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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Pennsylvania Legal Ethics

INTRODUCTION

0.1:100   Sources of Law and Guidance

0.1:101      Professional Codes

Pennsylvania Rules of Professional Conduct

0.1:102      "Other" Law and Moral Obligation

Pennsylvania Continuing Legal Education Board Regulations - adopted by order of the Pennsylvania Supreme Court, January 7, 1992. The CLE regulations require all attorneys admitted to practice in Pennsylvania to complete twelve (12) credit hours of CLE education annually. Of these twelve credits, one credit hour must cover lawyer ethics and rules of professional conduct. Rule 105.

If an attorney fails to comply with the required CLE requirement, she will receive notice from the CLE Board in writing, to the nature of the non-compliance and will be given sixty (60) days to remedy such non-compliance. If a lawyer fails to comply with the CLE requirements and does not remedy after notification by the Board, lawyer will be placed on inactive status by the Supreme Court and is not be eligible to practice law in the State of Pennsylvania.

Pennsylvania Continuing Legal Education Board
5035 Ritter Road
Suite 500
Mechanicsburg, PA 17055
Chairman - James C. Schwartzman, Esq.
Administrator - Karen K. Spicer
Education Board - (717) 795-2139

0.1:103      Background of the Pennsylvania Rules of Professional Conduct

The Pennsylvania Supreme Court issued an order on October 16, 1987 adopting the Rules of Professional Conduct, effective April 1, 1988. Pennsylvania adopted the form and context of the ABA's Model Rules except as described herein.

0.1:104      Unusual Aspects of the Pennsylvania Ethics Rules

Pennsylvania has adopted the Model Rules of Professional Responsibility with minor exceptions, which are described here.

0.2:200   Forms of Lawyer Regulation in Pennsylvania

0.2:210      Judicial Regulation

Pennsylvania Code of Judicial Conduct

Pennsylvania adopted its Code of Judicial Conduct by order of the Pennsylvania Supreme Court, effective January 1 1974.

Judicial Disciplinary Agency

Judicial Conduct Board
225 Market Street
Harrisburg, PA 17101-2126

Chairperson - Robert E.J. Curran
Chief Counsel - Vincent J. Quinn
Chief Investigator - Kenneth W. Finnell
(717) 234-7911

Court of Judicial Discipline
200 N. 3rd Street - 12th Floor
PO Box 1106
Harrisburg, PA 17108-1106

President Judge - Hon. Stephen J. McEwen, Jr.
Court Administrator - Wanda W. Sweigart
(717) 772-3771

Supreme Court of Pennsylvania
2 Lemoyne N.E. Drive
Lemoyne, PA 17043
(717) 731-7073

0.2:220      Bar Organizations

Bar organizations have no formal disciplinary role in Pennsylvania. However, the Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility issues formal and informal ethics opinions. These opinions are generally in response to written and oral inquiries by members of the bar.

0.2:230      Disciplinary Agency

Disciplinary Board of the Supreme Court of Pennsylvania
2 Lemoyne Drive
1st Floor
Lemoyne, PA 17043

Chairman - Stephen T. Saltz
Chief Disciplinary Counsel - John L. Doherty, Esq.
(717) 731-7073

0.2:240      Disciplinary Process

R. 208 of Pa. Rules of Disciplinary Enforcement apply and govern all disciplinary actions within Pennsylvania. All investigations are initiated and conducted by Disciplinary Counsel. Pa.R.D.E. 208(a)(1).

Informal Proceedings

After investigation the Disciplinary Counsel may dismiss the complaint as frivolous or as falling outside of the jurisdiction of the Board, or recommend dismissal of the complaint, a conditional or unconditional informal admonition of the attorney concerned, a conditional or unconditional private reprimand by the Board of the attorney concerned or prosecution of formal charges before the Hearing Committee or a Special Master. Pa.R.D.E. 208(a)(2).

Except where the complaint is dismissed because the complaint is frivolous or falls outside of the jurisdiction of the Board, the recommended disposition by the Office of Disciplinary Counsel shall be reviewed by a member of a Hearing Committee in the appropriate disciplinary district who may approve or modify the Office of Disciplinary Counsel's findings.

Disciplinary Counsel may appeal the recommended disposition directed by a Hearing Committee member to a panel composed of three members of the Disciplinary Board which will order that the matter be concluded by dismissal, conditional or unconditional informal admonition or conditional or unconditional private reprimand or direct that a formal proceeding be instituted before a Hearing Committee or Special Master.

The recommendation by a Reviewing Committee member for a conditional or unconditional private reprimand shall be reviewed by a panel composed of three members of the Board who may approve or modify. An attorney subject to discipline shall not be entitled to appeal an informal admonition or private reprimand or any conditions attached to either the informal admonition or private reprimand in cases where no formal proceeding has been conducted. However, the attorney may demand as of a right that the formal proceeding be instituted against such attorney in an appropriate disciplinary district. In the event that the attorney makes such a demand, the attorney need not appear for administration of the informal admonition of private reprimand and the matter shall be disposed of in the same manner as any other formal proceeding.

Formal Proceedings

The first step in a formal hearing is filing with the Board a petition setting forth with specificity the charges of misconduct. A copy of the petition shall be personally served on the respondent attorney. Within twenty (20) days after such service, the respondent attorney shall serve an answer upon the Disciplinary Counsel and file the original with the Board. In the event that the respondent attorney fails to file an answer, charges shall be deemed at issue.

Following the service of the answer, if there are any issues raised by the pleadings or if the respondent attorney requests an opportunity to be heard in mitigation, the matter will be assigned to a Hearing Committee or a Special Master. Proceedings before the Hearing Committee are conducted in the same manner as if before the Board with the same rules. At the end of the hearing, the Hearing Committee or Special Master shall submit a report to the Board containing the findings and recommendations developed from the hearing.

The report will then be reviewed by the Board which will either affirm or change in writing the recommendations of the Hearing Committee or Special Master as appropriate, within sixty (60) days after the adjudication of the matter and meeting of the Board. The Board may take the following actions: dismissal, informal admonition or private reprimand, or other discipline.

In cases where the Board recommends probation, censure, suspension, or disbarment, or if a respondent attorney is unwilling to accept an informal admonition or private reprimand, the Board shall file its findings and recommendations together with the briefs and the entire record with the Supreme Court.

If the Board recommends that the matter be concluded by disbarment, the respondent attorney may within twenty (20) days after service of the findings and recommendations of the Board, submit to the Supreme Court a request to present oral argument. If the Board recommends a sanction less than disbarment and the Supreme Court disagrees, the Court will issue a rule to show cause upon the respondent attorney why and order of disbarment should not be entered. Within twenty (20) days after service of the rule, either party may submit to the Supreme Court a response thereto, within ten (10) days after service of the response the other party may submit to the Supreme Court a reply thereto.

In cases where the Supreme Court recommends disbarment beyond what was recommended by the Disciplinary Board, the attorney shall have an absolute right upon request for oral argument. In all other cases in which the recommended penalty is less than disbarment, the attorney does not have a right to oral argument.

The Disciplinary Counsel may act whenever it appears by an affidavit demonstrating the facts that the continued practice of law by a person subjected to these rules is causing immediate and substantial public or private harm because of the misappropriation of funds by such person to his or her own use or because of other egregious conduct in manifest violation of the disciplinary rules or the enforcement rules, may petition the Supreme Court directly for injunctive or other appropriate relief.

0.2:245      Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude

An attorney convicted of a serious crime shall report such convictions to the Secretary of the Disciplinary Board within twenty (20) days after date of sentencing. The responsibility of the attorney to make such a report shall not be abated because the conviction is under appeal or the Clerk of the Court has transmitted a certificate the Disciplinary Counsel.

The Clerk of any Court within the Commonwealth in which an attorney is convicted of any crime or in which any such conviction is reversed, shall within twenty (20) days after such disposition, transmit a certificate thereof to the Disciplinary Counsel who will file such a certificate with the Supreme Court.

If the Disciplinary Counsel learns outside of either notification by the attorney or notification by Clerk of the Court that an attorney has been convicted of a crime within the Commonwealth, the Disciplinary Counsel shall secure and file a certificate in accordance with the provisions of sub-division B. If the conviction occurred in another jurisdiction, it shall be the responsibility of the Disciplinary Counsel to secure and file a certificate of such conviction with the Supreme Court.

Upon filing with the Supreme Court of a certified copy of an order demonstrating that an attorney has been convicted of a serious crime, the court may enter a rule directing the respondent attorney to show cause why the attorney should not be placed on temporary suspension, which rule shall be returnable within ten (10) days. If the attorney fails to respond to this rule the court may enter an order requiring temporary suspension of the practice of law by the respondent attorney, pending further definitive action under the disciplinary rules.

A respondent attorney may at any time petition the court for dissolution or amendment of an order for temporary suspension. A copy of the petition shall be served on Disciplinary Counsel. A hearing on the petition shall be held within ten (10) days before a member of the Board designated by the Chairman of the Board. The designated Board member shall hear the petition and submit a transcript of the hearing and the recommendation of the court within five (5) days after the conclusion of the hearing. Upon receipt of the recommendation of designated Board member and the record relating thereto, the court shall dissolve or modify its order, if appropriate. During a temporary suspension the respondent attorney is precluded from accepting any new cases or other client matters, but shall not be precluded from continuing to represent existing clients on existing matters during the thirty (30) days following entry of the order of temporary suspension.

Certificate of conviction of an attorney for serious crime filed under Subdivision B. shall be conclusive evidence of the commission of that crime and any disciplinary proceeding instituted against the attorney based upon the conviction.

Upon receipt of the certificate of conviction of an attorney for a serious crime the Supreme Court, in addition to any order of suspension, may also refer the matter to the Disciplinary Board for institution of formal proceeding before a Hearing Committee in the appropriate disciplinary district in which the sole issue shall be the extent of the final discipline to be imposed, except that a disciplinary proceeding so instituted shall not be brought to hearing until all appeals from conviction are concluded.

Although the Disciplinary Counsel can now prosecute the case to full hearing, the respondent attorney who has been temporarily suspended, shall have the right to request an accelerated disposition of the charges which were the basis of a temporary suspension, by filing a notice with the Secretary of the Board and the Disciplinary Counsel requesting accelerated disposition. Within thirty (30) days after filing such a notice, Disciplinary Counsel shall file a petition for discipline if such petition has not already been filed and the matter shall be assigned to a Hearing Committee for accelerated disposition. The assignment of a Hearing Committee shall take place within seven (7) days after the filing of such notice. Thereafter the matter shall proceed and be concluded by a Hearing Committee, the Board and the court without appreciable delay. If petition for discipline is not timely filed or signed to a Hearing Committee, for accelerated dispositive of this paragraph, the order of temporary suspension shall be automatically dissolved, without prejudice to any pending or further proceedings under this rule.

Upon receipt of a certificate of conviction of any attorney for a crime other than a serious crime, the court shall take such action as it deems warranted, including reference to the Board for institution of formal proceeding in the appropriate disciplinary district. The court may, in its discretion, make no reference with respect to the convictions, for minor offenses.

An attorney suspended under the temporary suspension provision may be reinstated immediately upon the filing by the Board with the court of a certificate demonstrating that the underlying conviction has been reversed, but the reinstatement will not terminate any formal proceeding then pending against the attorney.

0.2:250      Sanctions in Judicial Proceedings

In Pennsylvania, the only sanctions available within a judicial proceeding are civil and criminal contempt. Courts have imposed the punishment of a public admonition in some cases, but always after finding the attorney guilty of contempt. See, e.g., Commonwealth v. Rubright (Pa. Super. 1980). The judicial officer is always free to refer the matter to the Disciplinary Board.

0.2:260      Criminal and Civil Liability

The Rules of Professional Conduct do not have the force of substantive law in Pennsylvania. See, e.g., Commonwealth v. Turrell (1990). Therefore, breach of the Rules does not create any additional legal liability for attorneys beyond the existing body of law. Id.; also In re Estate of Pedrick (1984).

0.2:270      Federal Courts and Agencies

Court of Appeals for the Third Circuit

Third Circuit Standing Committee on Attorney Discipline
Office of the Clerk
U.S. Ct. - 3rd Circuit
U.S. Courthouse Room 21400
601 Market Street
Philadelphia, PA 19106-1790
(215) 597-2995

Federal District Courts

Eastern District - Chief Judge of the district appoints a judge of the district or panel of three judges to conduct formal hearings. Local R. 83.6 (V)(D)

Middle District - Chief Judge of the district appoints a judge or panel of three judges to conduct formal hearings. Local R. 305.4

Western District - Chief Judge of the district appoints a judge or panel of three judges to conduct a formal hearing. Local R. 83.6.5

0.2:280      Ethics Rules Applied in Federal Courts in Pennsylvania

All three federal district courts have adopted the Pennsylvania Rules of Professional Conduct with the exception of Rule 3.10 governing subpoena directed at other attorneys. The local court rules adopting the Pennsylvania Rules of Professional Conduct are:

E.D. Pa. - Rule 83.6, R. IV.B.

M.D. Pa. - Rule 83.23.2

W.D. Pa. - Rule 83.1.B.

0.3:300   Organization of This Library and the Model Rules

0.4:400   Abbreviations, References and Terminology

0.4:410      "Belief" or "Believe"

"Belief" or "Believe" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.

0.4:420      "Consults" or "Consultation"

"Consults" or "Consultation" denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.

0.4:430      "Firm" or "Law Firm"

"Firm" or "Law Firm" denotes a lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or other organization and lawyers employed in a legal services organization.

0.4:440      "Fraud"

"Fraud" denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.

0.4:450      "Knowingly," "Known," or "Knows"

"Knowingly," "Known," or "Knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

0.4:460      "Partner"

"Partner" denotes an equity owner in a law firm, whether in the capacity of a partner in a partnership, a shareholder in a professional corporation, a member in a limited liability company, a beneficiary of a business trust, or otherwise.

0.4:470      "Reasonable" or "Reasonably"

"Reasonable" or "Reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

0.4:480      "Reasonable belief" or "Reasonably believes"

"Reasonable belief" or "Reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

0.4:490      "Substantial"

"Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.

0.4:500   Additional Definitions in Pennsylvania

None.