Office of Disciplinary Counsel v. Anonymous Attorney A

• Decision Date: 08 July 1998
• Citation: 552 Pa. 223,714 A.2d 402
• Parties: OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. ANONYMOUS ATTORNEY A, Respondent.
• Court: Pennsylvania Supreme Court

Page 402

714 A.2d 402

552 Pa. 223

OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. ANONYMOUS ATTORNEY A, Respondent.

Supreme Court of Pennsylvania.

Submitted Sept. 24, 1997.

Decided July 8, 1998.

Albert G. Blakey, for respondent.

Joseph J. Huss, Lemoyne, for Disciplinary Counsel.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION OF THE COURT

CAPPY, Justice:

In this appeal from a decision of the Disciplinary Board (Board), we address the element of scienter necessary to establish a prima facie violation of Rule of Professional Conduct (Rule) 8.4(c) where the allegation of professional misconduct is misrepresentation. ¹ We now hold that a prima facie violation of Rule 8.4(c) is shown where the record establishes that the misrepresentation was knowingly made, or made with reckless ignorance of the truth or falsity of the representation. Accordingly, for the reasons that follow, the decision of the Board is reversed and the matter is remanded for further proceedings.

The disciplinary charges in this case arose from alleged misrepresentations on the part of Respondent during his prosecution of a criminal matter. ² Respondent was the District Attorney of Anonymous County at that time. Upon our consideration of the appeal in the criminal matter, we held, inter alia, that the prosecution's failure to give the defense a document ³ during discovery violated Pennsylvania Rule of Criminal Procedure (Pa.R.Crim.P.) 305(B). ⁴ Further, we held that the prosecution's failure to disclose the prosecution's "understanding" ⁵ with the witness until after the witness testified at the trial as a rebuttal witness on behalf of the prosecution, violated the holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We then referred the matter of Respondent's conduct to the Board for consideration of whether disciplinary charges should be brought against him.

Subsequently, the Board formally charged Respondent with violating Rule 8.4(c) during the criminal prosecution between 1988 and 1992. A Hearing Committee found that Petitioner had not established a prima facie violation of Rule 8.4(c) and recommended that the Petition for Discipline be dismissed. One Hearing Committee Member dissented. Petitioner filed a Brief on Exceptions, and oral argument was heard by a panel of the Board.

The Board, in its Opinion and Order, reasoned that, to make a prima facie showing of a violation of Rule 8.4(c), Petitioner must show that Respondent's misrepresentation was made with knowledge of its falsity. The majority concluded that Respondent's untrue statements were made as a result of his negligence. The majority ruled that Petitioner had failed to show a violation of Rule 8.4(c) by this conduct; thus, the Board directed that the charges filed against Respondent be dismissed. One Board Member concurred with the majority opinion and four Board Members dissented. The concurring Board Member agreed with the majority that Petitioner failed to meet its burden of proving misconduct and agreed with the dismissal of the charges against Respondent. He wrote separately, however, to stress that the dismissal of the charges should not be perceived as providing Respondent's office with an improper advantage in the prosecution of criminal cases and to comment on the perceived need for Respondent to change the discovery policy of his office. Two of the dissenting Board Members dissented from the dismissal of the charges against Respondent. Although these dissenting Board Members found Respondent had no specific intent to misrepresent the facts to the defense and the court, relying on In re Anonymous, No. 126 D.B. 92, 26 D. & C. 4th 427 (1995), they would have found that Respondent violated Rule 8.4(c) and should be subjected to public censure. The remaining dissenting Board Members would have recommended reinstatement of the charges for the same reason, but would have recommended that Respondent be subject to private reprimand because he had no previous disciplinary violations.

This court granted allowance of appeal limited to the question of the level of mental culpability which must be shown to establish an attorney's prima facie violation of Rule 8.4(c) for an alleged misrepresentation. ⁶

In disciplinary cases our review is de novo; we are not bound by the findings of the Hearing Committee or the Board. Office of Disciplinary Counsel v. Christie, 536 Pa. 394, 639 A.2d 782 (1994). However, we give substantial deference to the findings and recommendations of the Board. Id.

Our Rule 8.4(c) provides in pertinent part:

Rule 8.4 MISCONDUCT

It is professional misconduct for a lawyer to:

...

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation....

Rule 8.4(c).

Rule 8.4(c) was preceded by Disciplinary Rule (DR) DR 1-102(A)(4), which similarly provided that it was professional misconduct for an attorney to engage in conduct involving misrepresentation. ⁷

While this court has not previously addressed an attorney's misrepresentation allegedly violative of Rule 8.4(c), we have addressed an attorney's misrepresentation in the context of DR 1-102(A)(4) in Office of Disciplinary Counsel v. Geisler, 532 Pa. 56, 614 A.2d 1134 (1992). In Geisler, we did not, however, address the mental culpability standard for an attorney's alleged misrepresentation which Petitioner must meet in order to establish a violation of DR 1-102(A)(4). The evidence in Geisler established that the respondent attorney, through his ignorance, failed to perceive that it was impossible for him to provide appropriate services to all of the clients whose cases he accepted. We quoted the Board's opinion in Geisler as follows:

In order to conceal his neglect, Respondent generally did not respond to client inquiries as to the status of legal matters. When he could not avoid a client, he told the client what he believed the client wanted to hear without knowing the accuracy of his own statements. If the Respondent did not know the answer to a client inquiry, his obligation was to inform the client that he was uncertain. The record shows that the Respondent was overwhelmed with cases so that it does not seem likely that the Respondent could know the status of any given case without checking the case file. We find that the statements Respondent made to his clients, without knowing the accuracy of those statements are misrepresentations under DR 1-102(A)(4).

Geisler, 532 Pa. at 60, 614 A.2d at 1136.

We concluded that the respondent's conduct under the facts of Geisler amounted to a violation of DR 1-102(A)(4) for which the imposition of discipline was warranted. As our opinion in Geisler focused on the discipline to be imposed on the respondent therein rather than his mental culpability, that opinion is of limited value in resolving the question presently before us.

The sole Disciplinary Board decision addressing a mental culpability standard for a violation of either our Rule 8.4(c) or our DR 1-102(A)(4) is In re Anonymous, No. 126 D.B. 92. The respondent in In Re Anonymous, No. 126 D.B. 92 represented to Chief Disciplinary Counsel at an informal admonition proceeding that he had sent, or would be sending, the client file in question to his former client that morning. The respondent's return of the client's file to the client was a condition of the respondent's informal admonition. It turned out that the respondent's representation to Disciplinary Counsel was untrue, and, several months later, the Board had to determine whether the respondent's conduct was a violation of Rule 8.4(c) which warranted the imposition of discipline. The Board explained that "misrepresentation" is defined in part as follows:

"Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation." (Black's Law Dictionary (5th ed.1979, 903).)

In Re Anonymous, No. 126 D.B. 92, 26 D. & C. 4th at 436.

The Board concluded in In Re Anonymous, No. 126 D.B. 92 that the respondent's misrepresentation had been made negligently. The Board further decided that a violation of Rule 8.4(c) was established by the respondent's misrepresentation to Disciplinary Counsel as part of his informal admonition, and that the imposition of discipline was warranted. We agree with the Board that the egregiousness of the facts in In Re Anonymous, No. 126 D.B. 92 called for the imposition of discipline in that case. We also agree with the Board, however, that in the present case it was correct in determining that this decision is of no precedential value regarding the issue sub judice.

Given the absence of precedent in Pennsylvania on the issue sub judice, this court has looked to case law from other jurisdictions for guidance. We have found decisions from several states addressing attorney misrepresentation pursuant to rules which are identical to our Rule 8.4(c) and our DR 1-102(A)(4). A review of these decisions leads us to conclude that our sister states require a showing that the respondent attorney had mental culpability beyond mere negligence in order to make out a prima facie showing of a violation of Rule 8.4(c).

Colorado has been a leading jurisdiction in exploring the issue of attorney misconduct consisting of misrepresentation in violation of Colorado's Rule 8.4(c) and its predecessor, Colorado's DR 1-102(A)(4). In the seminal disciplinary appeal of People v. Rader, 822 P.2d 950 (Colo.1992), the Supreme Court of Colorado held that its DR 1-102(A)(4) requires a showing that the attorney possessed a culpable mental state greater than simple negligence and that the element of scienter must be shown in order to establish a prima facie violation of the rule.

In defining the element of scienter, the Rader court rejected the notion that actual knowledge or intent to deceive must necessarily be...