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Professional Liability

Defense Digest

The Nature of Attorney Disciplinary Proceedings

Defense Digest, Vol. 31, No. 2, June 2025

June 1, 2025

Key Points: 

  • The Pennsylvania Supreme Court has clarified that the standard of proof required for a finding of attorney misconduct is “clear and convincing evidence.” 
  • Attorney disciplinary matters “are in the nature of quasi-criminal proceedings.” 

The Supreme Court of Pennsylvania earlier this year issued an opinion examining the standard of proof to be applied in attorney disciplinary proceedings to establish that misconduct has occurred. In Office of Disciplinary Counsel v. Anonymous Attorney, 331 A.3d 523 (Pa. 2025), the court not only clarified that the standard of proof required is “clear and convincing evidence” but, also, that attorney disciplinary matters “are in the nature of quasi-criminal proceedings.” Id. at 525. 

The attorney in ODC v. Anonymous Att’y had previously represented a corporate creditor which had been assigned a loan guaranteed by debtors. After the creditor sued to collect on the loan, the parties attempted to negotiate a settlement over some years. The debtors eventually filed for Chapter 7 bankruptcy, which generally automatically stays all related civil proceedings and enforcement of judgments. Id. at 526. 

The respondent would later file a claim against the debtors in the bankruptcy proceeding. One of the filings in support of the claim included “an edited photograph of one of the debtors to show that the debtors had an expensive lifestyle, as the debtor was wearing a watch worth more than $26,000 in the photograph.” Id. at 527. The debtors then filed a motion to enforce the automatic stay and for sanctions against the creditor and the respondent. The debtors contended that the date of the photo had been cropped to make it seem as if it were a more-recent photo. The respondent replied that “he had edited the photo to protect the privacy of the unknown individual who was standing with one of the debtors.” After two days of hearings, the Bankruptcy Court held the respondent jointly and severally liable for $354,777.75 in damages. 

The Pennsylvania Office of Disciplinary Counsel (ODC) then filed a petition for discipline, contending the respondent had “violated several Rules of Professional Conduct.” The ODC later filed a motion to preclude the respondent from re-litigating findings of fact in the bankruptcy proceeding. The respondent objected, arguing, essentially, “…that the ‘clear and satisfactory’ standard required to establish attorney misconduct was more stringent than that required to find a willful violation of an automatic stay by the bankruptcy court judge.” Id. at 528. The Hearing Committee ultimately granted the ODC’s motion. 

In adopting much of the Hearing Committee’s findings, the Disciplinary Board concluded that the respondent had not actually been prevented from litigating the issue of whether his conduct violated the rules of professional conduct. Id. at 528-29. Only one lone Disciplinary Board member dissented, “explaining that the Hearing Committee should not have applied collateral estoppel in light of the differing burdens of proof between the disciplinary and bankruptcy proceedings.” Id. at 529. The respondent then appealed to the Pennsylvania Supreme Court. 

The existence of differing standards of proof does not necessarily preclude application of collateral estoppel; however, where “the standard of proof in a prior proceeding is a lesser burden of proof than what is required in the subsequent proceeding, the outcome in the subsequent proceeding may not be the same as the first.” In deciding for the respondent, the Pennsylvania Supreme Court concluded that articulation of the burden of proof (“a preponderance of the evidence through clear and satisfactory evidence”) was heretofore confusing because the words “preponderance of the evidence” are used “in conjunction with the phrase ‘with proof that is clear and satisfactory’.” Amazingly, this standard utilized language applicable to widely different standards recognized at the time. The court further explains that additional confusion arose over a decade ago due to a “scrivener’s error” in the case ODC v. Cappuccio, 48 A.3d 1231 (Pa. 2012), which unintentionally omitted the portion of the rule statement that requires that proof of the conduct at issue “must be clear and satisfactory.”

In concluding that “preponderance of the evidence” is unacceptable for attorney disciplinary proceedings, and that the correct standard is “clear and convincing evidence,” the court fascinatingly reiterates that “[d]isciplinary proceedings are not strictly civil nor criminal in nature, but rather have been styled quasi-criminal.” Id. at 535. One can see how this might be, given that such proceedings are not “civil disputes for money damages,” and the interests in play are simply not minimal. The very ability to practice is itself at issue in such a case. But beyond the ability to practice, one’s professional reputation is on the line. Our reputation follows us everywhere, well beyond any office space or courtroom.

On the one hand, the court’s decision may be taken as positive news, as renewed guidance in application of a standard can lead to improved clarity with respect to litigation strategy. On the other hand, the decision may provide for some unpredictable consequences down the line. 

The case adds weight to the notion that an attorney disciplinary proceeding lands squarely between standards of review and burdens of proof necessary in civil and criminal proceedings. Such a notion may draw prosecutors to scrutinize instances of both public and anonymous discipline more deeply. There could also be attempts during a prosecution to utilize findings in disciplinary cases for some level of heightened persuasive effect based on the “quasi-criminal” nature of the proceedings. 

As discussed by the Pennsylvania Supreme Court, attorney disciplinary proceedings “…are not lawsuits between parties but are in the nature of an inquest or inquiry as to the conduct of an attorney…[and] the proceedings can have a severe impact on the attorney’s career and livelihood.” Id. at 534. The Supreme Court reasonably took issue with the notion that a mere preponderance of the evidence standard is all that it should take to subject an attorney to discipline. ODC v. Anonymous Att’y cements for the foreseeable future the notion that a heightened standard of proof is what is required to establish attorney misconduct in Pennsylvania. 

 

Defense Digest, Vol. 31, No. 2, June 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

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In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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