Lawyers should pay close attention to self-reporting requirements for offenses.
I was just convicted of retail theft, a summary offense. I was given a fine. Do I have any reporting requirements to the Office of Disciplinary Counsel?
The question is a good one because the rules of reporting criminal convictions were changed in 2012. The old rule, which was found in Pennsylvania Rule of Disciplinary Enforcement 214, only required the reporting of a conviction by a lawyer if the maximum sentence of the crime was more than one year and only required reporting at the time of sentencing.
The Pennsylvania Supreme Court has noted that failure to report can be a separate basis for discipline and can enhance the discipline for the underlying conviction. Of course, the Office of Disciplinary Counsel could always proceed with discipline on any summary offense if it became aware of it, even if there was no reporting requirement.
Pennsylvania Rule of Disciplinary Enforcement 214 was amended in 2012. One of the most important changes is the timing of the reporting requirement. Under Rule 214(i), a conviction means a guilty verdict, whether by judge, jury or plea. A plea can be a guilty plea or a nolo contendere plea. The rule was changed to make the reporting requirements start at the time of the finding of guilt or plea. Previously, it had been after sentencing. Now, the reporting requirement is 20 days from the time of conviction, and conviction is now defined as the time of the finding of guilt or plea. Therefore, if the lawyer were to wait until sentencing, the lawyer could violate the reporting requirement.
The second major change is the nature of the crime. As noted previously, it used to be a reporting requirement for crimes that only had a maximum sentence of more than one year. That definition now is as follows:
"The term crime means an offense which is punishable by imprisonment in the jurisdiction of conviction, whether or not a sentence of imprisonment is actually imposed. It does not include parking violations or summary offenses, both traffic and nontraffic, unless a term of imprisonment is actually imposed."
This is a major change. Any time a lawyer is convicted of any misdemeanor, the lawyer has to report the matter, even if the misdemeanor is a misdemeanor of the third degree with only a maximum sentence of one year. Any crime for which there is a potential term of imprisonment must be reported once there is a conviction.
There is an exception, though, for summary offenses. Summary offenses don't have to be reported unless the lawyer is actually sentenced to incarceration.
With that in mind, the answer to the question is that although the lawyer pleaded guilty to a summary offense of retail theft, there is no obligation to report it because there is no period of incarceration. If the lawyer had been sentenced to a day of incarceration for the summary retail theft, the lawyer would have to report it.
Rule 214 also requires the clerk of any court in the state to report the fact that the lawyer has been convicted of a crime. The fact that the clerk has an obligation to do that does not in any way negate or lessen the lawyer's obligation to report. The reason for these reporting requirements is that the legal profession to some extent relies on self-reporting.
Unfortunately, the resources of the Office of Disciplinary Counsel, which is funded solely by the annual fee paid by all lawyers, are not enough that the office has the means to ferret out all misconduct. The Office of Disciplinary Counsel relies on reporting by lawyers and citizens and sometimes newspaper articles.
To ensure the integrity of the profession, these self-reporting requirements are important. It is very possible a lawyer can be convicted of a crime that escapes the notice of the Office of Disciplinary Counsel if not reported. It does not help the legal profession to have a lawyer convicted of a crime not facing professional discipline. The independence of the bar relies on the fact that the bar can police itself through the Office of Disciplinary Counsel. If the Office of Disciplinary Counsel cannot do its job, then ultimately the regulation of attorneys could be taken from the courts and the Office of Disciplinary Counsel and placed in an executive branch office, such as licensing boards or the Federal Trade Commission. That would be undesirable and could certainly impact the independence of the legal profession.
Therefore, these self-reporting requirements are more than just discipline against the lawyer. These go to the essence of maintaining public confidence in the legal profession and at the same time ensuring the legal profession is properly regulated. As a result, the failure of a lawyer to comply with this can result in enhancement of discipline. Every lawyer should be aware of these reporting requirements. The day of a lawyer saying his or her criminal defense lawyer never told him or her about this are long gone. In fact, the criminal defense lawyer who doesn't tell his or her lawyer client that he or she has a reporting requirement could be guilty of legal malpractice, particularly if the lawyer's discipline is enhanced by the non-reporting.
A lawyer should never act as a witness when representing a client.
I am in the middle of representing a client in a criminal trial and an issue has arisen that is now causing the district attorney to place a subpoena on me as the trial lawyer to testify. The material at issue is not within the attorney-client privilege, but my testimony will contradict my client. What are my ethical obligations?
Obviously, a lawyer should not be representing a client if the lawyer is going to be a witness on major issues. Rule of Professional Conduct 3.7 defines when a lawyer can represent a client and still be a witness. Obviously, it is never favored that a lawyer representing a client be a witness in any proceeding involving the client.
Rule 3.7 notes a lawyer shall not be an advocate or the trial lawyer when a lawyer is likely to be a necessary witness. There are three exceptions. One exception is if the testimony relates to an uncontested issue. The second exception is if the testimony relates to the nature and value of legal services. The third is where the disqualification of a lawyer would work a substantial hardship on the client.
The third exception would rarely be evoked because presumably everyone would know before trial if a lawyer was going to be a witness. If the lawyer and the client were foolish enough to have the lawyer continue almost up to the time of trial, it would be difficult for them to argue hardship when they contributed to the problem. It should also be noted that if another lawyer from the same law firm is going to be called as a witness, then the trial lawyer can continue unless the witness' testimony would create a conflict that would be defined through Rule 1.7 or Rule 1.9, the basic conflict of interest rules.
The question here is of interest because apparently the issue of the lawyer being a witness against the client and contradicting the client has arisen during the trial. If this was known before trial, it could be professional misconduct for the lawyer to have continued representing the client.
Comment 6 to Rule 3.7 notes that if there is a substantial conflict between the testimony of the client and the testimony of the lawyer, the representation involves a conflict of interest that requires compliance with Rule 1.7. The provision notes that the lawyer may be prohibited from representing under those circumstances, even if there is a substantial hardship.
Of course, there can potentially be a waiver of the conflict, but there are some conflicts that can't be waived, as noted in Rule 1.7. If the lawyer's testimony is going to directly contradict a client's, that would be a nonwaivable conflict.
It is unseemly for a lawyer to testify directly adverse to whatever the client said. The only unanswered question is when the lawyer knew he or she was going to be a witness. If this was known before trial, the lawyer may have to reimburse the client's funds and perhaps reimburse the court for the court's time and expense. There could be serious disciplinary issues if the lawyer knew in advance of trial this was going to occur and didn't raise the issue.
The better practice is for a lawyer never to act as a witness when representing a client. To do so could be unprofessional conduct with unfortunate consequences to the client.
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.