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)