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Attorney E-Newsletter

November 2005

News Flash: Disciplinary System Opened By Supreme Court

The big news for the disciplinary system is the set of changes to Rule 402 of the Pennsylvania Rules of Disciplinary Enforcement. From now on, most disciplinary proceedings will be open to the public once a Petition for Discipline is filed and the respondent-attorney has had an opportunity to respond to the charges. In addition, the rulemaking creates new mechanisms for people and agencies to make inquiry into the existence of disciplinary complaints not part of the public record. For a full description of the changes, a Q&A on the implications of the new rules, and access to the text of the rules themselves, visit the News Page at the Disciplinary Board's website.

Informed Consent/Confirmed In Writing

Several of the Rules of Professional Conduct, including those that deal with potential conflicts, require the "informed consent" of the client or some other party, often "confirmed in writing."

The new Rule 1.0, which sets forth numerous definitions of terms used in the Rules of Professional Conduct, addresses both of these terms.

Rule 1.0(e) defines "informed consent" as "the consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." It is not enough to hand a client a consent form and say "sign here;" the rule clearly contemplates a conversation in which the lawyer will communicate a full and accurate assessment of the available alternatives, risks, and options. The duties of communication imposed by Rule 1.4, which are greatly expanded under the new rules (see June newsletter) also provide guidance as to the kind of communications that are expected.

The Executive Director of the Disciplinary Board of the Supreme Court of Pennsylvania Shares His Thoughts on the Status and Future Direction of the Organization

Some of the rules require that informed consent be "confirmed in writing" (see. e.g., RPC 1.15(e)[approval for handling of trust funds] and 1.17(d)[fees upon sale of law practice], and the elevated requirement of 1.8(a)[business transactions with clients] that the writing confirming informed consent be signed by the client]). Rule 1.0(b) defines the term as "when used in reference to the informed consent of a person, denotes an informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. . . . If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter."

This definition does not require a signed agreement, but rather a writing which is given or transmitted to the client. The idea is that the writing gives the advice a level of seriousness that a simple oral exchange may not have. Also, one would expect that if the client has questions or issues with the statement, the client would respond in writing, and thus a "paper trail" exists, so that if there is an issue as to whether consent was given, the question is not merely a matter of conflicting accounts of a conversation that was not recorded.

It is also worth noting that RPC 1.0(n) defines a "writing" as "a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, Photostats, photography, audio or video recording and e-mail. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing."

Tip Of The Month: Fee Dispute Committees

Most lawyers try diligently to avoid getting into fee disputes with clients, but when these happen they can quickly turn ugly. In most Pennsylvania counties, the local bar associations offer some sort of fee dispute remediation process. The Disciplinary Board refers most complaints about the amount and reasonableness of fees to the county Fee Dispute Committees, which have expertise in determining the appropriateness of a fee in light of local practice. The determination of fee disputes is usually non-binding, but the Disciplinary Board does investigate cases where a Fee Dispute Committee has determined that the lawyer's fee was clearly excessive, and the lawyer has failed to adjust the fee in compliance with the Committee's determinations. Lawyers should therefore take the bar association fee dispute process seriously as an important element of the system of lawyer accountability in Pennsylvania, and should cooperate with the Committee's inquiry, provide all information it requests, and comply with any recommendations it makes as to the reasonableness of fees.