Every lawyer should take note and reform their practice if they aren't following the rules.

What are some of the recurring mistakes you are seeing lawyers make that creates problems for them with the Office of Disciplinary Counsel?

Samuel C. Stretton.

Of course, there are general problems that are seen repeatedly. There are lawyers who drink too much or have addiction issues, lawyers who have mental health issues, and lawyers who are just overwhelmed and don't have the time or energy to go in and work nights and weekends to ensure their practice moves forward.

But there are smaller areas that can come back and create problems for lawyers. One problem is when a lawyer is found in criminal contempt or is convicted of a crime, even a misdemeanor crime like a driving under the influence. For whatever reason, many lawyers don't know they have a mandatory obligation to report their criminal conviction once they have been found guilty or pleaded guilty or pleaded nolle contendere. At that point, the lawyer has 20 days to report the conviction to the Office of Disciplinary Counsel. Failure to do so can be considered aggravating circumstances for later discipline. It used to be that the reporting time period began only when there was a sentence. But the rule was changed several years ago to require the reporting when there is a finding of guilt or a plea of guilt.

Unfortunately, many criminal defense lawyers who are excellent in the area of criminal law don't know this additional requirement when they are representing a lawyer. This writer has seen many times where a lawyer relied on his criminal defense lawyer who told them they didn't have to report the conviction to the Office of Disciplinary Counsel. This can create some rather serious problems down the line if and when the Office of Disciplinary Counsel finds out about the criminal conviction and realizes the lawyer did not timely report it.

The rule at issue is Rule of Disciplinary Enforcement 214. Under Rule 214(a), it states: "An attorney convicted of a crime shall report the fact of such conviction within 20 days to the Office of Disciplinary Counsel. The responsibility of the attorney to make such a report shall not be abated because the conviction is under appeal or the clerk of court has transmitted a certificate to Disciplinary Counsel pursuant to Subsection B."

In other words, the report has to be done within 20 days of a conviction and the fact that it has already been reported doesn't lessen the requirement.

Conviction is defined differently from the typical meaning of a conviction, which traditionally is where one is sentenced. Under Pennsylvania Rules of Disciplinary Enforcement 214(i), it reads as follows: "For the purpose of this rule … conviction means any guilty verdict whether after trial by judge or jury or a finding of guilt and any plea of guilt or nolle contendere that has been accepted by the court whether or not sentence has been imposed."

Therefore, it's very clear the meaning of conviction, at least in terms of the reporting requirement, is specifically defined to be a finding of guilt or a plea of guilt, it doesn't require the sentencing to have taken place.

Finally, what has to be reported is defined in Pennsylvania Rules of Disciplinary Enforcement 214(h). That rule defines a crime as "an offense that is punishable by imprisonment in the jurisdiction of conviction, whether or not the sentence of imprisonment is actually imposed." Therefore, any conviction involving a misdemeanor or felony conviction has to be reported because at least in Pennsylvania all of those crimes have some sort of jail sentence. The reporting requirement is not triggered by how much jail time one is given, but by the fact that the statute allows for imprisonment.

The same section in Pennsylvania Rules of Disciplinary Enforcement 214(h) also defines crime to include "criminal contempt, whether direct or indirect, and without regard to the sentence that may be imposed or that is actually imposed," see Pennsylvania Rules of Disciplinary Enforcement 214(h). That provision was added in the last two or three years. Before there was a question as to whether a lawyer found in criminal contempt had to report it. This is very important because, at times, lawyers are found in criminal contempt for not showing up on time or things of that nature and fined $50 or $100. Many lawyers don't appeal it and just pay the fine. But the lawyer now has a duty to report this to the Office of Disciplinary Counsel. Therefore, any finding of criminal contempt should be taken seriously by a lawyer and perhaps a request for reconsideration with the court should be filed.

Pennsylvania Rule of Disciplinary Enforcement 214(h) does not require reporting of parking violations. Also, as to criminal summary offenses, both traffic and nontraffic, there is no reporting requirement unless a term of imprisonment is actually imposed. In other words, for summary offenses there is no requirement to report a conviction of a summary offense unless the judge gives jail time.

These rules should be remembered by every lawyer and also any lawyer who is representing a lawyer in a criminal proceeding. Obviously, anyone can report a criminal conviction or a summary conviction. But the mandatory reporting requirements have been described above. The importance of reporting and complying with these mandatory requirements is that failure to report can have a serious aggravating impact on any professional discipline or sanction.

Rule 214 has been amended several times and is different than it was 10 or 15 years ago.

Another area where lawyers get themselves in trouble is failure to keep a ledger sheet for every client. This is required both under Pennsylvania Rules of Professional Responsibility, Rule 1.15 and also Pennsylvania Rules of Disciplinary Enforcement, Rule 221. Every lawyer has to have a ledger sheet for every client that keeps a running balance. This is supposed to be reconciled each month with their escrow/IOLTA account. In other words, every lawyer should have this ledger sheet so, if asked, they can immediately know how much money the client has paid, how much money is still being held, and what was paid out. There is also a requirement under Pennsylvania Rules of Disciplinary Enforcement, Rule 221 of a monthly reconciliation of the IOLTA account. Failure to comply with these rules can subject the lawyer to professional discipline.

The third area is having nonlawyers sign checks for the law firm. On an IOLTA escrow account, only a lawyer should sign the checks. In major law firms, there is often a requirement of two signatures. There should never be a signature stamp used. The use of a stamp has caused many problems for lawyers over the years when the so-called trusted employee used the stamp without the lawyer's knowledge or consent.

The final concern is trusting a secretary or bookkeeper or paralegal and not supervising them properly. That doesn't mean one can't give them responsibility and be appreciative of their good work. But over the years this writer has seen many very trusted employees, some 20 to 30 years of employment, who weren't properly supervised and who, unfortunately, misused or stole money from the firm. A lawyer has supervisory responsibilities under Rules 5.1 through 5.3 of the Rules of Professional Conduct and they must exercise those supervisory responsibilities. There is no defense for a lawyer to say I trusted that person. The lawyer has to check and return their accounts, particularly their IOLTA accounts, at least monthly.

Obviously, it is also important never to write personal checks out of one's IOLTA account. That will create a problem. Lawyers used to write their annual fees out of the IOLTA account and that would immediately result in an investigation. There should be no lawyer's money in the IOLTA account and, therefore, no need to write personal checks from the account other than the payment of costs. Costs have to be kept in the IOLTA account.

The above are just examples of recurring problems that are seen all the time. Every lawyer should take note and reform their practice on these issues if they aren't properly following the rules.

Giving one's personal opinion is extremely unprofessional and unethical.

Where is the line for expressing personal opinions in trial advocacy? 

The answer is very easy in theory, but difficult in practice. Pennsylvania Rules of Professional Conduct, Rule 3.4(c) prohibits a lawyer from "asserting the lawyer's personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to guilt or innocence of an accused."

In other words, one should not give their personal opinion. And there is good reason for that. The lawyer normally was not present at a time of the issues being presented to the court in either a criminal or civil proceeding. The lawyer investigated the case and presented the case and the evidence. The jury has the evidence now. The lawyer is in no better position than the jurors and it's the jurors' job, not the lawyers. The same applies in the nonjury setting.

Too often, lawyers forget that their personal opinion should not be given, and that it is unethical to give it and highly unprofessional.

Part of the problems are the courts. Too many times in criminal cases persons, sometimes district attorneys, give their personal opinion as to guilt or innocence. That's often done very dramatically. Unfortunately, more times than one likes to think, the appellate courts excuse this as rhetorical flare. It clearly is rhetorical flare, but it is also unethical.

This is particularly wrong when someone has a position such as a district attorney. Jurors will give a great weight to the position of district attorney and will, obviously, listen closely when that person expresses their personal opinion as to someone's guilt or innocence. But it's just as damning when personal opinions are given in a civil proceeding by one of the lawyers.

There are ways to get around this if done properly. Obviously, lawyers have to argue their case and ask the jury ultimately to find their client not guilty—or the plaintiff or defense—if the client is liable or not liable. But the key is that those requests to the jury are done on the basis of analysis of the evidence. A lawyer can argue a witness' credibility or lack of credibility based on facts or contradictions. A lawyer can argue whether the evidence is weak or strong or they can argue the contradictions in the evidence or testimony to support their request for a trial resolution.

But, arguing evidence is far different than giving one's personal opinion.

Saying I believe the witness is telling the truth is wrong. Saying I believe the defendant is guilty or not guilty is wrong.

Comment 1 to Rule 3.4 states as follows: "The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending party."

There is a solemn commitment for all legal advocates to comply with the rules. One doesn't destroy evidence, one doesn't improperly influence witnesses, one doesn't engage in obstructive tactics, etc. Finally, one doesn't give their personal opinion. Doing so taints the entire adversarial system.

As much as everyone would like to win, the rules have to be played fairly and squarely. Giving one's personal opinion is extremely unprofessional, demeans the lawyer, and diminishes his or her claim to be a professional. It's a bad habit and a bad practice and should be stopped. Plus, it is unethical and could result in professional discipline.

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.