WHAT ARE THE CRITICAL ASPECTS OF THE PROCESS BY WHICH A PA ETHICS MATTER PROCEEDS? FAQs

What are the discovery devices available to an attorney-respondent in an ethics matter?

FAQ # 1 − What is the attorney-respondent’s obligation to provide discovery or other materials?

When compiling the responses to the discovery requested by the disciplinary counsel, the attorney must give full and complete disclosure. Obviously, that is not the standard by which civil litigation proceeds; in other words, there are far less scenarios under which the attorney can avoid full and complete answers and disclosure to basic discovery requests. As stated in Enforcement Rule 213(I),

(1) The Supreme Court may order a person domiciled or found within this Commonwealth to give testimony or a statement or to produce documents or other things for use in a lawyer discipline or disability proceeding in another state, territory or province or in a court of the United States or any other jurisdiction.
 
(2) The order may be made upon the application of any interested person or in response to a letter rogatory, and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of a tribunal outside this Commonwealth, for the taking of the testimony or statement or producing the documents or other things. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with the applicable provisions of this subpart. The order may direct that the testimony or statement be given, or document or other thing be produced, before a person appointed by the Court or before a commissioner appointed by a court or by an authorized disciplinary agency of another jurisdiction, any of whom shall have the power to administer any necessary oath.
 
(3) Any order to testify or to produce documents or other things issued as prescribed in this section may be enforced as any subpoena of the Supreme Court is enforced, upon petition of any party interested in the subject attorney discipline or disability proceeding.

Additionally, the records required to be maintained should be readily accessible and available for production to the ODC in a timely manner (within ten (10) business days) upon request. § 87.7(e). It is important to remember that the failure to produce the requested records is a violation of Pennsylvania’s ethics rules.

 

FAQ # 2 − What is the effect of the attorney not filing an answer in the Pennsylvania disciplinary proceeding?

Upon the filing by Disciplinary Counsel of a formal petition setting forth specific charges of misconduct, the respondent-attorney has twenty days after service to serve an answer upon the Disciplinary Counsel and the Board. Any factual allegation that is not timely answered shall be deemed admitted. § 89.54(d).

 

FAQ # 3 − Are subpoenas available as a discovery device in Pennsylvania attorney ethics disciplinary proceedings?

Yes. There are several instances in which the Disciplinary Board can issue subpoenas. For example, with respect to investigations concerning overdrafts of trust accounts, the Board can require production of bank records via subpoena. The attorney has a right to request and pay for copies of the produced records.

Additionally, as stated above, at any stage of an investigation and/or proceeding, the Disciplinary Board can summons witnesses or require production of records via subpoenas. On the other hand, the respondent-attorney’s right to subpoena is generally limited to summoning a witness to testify at a hearing.

 

FAQ # 4 − Is there a way of terminating the PA ethics disciplinary proceeding by stipulating to discipline by consent?

Yes. At any stage of the disciplinary investigation or proceeding, the respondent-attorney and Disciplinary Counsel may file a joint petition in support of discipline of consent. The petition should include the stipulated specific factual allegations committed and the ethical rules violated, as well as a specific recommendation for discipline. The petition is filed with the Board, and reviewed by a three-member panel that may elect to approve or deny the petition.

PUBLICATIONS & PRESENTATIONS

Gary D. Nissenbaum, Esq.

  • Presented Seminar, Six Aspects of Attorney Ethics Enforcement in NJ, NY & PA That You May Not Have Heard About Before, Lawline, Summer 2024 (Anticipated Presentation Date)
  • Panelist, New Jersey Trust and Business Accounting, New Jersey Institute for Continuing Legal Education, February 2021
  • Presented Seminar, How to Avoid Serious Mistakes When Facing an Ethics Grievance or Random Trust Account Audit, Essex County Bar Association, December 2020
  • Presented Seminar, “Good Grievance, Charlie Brown!” Latest Developments in NJ Ethics Law and Procedure, New Jersey Institute for Continuing Legal Education, July 2020
  • Presented Seminar, How to Avoid Serious Mistakes When Facing an Ethics Grievance, Wilshire Grand Hotel, December 2019
  • Presented Seminar, Attorney Ethics Grievances: 20 Insights from the Trenches, Wilshire Grand Hotel, December 2016
  • Presented Seminar, Attorney Ethics Grievance Process, Union County Bar Association, 2011

Anthony C. Gunst, Esq.

  • Presented Seminar, Six Aspects of Attorney Ethics Enforcement in NJ, NY & PA That You May Not Have Heard About Before, Lawline, Summer 2024 (Anticipated Presentation Date)
  • Presented Seminar, How to Avoid Serious Mistakes When Facing an Attorney Ethics Matter, New Jersey Association of Legal Administrators, April 2023

Looking for advice?

We're here to help.

Contact the Nissenbaum Law Group to schedule an appointment at 908-686-8000 or feel free to use the following form to e-mail us. Please include as much information as you can to ensure that we are able to handle your request as quickly as possible.

keyborad
keyborad

Looking for advice?

We're here to help.

Contact the Nissenbaum Law Group to schedule an appointment at 908-686-8000 or feel free to use the following form to e-mail us. Please include as much information as you can to ensure that we are able to handle your request as quickly as possible.

Consent to collect and store personal information

OFFICE LOCATIONS

MAIN OFFICE

2400 Morris Avenue

Union, NJ 07083

P: (908) 686-8000

F: (908) 686-8550

140 Broadway

46th Floor

New York, NY 10005

P: (212) 871-5711

F: (212) 871-5712

1650 Market Street

Suite 3600

Philadelphia, PA 19103

P: (215) 523-9350

F: (215) 523-9395

100 Crescent Court

7th Floor

Dallas, TX 75201

P: (214) 222-0020

F: (214) 222-0029

PLEASE NOTE Meetings by appointment only in Union, NJ; New York, NY; Philadelphia, PA & Dallas, TX offices. Legal services generally performed from the Union, NJ office. The firm has attorneys licensed in New Jersey, New York, Pennsylvania, Texas and/or the District of Columbia. In limited circumstances, the firm may practice in other states under the prevailing multi-jurisdiction rules or through pro hac vice admission.

 

ATTORNEY ADVERTISING. Any questions regarding this website should be directed to Gary D. Nissenbaum, Esq. (gdn@gdnlaw.com), who is responsible for the content of this website.

© 2021 Nissenbaum Law Group, LLC. All rights reserved.

Disclaimer | Privacy Policy