I wish to convey one important message in this month’s newsletter – please complete your annual attorney registration on or before July 1. The registration site hosted by the Unified Judicial System opened to all attorneys eligible to register on April 26, 2021. The Board strongly urges you to complete your registration by the July 1 deadline to avoid the imposition of any late payment penalties or, in the worst case, administrative suspension of your license. Of note, more than 61% of attorneys have completed registration by June 15, 2021. 

The Administrative Office of Pennsylvania Courts (AOPC) compiled Pennsylvania data on identity theft offenses over a 5 year period. You can find the infographic developed by the AOPC in the Around the Court section of our newsletter. To learn more about uncovering and reporting identity theft, visit the Department of Revenue’s ID Theft Victim Assistance page.

On May 21, 2021, former Chief Justice Stephen A. Zappala, Sr. passed away at the age of 88. As Chief Justice Max Baer wrote in his statement, “The Court has lost a great member and leader in former Chief Justice Zappala. He will be sorely missed by those who worked with him and those who followed him on the Court.” Our heartfelt condolences go out to his family.

Jack P. Goodrich
Board Chair

May 2021

May 2021

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Disciplinary Board News

Confidentiality in the Attorney Disciplinary System – Part One

What is confidential within the attorney disciplinary process and from whom is complicated. This month, we’ll explain how confidentiality works from the receipt of a complaint through either dismissal or the imposition of “private” discipline - our system’s lower forms of discipline, namely, an informal admonition or a private reprimand, Pa.R.D.E. 204(a).

While the Office of Disciplinary Counsel (ODC) can open some investigations on its own initiative, most originate with a complaint submitted in writing or online by a member of the public. They aren’t “filed”; they are not a pleading that starts a formal action; they do not require a response. They are merely a request that ODC investigate. 

Complaints are confidential both from the public and from the accused attorney until formal proceedings commence - which is after the filing of a petition for discipline that seeks some form of public discipline, i.e., a public reprimand, public censure, suspension, or disbarment. See Pa.R.D.E. 209(a). A proposed change would extend the complaint’s confidentiality, from both the public and the respondent, “Unless and until formal charges are filed and the complainant is designated as a witness at the pre-hearing conference, or Disciplinary Counsel determines that the complaint contains exculpatory material...” Even then, the Hearing Committee may issue a protective order against disclosure to the public. See 51 Pa. Bulletin 1128. Another change authorizes the Disciplinary Board to provide public access to the complaint at any stage in the interests of justice. Id. (proposed Pa.R.D.E. 402(d)(4)).    

Complainants have a First Amendment right to publicize and discuss their complaints (Stilp v. Contino, 613 F.3d 405, 413-14 (3d Cir. 2010); First Amendment Coalition v. Judicial Inquiry and Review Board, 784 F.2d 467, 478-79 (3d Cir. 1986)(en banc)), and the rules do not attempt to impose any sanction on a complainant who does so (Collura v. Maguire, 569 Fed. Appx. 114, 118 (3d Cir. 2014)). The rules do incentivize confidentiality, however: statements to ODC and the disciplinary system enjoy absolute immunity from suit but public statements do not. See Pa.R.D.E. 209(a).

After ODC receives a complaint, we investigate: we interview witnesses, check court records, request documents informally, and subpoena others. Our investigative work product is confidential from the complainant, the respondent, and the public, except to the extent that it is revealed to the respondent in a document requesting his position, D.Bd. Rule 87.7(b), or in records and statements introduced into evidence at a hearing on formal charges. See Pa.R.D.E. 402(e)(1). The respondent does not control and cannot waive the confidentiality of our work-product.

The imposition and the fact of the admonition or private reprimand on the respondent is confidential from the rest of the world, with the exception of limited disclosure to the complainant. The respondent can publicize it if he chooses; otherwise, the only way it could become a public record is if it becomes relevant and admissible at a subsequent formal disciplinary proceeding against the respondent on other charges - and then, only if the subsequent misconduct occurred within certain time limits.

Disciplinary Board Rule 87.51 entitles the complainant to be informed of the disposition of their complaint. When it is dismissed, ODC sends the complainant a letter which explains the reason for the dismissal so that the complainant can exercise their right to request a reconsideration under D. Bd. Rule 87.9(a). (We generally do not notify respondents of the dismissal of complaints against them if they are dismissed before we ever notified them that one had been made. Id.) It had been unclear how much ODC or the Board could tell the complainant about the private discipline proposed. A new provision, R.D.E. 402(d)(5), has been proposed to specify that the complainant can be notified as to the particular type of discipline imposed and any conditions attached. See  51 Pa. Bulletin 1128.
 
Thomas J. Farrell
Chief Disciplinary Counsel

Articles of Interest
 

Attorney Well-Being

Dementia Takes Toll on Aging Legal Profession

Nationally, about 14% of the legal profession is over the age of 65. The rate of diagnosis with dementia in that age group is approximately one in nine. As the ranks of older lawyers grow, the onset of dementia had become a serious issue, especially among solo practitioners and those without an organizational structure to notice and address their declining abilities.

Bloomberg Law reports the story of Illinois lawyer Bethany McLean, who was thrilled to be hired as an associate by Robert Fritzshall, a solo practitioner who appeared to be in his eighties. McLean quickly noticed that Fritzshall’s cases were in disarray. He was missing deadlines, failing to inform clients, and forgetting what he had done on cases. She found that on many occasions he didn’t even realize the deadlines had passed. She learned that a sequence of lawyers had served in the same position she had, and quickly resigned. Discussing her concerns with Fritzshall, the Illinois Lawyers’ Assistance Program, and the Illinois Attorney Registration & Disciplinary Commission’s ethics hotline failed to alleviate her concerns. Finally, she resigned and reported Fritzshall’s condition to the disciplinary commission, which brough a complaint that resulted in Fritzshall’s transfer to disability inactive status. He died in hospice care two years later at age 86.

Alex Yufik, a forensic psychologist who has worked on disability cases, told Bloomberg Law that lawyers in early stages of dementia are often in denial about the need to stop practicing. They become adept at hiding their conditions, tapping their intellectual reservoirs to redirect conversations when they’re confused or unable to answer questions.

Kendra Basner, a lawyer who counsels clients on legal ethics, noted that lawyers often develop “routines, practices, conversational and social skills over many years, which are reinforced and rehearsed over a career to the point where they can function almost automatically.”

Rule 8.3(a) of the Pennsylvania Rules of Professional Conduct states,

 

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From the Pennsylvania Bar Association 
 

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