Saturday, December 11, 2010

Duty To Cooperate

The web page of the Pennsylvania Disciplinary Board reports that a rule change is under consideration that would mandate attorney cooperation with a bar investigation at an earlier stage than under existing rules, which only require cooperation after charges are filed:

The Disciplinary Board has now decided that cooperation of the respondent-attorney should be mandatory at an earlier stage in the disciplinary process. Absent Disciplinary Counsel's serving a respondent-attorney with a subpoena for records or documents, there is no requirement in the current rules that a respondent-attorney cooperate with a disciplinary investigation prior to the filing and service of a petition for discipline. Complaints that survive Office of Disciplinary Counsel's initial screening and investigative process proceed under Disciplinary Board Rules (''D.Bd. Rules'') § 87.7(b), which requires Disciplinary Counsel to give the respondent-attorney written notice (DB-7 Letter) of the nature of the grievance and 20 days to respond by filing in the district office a statement of position. A respondent-attorney's ability to ignore a DB-7 Letter or to decline to provide a statement of position, without consequence, is inconsistent with those obligations requiring attorneys to participate in the profession's process of self-regulation. As a practical matter, experience has shown that a respondent-attorney, by virtue of the present or former professional relationship with the client and the case-related information received during that relationship, is uniquely positioned to respond to complaints filed by a client; the information that the respondent-attorney provides in the statement of position oftentimes provides a defense to some or all of the allegations, which results in a resolution favorable to the respondent-attorney, including dismissal of the complaint, or serves to mitigate any discipline that may result. A rule requiring a respondent-attorney to participate during the early stages of an investigation will also encourage the respondent-attorney to secure counsel at that point in the process, and the prompt retention of counsel will in most instances be of benefit to the respondent-attorney.

A good idea. (Mike Frisch)

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Comments

A good idea for whom?

I can see why the Disciplinary authorities would want to mandate cooperation. But the legal advice that they give seems a little bit self serving. Most lawyers advise their clients to keep their traps shut. But here we are being advised that participation will set us free. Yeah, sure, sure..

The other problem I see with this is definitional. What exactly does it mean to cooperate? Is a general denial going to be sufficient. How much more than that is necessary?

Stephen

Posted by: FixedWing | Dec 11, 2010 7:50:43 AM

Why isn't Bar Counsel required to cooperate with an attorney under investigation?

On two occasions, I was placed under investigation by disciplinary counsel and immediately requested bar Counsel to consider specific facts, which - if actually considered - could have resolved both matters quickly. Both matters had to do with my allegations of judicial misconduct. In neither case were my requests followed up nor was a second request from me that if Bar Counsel lacked jurisdiction to investigate a judge, then transfer the matter to a US attorney or a special master, not beholding to a judge.

Bar Counsel simply refused to answer or respond to my appeals.

Of course, an attorney under investigation ought to cooperate with an inquiry into possible misconduct. But Bar Counsel is placed under no such obligation.

Posted by: Richard Baldwin Cook | Dec 12, 2010 4:44:38 AM

Good question--I mean meaningful cooperation consistent with respect for 5th Amendment rights and a recognition that Bar Counsel should bear the burden of proof.

The D.C. BPR has a view that a general denial of the allegations satisfies the obligation. I disagree with such a narrow view of the duty to cooperate, which is supposedly the price paid for the privilege of self-regulation.

Posted by: Mike Frisch | Dec 12, 2010 9:08:16 AM

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