THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CH. 85 ]
Proposal to Amend the Disciplinary Board's Rule of Procedure Pertaining to Stale Matters to Replace the Tolling Provision Applicable to Complaints Involving Civil Fraud, Ineffective Assistance of Counsel or Prosecutorial Misconduct
[50 Pa.B. 5977]
[Saturday, October 31, 2020]Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania (Board) is considering amending Disciplinary Board Rules (''D.Bd. Rules'') § 85.10, as set forth in Annex A. Section 85.10, which is titled ''Stale matters,'' is the rule equivalent of a statute of limitations and, with limited exceptions, forbids the Office of Disciplinary Counsel (ODC) or the Board from entertaining any complaint arising out of acts or omissions occurring more than four years prior to the date of the complaint.
Historical backdrop.
At the inception of the current disciplinary system in 1972, the only exceptions to the four-year limitations period in D.Bd. Rules § 85.10 were ''cases involving theft or misappropriation, conviction of a crime or a knowing act of concealment.'' These four exceptions still exist and appear in subsection (b)(1) of the current rule.
In 1994, the Board created a fifth exception by adopting a tolling provision for any period when there is litigation involving allegations of civil fraud by the respondent-attorney. According to the publication of the adoption of the rule amendment, 24 Pa.B. 2693 (May 28, 1994), and the earlier Notice of Proposed Rulemaking, 24 Pa.B. 1281 (March 12, 1994), the Board was anticipating that the rule would be relevant principally in cases where the Board had deferred a disciplinary proceeding under Enforcement Rule 211 pending the outcome of civil litigation but would also capture complaints filed with the Board after the completion of the independent litigation. This tolling provision currently appears in D.Bd. Rules § 85.10(b)(2).
In 2002, the Board extended the tolling provision of subsection (b)(2) to include complaints alleging ineffective assistance of counsel or prosecutorial misconduct, 32 Pa.B. 1838 (April 28, 2002), thereby increasing the number of exceptions to seven. The Board recognized that it may take more than four years for some cases of ineffective assistance of counsel or prosecutorial misconduct to come to the attention of the Board. Id. See also 31 Pa.B. 6031 (November 3, 2001) (Notice of Proposed Rulemaking).
''Tolling'' is ineffectual in cases of ethical misconduct.
The Board now believes that the tolling provision in subsection (b)(2) is an ineffectual method of determining when ODC and the Board are allowed to proceed with a complaint, for several reasons. One reason is that the limitations period runs from the time of the misconduct, which could be prior to or during settlement, guilty plea proceedings, or trial, irrespective of whether the client has discovered the misconduct. Thus, for example, if trial counsel in a criminal case is incompetent or ineffective at the pretrial or trial stage, and the defendant is represented by the same counsel on direct appeal, the defendant may not discover (and consequently will not raise) the issue of trial counsel's incompetence or ineffectiveness until represented by competent counsel after the conclusion of the direct appeals, which could be years after the misconduct, when the four-year window to file a complaint has already closed. The Board has considered but rejected the adoption of a discovery provision because such a provision would likely spawn litigation over the precise date when the convicted defendant or civil client discovered or reasonably should have discovered the attorney's misconduct. Putting the focus on the finding of fraud or other misconduct provides a definitive objective trigger for determining the date of the finality of the litigation in which the finding is made while eliminating the need for collateral litigation over the former client's subjective state of mind.
Tolling is also inadequate to determine the viability of an ethics complaint because the lengths of time that are not tolled are dependent upon a number of fortuitous circumstances that vary from case to case and over which the client has little or no control. In the example where the criminal defendant is represented by incompetent or ineffective counsel on direct appeal, the four-year window for filing a complaint is closing during the appellate process, the length of which is influenced by circumstances such as the ability to secure pre-trial and trial transcripts, counsel's and the prosecutor's ability to promptly generate an appellate brief, the presence or absence of oral argument or a remand for the taking of additional evidence, and the appellate courts' grant or denial of a petition for reconsideration or review by the court en banc. There may be additional time that is not subject to tolling as a result of delays in sentencing or a hiatus between the exhaustion of the direct review and the commencement of a collateral proceeding for post-conviction relief. The same variables apply to the review of the conduct of the prosecutor, whose mishaps during pre-trial discovery or at trial may not be scrutinized until after the exhaustion of the direct and collateral state review process and the initiation of a federal habeas proceeding. Anecdotal evidence, which is confidential under Enforcement Rules 209(a) and 402, illustrates the existence of disciplinary complaints that warranted disciplinary consideration but were dismissed because they could not survive ODC's preliminary review conducted pursuant to the current rule's tolling provision. An effective attorney disciplinary agency must be in a position to thoroughly assess the need for disciplinary accountability for publicly adjudicated cases of unethical conduct.
Uncertainty can also arise in applying the tolling provision to a particular case, in that questions arise as to what proceedings or segments of sequential proceedings are to be tolled. Under the language of the current rule's tolling provision, time is excluded during any period of pending litigation ''that has resulted in a finding that the subject acts or omissions involved civil fraud, ineffectiveness assistance of counsel or prosecutorial misconduct by the respondent-attorney.'' (Emphasis added). Hence, the tolling provision requires proof of a causal connection between the litigation and the finding of one of the three forms of misconduct. By way of hypothetical question, if state court review concludes without a finding of ineffective assistance or prosecutorial misconduct but such a finding is entered during subsequent federal review, does the state court review establish the requisite causal connection, such that the period of state court review is excluded when calculating the four-year limitations period? On the one hand, one could reasonably argue that the period of state court review should not be excludable because there was a break in the litigation chain and the filing of a federal habeas action was the commencement of a separate and distinct litigation. On the other hand, one could reasonably maintain that the period of state court review should be excludable time because the exhaustion of state court remedies is a necessary predicate of federal review, and but for the state court litigation, the federal remedy could not have been achieved. No clear rules guide the analysis.
Proposed amendments to D.Bd. Rules § 85.10.
To remedy the situation and capture those matters that would otherwise evade review, the Board proposes that the tolling provision in subsection (b)(2) be replaced with a provision that would allow ODC and the Board to entertain a complaint of civil fraud, ineffective assistance of counsel, or prosecutorial misconduct ''if filed or opened within: i) four years of the subject acts or omissions; or ii) two years after the litigation in which the finding [of one of those three forms of misconduct] was made becomes final, whichever date is later.'' Subsection (b)(2)(ii) provides a two-year window for any former client or complainant who successfully litigates his or her claim in a civil or criminal forum. Any ambiguity over the calculation of when the litigation ''becomes final'' is addressed in new subsection (c) of the proposed rule, which definition borrows heavily from § 9545(b)(3) of Pennsylvania's Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (''PCRA''). To be clear, the language of the PCRA provision addresses when a ''judgment'' becomes final for purposes of initiating collateral review under the PCRA, and is therefore not on point, although the statutory language with some modification, as set forth in new subsection (c), is well suited to provide the required guidance. Moreover, the definition is sufficiently general to be adaptable to post-conviction and post-verdict civil court procedures in all state and federal jurisdictions.
Irrespective of subsection (b)(2)(ii)'s two-year window, subsection (b)(2)(i) ensures that the limitations period for civil fraud, ineffective assistance of counsel, or prosecutorial misconduct is not reduced to less than four years, in that subsection (b)(2)(i) guarantees that a complainant will have not less than four years from the date of the misconduct in which to file a complaint. Hence, if a complainant were to obtain a finding of civil fraud, ineffective assistance of counsel, or prosecutorial misconduct within six months of the misconduct and no additional litigation over that finding was forthcoming, under subsection (b)(2)(i) the complainant would have three-and-one-half years remaining in which to file a complaint with the Board.
Finally, neither litigation nor a finding of misconduct is a prerequisite to the filing or entertaining of a disciplinary complaint. The Board proposes the addition of a Note following the rule as a preemptive strike to any attempt by a litigant to construe new subsection (b)(2) as imposing a requirement that a complainant institute litigation in a civil, criminal or administrative forum and obtain a finding of misconduct before his or her complaint may be entertained by Disciplinary Counsel or the Board.
Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Executive Office, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3381), Email address Dboard.comments@pacourts.us on or before December 4, 2020.
By the Disciplinary Board of the
Supreme Court of PennsylvaniaJESSE G. HEREDA,
Executive Director
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart C. DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
CHAPTER 85. GENERAL PROVISIONS § 85.10. Stale matters.
(a) General matters. The Office of Disciplinary Counsel or the Board shall not entertain any complaint arising out of acts or omissions occurring more than four years prior to the date of the complaint, except as provided in subsection (b).
(b) Exceptions. [The four year limitation in subsection (a) shall:]
(1) [Not] The four year limitation in subsection (a) shall not apply in cases involving involving theft or misappropriation, conviction of a crime or a knowing act of concealment.
(2) [Be tolled during any period when there has been litigation pending that] When litigation has resulted in a finding that the subject acts or omissions involved civil fraud, ineffective assistance of counsel or prosecutorial misconduct by the respondent-attorney[.], a complaint may be entertained if filed or opened within: i) four years of the subject acts or omissions; or ii) two years after the litigation in which the finding was made becomes final, whichever date is later.
(c) Litigation ''becomes final'' within the meaning of subsection (b)(2)(ii) at the conclusion of direct or collateral review, including discretionary review in the Supreme Court of the United States and the highest state court, or at the expiration of time for seeking the review.
Official Note: Litigation resulting in a finding of civil fraud, ineffective assistance of counsel or prosecutorial misconduct is not a prerequisite to Office of Disciplinary Counsel's or the Board's entertaining a complaint involving one of those three forms of misconduct, and subsection (b)(2) should not be read to impose such a requirement.
[Pa.B. Doc. No. 20-1485. Filed for public inspection October 30, 2020, 9:00 a.m.]
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