For the Defense - Volume 2, Issue 4 - 2017 - 41

Criminal Defense Attorneys
and the DISCIPLINARY
PROCESS
Ellen C. Brotman

or many years I have been representing
attorneys who are accused of professional
misconduct. In the course of this practice,
I have found that criminal defense attorneys
are particularly vulnerable to scrutiny by the
Disciplinary Board.
This vulnerability stems from many causes.
First, as criminal defense attorneys, we are
sometimes unpopular with our adversaries and our
judges and the usual constraints of professional
courtesy do not apply to discourage resort to
complaint to the Board. Second, our zealousness
may lead us to advocacy that crosses an ethical
line or that is subject to challenge on that basis.
Third, many of us practice as solos or in small firms
with minimal support and high-volume practices
and sometimes our clients, who are anxious, do
not hear from us as frequently as they would like
or get the attention they always need. Fourth,
in some jurisdictions, it is common to enter an
appearance for a limited part of the matter and
the client may later claim not to have understood
that. Last, but not least, our criminal defense clients may have certain traits that make them more
prone to filing complaints: as a generalization,
criminal defense clients often have time on their
hands; some may resist taking responsibility for
bad results, and often, there are geographic and
other barriers to easy communication with them.
Also, our criminal defense clients are looking for
ways to undermine their convictions by attacking
our performance.
In light of these institutional vulnerabilities,
I offer some "lessons learned" to protect my
brothers and sisters in the criminal defense bar
from complaint, or to mitigate the results of those
complaints.

First, let's discuss the process. A Disciplinary
Complaint comes in the form of a letter from
the Office of Disciplinary Counsel, ("ODC")
the investigatory and prosecutorial arm of the
Disciplinary Board. If you get a Complaint from
ODC, open it immediately and read it. Check your
malpractice insurance, because fees for defense of
the Complaint may be covered. Also, do not forget
that the Pennsylvania Association of Criminal
Defense Lawyers (PACDL) has a Lawyers Assistance
Strike Force and the attorneys that serve on the
Task Force are ready to help.
The Complaint will include numbered
paragraphs alleging the misconduct with a
conclusion about what Rules of Professional
Conduct may be violated. A response to the
Complaint is due in 30 days from the time of the
letter; ODC will agree to reasonable requests
for more time. Failure to respond to the letter
is another type of misconduct and exacerbates
the situation. In general, the response should be
detailed and provide any documentation necessary. The response must be verified so be careful
about any factual assertions. The Complaint
may also require that you provide documents to
ODC, whether you choose to address the factual
allegations or not.
In general, ODC and the Board are understanding of misfeasance and intolerant of malfeasance.
An attorney's criminal conviction, dishonesty,
harming clients through neglect, or improper
use of trust funds are the more serious types of
misconduct. The best approach to the response is
to admit the facts and provide remediation fully.
Candor, cooperation, and acceptance of responsibility are strong mitigating factors and can greatly
ameliorate the situation.
Vol. 2, Issue 4 | For The Defense

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