Reciprocal Discipline: In Pennsylvania, It’s a Pretty Sure Thing

On February 11, 2022, Attorney Elliott James Schuchardt was suspended for two years by order of the Supreme Court of Pennsylvania, reciprocal to jurisdiction of United States District Court for the Eastern District of Tennessee.

When a lawyer is publicly disciplined in one jurisdiction, the lawyer is required to notify the other jurisdictions in which he practices of the fact of the discipline. The other jurisdictions generally, though not always, will impose the same disciplinary sanction. This occurs through a process known as reciprocal suspension.

In Pennsylvania, Rule of Disciplinary Enforcement 216 governs the process. First, the disciplined lawyer is required to notify the Office of Disciplinary Counsel (“ODC”) of the discipline. ODC then files a notification with the Supreme Court. The Court serves a Rule to Show Cause on the lawyer requiring the lawyer to identify a basis for not imposing the same or reciprocal discipline. The same sanction will be imposed unless the Court finds: (1) a lack of due process in the underlying proceeding; (2) “there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not consistently with its duty accept as final the conclusion on that subject or (3) that imposition of the reciprocal punishment would result in a “grave injustice” or offend public policy.

It is almost impossible to meet the burden to demonstrate that reciprocal discipline should not be imposed. There is often a strategic reason, as well as an economic reason, to inform the Court that reciprocal discipline will not be opposed by the attorney. This provides an opportunity for the attorney to argue, at a subsequent reinstatement hearing, that the attorney cooperated with the disciplinary process, a mitigating factor which can earn points for the attorney seeking readmission.

With over 25+ years experience, Ellen Brotman began her career as a law clerk in the United States District Court, Southern District of New York. She has served as an Assistant Federal Defender in Philadelphia, PA and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics. She has defended a wide variety of high-profile criminal cases, including political and public corruption, securities fraud, tax fraud, money laundering, currency structuring and other white-collar crimes involving complex trial, sentencing and appellate issues. Ms. Brotman also has extensive experience representing lawyers before the Disciplinary Board of Pennsylvania. She has been recognized as a Best Lawyer and SuperLawyer since 2007 in the area of criminal defense and has served on the boards of the National Association of Criminal Defense Lawyers and the Pennsylvania Association of Criminal Defense Lawyers. She is the founder and owner of BrotmanLaw, Philadelphia, PA.

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