The less adversarial a lawyer can make the attorney disciplinary trial, the better it is for the respondent.

I am a young attorney who will be representing my law school friend in an attorney disciplinary trial. How should one prepare for such a case?

Samuel C. Stretton.

Attorney disciplinary trials are different from normal civil trials. These are called quasi criminal cases. There is no real discovery. Disciplinary Counsel has certain subpoena powers, but on the whole, there is little discovery. There is a prehearing conference where the parties must exchange exhibits and witnesses. If there are any documents or exhibits that the respondent doesn't have, these can be asked for at the prehearing conference. The hearing examiner can order the Office of Disciplinary Counsel to produce documents and the hearing examiner can also order the eespondent to do so. Usually, the Office of Disciplinary Counsel and the respondent can reach agreements and share exhibits prior to the prehearing conference.

The key in an attorney disciplinary trial is to not make it World War III. Most attorney disciplinary trials are really just on the nature of discipline. There are some where the respondent is contesting rule violations. But by the time one gets to the trial phase, usually there is an agreement that the lawyer did something wrong, and the real issue is what kind of discipline should be imposed.

As a result, it is in the respondent's interest to fully cooperate with the Office of Disciplinary Counsel. A wise lawyer will attempt to reach stipulations on as many factual issues that can be stipulated to. Stipulations as to rule violations is normally a wise approach also. This will allow everyone to narrow the hearing to the issue of nature of discipline, or the nature of discipline plus one or two rule violations. That makes it easier for the hearing committee to decide the case and the hearing committee usually appreciates the cooperation the lawyers show in reaching such agreements.

Many times a disciplinary case now goes to trial since agreements are reached on consent discipline. It used to be one could never agree to any form of discipline unless there was an agreement to disbarment. Disciplinary Counsel was not allowed to negotiate for lesser forms of discipline. That has all changed by new rules in the last 15 or so years. There can now be agreements or consent agreements reached, or any type of discipline whether it be a reprimand, suspension, stayed suspension, or disbarment. The respondent should explore these consent agreements to see what is available. Many times, one can reach a fairly reasonable consent agreement. Obviously, any agreement has to be approved by not only The Disciplinary Board, but also by the Pennsylvania Supreme Court if it involves public discipline. Surprisingly, the court has rejected agreements reached by both sides, but if an agreement is put together properly with supporting cases, usually the court will agree to it.

Therefore, if the case is going to trial, it is in everyone's interest to cooperate, get joint stipulations, get joint exhibits and narrow down the issues.

At a disciplinary trial, it is imperative to have, at least, several character witnesses. Also, when one is trying an attorney disciplinary case, it is wise to make sure the character witnesses know what the underlying charges are, and if there are admissions of misconduct, what those admissions are. The reason is that some Disciplinary Board opinions have suggested that if the character witness is unaware of the misconduct, their testimony will not be given great weight. This writer happens to disagree with that approach, but that is the approach often taken by the hearing committee and the Board. Therefore, it is wise to make sure the character witnesses are fairly well versed on the underlying misconduct and/or issues. Second, if there is a mental health issue such as depression or things of that nature, which might explain why a lawyer did not do certain things, then there should be expert psychological testimony. If there is going to be psychological testimony, the expert reports have to be given at the prehearing conference and Disciplinary Counsel obviously has the right to retain their own psychological expert. In attorney disciplinary law, if there is going to be mitigation for discipline in terms of mental illness, one needs to have a psychologist, or psychiatrist, or some sort of therapist to testify as to the connection between the misconduct and the mental illness. Without that testimony, the board and court will give little weight to mental illness and mitigation.

Another mistake lawyers make when trying an attorney disciplinary case is treating the case as if it were a criminal case. When lawyers don't cooperate, sometimes there is anger between opposing counsel, and everything is objected to, etc., etc. Doing that, except in the rarest of attorney disciplinary cases, is a big mistake. In most cases, the focus is on the nature of discipline. That requires acceptance of responsibility by the respondent, character testimony, and perhaps psychiatric or psychological testimony.

Preparing the attorney respondent to testify is important. The lawyer has to learn to accept responsibility and not try to minimize their involvement. The lawyer also has to not be angry and testify in an angry or uncooperative fashion. That will not aid in the disciplinary evaluation.

Although one can present argument at the end of the hearing, most hearing committees prefer everything be submitted in briefs. Sometimes, they might want a very brief argument to, at least, summarize the position of each counsel. The key is to write a thorough brief setting forth the caselaw, and mitigation, with detailed citations to the hearing record.

Attorney disciplinary cases are not difficult to try. It is the manner in which an attorney approaches them that makes the difference. To treat an attorney disciplinary case as a major war, or scorched earth, etc., will do a real disservice to the Respondent client. Cooperation, working issues out with Disciplinary Counsel, limiting issues, presenting character witnesses and psychological testimony, and the respondent accepting responsibility, assuming that is pertinent in the case, is what will really make a difference. Also, many of these cases can be resolved before the petition for discipline phase, but that cannot be done if the respondent's counsel is treating Disciplinary Counsel as a mortal enemy.

Many times, respondents and their counsel make the error of trying to demonize the person who complained against them. That does not help the respondent in any way, shape or form. There are people who make complaints for all of the wrong reasons, and there are people who have valid reasons for making complaints, but it is irrelevant. The real issue is if the complaint is accurate or if it is not. If there is misconduct, it makes no difference that the person who complained is a rotten human being. The lawyer should focus on the misconduct, litigation, insight and acceptance of responsibility. Trying to rip apart a complaining witness who may be a bad person but who happened to tell the truth on the issue of misconduct gets the lawyer nowhere. The less adversarial a lawyer can make the attorney disciplinary trial, the better it normally is for the respondent. Finally, representing lawyers is very difficult. They often think they know better and will attempt to take over the case. Any lawyer representing a respondent must stop that type of conduct. The respondent must act like a client and refer to his lawyer. The alternative is chaos.

The days of locking someone up because they cannot pay are long gone.

What are a judge's responsibilities in the courtroom in collecting fines and costs that have not been paid, either in a criminal setting or as a civil debt?

In years past, if money wasn't paid, oftentimes, a judge would sentence someone to jail for two or three days in lieu of the payment. The judge would treat the jail as working off the debt. This was not an uncommon practice, particularly at the district judge level, in years past.

Of course, that has all changed now. Bails are not to be used as a form of collection, and debtor's prison has long been abolished.

The American Bar Association's Standing Committee on Ethics and Professional Responsibility, on March 24, issued formal Opinion 490, titled "Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts." This opinion is an excellent opinion and should be looked at by all judges. As noted, the days of just throwing someone in jail when they owed money are in the past.

The committee notes that it is important for a judge to inquire as to a litigant's ability to pay financial obligations before resorting to incarceration. The opinion suggests strongly that failure of a judge to make such an inquiry is a violation of certain rules of the Code of Judicial Conduct. Of course, the opinion deals with the model rules. The committee notes the violation could be found in Rule 1.1 where a judge has to comply with the law and it notes that if there is established case law, a judge must inquire as to ability to pay. It also notes not asking could violate Rule 2.6 of the Code of Judicial Conduct in Pennsylvania. That rule requires a judge to accord every person or entity the right to be heard according to law. In other words, if the judge is imposing fines or sanctions for nonpayment, a judge has to find out if the person was in the position to pay. The committee also notes that under Rule 2.2, a judge has to be impartial and fair, and under Rule 2.5, a judge has to perform his or her duties competently and diligently.

The committee noted the many problems in Ferguson, Missouri in 2015, where the Municipal Court "does not act as a neutral arbiter of the law, or to check on unlawful police conduct." Instead, then the court primarily used its judicial authority as a means to compel the payment of fines and fees to advance the city's financial interest. The opinion criticized  judges ordering individuals to pay financial obligations from disability benefits, making payment a condition of probation, or using contempt powers to enforce the payment.

The committee also expressed concern that fines have increased greatly over the years due to the poor financial conditions of most courts, but those concerns should not be a factor in collecting the debt.

The committee cited the old case of Bearden v. Georgia, 461 U.S. 600, 68-69 (1983) that held the revocation of probation of the defendant since the defendant failed to pay fines and restitution. The opinion noted that there is a fundamental right to be heard on someone's ability to pay.

The committee stated that "without meaningful inquiry into a litigant's ability to pay, public confidence in the independence, integrity, and impartiality of the judiciary is not promoted within the meaning of Rule 1.2. It is compromised."

If courts adopt practices and procedures to accurately determine a person's ability to pay, the committee suggested perhaps "using a bench card." The bench card would have instructions and definitions. The committee suggested that there be advance notice to the litigants to have evidence as to their ability to pay. Perhaps, providing a form to litigants to obtain relevant financial information is wise. Finally, this provides opportunity to address the questions in court about the litigant's financial status. The committee ended its Opinion by noting the following, "Courts should therefore adopt carefully prescribed procedures to prevent incarceration where a litigant lacks the resources to pay legal financial obligations or private debts."

With this opinion, which obviously is not binding, but very persuasive, the days of locking someone up because they cannot pay, at least without a very meaningful inquiry, are long gone. All judges should carefully review that opinion and act accordingly when faced with the issue of inability to pay in a courtroom for a criminal or civil matter.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 47 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 103 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.