1311 Proposed amendments to the Pennsylvania rules of disciplinary enforcement to provide for public reprimand with or without probation and conditions?
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS PART V. PROFESSIONAL ETHICS AND CONDUCT [ 204 PA. CODE CH. 83 ] Proposed Amendments to the Rules of Disciplinary Enforcement to Provide for Public Reprimand With or Without Probation and Conditions [41 Pa.B. 4200]
[Saturday, August 6, 2011]Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Pennsylvania Supreme Court that the Court amend Pennsylvania Rules of Disciplinary Enforcement 203, 204, 205, 207, 208 and 215 as set forth in Annex A.
Under the current Enforcement Rules, only the Supreme Court can approve and impose public discipline. Proposed subdivision (a)(5) of Enforcement Rule 204 would create a new type of public discipline, namely ''public reprimand,'' which the Disciplinary Board could approve and administer without review or approval by the Supreme Court. The Board would have the discretion to impose probation and conditions with the public reprimand.
Amendments to Enforcement Rules 205, 207, 208 and 215 would make public reprimand available as a disciplinary sanction after summary or formal disciplinary proceedings, or pursuant to a joint petition for discipline on consent. A summary determination for public reprimand would follow the same procedural path as a summary determination for informal admonition or private reprimand, commencing with a written recommendation by Disciplinary Counsel, followed by review by a reviewing member of a hearing committee, and ending with review by a three-Member Panel of the Disciplinary Board. Subdivision (a)(6) of Enforcement Rule 208 would be amended to provide that in those instances in which the respondent-attorney is unwilling to have the matter concluded by a summary determination for public reprimand, the respondent-attorney may demand as of right that Disciplinary Counsel institute a formal proceeding.
As a general proposition, a public reprimand would be appropriate where a sanction more stringent than private discipline is warranted and the primary purposes of discipline (protection of the public, maintenance of the integrity of the courts and the profession, and deterrence) do not require a suspension from practice or an appearance before the Supreme Court for public censure. Because the scope of misconduct that will be dealt with by public reprimand will be decided over time through decisional law, and discipline is always tempered by consideration of mitigating and aggravating factors, no attempt is made to provide any type of sanction-assessment guideline. Nonetheless, identifying some general categories of disciplinary matters could be beneficial in evaluating the efficacy of public reprimand as a disciplinary option. With those caveats in mind, the Board proffers that a public reprimand might be fitting where: the respondent-attorney's misconduct does not harm a client or prejudice a client's case but does cause significant prejudice to a court or the administration of justice; the respondent-attorney is the recipient of public discipline short of suspension or disbarment in another jurisdiction; the respondent-attorney is criminally convicted of a relatively minor offense that receives public notoriety and demeans the legal profession; or an administrative body has found that the respondent-attorney violated a provision of an ethics act or code of conduct applicable to public officials and employees. The misconduct in any of these categories may have already been exposed to public scrutiny prior to the Board's exercise of disciplinary jurisdiction, and adding another type of discipline to the existing range of public sanctions would give more flexibility to the process of choosing a public sanction that will satisfy the primary purposes of professional discipline and allow the respondent-attorney to maintain his or her license to practice law.
The Board does not anticipate that public reprimand will be limited to situations where the misconduct has already taken on a public aura. Given that the disciplinary system is mindful of progressive discipline to deter repeated acts of misconduct, public reprimand could address the need for specific deterrence where the rule violation is relatively minor but the respondent-attorney has already received private discipline on one or more occasions for a violation of the same or similar rule.
Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, P. O. Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3382) on or before September 30, 2011.
By The Disciplinary Board of the
Supreme Court of PennsylvaniaELAINE M. BIXLER,
SecretaryAnnex A TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS PART V. PROFESSIONAL ETHICS AND CONDUCT Subpart B. DISCIPLINARY ENFORCEMENT CHAPTER 83. PENNSYLVANIA RULES OF DISCIPLINARY ENFORCEMENT Subchapter B. MISCONDUCT Rule 203. Grounds for discipline.
* * * * * (b) The following shall also be grounds for discipline:
(1) Conviction of a crime.
(2) Wilful failure to appear before the Supreme Court, the Board or Disciplinary Counsel for censure, public or private reprimand, or informal admonition.
* * * * * Rule 204. Types of discipline.
(a) Misconduct shall be grounds for:
* * * * * (5) Public reprimand by the Board with or without probation.
(6) Private reprimand by the Board with or without probation.
[(6)] (7) Private informal admonition by Disciplinary Counsel.
(8) Revocation of an attorney's admission or license to practice law in the circumstances provided in Rule 203(b)(6) (relating to grounds for discipline).
(b) Conditions may be attached to an informal admonition [or], private reprimand, or public reprimand. Failure to comply with such conditions shall be grounds for reconsideration of the matter and prosecution of formal charges against the respondent-attorney.
* * * * * Rule 205. The Disciplinary Board of the Supreme Court of Pennsylvania.
* * * * * (c) The Board shall have the power and duty:
* * * * * (8) To review, through a designated panel of three members, and approve or modify a determination by a reviewing hearing committee member that a matter should be concluded by dismissal, private informal admonition, private reprimand, public reprimand or the institution of formal charges before a hearing committee.
* * * * * (11) To administer, by the Board or through a designated panel of three members selected by the Board Chair, private reprimands or public reprimands to attorneys for misconduct.
* * * * * Rule 207. Disciplinary counsel.
* * * * * (b) Disciplinary Counsel shall have the power and duty:
(1) To investigate all matters involving alleged misconduct called to their attention whether by complaint or otherwise.
(2) To dispose of [all matters (subject to review by a member of a hearing committee)] any matter that is governed by Enforcement Rules 214 (Attorneys convicted of crimes), 215 (Discipline on Consent), and 216 (Reciprocal discipline) in accordance with the substantive and procedural provisions of those rules, and to dispose of all other matters involving alleged misconduct by dismissal[,] or (subject to review by a member of a hearing committee) by recommendation for informal admonition, [recommendation for] private or public reprimand, or the prosecution of formal charges before a hearing committee or special master. Except in matters requiring dismissal because the complaint is frivolous or falls outside the jurisdiction of the Board, no disposition shall be recommended or undertaken by Disciplinary Counsel until the [accused attorney] respondent-attorney has been notified of the allegations and the time for response under Enforcement Rule 208(b) (relating to formal hearing), if applicable, has expired.
* * * * * Rule 208. Procedure.
(a) Informal proceedings.
* * * * * (2) Upon 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:
* * * * * (iv) A conditional or unconditional public reprimand by the Board of the attorney concerned.
(v) The prosecution of formal charges before a hearing committee or special master.
(3) Except where Disciplinary Counsel dismisses the complaint as frivolous, as falling outside the jurisdiction of the Board, or on the basis of Board policy or prosecutorial discretion, the recommended disposition shall be reviewed by a member of a hearing committee in the appropriate disciplinary district who may approve or modify.
(4) Disciplinary Counsel may appeal the recommended disposition directed by a hearing committee member to a reviewing panel composed of three members of the Board which shall order that the matter be concluded by dismissal, conditional or unconditional informal admonition [or], conditional or unconditional private reprimand, or conditional or unconditional public reprimand, or direct that a formal proceeding be instituted before a hearing committee or special master in the appropriate disciplinary district.
(5) A recommendation by a reviewing hearing committee member for a conditional or unconditional private or public reprimand shall be reviewed by a panel composed of three members of the Board who may approve or modify.
(6) [A] In cases where no formal proceeding has been conducted, a respondent-attorney shall not be entitled to appeal an informal admonition, a private reprimand, a public reprimand, or any conditions attached thereto [in cases where no formal proceeding has been conducted], but may demand as of right that a formal proceeding be instituted against such attorney in the appropriate disciplinary district. In the event of such demand, the respondent-attorney need not appear for the administration of the informal admonition [or], private reprimand, or public reprimand, and the matter shall be disposed of in the same manner as any other formal proceeding, but any expenses of the proceeding taxed against the respondent-attorney shall be paid as required by paragraph [(q)(2)] (g)(2) of this rule.
* * * * * (d) Review and action by Board.
* * * * * (2) The Board shall either affirm or change in writing the recommendation of the hearing committee or special master by taking the following action, as appropriate, within 60 days after the adjudication of the matter at a meeting of the Board;
(i) Dismissal. In the event that the Board determines that a proceeding should be dismissed, it shall so notify the respondent-attorney.
(ii) Informal admonition [or], private reprimand, or public reprimand. In the event that the Board determines that the proceeding should be concluded by informal admonition [or], private reprimand, [it] or public reprimand, the Board shall arrange to have the respondent-attorney appear before Disciplinary Counsel for the purpose of receiving informal admonition or before a designated panel of three members selected by the Board Chair pursuant to Pa.R.D.E. 205(c)(9), for the purpose of receiving private reprimand or public reprimand.
(iii) Other discipline. In the event that the Board shall determine that the matter should be concluded by probation, censure, suspension, disbarment, or by informal admonition [or], private reprimand, or public reprimand in cases where the respondent-attorney is unwilling to have the matter concluded by informal admonition [or], private reprimand, [it] or public reprimand, the Board shall file its findings and recommendations, together with the briefs, if any, before the Board and the entire record, with the Supreme Court. A respondent-attorney who is unwilling to have the matter concluded by an informal admonition [or], private reprimand, or public reprimand must file within thirty (30) days after notice of the determination of the Board, a notice of appeal. Review by the Supreme Court shall be de novo and the Court may impose a sanction greater or less than that recommended by the Board.
* * * * * (g) Costs.
(1) The Supreme Court in its discretion may direct that the necessary expenses incurred in the investigation and prosecution of a proceeding which results in the imposition of discipline shall be paid by the respondent-attorney. All expenses taxed under this paragraph shall be paid by the respondent-attorney within 30 days of entry of the order taxing the expenses against the respondent-attorney.
(2) In the event a proceeding is concluded by informal admonition [or], private reprimand or public reprimand, the Board in its discretion may direct that the necessary expenses incurred in the investigation and prosecution of the proceeding shall be paid by the respondent-attorney. All expenses taxed by the Board under this paragraph shall be paid by the respondent-attorney on or before the date fixed for the appearance of the respondent-attorney before Disciplinary Counsel for informal admonition or the Board for [informal admonition or] private or public reprimand. The expenses which shall be taxable under this paragraph shall be prescribed by Board rules.
* * * * * Rule 215. Discipline on consent.
* * * * * (f) Private discipline.—If a panel approves a Petition consenting to an informal admonition or private reprimand, with or without probation, the Board shall enter an appropriate order, and [it] the Board shall arrange to have the attorney appear before Disciplinary Counsel for the purpose of receiving an informal admonition or before a designated panel of three members selected by the Board Chair for the purpose of receiving a private reprimand.
(g) Public discipline.—(1) If a panel approves a Petition consenting to a public reprimand, the Board shall enter an appropriate order, and the Board shall arrange to have the attorney appear before the Board or a designated panel of three members selected by the Board Chair for the purpose of receiving a public reprimand. (2) If a panel approves a Petition consenting to public censure or suspension, the Board shall file the recommendation of the panel and the Petition with the Supreme Court. If the Court grants the Petition, the Court shall enter an appropriate order disciplining the attorney on consent.
* * * * * [Pa.B. Doc. No. 11-1311. Filed for public inspection August 5, 2011, 9:00 a.m.]
