Samuel C. Stretton. Samuel C. Stretton.

It’s really inexcusable to allow your law license to be placed on inactive status.

I inadvertently did not pay my annual fee since I moved my address and didn’t receive notices. I am now on interim suspension. What do I do?

The first thing that has to be said is that it is really inexcusable to allow the law license to be placed on inactive status. Everyone should remember they have to pay their annual fee by July 1 of each year. That annual fee is normally $200. It’s a very small price for the privilege of practicing law. Those monies are important. Those monies go to pay for the cost of maintaining the Disciplinary Board and Judicial Conduct Board. Since these monies are paid by lawyers, this provides the independence needed by the legal profession. The judicial and attorney disciplinary system is not paid for by taxpayer’s monies, but by the annual fees of lawyers. Also, a portion of the annual fee goes to the client security fund to create monies to reimburse clients if lawyers have misused or embezzled or converted clients’ funds.

Second, even if a lawyer does forget somehow or similarly if a lawyer somehow does not get all their 12 hours of CLE credits timely, there are ample notices sent by the Office of Disciplinary Counsel and the Supreme Court advising the lawyer that they must either get their CLE credits straightened out and pay the annual fee. If the lawyer who changed offices is not getting the notices, it’s really the lawyer’s fault. Every lawyer must notify the Office of Registry under the Disciplinary Board of any change of address. All lawyers must keep their addresses current with the registration office through the Disciplinary Board. That’s a mandatory requirement. Therefore, if the lawyer had changed the address, they would get their notices at the correct address. Unfortunately, many lawyers do not send in timely address-change notifications.

Having said that, it’s unfortunately not necessarily uncommon that lawyers let their licenses lapse and don’t realize it until the list is published and some judge notes they saw the lawyer’s name on the inactive list. The lawyer has been placed on inactive status or what is now called administrative suspension. It’s imperative that if the lawyer finds out they are on administrative suspension that the lawyer ceases practicing law and notify their clients of the suspension. Like any suspension, the lawyer has to immediately notify the clients of the suspension and notify all opposing counsel and courts. This notification is required by the Rules of Disciplinary Enforcement. There’s no distinction made for administrative suspension or what used to be called inactive status as opposed to the lawyer being suspended or disbarred for disciplinary reasons.

The Disciplinary Board and the Pennsylvania Supreme Court are taking a rather tough position on lawyers who continue to practice when their license is on inactive status. Oftentimes, the starting point for discipline is a year and a day suspension. A year and a day suspension is significant since anything over a year requires reinstatement which adds another year or two to the suspension process. Therefore, a lawyer suspended for a year and a day might actually be unable to practice for three years, depending on how long the reinstatement process takes.

Therefore, it’s imperative that if the lawyer finds out they are inactive, to totally cease practicing, but at the same time gets the steps to get reinstated. To get reinstated, for instance, for failure to pay the annual fee can be rather expensive. Not only does the $200 have to be paid, but an additional $700 for processing, etc. The lawyer must take the form and fill that out and get it to the secretary of the Disciplinary Board immediately. Once that is done and the correct amount is paid, the lawyer is reinstated. But, there is a major issue now. As part of getting reinstated, a lawyer has to file a certificate of compliance with the $900 fee and request to be reinstated. With the certificate of compliance, the lawyer has to swear they notified all clients and opposing counsel. If the lawyer doesn’t file that certificate of compliance, then the lawyer is not going to be reinstated even though they paid the $900 fee.

This can create a major problem. Let’s assume it was the lawyer’s true inadvertence as opposed to intentional misconduct that caused the lawyer to allow their license to lapse. The lawyer often finds out he has been on inactive status for five or 10 days and seeks to be reinstated the next day by paying the fee and filing that certificate of compliance. If the lawyer has a practice and sends all the suspension letters to clients, there is a good chance the practice might evaporate or be injured. If a lawyer works for a law firm or a small firm where there are several lawyers, there can be problems. The partners in the firm often do not want the lawyer to send out suspension notices to the clients. That could cost the firm business. The lawyer could well be fired by the firm for doing that.

Therefore, what is a lawyer to do? It would be nice if the rule could be changed a little bit. Obviously, if a lawyer is suspended or disbarred, they should send notices immediately and that’s required. But, if a lawyer is on inactive status through stupidity and inadvertence, assuming it is not long-standing and is only a matter of a couple of days and the lawyer wants to immediately straighten that out, it places a lawyer in an extraordinarily difficult position as to what to do. They need to get back, but how do they fill out the compliance form if notices are not sent? Sending out these suspension letters can be difficult, particularly if there are a number of clients. That would then delay the ability to sign the certificate of compliance and delay the time on administrative suspension.

This sets the lawyer up for a disciplinary hearing down the line. If the lawyer was on inactive status there is a chance the Disciplinary Board will then prosecute the lawyer. If the inactive status was through inadvertence, there is a chance the discipline could only be a reprimand or a public censure or something like that as opposed to a year and a day suspension. But, if the lawyer filed the certificate of compliance swearing they notified clients and they didn’t, that becomes another serious violation. In other words, the lawyer is almost being set up to fail under these circumstances. Through inadvertence or stupidity, the lawyer is on inactive status which could end up with several years of suspension.

Therefore, this is what a lawyer should do. First, send out the notices, etc. But, if the lawyer can’t send out the notices because they work for a firm and the firm won’t allow it or if they are afraid it will destroy the practice, then put in the compliance notice that the lawyer is not allowed to send the notices out because they are not his clients. If the lawyer is a solo practitioner and terrified to send the notices at least initially or can’t, then at least put in the certificate of compliance that notices will be sent in the future and clients will be told, but have not been yet because of the inadvertent notice. In other words, add something to the statement so the lawyer will not be charged with a blatant lie or misrepresentation. The certificate of compliance has a sworn-to portion that the lawyer must sign.

It is very difficult to practice law in these modern times. Clients are difficult, opposing lawyers are difficult at times, collegiality doesn’t exist like in the past, legal fees are scarce and now the overwhelmed lawyer who makes a mistake can dig their disciplinary hole very deeply if they don’t handle the certificate of compliance properly when they want to get reinstated. There is no set answer than not to mislead in the certificate and if the lawyer can’t send the notices, then say so with the reasons in the certificate of compliance.

It is hoped that there will be a rule change to Pennsylvania Rules of Disciplinary Enforcement to protect the situation of inadvertence, so a lawyer does not have to send notices that could result in loss of clientele or firing from a firm. But, whether wiser heads will prevail or whether a hard tough position will remain is unknown.

But, all lawyers should be aware of this Catch-22. If you are placed on inactive status, i.e., administrative suspension, due to not doing your CLEs or paying your annual fees and somehow not getting the notices, be careful what you do with the certificate of compliance. Failure to answer that truthfully will come back to bite the attorney many times over in a future disciplinary proceeding.

An expert witness should be extremely conservative in how they interpret their duties.

I am an attorney who testifies as an expert witness. Do I have an attorney-client relationship with the person or am I bound by conflict of interest rules or can I testify on someone else’s behalf even though my testimony might be different than testimony for the first person who hired me as an expert?

The answer is an interesting one and at least to this writer’s knowledge, not truly clarified. There is a 21-year-old American Bar Association Ethics opinion #97-407, which appears to suggest there is no attorney-client relationship between an expert witness and who he is testifying for. Obviously, this becomes very important for an expert because their business could be limited to attorney-client relationships and the expert could be held to a higher standard under Rule of Professional Conduct 1.7 in terms of conflicts of interest. If there is no attorney-client relationship then Rule 1.7 would not apply.

A review of the conflict of Interest Rule 1.7(a) clearly requires the person to be a client. That rule indicates a lawyer should not represent a client if the representation involves a concurrent conflict of interest. Therefore, if in fact, the expert is not considered an attorney-client relationship then Rule 1.7(a) would not appear to apply. The question is how about Rule 1.7(b)? That rule states as follows: “Even if there is a concurrent conflict of interest, a lawyer can represent a client if the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, and the representation does not involve the assertion of a claim by one client against another represented by the lawyer in the same litigation. Further, the clients have to give informed consent.”

Also, under Rule 1.7(a), if a lawyer’s representation could be materially limited by a lawyer’s testimony on behalf of another person, that could create the conflict of interest.

This area involving expert testimony when the expert is an attorney can be a very confusing area. There is also argument about fiduciary duty and it would appear that one could argue there is a confidentiality or fiduciary relationship by the expert.

This issue of the duties of an expert witness to the person they are testifying for needs further clarification. A lawyer, as an expert, should carefully review this and review this issue and the case law. But, it appears that although the expert is not considered in an attorney-client relationship, there are still certain duties of confidentiality and there still may be some sort of fiduciary duties, although not the same as an attorney-client privilege.

The better practice for an expert witness is to be extremely conservative in how they interpret their duties to the person they are testifying for.

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, Pennsylvania, 19381.