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Attorney E-Newsletter

March 2009

Complaints, Complaints

A reader writes to ask whether any action is taken against complainants who file false or mistaken complaints. He comments, “I feel that when a complainant cannot back up his facts – that the Board – not the attorney - should file against the complainant for filing a false or misleading complaint.”

The answer is that neither the Disciplinary Board nor any other agency of the disciplinary process will ever take action against a person who files a complaint, even if it proves to be false. The Supreme Court created the disciplinary process to give the public a means by which to express complaints regarding the conduct of attorneys, and assure that complaints will receive a professional review. Because many people who seek to file complaints are not sophisticated in the law, and because they already feel aggrieved with the profession due to the issues that give rise to the complaint, the Disciplinary Board and the Office of Disciplinary Counsel endeavor to make the complaint process accessible and nonthreatening. There is no provision for penalizing complainants whose complaints are dismissed, nor are there any proposals to do so.

On the other hand, Disciplinary Counsel recognizes that responding to a complaint costs a respondent attorney time and resources which can be quite valuable. A respondent attorney is usually not contacted until a Disciplinary Counsel has made a determination that there is possible merit to the complaint, or issue regarding which discussion with Disciplinary Counsel may help to resolve a problem between attorney and client. Even if Disciplinary Counsel believes the complaint may have merit, the attorney’s response is carefully considered, and every complaint is assessed according to the standard of proof, which requires that before any disciplinary action may be taken, there must be clear and convincing proof that the attorney has violated one or more of the Rules of Professional Conduct.

One significant way that complainants in disciplinary matters are protected is by the grant of immunity from civil liability in Rule 209, Pennsylvania Rules of Disciplinary Enforcement, which states, “All communications to the Board, a hearing committee, special master, or Disciplinary Counsel relating to misconduct by a respondent-attorney and all testimony given in a proceeding conducted pursuant to these rules shall be absolutely privileged and the person making the communication or giving the testimony shall be immune from civil suit based upon such communication or testimony.”

Rule 209 ties the immunity to the principle of confidentiality protected in Rule 402, stating, “such immunity shall not extend to any action that violates Rule 402.” Thus, the statements of complaining parties are protected, but only as long as they confine them to the confidential arena of the disciplinary inquiry.

Louisiana Supreme Court Reprimands Lawyer for Suing Client over Disciplinary Complaints

Pennsylvania’s Rule 209 has not resulted in any court decisions, but the Supreme Court of Louisiana recently reprimanded a lawyer for suing a client[1] alleging, among other claims, that she had defamed him by filing several complaints with the disciplinary process. In an opinion dated March 17, 2009, the Louisiana Court ruled that a lawyer violated a Louisiana rule nearly identical to Rule 209 with counts of his lawsuit that alleged defamation, malicious prosecution, and abuse of process. The Court noted that the privilege conferred by the rule for communications with disciplinary authorities was absolute, regardless of the form of action in which the lawyer’s pleading was cast. The court concluded that alleging such complaints was a frivolous pleading in violation of Rule 3.1[2], and conduct prejudicial to the administration of justice contrary to Rule 8.4(d).

The court’s opinion contains an extensive historical review of the development of modern disciplinary systems through the ABA and the states. It offers educational reading to anyone interested in how modern disciplinary systems evolved.

Advice from an Expert

In the December issue, we discussed the effect of taking retired or voluntary inactive status. Our article prompted a comment from Craig E. Simpson, an Allegheny County attorney who frequently represents lawyers in disciplinary matters and advises them on ethics issues. He writes:

If an attorney thinks there is even a possibility of resuming active status in the future, he or she would be better off remaining active. Paying the annual fee and paying for and obtaining the required yearly CLE is cheaper and less time-consuming than resuming active status after three years of inactive status, since he or she will have to petition for reinstatement at that time. He or she would still have to get at least 36 hours of CLE, plus would have to file a petition for reinstatement, fill out a questionnaire, and go through a hearing, which may or may not be pro forma. So if the attorney thinks there is even a remote possibility that he or she would want to resume active status in the future, I advise him or her to just remain active.

We are grateful to Mr. Simpson for sharing his experience and advice on this issue.

Can You Hear Me Now? Not Good!

We’ve said it before, and we’ll say it again: don’t let the illusion of privacy of cell phone conversations trick you into unintended and potentially unethical disclosures. We’ve probably all had the experience of witnessing someone engaging in a loud public cell phone conversation, apparently oblivious to our presence. But when people get involved in such conversations, they tend to forget that others can overhear, and embarrassment can result. A big-name law firm recently relearned that lesson the hard way.

Apparently a high-ranking partner in the large firm Pillsbury Winthrop Shaw Pittman decided to use some down time on an Amtrak train to conduct important business with his Bluetooth®©[3] cell phone. He proceeded to hold a loud and lengthy conversation with another partner in which he discussed possible layoffs from the firm’s legal staff, naming names. Unfortunately, a fellow passenger who overheard[4] the conversation[5] was annoyed enough by the imposition to go to the firm’s website, and recognized the partner from his name and picture. The tipster then relayed the tale to the blawg[6] Above the Law, which ran the whole story, complete with pictures and reprints of confirming emails. The firm later issued a statement apologizing for “"the unfortunate manner in which our deliberations about reductions have become public."

That’s the thing about loud cell phone conversations. Not only can you divulge embarrassing information if you forget you are in a public place, but the people whom you make involuntary participants in your conversations aren’t going to cut you any slack on it.

We Want Your Feedback

Within the next few days, you will receive an email from the Disciplinary Board asking you to share your thoughts on the Attorney E-Newsletter and its Web site. We hope you will take a few minutes and let us know how we’re doing.

Got a Tip?

Or a question, a comment, an idea you’d like to see addressed? We are always glad to hear from you. Write us at comments@padisciplinaryboard.org.

[1] His sister!

[2] Curiously, the Court made this finding although the lawyer’s lawsuit was still pending.

[3] It is reported that Bluetooth is named after King Harald Blatoon or Blatand, second king of Denmark, who united the Scandinavian tribes and therefore suggested the metaphor of a unifying technology. Perhaps “blueear” would be a more appropriate term for the ubiquitous devices.

[4] And by her account, could hardly help it.

[5] Along with most of the occupants of the car, apparently.

[6] A “blawg” (or law blog) is an online blog that is written by lawyers, or one that is focused on providing legal-oriented content.