It's hard enough to practice law today and public reprimands held in Common Pleas courtrooms is not the answer.

I read in the Legal Intelligencer that the Disciplinary Board is doing public reprimands in Common Pleas courtrooms and advertising them. What is the purpose of this?

Samuel C. Stretton.

It is true that the Disciplinary Board of the Pennsylvania Supreme Court—without any input from the members of the bar—has decided that now public reprimands will be held in Common Pleas courtrooms and advertised. According to the article from the Legal Intelligencer, the purpose was to make public reprimands "more weighty."

There is some concern over this. Public reprimands, obviously, are public. If a lawyer receives a public reprimand, it's publicly reported. If one goes on the Disciplinary Board website, they will find the lawyer has a public reprimand. Usually all public discipline is picked up by other sources on the internet and will often come up when a lawyer's name is looked into on an internet search. Obviously, there are many people who think that is punishment enough.

One of the major differences from discipline in the past than the present is that present discipline is never forgotten. It is on the internet. A lawyer can do good, change and reform and run a wonderful practice, but still his prior discipline will always be one of the first things that appears on an internet search.

Public reprimands have always been public and up until a week or two ago, the reprimands were always held at the Office of Disciplinary Counsel. Three or more members of the Disciplinary Board would be there and administer the public reprimand. These reprimands were advertised and any member of the public had the right to be there.

The current practice of now moving the public reprimands into the courthouse and the courtrooms and advertising them is, to some extent, unseemly, but more importantly, it seems very unfair for the Disciplinary Board to want to publicly humiliate lawyers who receive public reprimands by placing them in the courthouse where many lawyers practice and where they might have to appear before their peers. It seems almost mean spirited in nature.

Further, this suggests a major shift in the purpose of discipline. The last couple of years, the Disciplinary Board has taken a very different and much harsher approach to attorney discipline. At least in recent oral arguments, the board claims they are following the lead of the Supreme Court. These are cases pending now before the Pennsylvania Supreme Court that may demonstrate whether the Disciplinary Board is properly interpreting the "lead" of the Supreme Court on the nature of discipline, but these cases are undecided.

The discipline coming from the present board is much harsher—at least as seen by this writer—in comparison to the past. Also, the hearing committee members who are appointed are much harsher in their approach to attorney discipline.

One of the hallmarks of the Pennsylvania disciplinary system has been individual review. Although uniformity is important, it is not the guiding force. In the case of Office of Disciplinary Counsel v. Lucarini, 472 A.2d 186 (Pa., 1983), the Pennsylvania Supreme Court defined attorney discipline as not having the primary purpose of being punitive. It was to protect the public and the bar and make sure lawyers were fit to practice. It allowed individual review. There was no set form of discipline for a certain kind of misconduct. This was radically different from many other states where the nature of the misconduct defined the discipline. In Pennsylvania, discipline was decided by an individual assessment of the attorney. In those days, Pennsylvania was a leader in enlightened professional discipline.

The above public policy statement in Lucarini appears to now have been forgotten or ignored. To suddenly change the form for public reprimands from the public procedure at the Office of Disciplinary Counsel to make lawyers have to be publicly humiliated in their own courthouse is wrong, at least without some comment from the members of the bar. Perhaps it might be worthwhile to talk to the respondent's counsel or some respondents about the purpose of this change. With all due respect to the Disciplinary Board, most of them never saw an attorney disciplinary case until they either sat as a hearing committee member or were appointed to that position. It might not hurt to have some input than just from the Office of Disciplinary Counsel who happens to be the prosecutor in this adversarial process.

Small firms and solo practitioners are often the brunt of discipline. They don't have the backup or help that, for instance, a large firm has in supporting or correcting mistakes from lawyers. Many times, mistakes are due to the lawyer being stressed out or having an addiction issue or just being overwhelmed with work or financial problems.

Many of these public reprimands fit into that category. For instance, if a busy lawyer doing court-appointed work has three or four cases of neglect, they are going to get a public reprimand. But the purpose is to help the lawyer and straighten the lawyer out. The purpose isn't to publicly shame him. There is no lawyer this writer knows of who received a public reprimand at the Office of Disciplinary Counsel who didn't take it seriously and wasn't embarrassed.

It's hard enough to practice law. One almost gets the feeling that this change to the courthouse to give public reprimands is almost like bringing back the old stockades and whips for minor offenders. Further, the courthouse has nothing to do with professional discipline until the case reaches the Pennsylvania Supreme Court level. The old Committee of Censure involved the Court of Common Pleas. But this was abolished in 1972 with the present attorney disciplinary system.

Although having these courthouse public reprimands now is very worrisome, perhaps the bigger issue that ought to be rethought by the Disciplinary Board and maybe by the Pennsylvania Supreme Court is what is the purpose of professional discipline? Is the purpose to humiliate lawyers or destroy them? Or is it really more of a nonpunitive purpose? If lawyers do things that are truly wrong and truly injure people, then perhaps they should be suspended or disbarred. But minor discipline, such as reprimands or public reprimands, are different. For people who practice in the area of professional attorney discipline for years, the present approach raises a lot of concerns and a lot of questions. At least the board should have allowed some public comment before making a major change like this. It is hard enough to be a lawyer, particularly a solo practitioner or a small firm lawyer in the present legal climate without the Disciplinary Board for relatively minor discipline of a public reprimand dragging lawyers into their public courtrooms where they practice and publicly reprimanding them there. It's not a good idea and if that's really the purpose of the board to make minor discipline punitive, then that purpose ought to be rethought and changed.

All complaints made to the Office of Disciplinary Counsel are private.

I want to make a complaint against a lawyer, but this lawyer is very litigious and appears to have a lot of money and I don't want to get sued by him for libel/slander or anything else. Is there any protection for me?

The answer is yes. First, all complaints made to the Office of Disciplinary Counsel are private. One can be disciplined for breaching the privacy under Pennsylvania Rules of Disciplinary Enforcement 402. That rule defines confidentiality. When a petition for discipline is filed, only then does the complaint become public against the lawyer. Obviously, any public discipline once administered is also public, such as a public censure, public reprimand, a suspension or disbarment. Obviously, the attorney has the right to waive confidentiality, but would be foolish to do so, particularly since most complaints are resolved and usually dismissed at the pretrial investigation.

Under the rule, if there should be private discipline after a disciplinary trial, then the matter ceases to become public and is again placed on the private docket.

Anyone that makes a complaint against an attorney has immunity. Even if the complaint was made maliciously, as long as it's not published beyond the attorney disciplinary system, there's immunity. The purpose of the immunity is to encourage people to come forward with complaints. The concern was that if someone filed a complaint that turned out to be false and that person was sued, it would deter other people from making complaints. The attorney disciplinary system encourages people to make complaints if a lawyer is not doing their job.

Rule 209 of the Rules of Disciplinary Enforcement sets forth the immunity rules. Members of the Disciplinary Board, hearing committees, masters, Disciplinary Counsel and their staff are subject to immunity. All testimony is privileged.

There is some case law that if one breaks the confidentiality, then he loses his immunity from prosecution, assuming that what he said was false or wrong.

Therefore, when one makes a complaint, they should be aware of confidentiality that is protected under Rule 402 of the Rules of Disciplinary Enforcement. Broadcasting publicly that one is filing a complaint or filing pleadings referencing complaints to the Office of Disciplinary Counsel breaks that confidentiality and could subject the lawyer to professional discipline. By breaking confidentiality, one could lose their immunity and be subject to litigation.

Therefore, one should feel protected in filing a complaint with the Office of Disciplinary Counsel, but when filing a complaint, it should be done in a serious fashion and there should be respect for the Rules of Confidentiality. The complainant should allow the attorney disciplinary system to then take its course.

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.