If you've received a letter from the Office of Disciplinary Counsel, do not stall, respond immediately.

I received a letter from the Office of Disciplinary Counsel requesting a response in 30 days. What is the worst thing I can do in terms of responding?

Samuel C. Stretton.

The best thing to do, obviously, is to answer the letter. In days of old, one didn't have to answer. Now there is a requirement that the letter be answered. A petition for discipline has to be answered or everything is admitted. There is a little more leeway on the letter, but the best practice is to answer the letter.

When answering the letter, do not answer it like it is a civil pleading. The letter is in numbered paragraphs. Don't answer like denied, denied or denied, a conclusion of law or things of that nature. Respond specifically to the allegations, point out what is right and point out what is wrong.

One of the worst things one can do in a case before the Office of Disciplinary Counsel is not cooperate and not respond in an honest fashion. When the disciplinary letter is sent, 99% of them will ultimately result in the complaint being dismissed. It's only one half a percent to 1% that go further. When the letter is received is the time to resolve the matter.

If remorse is shown, cooperation is shown, acceptance of responsibility, reform or change, or returning legal fees, oftentimes the case will be resolved with minor discipline, a letter of concern or even a dismissal. But those who approach a disciplinary complaint as if it's warfare can at times create more problems.

This writer remembers many years ago where a lawyer received an informal admonition and filed an appeal using hotel stationery from a vacation location in the Bahamas. That was not well received by the then-Pennsylvania Supreme Court. The ultimate discipline in that case was two years' suspension. The lawyer was arrogant and just would not deal with the issues.

Everybody has to remember it's a privilege to practice law. This privilege has been granted by the Pennsylvania Supreme Court in a unified judicial system. The Office of Disciplinary Counsel and the Disciplinary Board are agencies created to ensure that the legal profession is properly policed and that the Rules of Ethics are properly enforced. Therefore, it's the duty of all lawyers to cooperate. There is a duty to try to resolve these matters. In some cases, it's the lawyer's duty is to accept responsibility.

The worst thing a lawyer can do is to ignore the misconduct and try to bully their way through answering the letter phase or even through the disciplinary trial. It's not going to work and can only create substantial discipline and make it more difficult for the lawyer to return during the reinstatement process.

Sometimes lawyers who have received letters hire excellent criminal lawyers. But, if those lawyers aren't familiar with the attorney disciplinary system, they come in, at times, like a bull in a china shop. They act as if they are representing a criminal defendant in a jury trial. Those kinds of tactics don't work in the attorney disciplinary system. In fact, they can cause greater problems for a client.

What could have been resolved with perhaps minor discipline now becomes a suspension or a form of public discipline that can create great embarrassment.

Further, lawyers make the mistake of thinking that disciplinary counsel is their enemy. On the contrary, most disciplinary counsels are excellent lawyers who attempt to do everything correctly. They go into these matters with no bias against a respondent. They just want to resolve the issues and make sure that the lawyer is fit to practice and has dealt with the issues or the misconduct. To attack disciplinary counsel personally is not a wise idea. Disciplinary counsel have a lot of control in the early goings on these cases. Disciplinary counsel wear a quasi-judicial hat initially where they can make decisions between relatively minor discipline or dismissal. Obviously, things have to be approved, but the disciplinary counsel who is handling the case and their opinion is given a lot of weight all the way up the chain from chief counsel to the Disciplinary Board and sometimes to the Pennsylvania Supreme Court.

In conclusion, to answer the question, the worse thing one can do is to stall, not cooperate, create a ruckus, attempt to bully or threaten disciplinary counsel, and not be fully prepared for trial. That kind of conduct will potentially create serious problems for the respondent lawyer in the attorney disciplinary system.

If misconduct is discovered in the attorney-client privilege, there is no requirement to report.

Another lawyer friend of mine came to me for help and advice. The lawyer has a problem with some files in the office due to neglect. I am attempting to help the lawyer out, but in going through matters there are some serious acts of misconduct I have also discovered. Do I have a mandatory duty to report the lawyer?

The Rules of Professional Conduct have written in a mandatory duty to report a lawyer, but only under certain circumstances. Of course, a lawyer can be reported at any time by someone as long as the information wasn't gained in a privileged situation. But the mandatory requirement is set forth in Rules of Professional Conduct, Rule 8.3. Rule 8.3(a) reads as follows: "A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority."

Therefore, every lawyer has a mandatory duty to report misconduct of a lawyer if the conduct raises questions as to the lawyer's honesty or trustworthiness or fitness.

This is an important rule because the attorney disciplinary system has to be self-enforcing. As most lawyers know, it is not funded through taxpayer's monies, but it is funded through the annual assessment every lawyer pays. Most of that money goes to the operation of the Office of Disciplinary Counsel and the Disciplinary Board and some to the Client Security Fund.

The Pennsylvania Supreme Court has the sole duty to regulate the legal profession. The fact that the disciplinary system is self-funded adds to the independence of the Pennsylvania Supreme Court and the legal profession. This allows for the storied independence of the legal profession that is absolutely needed for lawyers to be able to properly represent clients.

As a result, all lawyers who participate in the system have to ensure it works. The Office of Disciplinary Counsel doesn't have billions of dollars to go out and discover every act of misconduct. The Office of Disciplinary Counsel relies on complaints being made about misconduct or a newspaper or media article where there might be references to misconduct by attorneys.

A large part of the disciplinary system relies on lawyers reporting serious acts of misconduct. It's a painful thing to do, but it has to be done to protect the integrity and the independence of the legal profession.

But there are exceptions. If, for instance, a lawyer comes to know a lawyer in a confidential fashion, any misconduct discovered can't be reported. The reason is because it's gained in attorney-client privilege. Past acts of misconduct can't be revealed. This has been memorialized in Rule 8.3(c). That rules reads as follows: "This rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyer's assistance program."

Therefore, for instance, a group of lawyers concerned for lawyers has no duty to report misconduct discovered during the treatment or therapy or AA sessions. A lawyer who seeks the advice of another lawyer just for general advice and assistance is protected by the attorney-client privilege. But, obviously, if the lawyer tells the person there is no privilege, it's a different story, but no one does that.

This is an important exception to the mandatory reporting rule because it allows people to get help.

In conclusion, all lawyers have this duty to report serious acts of misconduct as noted above. But when the information is discovered in the attorney-client privilege, there is no requirement to report. In fact, a lawyer could be disciplined for reporting it if the information was protected through the privileged communication.

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.