WHAT ARE THE IMPORTANT ISSUES TO RAISE WHEN YOU ARE THE SUBJECT OF A PA ETHICS PROCEEDING?
FAQs

What are the ways an attorney-respondent may possibly resolve an ethics complaint at the outset?

FAQ # 1 – How are ethics complaints filed and processed in Pennsylvania?

There are typically two ways that ethics matters are initiated. First, disciplinary counsel can file complaints directly. Second, members of the public can initiate complaints against Pennsylvania attorneys, which will be subject to intake by the Office of Disciplinary Counsel (ODC). Such complaints must be in writing and include identifying information about the respondent-attorney, as well as a statement of the facts underlying the complaint.

If, following investigation by disciplinary counsel, the complaint is docketed by the ODC, it is referred to as a “petition”, which represents a formal pleading filed by the ODC requesting action by the Board under the applicable ethics rules.

 

FAQ # 2 – What are the reasons an attorney ethics complaint might be dismissed without discipline and what other recommendations can Disciplinary Counsel make?

The Pennsylvania Rules of Disciplinary Enforcement states, in pertinent part:

[U]pon the conclusion of an investigation, Disciplinary Counsel may dismiss the complaint as frivolous, as falling outside the jurisdiction of the Board, or on the basis of Board policy or prosecutorial discretion. Disciplinary Counsel may recommend:

  1. Dismissal of the complaint.
  2. A conditional or unconditional informal admonition of the attorney concerned.
  3. A conditional or unconditional private reprimand by the Board of the attorney concerned.
  4. A condition or unconditional public reprimand by the Board of the attorney concerned.
  5. The prosecution of formal charges before a hearing committee or special master.

Pa.R.D.E. 208(a)(2).

Notwithstanding certain exceptions, typically, the Counsel’s recommendation is subject to review by a member of a hearing committee in the appropriate jurisdiction.

 

FAQ # 3 – Are disciplinary proceedings public?

Pennsylvania’s Rules of Disciplinary Enforcement require that disciplinary proceedings (including complaints themselves) be kept confidential (subject to the exceptions contained in Enforcement Rule 402) until:

  1. the filing of an answer to a petition for discipline;
  2. the time to file an answer to a petition for discipline has expired without an answer being filed;
  3. the filing and service of a petition for reinstatement; or
  4. the Board has entered an Order determining a public reprimand.

Pa.R.D.E. 402(a).

Indeed, unless and until “formal charges are filed and the complainant is designated as a witness at the prehearing conference, or Disciplinary Counsel determines that the complaint contains exculpatory material,” it is not to be provided to the respondent-attorney. Pa.R.D.E. 209(a).

Once a formal petition is filed against a respondent-attorney, the ethics case becomes public and fully accessible on the Disciplinary Board’s website.

 

FAQ # 4 – What Are the First Few Steps Involved in the Legal Strategy to Address a Typical PA Ethics Matter?

To restate the obvious, the fact that an attorney receives word that they are the subject of a Pennsylvania ethics matter does not necessarily mean they will be the subject of formal discipline. Indeed, there is little doubt that, at the outset, the most important thing is to gather information on the nature and extent of the factual and legal issues involved. That usually breaks down into a three-step process.

(1) Consider reaching out to Disciplinary Counsel to determine the facts that are not necessarily contained in the four corners of the ethics complaint, some of which may have been adduced through the investigation itself.

(2) Analyze the key underlying rules, case law and ethics opinions respecting the Rules of Professional Conduct and Rules of Disciplinary Enforcement implicated by the factual predicate set forth in the complaint.


(3) To the extent possible, enter a dialogue with the investigator to attempt to prevent the initiation of a formal ethics proceeding.

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

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Looking for advice?

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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.

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