FAQS BY CONSUMERS
- RETAINING FILE AND PROPERTY
- FILING A COMPLAINT
- DISCIPLINARY PROCEEDINGS
- GENERAL
- CONFLICTS
- COMMUNICATION
- BURDEN OF PROOF
- FEES
- TERMINATION
- CONFIDENTIALITY
I. RETAINING FILE AND PROPERTY
Can an attorney keep my file when he/she no longer represents me?
Under certain circumstances, an attorney can assert a legal claim. However, depending on the circumstances, an attorney may be required to provide the client with a copy of his/her file in order to avoid damaging the client's legal position in the underlying matter for which the attorney was retained.
Do I have to pay for a copy of my file?
If you have paid an attorney for representation, Pennsylvania law says that the file is your property at the conclusion of the case, and you should not be charged for copies the lawyer makes to keep for his or her own purposes. However, if the attorney has already provided you with copies of documents and you request subsequent or additional copies, you may be charged. It also depends on what the fee agreement states.
II. FILING A COMPLAINT
Once a complaint is filed with ODC, should I continue to take calls from my attorney?
It is up to you. You do not have to end your relationship with your attorney when you file a complaint, although it may cause strain in the relationship.
How do I file a complaint?
All complaints must be in writing and signed by the complainant. A complaint form can be used, but is not required.
Is there a time limit or deadline on filing a complaint?
ODC does not entertain complaints arising out of alleged acts or omissions occurring more than four years prior to the date of the complaint, except in cases of theft or misappropriation, criminal conviction, where the attorney has engaged in a knowing act of concealment, or in certain circumstances where the facts of the matter have been under litigation.
Will a personal interview be scheduled?
The counsel who evaluates your complaint will decide whether a personal interview is necessary and arrange it if so. Personal interviews are not necessary in many cases and are not guaranteed.
Does ODC represent you once you file a complaint?
No. ODC cannot give you any legal advice.
What does it cost to file a complaint?
There is no cost, but your assistance and cooperation are necessary.
Must I be represented in order to file a complaint?
No.
Can I file a complaint against a judge or a district justice?
Yes, but with another agency -- the Judicial Conduct Board, 225 Market Street, Harrisburg, PA 17101, telephone (717) 234-7911.
Can I file a complaint against an attorney who does not represent me, or who represents the other side in a legal matter?
Yes.
Can I file a complaint against a legal aid/legal services attorney, public defender, or a court-appointed attorney since I did not pay for the representation?
Yes.
Where do I go to complain about a lawyer?
Under the Constitution of Pennsylvania, the Supreme Court of Pennsylvania has exclusive jurisdiction to oversee the conduct of lawyers. The Supreme Court of Pennsylvania has created the Disciplinary Board of the Supreme Court of Pennsylvania and the Office of Disciplinary Counsel to assist it in carrying out this function. All complaints are received and investigated by the four regional offices of the Office of Disciplinary Counsel.
What is the difference between the Disciplinary Board and the Office of Disciplinary Counsel?
The Disciplinary Board administers the rolls of lawyers admitted to the practice of law, and operates as a tribunal for hearing complaints of serious misconduct by lawyers. It has power to impose private discipline on lawyers, and makes recommendations to the Supreme Court of Pennsylvania on cases where public discipline by the Supreme Court of Pennsylvania may be appropriate.
The Office of Disciplinary Counsel is responsible for receiving and evaluating all complaints about the conduct of lawyers. The Office of Disciplinary Counsel investigates all complaints, and prosecutes those cases where it finds violations of the Rules of Professional Conduct before the Disciplinary Board and the Supreme Court of Pennsylvania.
Are you part of the Bar Association? Can I file a complaint with the Bar Association?
No. The Pennsylvania Bar Association and the various county bar associations are private associations of lawyers, separate and distinct from the Disciplinary Board and the Office of Disciplinary Counsel. The bar associations play no role in regulating the conduct of lawyers in Pennsylvania, although the Office of Disciplinary Counsel does rely on the bar associations to assist in certain functions, such as providing remediation in fee dispute matters.
Can the Governor or my State Representative help? How about the Bureau of Consumer Protection?
Under the Constitution of Pennsylvania, neither the Governor nor the State Legislature have any power over the regulation of the conduct of lawyers, an area of authority which the Constitution imposes exclusively on the Supreme Court of Pennsylvania. The Bureau of Consumer Protection, which is an agency of the Attorney General of Pennsylvania, created by the Pennsylvania legislature, has no authority over lawyers, except in matters of enforcing debt collection practice laws, and the Bureau of Consumer Protection routinely refers complaints about attorneys to the Office of Disciplinary Counsel.
Are there any kinds of cases you don't handle?
Fee disputes are referred to the Fee Disputes Committee of the county bar association where the attorney’s office is located. Complaints about prosecutors and defense counsel in criminal cases must first be determined by the court.
What kind of documentation do you need?
As much documentation as possible will be helpful to understand the complaint. The following have been found to be helpful in evaluating complaints, although not all will be available in all cases:
- A complete history of the complainant’s dealings with the lawyer, including dates and purposes for which the lawyer was retained;
- Copies of fee or retainer agreements or statements;
- A listing of meetings or conferences with the lawyer, including dates where possible;
- Mention of any legal proceedings in which the lawyer is involved, including the court in which the case is filed and the names of parties to the case;
- Copies of letters, faxes, e-mails, and other correspondence that relates to the subject of the complaint;
- Copies of pleadings and legal documents in the complainant’s possession;
- Copies of any billings or statements received from the lawyer;
- Copies of canceled checks or receipts for any payments made to the lawyer; and
- Copies of settlement distribution statements, HUD-1 forms, accountings, and other documents summarizing the disposition of money.
What will happen with my complaint?
Your complaint will be referred to one of our counsel, who will evaluate whether there are any issues which could form the basis of a disciplinary inquiry. If the counsel needs further information, you will be asked for that information, or the matter might be referred to a staff investigator who may review court records, contact parties with information, or contact you for necessary information. When counsel concludes that the investigation is complete, either the complaint may be dismissed (with the agreement of a second counsel), or the lawyer may be put on notice of the complaint and given the opportunity to respond by a formal letter.
If counsel believes that there are violations of the Rules of Professional Conduct after receiving the lawyer’s response and completing the investigation, counsel may submit a recommendation for discipline through a review process established by the Rules of Disciplinary Enforcement. This process may result in one of three outcomes:
- Dismissal of the complaint;
- Imposition of private discipline on the lawyer; or
- Filing of a formal disciplinary proceeding, which usually involves a hearing on the case. You may be asked to testify at the hearing.
Can I withdraw my complaint?
You may withdraw your participation in the complaint, but Disciplinary Counsel has independent discretion to determine whether the investigation of the issues raised in the complaint will continue. If your testimony is needed, Disciplinary Counsel may compel such testimony by subpoena even if the complaining party has withdrawn the complaint.
What will be expected of me?
You will be expected to cooperate with the investigation of your complaint by answering all questions Disciplinary Counsel or investigators ask of you.
You will be expected to keep Disciplinary Counsel informed of changes of address or telephone numbers.
You will be expected to report any major changes in the situation which led to your complaint (example: if the lawyer contacts you to resolve the issues you have raised or if there are major developments in your underlying case).
If your case goes to a hearing, you will be expected to testify in support of your complaint and may be subpoenaed for this purpose.
Will my lawyer find out about my complaint?
If Disciplinary Counsel determines that your complaint sets forth possible violations of the Rules of Professional Conduct and any possible disciplinary action is considered, the rules governing disciplinary proceedings require that Disciplinary Counsel notify the lawyer of your complaint, including the name and address of the person making the complaint, and give him or her an opportunity to respond.
If Disciplinary Counsel determines that your complaint is not one which is expected to lead to discipline, for any number of reasons, they may dismiss your complaint without contacting the lawyer.
Disciplinary Counsel has the power to open and conduct investigations under its own authority. If you have reported serious misconduct, but you have strong reasons for not wanting the lawyer to know that you made the report, you may request that Disciplinary Counsel consider pursuing the complaint and that your name not be used. Disciplinary Counsel has the discretion to determine if this is appropriate. If Disciplinary Counsel proceeds under its own authority rather than under your complaint, you should not expect that you will be informed of developments in the complaint to the extent you would if you were a named Complainant.
III. DISCIPLINARY PROCEEDINGS
Will I get a hearing?
Not necessarily. Complainants are witnesses in proceedings brought by Disciplinary Counsel, not parties, and have no right to seek a hearing. Most disciplinary cases are resolved without hearings.
Can I tell anyone else about my complaint?
For the protection of both lawyers and complaining parties, all disciplinary complaints (except for some based on criminal convictions and other public proceedings) are confidential. Rule 402 of the Pennsylvania Rules of Disciplinary Enforcement sets forth the confidentiality requirements. Rule 209 of the Pennsylvania Rules of Disciplinary Enforcement provides that complainants and witnesses in disciplinary matters may not be sued by the lawyer for anything said within the disciplinary inquiry, as long as they respect the confidentiality of the proceeding.
Information about the investigation and prosecution of the disciplinary inquiry are confidential, but the facts of the case or events upon which the complaint is based are not. Nothing in Rule 402 prevents you from discussing anything about your case and your relationship with the lawyer you have complained about with anyone, as long as you do not mention anything about the disciplinary complaint and inquiry. You may need to speak to another attorney for advice or assistance in protecting your rights. You should not delay consulting with counsel or disclosing the facts of your case to counsel because of the disciplinary complaint.
Who will make the decision on my complaint?
Disciplinary Counsel has the authority to determine that a complaint will not lead to discipline and to dismiss the complaint. This may happen for a variety of reasons: Disciplinary Counsel may conclude that the evidence is not strong enough, the conduct may not fall within the Rules of Professional Conduct even if it can be proven, or the case may fall within one of the categories which are excluded from disciplinary consideration by policies of the Disciplinary Board. In any event, you will be notified if Disciplinary Counsel decides not to proceed on your complaint.
If Disciplinary Counsel determines that the complaint may lead to discipline, an investigation will be conducted, which includes a process of notifying the lawyer of the complaint and giving him or her an opportunity to respond. If Disciplinary Counsel determines that discipline should be imposed after an investigation, there are two possibilities:
The Pennsylvania Rules of Disciplinary Enforcement provide for certain kinds of private discipline to be imposed for relatively minor violations, or where the incident does not warrant removing the lawyer from the practice of law. Such discipline may be imposed by a determination of a reviewing officer on one of the Hearing Committees of the Disciplinary Board, or by a panel of the Disciplinary Board itself, depending on the nature of the punishment.
If the violation of the Rules of Professional Conduct is serious enough that the lawyer should be disbarred, suspended, or censured by the Supreme Court of Pennsylvania, a formal disciplinary proceeding must take place, and the matter will normally go to a hearing before a Hearing Committee of the Disciplinary Board. There are three levels at which decisions are made in this process. Any public disciplinary action (disbarment, suspension, or public censure) must be imposed by the Supreme Court of Pennsylvania.
Will you keep me informed of the progress of my complaint?
You will be informed of the disposition of your complaint and of any cooperation that is needed on your part. Disciplinary Counsel attempts to keep complainants informed of the general status of and major developments in their complaints.
How long will this take?
The time it takes to complete action on a disciplinary complaint varies widely. If a complaint is dismissed, the complainant may be informed within a short time, but any action that leads to the imposition of discipline will take much longer. Matters which go through formal charges can take more than a year to reach a final disposition.
Can I get a copy of the rules?
You may order a copy of the Rules of Professional Conduct from this address at a cost of $1.00 per copy plus postage, or you may review them online.
What if I am not happy with your decision? Can I appeal?
Complainants are considered witnesses, not parties to a disciplinary inquiry and do not have a right of appeal from dismissal of a complaint. The Office of Disciplinary Counsel has an internal review process. To seek review of a dismissal or any matter of handling of a complaint, inquiry should be directed to the counsel in charge of the district in which the complaint is handled. Complainants have no right of review of a final determination for imposition of discipline, which will already have gone through an extensive review process.
Can you get involved in my case?
The Disciplinary Board and the Office of Disciplinary Counsel do not represent a complainant’s interest or intervene on a complainant’s behalf in ongoing cases. Disciplinary Counsel may informally encourage lawyers to take actions which will resolve problems between lawyers and clients. However, the Office of Disciplinary Counsel does not have the resources to review or second-guess the decisions and strategies of counsel in ongoing cases or to monitor or intervene in cases in progress.
Can’t you just call my lawyer and tell him or her to do something?
Disciplinary Counsel will sometimes discuss with lawyers the ethical issues raised by complaints and make recommendations as to how the lawyer may resolve such problems. However, Disciplinary Counsel does not have the authority to order a lawyer to take any action. The role of Disciplinary Counsel is to determine whether a violation of the Rules of Professional Conduct has occurred and whether professional disciplinary action should be applied to the lawyer. Disciplinary Counsel does not represent the individual filing a complaint.
Do I have to wait for your decision before looking into a malpractice suit? Should I get my own attorney?
A disciplinary inquiry into your complaint is not a substitute for any action you must take to protect your own interests. If you feel that you may have a claim for professional negligence or malpractice, you should consult counsel of your choice (at your expense) for advice as to whether you have remedies available to you. Disciplinary Counsel’s role is to determine whether the protection of the public requires that discipline be imposed on the lawyer. Disciplinary Counsel does not represent or advise complaining parties as to how to protect their personal interests.
Can I tell my lawyer that I filed a complaint against him/her?
Yes.
Can I tell my new lawyer that I filed a complaint against my former lawyer?
Yes.
Can I tell anyone else that I filed a disciplinary complaint against an attorney?
No. Pennsylvania Rules of Disciplinary Enforcement 209 and 402 prohibit you from telling others that you've filed a complaint. However, you are not prohibited from discussing with others the facts of the underlying case or the reasons why you are dissatisfied with your attorney.
Should I stop communicating with my attorney after filing a complaint against him/her?
You are not prohibited from communicating with your attorney after filing a complaint with the Office of Disciplinary Counsel. Please keep the Office of Disciplinary Counsel informed of any such communications.
Can I be held liable for filing a disciplinary complaint against an attorney?
No. Pennsylvania Rule of Disciplinary Enforcement 209 provides that all communications relating to misconduct and all testimony given in a proceeding conducted pursuant to the Rules of Disciplinary Enforcement shall be absolutely privileged and the person making the communication or giving the testimony shall be immune from civil suit based upon such communication or testimony, except that such immunity shall not extend to any action that violates Pa.R.D.E. 402 relating to confidentiality.
Do I have to wait until your office takes final action on my complaint before trying to find a new attorney to represent me?
No. You should take what action you need in order to protect your interests.
Do I have the right to attend any disciplinary hearing that might be held in connection with my complaint?
No. A complainant is not a party to the disciplinary proceedings. The parties are the Office of Disciplinary Counsel and the Respondent. The proceedings are closed to the public. However, in most cases that reach a hearing, the Office of Disciplinary Counsel calls the complainant as a witness.
Can I find out if an attorney has been disciplined?
The Office of Disciplinary Counsel can advise you whether the attorney has been the subject of an order of public discipline. The Office of Disciplinary Counsel cannot tell you whether the attorney has received private discipline or disclose the number of disciplinary complaints, if any, that have been filed against your attorney. You may also search for whether a lawyer has any public discipline here.
Can I find out the status of my attorney's license?
Yes. The Office of Disciplinary Counsel will advise you whether your attorney's license is active, inactive, suspended or disbarred. You may also review a lawyer’s registration information here.
Will the Disciplinary Board order my attorney to pay me money?
No. If your attorney has stolen funds belonging to you, you should consider filing a claim with the Client Security Fund, reporting the attorney to the District Attorney's Office, or initiating civil litigation against the attorney.
What should I know before filing a complaint?
All lawyers admitted to practice in the Commonwealth of Pennsylvania are bound by the Rules of Professional Conduct. The purpose of the Rules is to set forth minimum ethical standards for the practice of law. It is the responsibility of the Disciplinary Board of the Supreme Court of Pennsylvania and the Office of Disciplinary Counsel to see that the Rules of Professional Conduct are observed.
In order for a lawyer to be found to have committed misconduct, it must be shown that his or her acts have violated the Rules of Professional Conduct by clear and convincing evidence.
Examples of attorney practices clearly prohibited by the Rules include:
- Serious neglect of a client’s case or a client. Examples would be a lawyer’s failure to file papers or documents with the court within time periods prescribed by law, or unreasonable failure to communicate with clients on a timely basis.
- Failure to account to clients, as required by the Rules of Professional Conduct, concerning the status of funds or property being held by the lawyer.
- Mixing of funds, or failure to keep a client’s funds separate from a lawyer’s own funds.
- Use of a client’s funds by a lawyer for his or her own purposes.
- Failure to reduce to writing an attorney-client contingent fee agreement. This is an agreement between a lawyer and a client stating that the lawyer’s fee depends in whole or in part on the lawyer’s success on behalf of a client.
- Engaging for work for a client notwithstanding the existence of a conflict of interest, as defined and prohibited by the Rules of Professional Conduct.
What disciplinary action can be taken against a lawyer?
Discipline can be imposed in two forms – private and public discipline.
Private discipline is generally used in situations where the violation of the Rules of Professional Conduct is not so severe that the lawyer be removed from the practice of law. It is often imposed in situations involving a first offense or patterns of behavior which disciplinary authorities believe can be corrected by the lawyer, such as incidents of neglect arising from poor habits or case management. Private discipline consists of “Informal Admonitions,” which can be imposed on order of a member of one of the Hearing Committees of the Disciplinary Board, or the more formal “Private Reprimand,” which is ordered by a panel of the Disciplinary Board. Information on such sanctions is generally not available to the public.
Public discipline is imposed for more serious violations, and in situations where the nature or repetition of conduct causes doubts about the lawyer’s fitness to practice law. Public discipline can only be imposed by the Supreme Court of Pennsylvania after a formal process including hearing. The following forms of public discipline are imposed in Pennsylvania:
- Disbarment is the most severe discipline which can be imposed upon a lawyer. It represents the recall of a lawyer’s law license, with no expectation that the lawyer can resume the practice of law at any specific time in the future. Disbarment is public, unless the lawyer agrees to be disbarred and resigns from the bar, in which case the fact of the disbarment is public but the record on which it is based is not. A lawyer who is disbarred may apply for reinstatement after five (5) years, but must meet an elevated standard to prove that she or he has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth, and that the resumption of the practice of law within the Commonwealth will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.
- Suspension is a temporary removal of the lawyer’s right to practice law in Pennsylvania. Suspension may be for any length of time up to five (5) years. If a lawyer is suspended for more than one year, the lawyer may not resume practice upon the expiration of the suspension. Instead the lawyer must undergo a proceeding to prove that such person has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth and that the resumption of the practice of law within the Commonwealth by he/she will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest. The lawyer will only be allowed to resume practice upon entry of an order by the Supreme Court of Pennsylvania reinstating the lawyer to the bar of the Commonwealth. A lawyer suspended for less than one year may be reinstated upon filing of a verified statement of compliance with the Rules of Disciplinary Enforcement. Suspension may be stayed or put on hold by certain kinds of probation under some circumstances. The record on any case leading to suspension is open to the public, unless the suspension is stayed by probation.
- Public Censure is a form of discipline by which the lawyer is called before the Supreme Court of Pennsylvania to be censured or criticized by the Supreme Court for misconduct. Although the lawyer’s right to practice is not interrupted, public censure is quite a serious form of discipline. The record of any case leading to public censure is open to the public.
Sometimes one of the above forms of discipline may be imposed with terms of probation. An attorney may also resign from the Bar and accept disbarment rather than face disciplinary action, but only with the Supreme Court’s consent.
Decisions of the Board and the Supreme Court with respect to Public Discipline are released for publication. Recently published decisions and orders are available on this Web site.
What should I expect?
Complaints are not dismissed lightly, nor are they prosecuted without justification. The protection of the public is paramount in considering every complaint filed.
You may expect:
- A prompt reply from the Office of Disciplinary Counsel acknowledging receipt of your complaint.
- A fair and impartial investigation. This means listening not only to your side of the story, but the lawyer’s side as well. It also means that whatever independent investigation may be necessary in order to establish the facts will also be conducted.
- As speedy a disposition as possible of your complaint. Depending on the complexity of the matter, this can take from a few days to a year or longer, especially if a complaint goes to formal charges.
- To be called as a witness, if necessary, and to provide additional information for the investigation of your complaint.
- Even though a matter is resolved between you and your attorney, your continued cooperation may be necessary to discipline the attorney.
- Disciplinary action, commensurate with the offense, against any lawyer found to have violated the Rules of Professional Conduct.
- Advice concerning where you may go if the subject of your complaint does not fall within the jurisdiction of the Board.
- To be kept informed of the progress of the investigation and to be notified of the final disposition of the complaint.
There are no charges or other costs to you by the Office of Disciplinary Counsel of the Board.
What should I not expect?
You should not expect ODC or the Disciplinary Board to provide legal services or advice. If you wish to be referred to a lawyer, you might contact a Lawyer Referral Service. The lawyers at ODC do not and cannot represent you personally in the matter of which you complain.
You may have a civil claim against your lawyer that can be pursued in the courts, a fee dispute that can be resolved by a local bar association fee arbitration boards, or a claim that will be considered by the Pennsylvania Lawyers Fund for Client Security.
Generally, you should not expect to seek discipline against an attorney for conduct perceived to be rude or discourteous.
What about confidentiality?
All disciplinary inquiries and proceedings are strictly confidential. This rule protects attorneys from public disclosure of allegations that may turn out to be meritless. If the attorney is subsequently found to have committed violations that impose on the public, that information is made public upon issuance of the Supreme Court order. Information concerning Disciplined Attorneys is available at this Web site.
Can I file a complaint against a law firm?
Disciplinary Counsel cannot obtain complaints against a law firm, only individual attorneys. When filing an ethics complaint, it is important to identify the individual attorney or attorneys within a law firm who had responsibility for, or worked on, your legal matter. If you do not recall the name of the law firm attorney who handled your case, you may identify the law firm in general on the complaint form.
I am unable to complete and/or submit a complaint form because of physical impairment or disability. What should I do?
Consider asking a family member or friend to assist you in completing and mailing your complaint form. If you do not have anyone to assist you, contact the Office of Disciplinary Counsel. We are committed to extending reasonable accommodation to callers and complainants who, by reason of communication impairments, are unable to communicate through normal channels. Callers seeking to communicate with the Office of Disciplinary Counsel by Telecommunications Devices for the Deaf (TDDs) should call the Telecommunications Relay Service (TRS) of Bell Atlantic at 1-800-654-5984 and ask to be connected to the appropriate District office. Your complaint is important to us.
IV. GENERAL
Is the disciplinary system funded by taxpayer dollars?
No. It is funded by the annual registration fee each attorney is required to pay.
I met with one attorney initially and believed I hired that attorney to represent me. Then a different attorney appeared at my hearing. Can they substitute one attorney for another without my permission?
It depends on your arrangement with the firm at the time you retained their services. In most instances, substituted representation is permissible. A firm often has discretion in which attorney is assigned to your case.
Can lawyers approach me and solicit my business as a client?
They can send you a targeted mailing, but cannot personally contact you or have someone else do so on their behalf.
I am the executor of an estate. Do I have to employ the attorney who drafted the will to administer the estate?
No. The personal representative (executor or administrator) of the estate may hire or fire the counsel representing him or her in the administration of the estate.
If I represent myself, do the Rules of Professional Conduct apply to me?
The Rules of Professional Conduct apply only to those persons admitted or formerly admitted to practice law in the Commonwealth of Pennsylvania.
Can my spouse's attorney contact me if I am not represented in a divorce proceeding?
Yes. There are restrictions on a lawyer's communication with a party who is represented by counsel, but if the opposing party is not represented, the lawyer may contact that person as an adversary, as long as the lawyer does not give the opposing party the idea that the lawyer is neutral or represents that person's interest. However, the lawyer may not give the person legal advice, and the lawyer's statements should not be interpreted as advice.
Can I contact my spouse who is represented by an attorney?
The Rules of Professional Conduct only limit the contacts a lawyer may have with opposing parties. They do not impose any duties or restrictions on clients communicating with the adverse party.
Can you refer me to an attorney?
Staff of the Office of Disciplinary Counsel are not permitted to refer Complainants to particular private lawyers. Consult the Lawyer Referral Service in your county for a referral to a lawyer.
Does my lawyer have to have malpractice insurance?
There is no requirement that a lawyer in Pennsylvania maintain malpractice insurance, or that the lawyer inform a client of the lack of such coverage. Under the way legal professional liability insurance normally works, a claim for damages must be made against the lawyer, and the lawyer then reports the incident to the malpractice carrier. Clients generally cannot make a claim directly to the insurance carrier. Therefore, it is usually necessary to employ a separate attorney to file or assert the malpractice claim against a lawyer before a claim can be presented to the lawyer’s insurer. The Disciplinary Board does not present or assist in civil claims for malpractice or negligence; this must be done through private counsel of the client’s choice and at the client’s expense.
Although lawyers in Pennsylvania are not required to carry malpractice insurance, lawyers in private practice are now required to notify the client in writing if they do not have professional liability insurance of at least $100,000 per occurrence and $300,000 altogether per year. Also, if a lawyer has such insurance when the relationship begins but ceases to be insured in these amounts, all clients must be notified of that fact in writing. Rule 1.4(c), Pennsylvania Rules of Professional Conduct.
How can I sue my lawyer for malpractice?
Generally you may not make a claim directly to a lawyer's malpractice carrier. Instead, you must assert the claim against the lawyer, who will then get the carrier involved if there is a claim and it is appropriate. You should get legal advice about a malpractice claim. The local bar association can give you names of lawyers who handle such cases. The disciplinary procedures of the Office of Disciplinary Counsel do not recover money damages for you. Also, note that the filing of a disciplinary complaint will not suspend or change any time limits that may apply to your claim.
How can I find out if my lawyer has a disciplinary record?
You can find out if a Pennsylvania lawyer has a record of public discipline here. Information about complaints filed which have not led to discipline, or about incidents of private discipline, is not available to the public.
What can I do if my court-appointed lawyer provided ineffective assistance?
The Office of Disciplinary Counsel does not have jurisdiction over claims of ineffective assistance that do not amount to incompetence. As a matter of policy, we only consider such complaints in situations where a court has rendered a decision that your counsel was indeed ineffective. The filing of a complaint with us will not affect or overturn your conviction. Pa.R.P.C. 1.1
Can my lawyer settle my case without telling me?
A lawyer cannot settle a case without the consent of the client. If that happens, the Office of Disciplinary Counsel can send you a complaint form. In some cases, if you have signed a release or the check, and then wanted to renege on the settlement, the settlement may be enforced. Pa.R.P.C. 1.2
Why is it taking my lawyer so long to disburse my settlement?
There may be a practical reason why you have not received your settlement funds such as dispute of legal fees, liens, etc., that may have caused the delay. Should the delay become excessive and you suspect wrongdoing, you should file a complaint with the Office of Disciplinary Counsel. Pa.R.P.C. 1.15
V. CONFLICTS
Is it a conflict of interest for my lawyer to have a personal relationship with me during the representation?
Anything which might improperly influence the lawyer's judgment or advice is prohibited by the Rules of Professional Conduct.
The lawyer representing the other party in my case represented me years ago in another matter. Is that a conflict?
Sometimes it is a conflict for a lawyer to represent someone against a former client; sometimes it is not. This depends on many factors, including how closely related the subject matter of the former and current representation is. The staff counsel of the Office of Disciplinary Counsel are familiar with the law on this issue and can evaluate the many factors that go into this determination. You should be prepared to advise staff counsel as thoroughly as possible about the circumstances of both cases.
VI. COMMUNICATION
Does a lawyer have to return all of my telephone calls or answer all of my letters?
A lawyer must promptly comply with reasonable requests for information and must keep the client informed about the status of a matter regardless of whether the client has inquired about the status, in order for the client to make informed decisions. This does not mean that every call must be returned; the responsibility is a general one.
If I call my lawyer, can he or she charge me for the telephone call?
Yes, depending on the fee agreement.
Can my attorney swear at me or call me names?
Unfortunately, the Rules of Professional Conduct do not prohibit rude conduct. However, the Code of Civility recently adopted by the Supreme Court advocates professionalism in the practice of law.
VII. BURDEN OF PROOF
What is clear and convincing evidence?
It is the burden of proof by which ODC must show alleged attorney misconduct. It is a heavier standard of proof than would be necessary to prevail in a civil action.
VIII. FEES
Should I pay my lawyer in cash or by check?
Either form of payment is acceptable, but particularly when paying cash for any purpose, you should always obtain a receipt or other written proof of payment at the time it is made.
Can I fire my lawyer?
A client has the right to dismiss counsel. However, this right may be subject to certain limitations:
- A lawyer may be entitled to compensation for the value of services rendered up to the time the lawyer is dismissed. The determination of what compensation the lawyer is entitled to receive can be quite complex.
- If a lawyer has entered an appearance on a client’s behalf in a court proceeding, the lawyer may need leave of court to withdraw even if the lawyer is discharged. Particularly in criminal cases, the lawyer may be required to remain involved in the case if the court denies the lawyer leave to withdraw.
- Many courts require that another lawyer substitute an appearance for the discharged lawyer before the discharged lawyer will be allowed to withdraw from the case.
How much can a lawyer charge me per hour?
The Rules of Professional Conduct prohibit illegal or clearly excessive fees. However, many factors go into determining whether a fee is appropriate, including but not limited to:
- Whether the fee is fixed or contingent;
- The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
- The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
- The fee customarily charged in that geographic area for similar legal services;
- The amount involved and the results obtained;
- The time limitations imposed by the client or by the circumstances;
- The nature and length of the professional relationship with the client; and,
- The experience, reputation, and ability of the lawyer or lawyers performing the services.
The Rules of Professional Conduct require that the lawyer advise you, in writing, of the basis on which your fees will be calculated, at or within a reasonable time after the beginning of the representation.
My attorney wants to charge me a non-refundable fee. Can he or she do that?
Yes, as long as the attorney says so in writing and you agree to the representation under those terms, and as long as the attorney discharges his/her duties pursuant to the Rules of Professional Conduct.
Does my lawyer have to give my file back?
This can be a difficult problem. Rule 1.16(d) of the Rules of Professional Conduct provides that upon termination of the representation, the lawyer must deliver to the client (or to the client’s new lawyer) all papers to which the client is entitled, which usually means the entire case file. However, the rule specifically provides that a lawyer may hold on to papers which the lawyer is entitled by law to retain. The law of Pennsylvania contains a concept called a “retaining lien” which allows a lawyer, under some circumstances, to hold on to the client’s file as security for payment of any fees or expenses still owing to the lawyer. The lawyer may not put the client’s case at risk by refusing to release the client’s papers, but this is an area where controversies often occur.
Can I get my money back? Can I get compensation for my loss?
There are three kinds of losses people often hope to recoup from their lawyers:
- Fees paid to the lawyers. Generally, if a dispute arises over how much of a fee the lawyer is entitled to receive, it is referred to the fee dispute committee of the local county bar association. The committee assesses how much of a fee is appropriate. If there is an issue involving the nature of a fee and the circumstances under which it is withheld, Disciplinary Counsel can be contacted. Disciplinary Counsel will inform you if your fee question must first be resolved by a fee dispute committee.
- Losses due to negligence of a lawyer. Sometimes a client will experience an economic loss which might be due to a lawyer’s misconduct, as when a lawyer fails to file suit before the statute of limitations runs, resulting in loss of the client’s claim. The disciplinary system has no fund or resources to pay such claims. See the discussion of malpractice insurance, above.
- Losses due to embezzlement by the lawyer. Pennsylvania does offer a way for clients to obtain reimbursement for claims which arise from a lawyer’s failure to deliver or misappropriation of money which has come into the lawyer’s possession, such as settlement proceeds or estate funds. The Pennsylvania Lawyers Fund For Client Security administers a fund, financed by annual assessments on all lawyers practicing in Pennsylvania, which compensates clients for money improperly taken from them by lawyers. The Pennsylvania Lawyers Fund For Client Security does not pay claims arising from acts of professional negligence or fee disputes.
IX. TERMINATION
Can I fire my lawyer?
The client has the right to terminate the client-lawyer relationship by dismissing the lawyer, and the lawyer must withdraw from the representation if terminated. There may, however be limits and consequences on such termination. For instance, the client may still owe the lawyer fees, and the lawyer has a limited right to retain possession of the file if the client still owes the lawyer fees. If the lawyer has entered an appearance with a court on the client's behalf, the lawyer may need permission of the court to withdraw.
A client may dismiss a lawyer by so informing the lawyer, preferably in writing. If you expect a refund of a fee payment or other delivery of funds or the file, you should definitely make this request to the lawyer in writing.
Can my lawyer withdraw from representing me or end the attorney-client relationship without my consent?
If the lawyer has not yet entered an appearance in court, the lawyer may generally withdraw or decline to pursue the case any further. The lawyer then owes certain duties to the client such as informing the client, allowing the client enough time to obtain other counsel, turning over papers and other property to which the client is entitled, and refunding the unearned balance of any fees paid in advance. If the lawyer has entered an appearance with a court, generally rules of court require that the lawyer obtain the court's permission to withdraw from that representation. Pa. R.P.C. 1.16.
X. CONFIDENTIALITY
Is my lawyer required to keep information learned during the representation confidential?
Generally speaking yes, even if the information is available through other sources. There are exceptions to this outlined in the Rules of Professional Conduct. However, the attorney is entitled to respond to allegations in a proceeding concerning the lawyer's representation of a client. The lawyer is required by the Rules of Professional Conduct to reveal such information in order to maintain the lawyer's duty to be truthful to the court.
My attorney received settlement funds on my behalf. Does he or she have to place them in an interest-bearing account on my behalf?
A lawyer must place funds of a client or third person in an interest-bearing account. However, the lawyer has discretion as to whether to place them in an IOLTA account or an account for the benefit of the client or third person depending upon the amount in question and the duration for which the lawyer expects to hold the funds.