Samuel Stretton ()
Recent changes make charges of criminal
contempt a larger concern for lawyers.
I have been cited for criminal contempt by a judge in the court of common pleas and fined $100 due to my late appearance for a court hearing. Do I have to report this to the Office of Disciplinary Counsel?
The answer is, unfortunately, yes. Several months ago I wrote an article noting that Pennsylvania Rule of Disciplinary Enforcement 214 was ambiguous on whether a conviction for criminal contempt had to be reported. As noted in the article, the definition of serious crime recently changed for reporting purposes if an attorney is convicted. The old rule required reporting only if the crime for which the lawyer was convicted had a potential sentence of more than one year of incarceration. The new rule requires reporting any crime punishable by imprisonment, whether or not the sentence is actually imposed.
The new rule does not include parking tickets or summary offenses, both traffic or non-traffic, unless a term of imprisonment is actually imposed. In other words, any crime for which a lawyer is convicted must now be reported unless it is a parking violation or summary convictions where no jail term is imposed. The question under the new rule is whether a lawyer’s summary conviction for criminal contempt would also have to be reported.
I also wrote the Disciplinary Board about the ambiguity. Unfortunately, the Pennsylvania Supreme Court on March 4 adopted another amendment to Pennsylvania Rule of Disciplinary Enforcement 214. The amendment requires reporting of any criminal contempt by an attorney, whether it is direct or indirect. The effective date of the rule was April 3.
Therefore, any attorney convicted of criminal contempt has to report it. Under the changes to Rule 214, the finding of a violation is the reporting time. Previously, it used to be that only when one was sentenced would the self-reporting requirement be triggered. Now it is when there is a finding of guilt.
This rule is not retroactive. A lawyer who was found in criminal contempt before April 3 would not be covered. But those found after would be.
This new reporting rule could have some rather severe consequences. Until now, there was no such reporting requirement for criminal contempt. After April 3, any lawyer who is found in criminal contempt has to report it to the Office of Disciplinary Counsel and potentially go through an attorney disciplinary procedure. This could be a rather costly process for a minor contempt finding.
The wisdom of including summary criminal contempt in the reporting requirement is questionable. Most summary criminal contempt findings for lawyers are because a lawyer didn’t get to a courtroom in time or the lawyer had too many other hearings that day. The matter is usually resolved with a contempt finding and a minor fine. Sometimes, the judge will later reconsider. Now any criminal contempt finding raises the ante, because there is a self-reporting requirement to the Office of Disciplinary Counsel. A lawyer who gets two or three minor criminal contempt findings now has to report each, which could potentially result in loss of license.
As a consequence, lawyers have to be very careful in avoiding any criminal contempt citation. Before April 3, some lawyers saw this as just the cost of doing business and would pay a minor fine without any real consequences. But there are consequences now. The problem is that busy trial lawyers can face the possibility of criminal contempt. A busy lawyer sometimes has too many places he or she has to be at one time. The answer is to not take so many cases, but then who pays the bills?
In any event, all lawyers should be aware of this requirement. Failure to report a criminal contempt conviction could result in far more serious discipline. Failure to report any criminal conviction where there is a reporting requirement could lead to a significant disciplinary penalty enhancement, because it is treated as an aggravating factor.
Finally, the judiciary should be a little more judicious in entering findings of criminal contempt. Understanding the need for a judge to control his or her courtroom, the judge must still be aware of the collateral consequences of a minor criminal contempt finding. Criminal contempt in the future should be utilized for only the most serious disregard of court orders. It should not be just the routine handing out of a fine because the lawyer was a few minutes late. On the other hand, lawyers who repeatedly disregard court orders, even on minor issues, or repeatedly show up late have to realize that there may well be contempt citations with the collateral self-reporting requirement, which could result in potential disciplinary action with serious consequences.
One of the concerns is the overregulation of the legal profession. The Rules of Professional Conduct are very stringent. There are very few professions that have such high ethical requirements with such serious disciplinary consequences as the legal profession’s attorney discipline system. Particularly for smaller firms, excessive regulation can have a very strong impact. Without backup and massive resources, many lawyers are often torn in two or three different directions at once. Overregulation of the legal profession does have a very severe impact on smaller firms.
What was a minor contempt matter, which was often the way of a judge to control the courtroom and to provide minor educational discipline to a lawyer, has now been moved up into the world of attorney discipline. Obviously, a lawyer could always be disciplined for a finding of contempt if the Disciplinary Board found out about it. But now a lawyer has to self-report. Therefore, any minor contempt matter becomes a potentially major disciplinary case. The wisdom of upping the ante on criminal contempt is unclear.
Whatever the answer, those who make the regulations have to be aware that these matters can become costly. The goal is to have legal services that can be afforded by all. The goal is defeated by passing rules and regulations that will enhance the potential for further discipline. The only way a lawyer can avoid these problems is to charge a lot more money or cut back on cases, assuming they can afford to do so. That has the absolute effect of providing less affordable legal representation to a client.
An attorney’s obligation is to an
organization itself, not its officers.
I am a young lawyer representing a corporation and I deal primarily with the president of the corporation. I suggested to the president that certain actions he is taking are potentially illegal and also could harm the corporation. He has disregarded my advice. Do I have any further obligations?
The answer to the question is found in Rule of Professional Conduct 1.13, regarding an organization as a client. This is a good rule, because it helps to define whom a lawyer represents when he or she is hired by a corporation. The rule is very clear under Subsection (a) that a lawyer employed or retained by an organization or corporation represents the organization. Obviously, the lawyer works through the officers of the corporation, but the client is the organization, not the officers.
Rule 1.13(b) deals with the problem where a lawyer learns of misconduct by a corporate officer. That rule essentially states that if a lawyer knows that an officer or employee of the corporation is engaged in conduct in violation of the law or illegal conduct could be imputed to the corporation and could cause substantial injury to the corporation, the lawyer has to act in the best interest of the organization and not what the president or officer of the corporation wants.
Rule 1.13 requires a lawyer to go through a weighing process. The lawyer has to consider the seriousness of the misconduct or violation and the consequences. The lawyer has to consider the scope and nature of the representation. The lawyer has to consider the motivation of the officer or employee who is acting badly and the responsibility of the organization. If the lawyer is going to take steps, the lawyer has to take steps that will minimize the disruption to the organization and minimize the risk of revealing information to people outside the organization.
Under Rule 1.13(b), a lawyer then should ask the corporate officer or employee to reconsider his or her action. The lawyer could write a legal opinion that would be presented to the appropriate authority in the organization, i.e., the board of directors. Or the lawyer could refer the matter to the board of directors or a higher authority in the organization or corporation.
Under Rule 1.13(c), if the highest authority refuses to act on what the lawyer believes is a clear violation of the law or ethics likely to result in a substantial injury to the corporation, then the lawyer has the right to resign as corporate counsel.
Rule 1.13 is very significant since it makes it very clear that a lawyer cannot just defer to a corporate officer about the misconduct. The days are gone where the president of a corporation would tell a lawyer to mind his or her own business and not to mention it. The lawyer has a definite obligation to seek to have the person reconsider his or her actions or to go to the board of directors or resign if the lawyer must.
But the key is to proceed cautiously. The lawyer has to protect and try to help the client and not rush into reporting, which could damage the client. Therefore, the lawyer should carefully try for reconsideration and try to talk to the board of directors to see if the bad conduct can be changed. Only after there has been a careful weighing and discussions should the lawyer consider resigning if the lawyer’s advice is not followed.
In conclusion, lawyers must never forget in representing a corporation that they represent not the corporate officers but the organization itself. That means the highest authority in the organization must potentially be advised if there is serious misconduct going on and the lawyer becomes aware of it. Every lawyer who represents businesses or government agencies should be familiar with Rule 1.13. The days of doing nothing or acquiescing to the commands of a president of a corporation not to do anything are long gone.
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.