# Office of Disciplinary Counsel v. Anonymous Attorney A > Supreme Court of Pennsylvania · July 18, 1991 · 528 Pa. 83 URL: https://www.frixlaw.com/law-library/cases/9731955 ## Case - **Full name:** OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. ANONYMOUS ATTORNEY A, Anonymous Attorney E, Anonymous Attorney H, Anonymous Attorney D, Anonymous Attorney C, Anonymous Attorney B, Anonymous Attorney F, and Anonymous Attorney G, Respondents - **Court:** Supreme Court of Pennsylvania - **Decided:** July 18, 1991 - **Citations:** 528 Pa. 83; 595 A.2d 42; 1991 Pa. LEXIS 156 - **Precedential status:** Published - **Opinion:** Dissent by Papadakos - **Judges:** Nix, Larsen, Flaherty, McDermott, Zappala, Papadakos, Cappy - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9731955 ## How later opinions describe it (automated extraction) - holding that Judicial Inquiry Review Board, as opposed to the Disciplinary Board, has jurisdiction to discipline judicial officers for misconduct ## Opinion text PAPADAKOS, Justice, dissenting. On May 15, 1972, this Court promulgated Rules of Disciplinary Enforcement as part of its inherent and exclusive power to supervise the conduct of attorneys under Article V Section 10(c) of the Constitution. The Rules were made effective on July 1, 1972, and subject any attorney admitted to the practice of law in this Commonwealth to the exclusive disciplinary jurisdiction of this Court and the Disciplinary Board of the Supreme Court of Pennsylvania. In particular, exclusive jurisdiction is given to the Court and Board over: “Any attorney who resumes the practice of law, with respect to non-judicial acts while in office as a justice, judge or district justice.” Pa.Rule of Disciplinary Enforcement 201(a)(5). Respondents are all attorneys who seek to resume the practice of law after either being removed from their judicial office (Attorneys A, B, C, F, G, and H) or resigning from judicial office (Attorney D) and who are being subjected to scrutiny by the Board for acts committed while in office as judicial officers. In attempting to implement Disciplinary Enforcement Rule 201(a)(5), the Board determined that it would have jurisdiction in cases concerning those former jurists whose acts were not found to be a violation of the unique responsibilities peculiar to judicial office when the act involves illegality, moral turpitude or pervasive dishonesty. *100 Thus, the Board dismissed charges against all the former jurists to the extent that their alleged conduct involved receipt of bribe money or their failure to report same, characterizing such acts as judicial acts of misconduct. (Attorneys C, P, and D). Attorneys’ A and B alleged conduct was found to be that they conspired to arrange for favorable treatment of union members (CASE FIXING) and this conduct, if established, would be non-judicial. Attorneys D, G and H were accused of lying to the FBI which, if proven, would also be nonjudicial. Accordingly, the Board ruled that disciplinary proceedings could continue as to Attorneys A, B, D, G and H. The Office of Disciplinary Counsel has sought review of the Board’s classification of “non-judicial” acts and the Board’s application of that definition to these Respondents’ particular circumstances and asks that we give guidance to the Board concerning conduct that is “non-judicial” so that Rule 201(a)(5) can be fully implemented. The Majority, in rejecting the Board’s interpretation of Rule 201(a)(5), today rules that all conduct of a jurist whether it is judicial or not is subject to review only by the Judicial Inquiry and Review Board (JIRB) which has the exclusive authority, in addition to recommending that a jurist be suspended, removed or disciplined as a jurist, to recommending that action be taken against the jurist as an attorney pursuant to the Rules of Disciplinary Enforcement. I strenuously dissent for the following reasons. Until today, the clear understanding was that we had designated the Disciplinary Board as our official disciplinary organization over attorneys. Office of Disciplinary Council v. Walker, 469 Pa. 432 , 366 A.2d 563 (1976); Matter of Leopold, 469 Pa. 384 , 366 A.2d 227 (1976). Our right to regulate the conduct of attorneys stems from Article Y, Section 10(c) of the Constitution and, in furtherance of that constitutional grant of power, we promulgated our Rules of Disciplinary Enforcement and created the *101 Disciplinary Board to bring to our attention attorney conduct which merits discipline by us. It is true that the recommendation of the Board is not binding on us and that we conduct a de novo review of the record compiled by the Board. We have indicated in the past that the Board is merely an extension of this Court which, when concerned with actions for public censure, suspension or disbarment, advises this Court as to its recommendations. The recommendations submitted by the Board are not binding on us, although they are persuasive. Matter of Leopold, 469 Pa. 384 , 366 A.2d 227 (1976). The persuasiveness of the findings and recommendations seem to this author to stem from the fact that we have chosen to repose a great deal of trust in our Disciplinary Board to monitor attorney conduct and to alert us to the potential abuses of the professional powers granted to attorneys. In executing this important public function, the Board’s expertise and experience makes it better qualified than any other body to recommend to us that discipline of an attorney is warranted. Administratively, this scheme makes sense because all questions concerning the fitness of an attorney to practice before our courts flow through one channel. This workable system is today abandoned and a new parallel system is installed. JIRB, in addition to its important functions in recommending to us whether jurists are subject to removal, suspension or discipline as jurists, will also recommend whether they should be disciplined as attorneys, thereby imposing upon JIRB the dual burden of interpreting the Rules of Professional Responsibility and the Rules of Disciplinary Enforcement. I see no reason to enlarge the jurisdiction of the JIRB and, to the extent that the Majority premises its decision on the fact that the JIRB can recommend “discipline” to us (including disbarment), I believe the Majority is reaching for a result. Article V, Section 18(g) provides that, “if, after hearing, the board (JIRB) finds good cause therefor, it shall recommend to the Supreme Court the suspension, removal, disci *102 pline or compulsory retirement of the justice or judge.” I believe that “discipline” as used in this section refers to discipline as a judge or justice when the other forms of discipline provided (suspension, removal or compulsory retirement) are not appropriate. In no way do I see anything in Section 18 which would contemplate that the JIRB should be concerned with a jurist’s future as an attorney, especially when Article V, Section 10 provides the mechanism to discipline former jurists who seek to resume the practice of law. Instead of attempting to read both of these sections in pari materia, and thereby giving effect to both, the Majority now upsets the balance that the Constitution put in .place that JIRB should monitor judges and that the Board should monitor attorneys. It is no coincidence that a majority of attorneys comprise the Board whose voices need to be heard whether one of their own should practice along side with them. This voice will now be muffled as to Respondents because the JIRB is composed of a majority of jurists. It is also no coincidence that jurists should dominate the JIRB, because their voice also needs to be heard when one of their own is accused of judicial improprieties. I am concerned that this carefully thought out balance of peer review is now being replaced with a system that takes away from the bar their opportunity to express their judgment which is based on experience and expertise. Judges and lawyers are not peers of one another. Today the Court espouses, for the first time ever, that there need not be peer review of lawyers. Will the majority also abrogate peer review of judges in the future. I sincerely hope not. Turning to the Board’s interpretation of what acts are non-judicial in nature, I believe that their view, that nonjudicial acts as contemplated by Rule 201(a)(5) are acts committed which are not a violation of the unique responsibilities peculiar to judicial office which involve illegality, moral turpitude, or pervasive dishonesty, is a correct as *103 sessment of the types of conduct which should be reviewed by the Board because these same acts subject all attorneys to discipline. As the Majority itself recognizes, the acts of accepting bribes, fixing cases or lying to the FBI are acts also prohibited by Sections 1-102(A)(3) through (A)(6) and 8-101(A)(3) of the Code of Professional Responsibility and would form the basis for disciplinary action. I would affirm the Board’s interpretation of the meaning of “nonjudicial” acts and direct that they proceed with proceedings against all the Respondents, because all of the charges relate to “non-judicial” acts. Finally, I would overrule Office of Disciplinary Counsel v. Surrick, 521 Pa. 264 , 555 A.2d 883 (1989), which is an aberration designed to insulate a miscreant from peer review for acts which were an admitted violation of an attorney’s oath of office. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731955. Public record. Not legal advice.