A rule prohibiting "dishonesty, fraud, deceit or misrepresentation" was the one most often violated by Pennsylvania attorneys and cited by disciplinary authorities over the last few years, according to an extensive review by the Law Weekly of attorney discipline adjudications in the state.
Since 2009, a total of 99 attorney discipline cases in which the state Supreme Court issued an opinion cited a violation of Pennsylvania Rule of Professional Conduct 8.4(c). The second-most frequently occurring violation was of Rule 1.4(a) and its subsections, all of which deal with prompt, reasonable and thorough communication with clients. There were 84 opinions citing violations of that rule.
Rule 8.4(d), prohibiting conduct prejudicial to the administration of justice, came in third, with 75 citations.
Attorneys specializing in ethics said the findings, which go back to the beginning of 2009, were not surprising. The lawyers commended the Disciplinary Board of the Pennsylvania Supreme Court for focusing its most severe form of discipline — suspensions and disbarments — on cases in which the punishment matched the crime. The information comes in just a fraction of the board's cases, but the most serious fraction: the one in which the Supreme Court pens a public opinion adjudicating the attorney.
Punishments lodged against the lawyers ranged from probation to suspension to disbarment. Many cases were reciprocal with other states and, on several occasions, the attorney charged consented to his or her punishment.
Samuel C. Stretton, who writes an ethics column for the Law Weekly, said the review of disciplinary adjudications offers "a pretty good snapshot of what's going on in the legal profession," particularly noting the number of times lawyers were disciplined for bad communication.
The tough economic times have forced lawyers to take on too much work with not enough staff, while technical advances have increased expectations of communication to the speed of sound, Stretton said. And while overall disciplinary action, including the private cases, is trending slightly upward, it's by no means spiking. Year-end totals reached a Pennsylvania all-time high in 2005, according to the board's statistics, with 322 disciplinary actions against Pennsylvania lawyers. The figures have settled somewhere between the mid-200s and low-300s since then.
But Stretton wasn't referring to overall disciplinary adjudications, for which the board keeps statistics, as an indicator of the times. He was talking about the specific rule violations found only on the cases with opinions.
"It's a very different profession than it was 25 years ago," Stretton said.
Also making frequent appearances in the Law Weekly's review were rules against commingling client funds with personal ones and failing to protect the client after his or her lawyer is through with representation. The seventh-most cited violation, with 44 cases, was a rule deeming it professional misconduct to commit a criminal act that reflects adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer, or otherwise.
Attorneys were cited 32 times for violations related to their fee letters under Rule 1.5(b), which requires attorneys to communicate their fee to the client in writing before or within a reasonable time after commencing the representation.
Stretton, who frequently represents attorneys facing disciplinary action, said that comes up quite a bit.
Stretton added he was surprised at the seven Rule 5.5(b) violations between 2009 and the middle of this year, calling the amount of unauthorized practice of law over the last few years in Pennsylvania "scary."
A Sample of Cases
Gabriel L.I. Bevilacqua, of counsel to Saul Ewing, is chairman of the Disciplinary Board.
He was familiar with professional responsibility before becoming chairman of the board; he is general counsel to the American Board of Surgery and the American Board of Plastic Surgery and is familiar with their disciplinary mechanisms, which he said are often swift.
But the board, Bevilacqua said, is particularly mindful of due process, explaining the reason: "Well, we're lawyers."
In fact, there is an "unspoken rule" among board leadership, according to Bevilacqua, that progressively more severe recommendations are handed up to the Supreme Court — the final say on discipline — when a lawyer doesn't learn his or her lesson.
In other words, the Law Weekly's review, which runs from the beginning of 2009 through April 2013, is not the full picture of attorney misconduct in this state. The bulk of the cases handled by the Disciplinary Board and Supreme Court are done so privately, via private reprimands or informal admonitions. Of the cases that are publicly accessible on the Disciplinary Board's website, just under half included opinions. Moreover, some of those were decisions reinstating lawyers, opinions in which the rules the attorney violated were not listed.
Rather than a complete list, the available information makes up a sample. According to Disciplinary Board records, the board has adjudicated more than 1,000 cases since 2009. Of the 550 cases available through April, 251 had published opinions. The Law Weekly pulled those opinions, tabulated rules violations by year and type, and came up with a sampling that, according to the ethics attorneys who reviewed it, was not all that surprising.
"Nothing here shocks me," said Philadelphia attorney Stuart L. Haimowitz, who specializes in legal ethics and who often represents attorneys charged with violations by the Office of Disciplinary Counsel.
Haimowitz did say he was somewhat surprised by the similarity between the violations within the reported cases and those within the private cases he has worked on.
"My feeling is that the reported cases pretty much track the informal cases, which I find very interesting in terms of the distribution," Haimowitz said. "I would have thought some of the more technical violations would have been less occurring in the formal charges."
But, as Bevilacqua put it, that's exactly what will get your name on a Supreme Court disciplinary opinion.
"Folks should be wary of appearing before us on multiple occasions," the chair said. "They really should."
Many of the most frequently occurring violations were catch-alls, such as Rule 1.3 on "diligence," and many attorneys who violated those provisions also violated several smaller, more technical rules.
In all, there are nearly 60 Rules of Professional Conduct in Pennsylvania, not counting subsections. Another set of procedural rules governing bar discipline is known as the Rules of Disciplinary Enforcement and contains 21 entries under a section labeled "misconduct."
So, in order to maintain consistency in accumulating violations by rule, some ground rules had to be set.
For example, if an attorney violated the same rule multiple times in the same disciplinary action, a violation to the individual rule was counted only once. Additionally, the data is broken down by only one subsection of the general rule unless additional subsections to that rule are materially different from one another. For example, Rule of Disciplinary Enforcement 217(j) and its extensive progeny all relate to limitations on formerly admitted attorneys, whereas Rule 203(b)(1) — stating that conviction of a crime is grounds for discipline — is different enough from Rule 203(b)(2) — on failure to appear for discipline — that the two rules were counted separately.
Violations of out-of-state rules were not counted.
'Communicate, Communicate, Communicate'
Abraham C. Reich, of Fox Rothschild, is a leading attorney in the area of ethics and frequently mentors young attorneys at his firm on how to maintain an ethical practice of law.
Reich said he was not surprised, and was quite pleased, that the most oft-occuring violations were to the more serious rules, such as Rule 8.4(c) on misrepresentation and fraud.
"That's where the resources have been and should be put by the Disciplinary Board," Reich said. "I would say it is not surprising to me that the highest number of reported disciplinary actions are those involving dishonesty, integrity and unlawful conduct … deceit and things of that nature."
He added: "I applaud the Disciplinary Board for focusing on lawyers who commit transgressions at that level."
Very close to the top, though, were the rules involving thorough communication, which Reich said he warns young attorneys to follow closely in order to steer clear of disciplinary action.
After all, attorneys interviewed said poor communication, or a lack of communication altogether, often frustrates a client to the point of filing a complaint. The complaint can have a can-of-worms effect, exposing the lawyer to board scrutiny and, often, more charges.
"I often tell young lawyers: 'Communicate, communicate, communicate,'" Reich said. "Your failure to communicate to clients will get you in trouble. Return phone calls; respond to emails."
Referring to the 84 violations of communication rules in relation to his warning to young attorneys, Reich said: "This is evidence of that admonition. I can now tell young lawyers that over 80 lawyers — 80 — have had some form of discipline involving communication."
Stretton echoed Reich's sentiment.
"Communication and diligence — that's usually what triggers complaints," Stretton said. "OK, you're overwhelmed," he said he tells lawyers. "Just communicate. Tell the client. Just respond and you'll be OK. Most clients will work with you."
Kelly Flynn contributed to this report.