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Discipline on Consent: The Path of Agreement

Once upon a time, namely for the first 33 years of the Board’s existence, there was no provision in the procedural rules of the Disciplinary Board for a swift resolution when the parties agreed on the facts and the discipline. The only consent discipline allowed under the rules at that time was when a respondent submitted a voluntary statement of resignation and the Supreme Court ordered a disbarment on consent. In other matters, even if the Respondent did not desire to contest the facts and the parties were on the same page for discipline, they still had to go through the formality of convening a Hearing Committee, holding a hearing, and having a report filed, reviewed by the Board, and if necessary, forwarded to the Supreme Court for action. Stipulations of fact could resolve factual issues, and the parties could express their agreement as to the result in briefs, but the process went forward as if contested.

This process could result in additional hardship and expense for Respondents. As a result, in 2005 the Board took steps to establish a process for amicable agreements.

At its educational conference on July 16, 2004, the Board considered the topic of "Discipline on Consent". Ellyn Rosen, Associate Regulation Counsel with the American Bar Association Center for Professional Responsibility, attended the conference and presented information from other jurisdictions demonstrating that Pennsylvania was an outlier by limiting discipline on consent to disbarment. The Board authorized its Rules Committee to draft proposed amendments to the Rules of Disciplinary Enforcement to permit discipline on consent in cases which result in private discipline, public censure or suspension.

At its meeting in September 2004, the Board reviewed the Rules Committee’s recommendations and approved publishing a Notice of Proposed Rulemaking proposing to amend Rule 215 of the Pennsylvania Rules of Disciplinary Enforcement (Pa.R.D.E.) to provide for the imposition of consent discipline in matters other than disbarment on consent.

On March 9, 2005, Board Chair Louis N. Teti sent to the Supreme Court a set of proposed amendments to Pa.R.D.E. 215, establishing the procedure for discipline on consent. On May 24, 2005, the Supreme Court amended Rule 215 to allow for discipline by Joint Petition in Support of Discipline on Consent.

Since then, Joint Petitions in Support of Discipline on Consent have increased dramatically and now form a significant portion of the disciplinary actions taken by the Board. In 2021, 17 Joint Petitions were filed, compared to 21 Petitions for Discipline to initiate formal disciplinary proceedings, a nearly equal number. Of the 17 Joint Petitions, the Board approved 15 petitions and denied one; one such case is still pending. The Board imposed three reprimands and filed recommendations with the Supreme Court in 12 cases. All 12 recommendations on consent were approved by the Supreme Court.

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