prevention than have to deal with the tension of a hearing and the pound of cure.
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.