()

Analysis

In the wake of a lawyer’s year-and-a-day suspension for neglecting cases after the death of his son—and despite shorter suspensions given to two other lawyers for sexual misconduct—attorneys say the state Supreme Court’s disciplinary board’s role isn’t to police attorneys tarnishing the profession’s image as much as it is to protect clients.

On April 30, David M. Siegel was suspended for accepting payment for several bankruptcy cases, performing no work on them and failing to refund his clients’ money. His conduct was the result of distress over the loss of his 4-year-old son to a brain tumor.

Because of the length of his suspension, Siegel will have to go through the reinstatement process in order to return to the practice of law.

Conversely, Clayton W. Boulware, corporate counsel to a nonprofit organization, was issued a six-month suspension followed by three years of probation in September after admitting to being convicted of charges relating to covertly filming up the skirts of a woman and a 16-year-old girl in public. In July, attorney David H. Knight admitted to trading legal work for oral sex and was subsequently issued a one-year suspension.

Each of the three cases presented very distinct circumstances, according to professional responsibility attorney Ellen C. Brotman of Montgomery McCracken Walker & Rhoads.

“They all deal with different kinds of harm to the profession and harm to a client,” Brotman said. “What the disciplinary board is looking at is not what the right punishment is for certain conduct, but what sanction protects the public and what sanction protects the integrity of the profession.”

Brotman said although Siegel received a tough suspension, she could see the logic in it because requiring Siegel to submit to the reinstatement process will allow the board to determine if he has adequately recovered from the trauma of his son’s death.

The petition for discipline in Knight’s case said while other jurisdictions have issued suspensions of more than a year in cases involving consensual sexual relationships between attorneys and clients, Knight was entitled to some leniency because he admitted to the misconduct, showed remorse and agreed to ask for a suspension without revealing the identity of the client—referred to in the petition as “Jane Doe”—or forcing her to testify.

In addition to those mitigating factors, Brotman said the public’s perception of Knight would be its own punishment.

“It’s a fairly substantial suspension and it was public discipline so if anybody Googles David Knight, that’s what comes up,” Brotman said. “These days, public shaming is always a part of your sentence.”

While Boulware’s case didn’t involve harm to a client, Brotman said she didn’t understand why Boulware’s suspension wasn’t longer and that he should have been required to demonstrate his rehabilitation before the restoration of his license.

“I thought it was a lenient sentence,” Brotman said. “The problem in this case is that there is a risk that it creates a perception that the board and the court don’t appreciate the seriousness of the conduct, and that raises a question as to why don’t they.”

Ethics attorney James C. Schwartzman of Stevens & Lee, who represented Knight in his disciplinary matter, said the number of clients that Siegel neglected played a part in his degree of discipline.

“Although it is a terrible situation when one loses a relative, especially a child, you have to balance that against the duties and responsibilities of a lawyer representing a client,” Schwartzman said. “There are a number of things he could have and should have done in that case,” he added, including withdrawing from the cases or referring them to other lawyers.

Schwartzman said the year-and-a-day suspension was not out of line, because, “We’re not there to actually see and hear the testimony, we don’t even have the benefit of being able to read the transcript. … Under certain circumstances I could see it being a year and in others I could see it being more than a year and a day.”

He added that the board and the court give significant deference to the hearing committee, “because they’re the ones who see and hear the testimony of the respondents and the witnesses.”

Additionally, Schwartzman said the one-year suspension for Knight was appropriate given the circumstances of his case. As for Boulware, Schwartzman noted the support of Boulware’s employer was a consideration in his discipline.

“The respondent had the unanimous support of his present employer and I think his direct supervisor or supervisors were female,” Schwartzman said. “At first blush, the penalty does seem maybe a little lighter than it should’ve been, but on the other hand there were many other mitigating circumstances in the case.”

According to the board’s report in Boulware’s case, Boulware blamed his criminal conduct on the ending of his “open relationship” with a younger woman, which involved a “swinging lifestyle” and filming themselves having sex, and the loss of his previous job and home.

In terms of the impact of conduct on the image of the legal profession—one of the aspects the board considers in handing out discipline—Schwartzman said the cases did not damage the public’s perception of lawyers.

“None of the three cases were front-page news items,” Schwartzman said. “I don’t think it had or would have any effect on the public’s perception, they have no idea what occurred in any of those cases.”

Schwartzman added the primary focus of the disciplinary board “was, is and should be the profession’s attempt to protect the public by the penalties they mete out in these cases. I think they accomplished that in all three of these.”

Kaufman, Coren & Ress lawyer John W. Morris, who served two terms on the disciplinary board, echoed Schwartzman’s comments on the driving force behind attorney discipline.

“The board has traditionally put a high premium on the protection of the consumer public. When you do something that injures your clients,” Morris said, “that is looked at very seriously. It’s one of the key principles behind the imposition of discipline.”

Morris said public perception of the profession and harm to the clients are competing factors when determining the level of discipline to issue; however, harm done to clients usually takes precedence.

Public perception of a tarnished image tends to be more detrimental in cases involving judicial misconduct rather than that of a single attorney, Morris said. That is because judges are more visible than individual lawyers and “respect for judicial decisions is essential to the whole justice system.”

Samuel C. Stretton, who writes an ethics column for Legal sibling publication Pennsylvania Law Weekly, said the fact that Siegel continued to take on new cases while neglecting the ones he already had contributed to the board’s issuance of a year-and-a-day suspension.

Furthermore, cases of sexual misconduct, Stretton said, have not seen consistent levels of discipline from the board.

Stretton added, “I’m not a big fan of how they treat neglect cases.”

In previous decades, the disciplinary board would work with lawyers to fix the underlying circumstances that trigger neglect, rather than issue a suspension outright, Stretton said.

“Now it’s a much more punitive aspect, less tolerance and less bending over backwards to help the attorney and seeing if lesser forms of discipline are available,” Stretton said.

P.J. D’Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDannunzioTLI.