Attorney Discipline Defense
If you have received a letter from the Office of Disciplinary Counsel, you are not the first good lawyer this has happened to. A disciplinary investigation is serious, but receiving a DB-7 does not tell you how the case will end. What you do in the first thirty days can have an outsized effect on what happens next.
I represent lawyers before the Office of Disciplinary Counsel, the Disciplinary Board of the Supreme Court of Pennsylvania, and the Supreme Court itself, from the first DB-7 response through formal proceedings, Board review, Supreme Court proceedings, and reinstatement.
The DB-7 Letter
For many lawyers, the disciplinary process begins with a DB-7: a Request for Statement of Respondent’s Position from the Office of Disciplinary Counsel.
The DB-7 advises you of the allegations under investigation and asks for your written statement of position. Under Disciplinary Board Rule 87.7, a respondent generally has thirty days from the date of the notice to respond. Pa.R.D.E. 203(b)(7) makes failure to respond without good cause an independent ground for discipline.
Lawyers tend to make three mistakes at this stage.
The first is treating the DB-7 as a formality.
It is not. The DB-7 response is your first meaningful opportunity to tell ODC what happened, identify the legal and factual issues, provide important documents, correct an inaccurate or incomplete complaint, and put the allegations in context.
ODC may conduct additional investigation after receiving the response, but the DB-7 frequently frames what ODC investigates and how ODC initially evaluates the case.
The second is answering it alone.
Lawyers are accustomed to being the person who solves the problem. That instinct is not always helpful when the lawyer is the subject of the investigation.
You would ordinarily advise a client to have counsel before responding to a government investigation involving the client’s professional license. Lawyers deserve the same independent judgment.
Disciplinary counsel also reads these responses every day. Having someone who understands the disciplinary system evaluate the allegations, the Rules of Professional Conduct, the documents, and the potential consequences before the response is submitted can change how the case is presented from the beginning.
The third is answering the DB-7 as though it were a civil litigation pleading.
This is an important distinction.
A DB-7 is not a complaint, and the statement of position is not an Answer to a Petition for Discipline. Disciplinary Board Rule 87.7 requires the statement to be sufficiently detailed to advise Disciplinary Counsel and the reviewing hearing committee member of the nature of the lawyer’s defense.
That is different from the formal Answer required later in a disciplinary proceeding, where the lawyer must specifically admit or deny each material allegation.
A response consisting primarily of “admitted,” “denied,” or “after reasonable investigation, Respondent is without sufficient information” may technically react to the allegations without ever explaining what actually happened.
Often, explanation is exactly what is needed.
The response should tell the story that matters. It should identify what is accurate, what is not, why the conduct did or did not violate the Rules of Professional Conduct, and what documents or circumstances matter to ODC’s evaluation. It should be complete enough to explain the defense without losing focus on the allegations actually under investigation.
When the statement contains factual averments or denials, the Disciplinary Board Rules also require an appropriate verification signed by the respondent-attorney.
ODC can issue a supplemental DB-7A asking for additional information or addressing additional allegations. But you should not approach the first response assuming there will be another opportunity to explain something that should have been addressed the first time.
What Happens After You Respond
After receiving the DB-7 response, ODC may conduct additional investigation. It can dismiss the complaint or prepare a DB-3 recommending a disposition.
The possible recommendations include dismissal, informal admonition, private reprimand, public reprimand, or the institution of formal disciplinary proceedings.
Except for certain dismissals, ODC’s recommended disposition is reviewed by a Reviewing Hearing Committee Member, who may approve or modify the recommendation. Recommendations involving a private or public reprimand are also subject to review by a three-member panel of the Disciplinary Board.
If discipline is proposed without formal proceedings, the lawyer does not have an ordinary appeal from an informal admonition, private reprimand, or public reprimand. Instead, the lawyer has the right to demand that formal disciplinary proceedings be instituted.
Whether to accept the proposed disposition or demand formal proceedings can be one of the most important strategic decisions in the case.
Formal Proceedings
If formal charges are authorized, ODC files a Petition for Discipline with the Disciplinary Board.
This is where the case becomes a pleading case.
The Petition must identify the misconduct charged and the Rules allegedly violated. The lawyer ordinarily has twenty days after service to file an Answer. Unlike the DB-7 response, the formal Answer must specifically admit or deny each material allegation and clearly state the facts and legal positions on which the defense relies. Factual allegations that are not timely answered can be deemed admitted.
If factual or disciplinary issues remain, the case is assigned to a three-member Hearing Committee. The proceeding generally includes a prehearing conference followed by an evidentiary hearing. ODC bears the burden of proving misconduct. The lawyer may be represented by counsel, cross-examine witnesses, present evidence, and offer evidence relevant to mitigation and the appropriate level of discipline.
The Hearing Committee then issues a Report and Recommendation containing its findings and conclusions.
Both ODC and the respondent may file exceptions to the Hearing Committee’s Report and Recommendation and may request oral argument before a panel of the Disciplinary Board.
The Board reviews the record and may dismiss the proceeding or conclude it with an informal admonition, private reprimand, or public reprimand. If the Board concludes that probation, public censure, suspension, or disbarment is warranted, it submits its findings and recommendation to the Supreme Court of Pennsylvania.
The Supreme Court has the final word.
Discipline on Consent
Discipline on consent can be considered at any stage of a disciplinary investigation or proceeding.
For discipline other than disbarment on consent, the lawyer and ODC may submit a Joint Petition in Support of Discipline on Consent identifying the facts the lawyer admits, the Rules violated, and the specific discipline being recommended.
Consent discipline is not appropriate in every case. It requires the lawyer to make admissions and agree to a particular disciplinary disposition. It also requires approval by the appropriate disciplinary authority.
But in the right case, it can provide a negotiated resolution without completing the entire contested disciplinary process.
Forms of Discipline in Pennsylvania
Pennsylvania recognizes both private and public discipline.
Private discipline:
- Informal admonition
- Private reprimand
Public discipline:
- Public reprimand
- Probation
- Public censure
- Suspension
- Disbarment
An informal admonition is administered by Disciplinary Counsel. Private and public reprimands are administered by the Disciplinary Board. Public censure, probation, suspension, and disbarment are imposed by the Supreme Court.
Conditions may also accompany certain forms of discipline.
For many lawyers, whether a matter can be resolved privately rather than publicly is one of the most important considerations in developing the defense strategy.
The Conduct That Generates Disciplinary Cases
The allegations I see repeatedly include:
- Trust accounting and IOLTA issues, including inadequate records, commingling, shortages, improper disbursements, and failures to preserve required records. Not every trust-account problem involves dishonesty or intentional conversion, but every trust-account problem deserves careful attention.
- Neglect and communication, including missed deadlines, failure to move a matter forward, failure to respond to clients, and failure to keep clients adequately informed.
- Conflicts of interest, involving current clients, former clients, prospective clients, personal interests, and imputed conflicts within firms.
- Fees and fee agreements, including failures to put required terms in writing, disputes over whether fees were earned, refund issues, and fee arrangements that did not say what the lawyer believed they said. Not every fee dispute is a disciplinary matter, but some fee issues implicate Rule 1.5 or other Rules of Professional Conduct.
- Competence and diligence, including matters undertaken without sufficient preparation or matters that simply got away from the lawyer.
- Candor and honesty, including statements to courts, clients, opposing counsel, third parties, or ODC itself.
- Criminal conduct or criminal convictions, which can trigger separate procedures under the Rules of Disciplinary Enforcement.
- Failure to respond to ODC or comply with disciplinary obligations, which can create a disciplinary problem independent of the conduct that prompted the original investigation.
- Misconduct occurring during periods of substance use or mental-health impairment.
The last category requires care. A substance use disorder or mental-health condition is not itself professional misconduct. In an appropriate case, however, Pennsylvania disciplinary law recognizes that a psychiatric or similar condition may be relevant in mitigation when competent evidence establishes a causal relationship between the condition and the misconduct.
Getting appropriate treatment early can matter personally and can also become important evidence in presenting mitigation. Lawyers Concerned for Lawyers of Pennsylvania is a confidential resource available to Pennsylvania lawyers dealing with substance use, mental health, stress, and related concerns.
Reinstatement
I also represent lawyers seeking reinstatement after disciplinary suspension or disbarment.
A lawyer suspended for more than one year, or a lawyer who has been disbarred, may not simply begin practicing again when enough time has passed. Reinstatement requires an order of the Supreme Court of Pennsylvania.
Under Pa.R.D.E. 218, a suspended or disbarred lawyer seeking reinstatement bears the burden of proving by clear and convincing evidence that the lawyer possesses the moral qualifications, competency, and learning in the law required to practice in Pennsylvania and that resumption of practice will not be detrimental to the integrity and standing of the bar or the administration of justice or subversive of the public interest.
For a disbarred lawyer, there is an additional threshold inquiry under Office of Disciplinary Counsel v. Keller concerning the nature of the original misconduct and whether sufficient time and rehabilitation permit consideration of reinstatement.
A reinstatement proceeding is not a second trial of the original disciplinary case, but the original misconduct does not disappear. The focus is on what has happened since: rehabilitation, compliance with the disciplinary order and Rule 217, present character, current competence and learning in the law, and whether the lawyer is now fit to return to practice.
That record takes time to build. I work with reinstatement clients to identify what must be established and how to develop the evidence before the petition is filed rather than trying to assemble the case after the process has already begun.
Why Lawyers Call Me
I have focused my practice on professional responsibility law for more than three decades.
I co-chair the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee. I am a former chair and current Duty Officer of the Allegheny County Bar Association Professional Ethics Committee, and I served as President of the Allegheny County Bar Association.
I teach and write on Pennsylvania attorney discipline and legal ethics, and I represent lawyers in disciplinary matters throughout the Commonwealth.
I also understand the reaction that comes with receiving a letter from ODC.
Many of the lawyers who call me have spent their entire careers solving other people’s problems and have never before had their own professional conduct questioned. A DB-7 can feel personal in a way that ordinary litigation does not.
It is serious. But receiving one does not, by itself, mean that your license or your career is ending.
The first job is to understand exactly what ODC is investigating and respond to it well.
Frequently Asked Questions
Do I need a lawyer to respond to a DB-7?
You are not required to have counsel. I recommend it. The DB-7 is the first substantive opportunity to address the allegations, and the response can influence both the direction of the investigation and ODC’s recommended disposition.
Is a disciplinary complaint public?
Ordinarily, disciplinary investigations are confidential at the investigative stage, although Pa.R.D.E. 402 contains exceptions.
If ODC files a Petition for Discipline, the formal proceeding generally becomes open to the public after the lawyer files an Answer or the time for filing the Answer expires. There are exceptions to that rule as well, including special provisions involving matters in which private discipline was proposed before formal proceedings.
Informal admonitions and private reprimands are forms of private discipline. Public reprimands, public censures, probation, suspensions, and disbarments are public.
How long does a Pennsylvania disciplinary case take?
There is no single timetable. A matter resolved during the investigative stage may end relatively quickly. A contested case involving formal charges, an evidentiary hearing, Board review, and Supreme Court proceedings can take a year or longer.
Will I be suspended?
Receiving a complaint or DB-7 does not mean that suspension will follow. Pennsylvania disciplinary matters can result in dismissal, private discipline, public discipline, or formal proceedings.
The appropriate outcome depends on the nature of the alleged conduct, the evidence, intent, harm, prior disciplinary history, aggravating and mitigating circumstances, and how the matter is presented and defended.
What if the complaint is meritless?
Then the goal is to demonstrate that clearly.
A meritless complaint should not be ignored or answered casually. Failure to respond to ODC without good cause can itself constitute grounds for discipline, regardless of the merits of the underlying complaint.
Do you represent lawyers outside Pittsburgh?
Yes. I represent lawyers in disciplinary matters throughout Pennsylvania.
What does it cost?
Fees depend on the stage and complexity of the matter. I discuss the anticipated scope of the representation and the fee arrangement with you before you engage me.
Contact
If you have received a DB-7, a supplemental DB-7A, a Petition for Discipline, or any other communication from the Office of Disciplinary Counsel, call before you respond.
Amy J. Coco, Esquire
Law Office of Amy J. Coco, PLLC
429 Fourth Avenue, Suite 300
Law & Finance Building
Pittsburgh, PA 15219
412.763.1349