Today's unified system of attorney discipline has helped to remove uneven discipline.

What was attorney discipline like prior to the creation of the Office of Disciplinary Counsel and the Disciplinary Board?

Samuel C. Stretton.

Attorney discipline before the creation of the Office of Disciplinary Counsel and the Disciplinary Board was very different. In fact, one could describe it as the difference between day and night.

There was no unified judicial system before the constitutional changes in the Pennsylvania Constitution that occurred in 1968. Prior to 1968, when admitted to the bar, one could only practice in one county, i.e., the county where one had their law office. To practice in any other county, one had to have a local lawyer move them pro hac vice. That kind of system helped to preserve and protect the local bar. That kind of system also created problems.

When Raymond Pace Alexander tried to file a suit in Chester County in 1933 or 1934 to allow black children to go to the brand new school, he was rebuffed since no lawyer in Chester County would move his admission pro hac vice. Alexander was a brilliant lawyer and innovator in Philadelphia County. He later became the first black Court of Common Pleas judge in Pennsylvania. In Berwyn, the old school became decrepit and a new school was built and all the white children were moved over there. But none of the black children were allowed to attend. Black parents boycotted. There were no black members of the bar in Chester County in the 1930s. Alexander was asked by the families to go to Chester County and file a suit. He tried, but no one would accept his papers since he had no Chester County lawyer to move him. It was a year or two later when one member of the bar finally did that, he was able to proceed and open up the school to all children.

Attorney discipline was rather haphazard and dependent on which county one was being disciplined in. Discipline was usually through the bar associations that had committees of censors. These were usually chaired by prominent members of the bar. If there was no agreement as to the discipline, then the committee of censors would file a petition in the Common Pleas Court in the particular county and there would be a hearing in the Common Pleas with discipline being imposed. Of course, one had the right to appeal to the Pennsylvania Supreme Court. Every county's disciplinary system was different. There was no uniformity. There was not a strong disciplinary system. It was one where lawyers often protected their colleagues from serious professional disgrace. The system was slow and cumbersome and populated by volunteers. In Philadelphia, Mary Graff was the secretary for the committee of censors for many years. She was an attorney also. Normally, the committee would appoint lawyers to present the case. For instance, in the 1970s, attorney Bill Stewart was appointed to prosecute the “running” of cases by personal injury firms in Philadelphia. He was fairly successful in doing so, but he was punished for the rest of his career. He later became a Philadelphia public defender. He was an excellent lawyer, but many people never forgot his role as special prosecutor for the committee.

In smaller counties, the discipline was even less effective. In some small counties, there were only a handful of lawyers. They wore multiple hats and knew each other and socialized with each other. As a result, professional discipline was few and far between and usually not of a serious nature.

The history of judicial discipline also demonstrates that before the constitutional amendments in 1968, judicial discipline was very haphazard. There were very few cases and it was done by volunteers.

With the change in the Pennsylvania Constitution, the Pennsylvania Supreme Court was given responsibility under the Unified Judicial System to oversee the bench and bar. After 1972, when a lawyer was admitted to practice law in Pennsylvania, they were admitted to practice in all counties and not just where their office was. At that time, the concept of preceptorship, which a lawyer had to undergo for about six months before they could practice, was abolished. There are pros and cons as to the value of preceptorship. Many lawyers who went through preceptorship also felt that they were abused and often taken advantage of. Some lawyers benefited and others were just used by firms to get cheap legal help without having any obligation to pay.

Once the Pennsylvania Supreme Court was given the constitutional authority to regulate the legal and judicial professions, the Office of Disciplinary Counsel and the Disciplinary Board were created. The Office of Disciplinary Counsel was then staffed by paid professional attorneys. No longer were they volunteers appointed by the committee of censors. The Office of Disciplinary Counsel has four offices statewide. Philadelphia is one district. Trooper in Montgomery County is the second district, which is the eastern half of Pennsylvania minus Philadelphia. Harrisburg is the third district, which is the middle part of Pennsylvania. Pittsburgh is the fourth district, which is all of western Pennsylvania. The sizes of these offices have grown. These offices now have lawyers who have served most of their careers as disciplinary counsel providing a great deal of expertise and knowledge for the attorney disciplinary system. This unified system has helped to remove uneven discipline and bring in a more uniform approach to professional discipline.

Similarly, under the Pennsylvania Constitution after the 1968 amendment, the Judicial Inquiry and Review Board for prosecution of judges was created. This was changed by constitutional amendment in 1993 because of the concerns over the discipline of then-Justice Rolf Larsen. In 1993, the Judicial Conduct Board and the Court of Judicial Discipline were created as constitutional organizations.

Similarly, the ethical rules evolved over the years. There was really no canons of ethics until Alabama adopted a set in the 1880s. The American Bar Association promulgated its canons of ethics in 1905 that existed for many years. These were then amended by the Clark Commission in the late 1960s.

Because of the Clark recommendations, the American Bar Association adopted the Disciplinary Rules, which were then ultimately adopted with modification by each state through their state Supreme Courts. Pennsylvania in 1972, adopted the Rules of Disciplinary Conduct that existed from 1972 until the Rules of Professional Conduct were adopted in 1987. The Rules of Professional Conduct resulted from what was called the Kutak Report Investigation. Every state then adopted some variation of those rules. These rules are still in effect through the present time, although there has been a number of amendments since 1987 through 2019. The amendments come through the Disciplinary Board's rules committee, which then makes recommendations to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court approves and adopts all Rules of Professional Conduct. The Pennsylvania Supreme Court also approved the Rules of Disciplinary Enforcement that outline the disciplinary process. The Disciplinary Board adopts and approves the Disciplinary Board Rules that further interpret the Pennsylvania Rules of Disciplinary Enforcement.

Therefore, in the last 50 years, Pennsylvania has come a long way in terms of its professional discipline. It is now a uniform system, statewide, with excellent and very diligent professional prosecutors. All public professional discipline since 1972 has to be approved by the Pennsylvania Supreme Court. That was not always the case under the committee of censors.

The constitutional changes in 1968 with the resulting professional discipline changes were critical to maintaining the independence of the legal and judicial disciplinary systems. In Pennsylvania, the Pennsylvania Supreme Court regulates the legal profession and the judicial profession. This regulation provides the necessary independence for the bench and the bar to function properly. It should be noted in Pennsylvania all disciplinary cases are not paid for by taxpayers' money. Instead, the monies are paid for through the annual assessment every lawyer pays when they register and renew his law license every year in May and June. The $220 that people are paying this year goes toward financing the attorney disciplinary system and the Judicial Conduct Board's attorneys. The members of the Disciplinary Board and members of the Judicial Conduct Board serve without compensation. But the staff counsel are paid.

This concept of self-regulation allows the legal profession to be free of the Executive Branch. Over the years, lawyers will remember attempts by the Federal Trade Commission and sometimes by Pennsylvania and other states' licensing boards that try to infringe on the regulation of the legal profession. At least in Pennsylvania, the Pennsylvania Supreme has very jealously guarded this independence and their regulation of it. But, quite frankly, without this current system with its protection of the independence of the legal profession, it would be hard to imagine how the legal profession could function. If it was regulated by the Executive Branch, its valued independence would surely be lessened.

That is why it is so important for all lawyers to support and cooperate with the attorney and judicial disciplinary system. That means not only volunteering to serve on the hearing committees and the Disciplinary Board, but also to be willing to turn lawyers in and report them if serious misconduct is observed. There is a mandatory reporting requirement under Rule 8.3 to report any lawyer's conduct that impacts on their fitness, truthfulness or honesty in the practice of law. This is a key component of a successful disciplinary system because the budget of the Office of Disciplinary Counsel does not allow for investigating teams to go out and find all the misconduct. On the contrary, much of the information given to the Office of Disciplinary Counsel besides from client complaints come from complaints by other lawyers or judges or from newspaper articles about attorney misconduct. For this self-regulatory system to exist it needs the cooperation of all lawyers. That is why the Office of Disciplinary Counsel has such a difficult job because on one hand they have to at times assume a prosecutorial role. On the other hand, particularly in the early investigations, they have to wear a more quasi-judicial hat in deciding what to prosecute and not. It is critical that the Disciplinary Counsel's interaction with respondent lawyers or their counsel is one of a positive nature. It is critical because, again, all lawyers have to feel that the system is working and disciplinary counsel have to do everything they can to ensure the support of the members of the bar. If the members of the bar did not support and cooperate with the disciplinary system, then this experiment in self-regulation would fail. Such a failure would undermine the legal profession's ability to form its historic role in a democratic society.

Using direct or indirect forms of coercion is not acceptable and can result in fairly serious discipline.

I often see in courthouses in Pennsylvania prosecutors talking to defendants and working out a plea agreement on misdemeanor-type of cases. Is that ethical?

The answer initially would be that it would be totally unethical. Assistant district attorneys and attorney generals and even U.S. attorneys are all bound by the Rules of Professional Responsibility. Most federal courts adopted the state rules. In Pennsylvania, it's very clear under Rule of Professional Conduct 4.2, a prosecutor cannot communicate with a person represented by counsel. Even more importantly, under Rule 4.3, a prosecutor or any lawyer dealing with an unrepresented person cannot give the person advice other than to get a lawyer. A violation of that rule has resulted in substantial discipline to several lawyers.

Prosecutors have their own particular Rule of Professional Conduct, Rule 3.8. In Rule 3.8(a), a prosecutor has to use reasonable efforts to assure that the defendant has been advised of his right to hire counsel and be given the right to do so. Under Rule 3.8(c), a prosecutor is not to seek or obtain from an unrepresented defendant a waiver for pretrial rights, particularly the waiver of a preliminary hearing. The Comment to Rule 3.8 says it all.

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that a defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”

Having said that, the American Bar Association issued a formal opinion, Formal Opinion 486 on May 9. The opinion was titled, “Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses.” The opinion highlights the special role and the responsibilities of a prosecuting attorney. It notes the duty is to seek justice, not really to convict. The opinion also notes that approximately 80% of all cases in the state criminal system are misdemeanors. The opinion noted also that there has been greatly expanded collateral consequences for people convicted of misdemeanors.

The opinion notes and criticizes the conduct by prosecutors negotiating pleas including encouraging plea negotiations with a prosecutor before the right to counsel or using delay or the threat of rather harsher sentences to sway persons to give up their right to counsel, or bringing persons charged with crimes en masse in court instructing them they must tell the Clerk of Court how to plead even though they don't have counsel, or using the right of waiver of counsel as a condition of plea bargaining. The committee also rejects a prosecutorial office allowing police officers to be involved in this plea bargain. The committee also criticized the procedure of advising defendants of a right to counsel when the office is not providing any process where defendants had the right to get counsel before the plea negotiations. The committee also noted that prosecutors failed to show indigent defendants how to apply for court-appointed counsel or public defender.

The opinion then addressed Rule 3.8 of the Model Rules of Professional Conduct. The opinion emphasized that the prosecutor has a duty to ensure each defendant is given procedural justice. The committee requires the prosecutor to have reviewed the files and investigated the issues before making such offers.

It should be then noted that the prosecutor has a duty under the Model Rule 3.8(b) to use reasonable efforts to ensure that the accused has been advised of their right to have help getting counsel. Pennsylvania Rules of Professional Conduct have similar language in their Rule 3.8.

The opinion notes that if a person has the right to counsel, a prosecutor cannot negotiate a plea or seek a waiver of the right to counsel before complying with Rule 3.8(b) requiring the prosecutor to use reasonable efforts to make sure the accused gets and obtains counsel. It should be noted that a prosecutor can't delegate that duty to the police. Of importance in this opinion is that the prosecutor can't pressure, advise or induce a waiver of counsel and a plea. If the accused has independently elected to proceed pro se without counsel and this has been approved by the court then there can be a negotiation. The key point here is that prosecutors have to get the judicial approval. The opinion cites Rule 4.3 of the Model Rules that states when dealing with an unrepresented person the only advice is to tell them to get counsel. In the comment under Rule 4.3 noting the difference between a lawyer being able to settle a dispute with an unrepresented person in the civil context. The committee makes it very clear that a plea bargain is “no ordinary arms-length transaction or settlement or agreement. The stakes are often significantly higher than in civil matters …” The opinion noted that although a prosecutor can ultimately negotiate a plea bargain with an unrepresented client, the duties are much higher than in the civil context.

What most prosecutors don't seem to understand is that they are not giving any special immunity from the Rules of Professional Conduct. These rules apply to them as they do every lawyer. This conduct in getting waivers of rights from unrepresented people—using direct or indirect—forms of coercion is not acceptable and can result in fairly serious discipline.

The American Bar Association's Formal Opinion 486 ought to be read by all assistant district attorneys and other prosecutorial officers and similarly by judges. It clearly and fairly sets forth their ethical obligations in this very critical area where defendants are being asked to give up important pretrial rights and the right to counsel.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.