The Pennsylvania attorney disciplinary system cannot just become a bureaucratic haven.
I saw a number of changes being made with the reorganization of the Disciplinary Board, including the abolishment of the Office of Secretary of the Disciplinary Board. What does this all mean?
Unfortunately, change is inevitable. But there are some major changes and some concerns as a result of the changes. As reported in The Legal Intelligencer on Nov. 19, there would be the abolishment of the Office of Secretary and Secretary to the Board. This will be replaced with Board Prothonotary and Attorney Registration Office.
The Disciplinary Board also is now creating special masters with more power than previously given. Apparently, there is a desire to use special masters as opposed to hearing committee members in complicated cases. Also, there are now legal counsel to the board and legal counsel to the hearing committees.
These changes bring a moment of nostalgia to those who have practiced before the Office of Disciplinary Counsel and the Disciplinary Board. From the inception to these changes, there was always a secretary to the Disciplinary Board. That role was filled originally by Nan Cohen, a nonlawyer, who was very wise and gracious and knew the system inside-out. When Cohen retired some 20-25 years ago, she was replaced by Elaine Bixler, who had trained under her. Bixler became an institution unto her own until her retirement about two years ago. Both Cohen and Bixler provided a human side to the disciplinary process. Since they were the secretaries and essentially ran the show, lawyers could call them whether it was an attorney representing a respondent or a respondent. They were gracious and gave information and advice. They were sympathetic.
This writer remembers asking Bixler for advice several years ago about a Pennsylvania lawyer who was on administrative suspension due to not paying their annual fees because they were licensed in another jurisdiction. The person was being considered for a federal judgeship in another state, but the judiciary committee wouldn’t act on their nomination because of this administrative suspension. Bixler helped and gave the advice to have the person resign as a member of the bar in Pennsylvania, which would remove the administrative suspension. That was done and the person was then confirmed to the U.S. District Court judgeship in another state. It was that kind of personal touch and knowledge that humanized the system. One could always call Cohen or later, Bixler, if there were concerns or complaints and they would have them addressed.
The system has now become much more formalized. There is now a prothonotary, who is excellent and a wonderful person, Marcee Sloan, but she doesn’t have the same power or broad responsibilities that Cohen and Bixler had during their combined tenure of over 40-plus years since the Disciplinary Board was created in 1972.
Other changes, of course, are with the hearing committees. Members of the bar remember the hearing committees were always populated by senior members of the major firms or very experienced lawyers. Rarely did you have a lawyer who had less than 15 years’ experience sitting on these hearing committees. Now it is not uncommon that at times to have three members of big firms with less than five or seven years’ experience.
Some things haven’t changed, though. Chief disciplinary counsel, Paul Killion, still provides that personal touch when he does the informal admonitions. Many respondents have remarked to present counsel how useful the 10-minute discussions with Killion have been and how concerned he has been for them and the excellent advice he has provided. Hopefully that won’t change in the future.
The appointment of special masters is of real concern. A special master has always been allowed if the trial was extremely long. But, normally the three-panel members hear these cases and that’s the way it should be. For important matters, the cases should be decided by one’s peers, i.e., three lawyers in the respective district. To assign special masters takes away some of the self-regulation that’s inherent in having volunteer panel members decide the cases.
Now having a special counsel assigned to the hearing committee to write the reports also raises some concerns. At least this writer always felt that it was more important that the hearing committee wrote the reports. It’s one thing to decide, but it’s another thing to actually sit down, evaluate the evidence, set it forth and write the actual report. Taking that role away from a hearing committee can perhaps affect the decision-making process.
Of interest is the fact that these changes were made without consulting lawyers who practice regularly before the Office of Disciplinary Counsel and the Disciplinary Board. At least in days of old, people who practiced regularly were consulted and asked their opinion. Further, lawyers who practice regularly were often asked to speak at convocations or seminars for hearing committee members. That practice stopped a long time ago. This writer remembers in the last 20 years only being asked once to appear and speak to potential hearing committee members.
The concept of self-regulation requires the support and confidence of the bar. In other words, for the attorney disciplinary system to work, the members of the bar have to have confidence in the system, have to understand the system, and have to support the system. This is a self-regulatory disciplinary process which requires lawyers to participate as volunteers and also requires all lawyers to cooperate and even report misconduct. Cooperation needs to be sought from the bench and the bar.
That model seems to be slowly disappearing. This writer has probably tried more attorney disciplinary cases as a respondent’s lawyer than most any lawyer alive, but no one has ever sought his advice on disciplinary matters.
Perhaps the changes make a lot of sense from an organization standpoint. But, from the standpoint of a disciplinary system that is effective and has the support of the bar, these recent amendments have taken away the aspects of a disciplinary system that were very humane and very effective in terms of increasing the confidence in the disciplinary system and in producing fair and just results.
Finally, the infusion recently of many, many new disciplinary counsel so rapidly also raises some concerns. To be an assistant disciplinary counsel takes time to learn the position. One wears multiple hats. Disciplinary counsel starts out with a quasi-judicial hat as they review and decide whether to recommend prosecution or not. At some point, the prosecutorial hat comes on if the case has to go to a trial. The attorney disciplinary system is not punitively based. It is a system of fairness to protect the public and also to insure lawyers are fit to practice. It’s very difficult when suddenly there are many new attorneys who have no real history with the attorney disciplinary system to be given such large responsibilities. It’s particularly so since there are not as many senior lawyers who have the time to mentor and in many districts senior lawyers are so busy with their caseloads there is not the time there used to be to take a younger assistant disciplinary counsel under their wings. Traditionally, there’s been a lot of stability in the Office of Disciplinary Counsel with lawyers staying there for 20 or 30 years. Lawyers could make a career out of it and it was a good career. With recent retirements and turnover, there’s been a total remake of the Office of Disciplinary Counsel. This remake seems to have more of a punitive edge to it than the traditional approach, but that could change over time.
Perhaps this article is just an old attorney howling in the wind and being too nostalgic for a world that maybe never truly existed except in his mind. But, as changes are made and as time moves on, the Pennsylvania attorney disciplinary system cannot just become a bureaucratic haven. The humanity and graciousness of Nan Cohen and Elaine Bixler and others must be maintained to make the system effective.
Lawyers who allow themselves to become administratively suspended face uphill battle.
You have written several articles about lawyers who are on administrative suspension and then can’t get reinstated because three years have passed since they let their license go on inactive status. Is this creating problems?
There is no question there are many problems for lawyers who place themselves on administrative suspension. This writer has written several articles on this subject over the last year. In-house corporate counsel are some of the prime victims. These attorneys often are licensed in other jurisdictions and sometimes in Pennsylvania also. They practice in other jurisdictions and let their Pennsylvania license lapse. Once three years has passed, one cannot be automatically reinstated, but must go through a reinstatement hearing. They then come to Pennsylvania with a new job as general counsel or assistant general counsel to a corporation. They then seek to be reinstated and then get a complaint that they are involved in the unauthorized practice of law or law-related activities in Pennsylvania since either their license is administratively suspended or they are not licensed in Pennsylvania but only elsewhere.
The days of being licensed in one jurisdiction, but being able to be general counsel for a corporation elsewhere are long gone. Almost every state has rules like Pennsylvania where if you are not licensed in Pennsylvania but you are working for a corporation in Pennsylvania as in-house counsel, you must seek an in-house corporate counsel admission that allows you to continue to practice in Pennsylvania in certain areas, but not going into court. A lot of in-house corporate lawyers don’t do that.
This problem is not limited to corporate counsel. Lawyers who allow themselves to become administratively suspended face the same allegations since they can’t be timely reinstated if three or more years have passed.
The problem is more than just lawyers ought to be aware what administrative suspension means. The problem is serious and creates attorney discipline that is being imposed for law related activities.
It has slowly but surely evolved, although there is always exceptions, that if one is engaged in the unauthorized practice of law while on this administrative suspension or involved in law-related activities that there should be a major suspension of at least a year and a day. A year and a day is very significant because any suspension over a year requires reinstatement. The reinstatement process takes another year or two before it can be completed. Also, when someone is suspended, their licenses in other states will be similarly suspended under the concept of reciprocal discipline.
It’s unfortunate that both the Pennsylvania Supreme Court and the Disciplinary Board have now taken such a heavy-handed approach on lawyers on administrative suspension and ordered such heavy discipline. Although, obviously, lawyers should keep their licenses active, sometimes they just don’t understand. Many lawyers, unless they deal with the disciplinary system, don’t understand that not taking their CLEs or not paying their annual fees have consequences more than being placed on administrative suspension. They don’t understand that once three years have passed, they cannot automatically come back. They don’t understand when the come back to Pennsylvania with a nice job as counsel or lawyer in a firm that they are now engaged in the unauthorized practice of law or law-related activity until their license is reinstated. Many of these people are very capable lawyers and acting appropriately, but are caught in this horrible predicament where they will now be suspended.
Clearly, these lawyers shouldn’t have let themselves get in this position. But it just seems awfully harsh and extremely punitive to impose such lengthy suspensions and ruin careers, at least in the short run. After all, the disciplinary system is not supposed to be punitive in nature. It’s supposed to protect the public and insure that a lawyer is fit to practice. The administrative suspensions with law-related activities doesn’t seem to fit in that category to warrant such severe discipline.
In any event, let’s hope that perhaps there might be some changes in the future. Either a different approach to the nature of discipline in these kinds of cases or allowing someone to come back from administrative suspension without a hearing if they’ve been out longer than three years. Three years is an arbitrary time period. Perhaps 10 years might require reinstatement to ensure someone is competent again under Pennsylvania law. But the three-year mark seems very arbitrary and creates many, many problems.
When the Pennsylvania Disciplinary Board was first set up after the constitutional changes in 1968, the Supreme Court created through the Rules of Disciplinary Enforcement, the Disciplinary Board and Office of Disciplinary Counsel. Then Pennsylvania was looked on as a very enlightened jurisdiction in terms of professional attorney discipline. Unlike other jurisdictions that has pro se types of discipline and punishments, Pennsylvania to this day has no set discipline, but looks at each case individually. Every case is different. Two lawyers may commit the same offense, but get very different disciplines because the total person and practice is reviewed and evaluated.
It would be a shame to lose that innovative and enlightened approach that Pennsylvania brought to the world of professional discipline when the Disciplinary Board was created in the 1970s and the old committees of censors were replaced. Examples of severe suspensions for unauthorized practice of law where lawyers are caught in this dilemma of administrative suspension ought to be a classic example of where the Pennsylvania Disciplinary Board and Supreme Court should take a more enlightened approach.
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.