An attorney shouldn’t ignore the disciplinary side of representing another attorney.
I am an attorney who was charged with a minor criminal statute. My attorney was a good criminal defense lawyer, but didn’t give me any advice about the attorney disciplinary system. Does this create a problem?
In this modern world, the attorney disciplinary system or judicial disciplinary system are often times intertwined with the criminal courts. Unfortunately, sometimes lawyers are charged with crimes. The crime can be as small as a DUI or it could be a very serious matter in terms of sexual assault involving a client or homicide by vehicle, if the lawyer is intoxicated, etc. Unfortunately, judges aren’t immune either from the mistakes of humanity and at times there are criminal charges brought against a judicial officer.
What is disappointing is how the criminal lawyer handles the attorney or judicial disciplinary side of his representation. Many criminal attorneys don’t give a proper emphasis on the importance of having a strategy that will also encompass the pending judicial or attorney disciplinary charges that arise out of the same conduct as the criminal matter. Therefore, at times, poor advice is given.
One of the biggest mistakes a criminal defense lawyer can do is ignore the attorney or judicial disciplinary pending case or, even worse, treat that in the same way they would treat the pending criminal case. Attorney or judicial disciplinary cases can often be resolved even if there are, at times, criminal charges. The key is to work with disciplinary or judicial counsel. A criminal lawyer who goes in and makes the entire disciplinary system a very adversarial process is making a huge mistake on behalf of their client. Many times there’s an opportunity to resolve issues of discipline either on the attorney side or judicial side early on with cooperation, remorse, and reform. That is lost if the attorney is going to create World War III with disciplinary counsel and not really cooperate or work with them. That may be a good tactic in criminal defense, but it’s not in the disciplinary world.
Therefore, lawyers who are representing a judge or an attorney in a criminal matter must broaden their horizon. They should attempt to work with and cooperate with disciplinary counsel and not put on the adversarial hat unless and until there is no other choice. Further, at times, the criminal lawyer ought to consider trying to seek a deferral of the disciplinary charges pending the resolution of the criminal case. Oftentimes, a disciplinary counsel or judicial counsel will be very receptive to that request. Obviously, it saves disciplinary counsel a lot of work if, in fact, the criminal case results in a conviction or a plea. Further, the deferment will avoid any Fifth Amendment problems and allow the lawyer to fully explore the resolution of the criminal case without having to expose the client to Fifth Amendment issues in the pending disciplinary hearing.
Second, any criminal defense lawyer has to be aware of the consequences of convictions or pleas in the disciplinary system. For a lawyer or a judge there can be very serious consequences. An admission of guilt or finding of guilt will usually result in professional discipline and if the criminal charges are felonies, a suspension or removal or disbarment can result. For driving under the influence charges, if no one is injured or anything of that nature, usually the first offense is a private reprimand. Even the second offense might only result in a censure, depending on how it’s handled. But, third DUI offenses or other serious crimes or sexual crimes are going to often times result in some form of suspension for the attorney and/or the judicial officer or removal, depending on the nature of the crime. All disciplinary matters, whether attorney or judicial, have the opportunity to present mitigation on the nature of the sanction. The mitigation can be in the form of mental health or addiction testimony or the many good things a person has done, etc. Mitigation can reduce the professional discipline. But, a criminal lawyer would not be doing his attorney or judicial client a service if both of them did not explore and have a clear understanding of what might be the result on the attorney disciplinary or judicial disciplinary side if a plea or conviction is entered on the criminal side.
Third, many, many criminal defense lawyers representing lawyers, judges, or other professionals are clueless in terms of reporting requirements. This is very unfair to one’s client because if convictions are not reported timely, that can result in additional discipline. For attorney disciplinary matters, the Pennsylvania Supreme Court has said in decisions that failure to report is a separate grounds for professional discipline or can be an aggravation of discipline. The reporting requirement for attorneys is set forth in Pennsylvania Rules of Disciplinary Enforcement 214. In Rule 214(a), an attorney convicted of a crime must or shall report the conviction within 20 days of a plea or conviction to the Office of Disciplinary Counsel. The rule makes it clear that even if an appeal is taken, the reporting requirement still remains the same. Under Rule 214(i), conviction means a guilty plea or verdict. It used to be the reporting requirement wasn’t until the time of sentencing, but that’s been changed and it’s at the time of entering a plea or a finding of guilt. It makes no difference whether the sentence has been imposed.
The crimes that have to be reported are any crimes that are punishable by imprisonment in the jurisdiction of conviction, whether or not imprisonment is imposed. That means almost any conviction is reportable. Also, criminal contempt must be reported. But, one does not have to report parking violations or summary offenses unless a term of imprisonment is actually imposed.
This rule is a very important rule, but this writer has seen many attorneys who have not timely reported convictions. The lack of reporting is because they weren’t aware of the rule and/or either was their criminal defense lawyer. Of course, all attorneys should be aware of the Rules of Professional Conduct and Rules of Disciplinary Enforcement. But, if one is in the business of representing clients, including professionals such as lawyers or judges or even doctors, nurses, psychologists, or other licensed professionals, there are reporting requirements and the criminal lawyer should be aware of these requirements. It places a client at a huge disadvantage if the client does not report their conviction timely and the Office of Disciplinary Counsel later finds out about the conviction. The best practice is for the lawyer, with the client’s permission, to write the Secretary of the Disciplinary Board and the Office of Disciplinary Counsel and report the conviction.
In reviewing the Judicial Conduct Board Rules, unlike the Rules of Disciplinary Enforcement, there doesn’t appear to be any provision requiring a judge to report their conviction unless this writer missed it. But, there is a duty to cooperate. Obviously, the best practice would be to always report any conviction. From a practical standpoint, if the judge is convicted, the newspapers will indirectly do the reporting requirement.
The other issue counsel who are representing a judicial officer must be aware of is the effect of a criminal guilty plea or conviction on the judge’s pension. That is a major issue that is sometimes ignored. Oftentimes, if some thought is given to the person, a plea can be made to criminal charges that will not result in removal of the judge’s pension. Obviously, this is a major issue. A judge can be on the bench, 10, 20 or 30 years and the loss of a pension could have a devastating impact. The pension rules are draconian. A judge can work 25 years, do an excellent job, and then have a problem or issue that can result in the loss of their pension. It seems unfair that the removal of pension would go all the way back, but that’s the way the Pennsylvania Supreme Court has interpreted these cases. Even though judges get re-elected, the court does not consider any break in the service. Judges can also lose their pension are if they are found in disrepute and are removed. At least at the current time, if Judges are found in disrepute but suspended, then the pension is normally allowed minus the months of suspension. There are also certain crimes that will have an automatic pension removal and these crimes are listed in the Pennsylvania Pension Act. It is absolutely critical then for a lawyer who is representing a judicial officer in a criminal matter, if there is going to be a guilty plea, to see if the plea can be negotiated around crimes that do not cause pension forfeiture. Otherwise, the criminal lawyer may have a good result in the criminal matter, but it could cause the judge to lose their financial security. Many judges do not always understand the consequences initially.
The bottom line is if a lawyer is representing a judge, a lawyer or any other professional in criminal cases, the responsibility is far more than just ensuring a good result in the criminal case. The responsibility goes to protecting their pension if it can be protected, timely reporting, and making sure that the criminal plea can have as little effect on the licensing aspects of their professional client. If the criminal lawyer does not really understand all these other aspects, then they should at least contact someone who does that kind of work and review the consequences with that person so their client will be fully informed. These collateral consequences can have far greater impact on a professional than the normal criminal defendant and criminal lawyers who are doing double duty must understand the consequences to provide the effective representation.
It’s good practice to consult your client about hiring nonlawyer professionials.
As a lawyer, if I want to hire as an independent contractor a lawyer to review documents and an investigator and a paralegal to work on a specific case, do I need my client’s consent?
The lawyer has responsibility for nonlawyer assistants, so the lawyer has to play a major role in hiring the person. Rule 5.3 of the Rules of Professional Conduct requires that. One has to make sure the hired nonlawyer complies with confidentiality and other critical rules of professional responsibility.
But, obviously, if the client is paying, it’s usually good practice to consult with the client, particularly if the lawyer is using someone they don’t normally use. A problem can arise when the client wants the lawyer to hire a particular investigator or particular nonlawyer to assist. Comment 4 to Rule 5.3 is an interesting comment and reads as follows: “When the client directs the selection of a particular non-lawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer. When making such an allocation in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these rules.”
If one reads Rule 5.3, the lawyer still has responsibility for the conduct of a nonlawyer who is working for the firm whether they are a full-time employee or hired on a case-by-case basis. Whether the client can perhaps assist in the oversight, it is the lawyer who has the responsibility and, obviously, a client would not be aware of all the duties and responsibilities. Comment 3 to the same Rule 5.3 also talks about non-lawyers outside the firm and the comment itself clearly notes as follows: “When using such services outside the firm, a lawyer must make reasonable efforts to insure that the services are provided in a manner that’s compatible with the lawyer’s professional obligations … when retaining or directing a non-lawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.”
This becomes particularly important in perhaps billing. There was recently an article where a paralegal was billed at very high rates by the firm and then the firm took the position they weren’t aware that the person was not a lawyer. These are duties and responsibilities that must be resolved by the law firm.
Under Rule 1.2 of the Rules of Professional Conduct, the rule talks about the scope of representation and allegation of authority between lawyer and client. Although, the rule doesn’t specifically talk about nonlawyers being hired. It might be a good idea in the client’s fee agreement if there’s going to be nonlawyers hired, that the lawyer makes it clear that the lawyer is responsible for supervising and directing and the client should not be at least without going through and consulting with the lawyer. Failure to do that could create some problems down the line.
The whole area of hiring independent people to work on specific cases is one that is often not given a lot of thought to. Law firms hire people when they are needed. Oftentimes who is directing them and who isn’t is not clearly defined. Also, lawyers have to be very careful about using people suggested by the client and then allowing the client free run to tell them what to do or not to do. That can create some serious problems for a lawyer because the lawyer only has the responsibility under the Rules of Professional Conduct.
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.