An attorney seeking reinstatement should retain a lawyer who has had some experience in reinstatement matters.

I have a hearing in a federal court for the Eastern District of Pennsylvania to reinstate my law license. Do I need counsel since I have already been readmitted in Pennsylvania?

Samuel C. Stretton.

If the question was asked 20 to 25 years ago, the answer would have been probably not. In those days, unless someone did something horrible in the interim, if one was reinstated by the Pennsylvania Supreme Court, they were routinely reinstated in the U.S. District Court for the Eastern District of Pennsylvania unless there were some other issues.

That is not the case now. Federal reinstatement hearings, at least in the Eastern District are heard by a three-federal judge panel, usually chaired by Judge Paul Diamond. In the past, it was Judge John Padova. The panel has been very aggressive and will engage in vigorous cross-examination of any attorney seeking reinstatement.

Usually in federal reinstatements the panel of judges does not appoint disciplinary counsel or an independent lawyer to oppose or at least review and investigate to consider opposing reinstatement. Therefore, the panel itself is very aggressive in questioning.

If a lawyer is seeking reinstatement, the lawyer is well advised to come down with counsel and probably counsel who knows what they are doing in the area of attorney discipline. To bringing someone down who has never tried a disciplinary case could be a mistake. Second, one should try the federal reinstatement case as if they were never reinstated in state court. In other words, have a number of character witnesses. If there are fact witnesses that need to be presented, have them. Don't just rely on the Pennsylvania Supreme Court opinion.

The lawyer should be prepared in advance and also prepared for questions the court might ask if there are issues of concern. These federal reinstatement hearings are not a rubber stamp. They are from it. Federal judges are very well prepared and, at times, act as if they are the prosecutors.

The weakness, at least in the Eastern District, is that perhaps the judges, particularly the chair, Diamond, goes too far in their examination and questions. The judges or their law clerks will check in advance any Facebook posts that the attorney has or anything that's on the internet about the attorney. They will then raise those issues at the hearing. For instance, if someone is advertising, they are going to represent people in federal court but haven't been admitted yet, that will certainly be the subject of a cross-examination by the panel of judges. They will check the advertisements, they will check any resumes, and they will check to see if there are any opinions or anything indicating the lawyer acted improperly.

If one is going to go into a federal court disciplinary hearing, they should be well prepared and not expect the judges to roll over. Having said that, it does appear there are some serious concerns that the federal judges are too aggressive by perhaps overstepping their adjudicative role and crossing over into an investigative and prosecutorial role. It might be far better for the judges to appoint counsel to review the reinstatement petition and investigate the application. The lawyer can then ask questions and present adverse witnesses. That would be a far better way because when the judges are doing that, it does appear that they are comingling the adjudicative, prosecutorial, and investigative functions and perhaps not appearing to be even-handed. From the lawyer's perspective, if the judges are finding things on the internet and cross-examining in great detail the lawyer, it raises the issue as to whether the judges are fair or not. Although, obviously, issues should be explored, the question is should the judges be doing it or should an appointed counsel be doing it if there are problems?

Further, the ethics rules for federal judges don't appear to allow the panel to be so vigorous in their investigative efforts.

The American Bar Association in Formal Opinion 478, dated Dec. 8, 2017, criticized the independent factual research by judges through the internet. It notes that judges risk violating the Model Rules of Judicial Conduct by searching on the internet for information related to participants or facts in a proceeding. The article notes an independent investigation of adjudicative facts generally is prohibited unless the information is properly subject to judicial notice.

Although federal judges are not bound by the Pennsylvania Rules of Judicial Conduct, there are prohibitions about this kind of investigation in the Pennsylvania Judicial Code. The aforementioned ABA Opinion which discusses the American Bar Association's Model Code and notes as follows:

“Except for evidence properly subject to judicial notice, a defining feature of the judge's role in an adversarial system is that the judge will consider only the evidence presented by the parties.  Judges must be careful not to undermine the hallmark principle of judicial impartiality, or substitute for the time-honored role of the neutral and detached magistrate someone who combines the roles of advocate, witness, and judge.”

The opinion notes the Model Rules of Judicial Conduct, Rule 2.9(a) bars ex parte communications except in limited circumstances. The rules, under Rule 2.9(c), states a judge shall not investigate facts in a matter independently and shall consider only the evidence presented and the facts maybe properly judicially noticed. Comment 6 to the rule extends that to investigation of matters electronic.

Obviously, judges are allowed to do legal research and that's not prohibited.

The opinion talks about what is judicial notice and cites Federal Rules of Evidence, Rule 201(b)1 and (b)2. Those rules permit judicial notice of facts that are not subject to reasonable dispute and that are generally known within the trial court's territorial jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

The Opinion 478 also requires a judge to supervise his or her staff, including law clerks. Model Rule 2.9 requires a judge to take steps to prevent court staff and officials from performing independent investigations.

The opinion has examples of what can be done and what can't be done. The bottom line is, when one is in a judicial role, they are bound by the record and their record is made by the litigants, not the judges.

Therefore, to answer the question, if one is seeking reinstatement to the practice of law, at least in the U.S. District Court for the Eastern District of Pennsylvania (this writer has not had any cases of recent vintage in the Middle or Western District for reinstatement), one should be fully prepared to present a full and complete case. One should also be very careful what they place on the internet or social media or advertisements, etc. All of that will be reviewed by the court and be the subject of extensive examination and questions. The attorney seeking reinstatement would be better off retaining a lawyer whose had some experience in reinstatement matters to properly present the case with character witnesses, appropriate fact witnesses, remorse and reform witnesses, and witnesses to explain any issues that may have arisen that would be the normal subject of review by the reinstatement court.

Having said that, it does appear it is time for change in the Eastern District's federal disciplinary panels to start appointing lawyers or disciplinary counsel to review and prepare and oppose reinstatement hearings. Similarly, in attorney disciplinary hearings, it would probably be the better practice also. The court's involvement, particularly in reviewing social media and other matters for the subject of examination, is problematic and perhaps in violation of the Code of Judicial Conduct and would be better left to independent appointed counsel to do that type of work. The court does not want to be in a position of being criticized for comingling the important functions of a judge, prosecutor or investigator.

It is better to get out of the case when one's spouse is the opposing lawyer.

My wife is prosecuting a criminal case for the District Attorney's Office and the client called me to represent the client. Can I do so or if I can't, can other members of my firm do so?

The conflict of interest rule, Rule 1.7 of the Rules of Professional Conduct, is the starting point for general conflicts of interest. Under Rule 1.7(a)(2), there is a concurrent conflict of interest if the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client or former client or third person or by a personal interest of the lawyer. Clearly, if one's wife is the prosecuting attorney and the lawyer is going to be the defense attorney, there are serious issues involved. At minimum, the client would have to be notified and would have to waive any conflict as would presumably the District Attorney's Office.

The biggest problem here would be issues of confidentiality because of the closeness of the husband and wife relationship. Under Rule 1.7(b), there can be a waiver of a concurrent conflict of interest if both lawyers believe they can give competent and diligent representation. If the representation is not prohibited by law, if the representation does not involve the assertion of a claim by one client against the other in the same litigation and each client gives informed consent, then the rule allows representation.

Comment 11 to Rule 1.7 talks about personal interest conflicts. The comment reads as follows: “When lawyers representing different clients in the same matter or in a substantially related matter are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both the loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, as parent, child, sibling, or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent.”

There is not an absolute prohibition, but each client would have to give informed consent after being explained about the conflict. The better practice would be not to do so; there are too many issues and problems that are going arise down the line.

But it does appear that the lawyer's firm could still represent the client if the lawyer was screened. Comment 11 has the following statement: “A disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms which whom the lawyers are associated.”

It states that Rule 1.10, the imputation rule, should be looked at. Rule 1.10 is titled, imputation of conflict of interest. In other words, the rule discusses when the firm can't continue to represent someone if a partner or associate is conflicted out.

That rule does not appear to preclude members of the firm from representing the client.

There is a Pennsylvania Bar Association's Informal Opinion 2013-029. That case involved a lawyer in private practice on a Family Court matter. The lawyer was also a part-time assistant public defender in the county. The lawyer's wife was a caseworker and there was a possibility she could be a witness. That was found to be a conflict.

In addressing that opinion, it does appear that someone else in the lawyer's firm could have handled the matter under the exception as noted above.

Therefore, to answer the question it is better to get out of the case when one's spouse is the opposing lawyer and not handle it because there is a conflict of interest. There would have to be a full and complete waiver of conflicts to allow the lawyers to continue. If the lawyer did choose to withdraw, since it's a personal conflict because of the spouse's representation of the other party, then lawyers in the lawyer's firm would not be disqualified under Rule 1.10, the imputation rule.

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.