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PA Bulletin, Doc. No. 00-335

THE COURTS

Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS

PART V.  PROFESSIONAL ETHICS AND CONDUCT

[204 PA. CODE CH. 83]

Amendments to the Pennsylvania Rules of Disciplinary Enforcement Relating to Conservators; Notice of Proposed Rulemaking

[30 Pa.B. 1124]

   Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Supreme Court of Pennsylvania that it amend the Pennsylvania Rules of Disciplinary Enforcement, as set forth in Annex A, to make a number of changes in the rules relating to conservators appointed to protect the interests of clients of absent attorneys.

   The changes being proposed reflect the experience of the Board with conservatorships under existing Rules 321 through 329 of the Pennsylvania Rules of Disciplinary Enforcement over the past several years. Among the important changes being proposed are the following:

   1.  A provision would be added to impose a temporary stay on all legal and administrative proceedings in which the absent attorney was counsel of record to facilitate the substitution of new counsel for the client of the absent attorney. See proposed Pa.R.D.E. 321(g).

   2.  Notice of the establishment of a conservatorship would be required to be given by the conservator as promptly as is reasonably practicable. See proposed Pa.R.D.E. 322 (f).

   3.  Under the current rules, the presumption is that conservators will serve without compensation. Recent conservatorships have typically required the expenditure of a fair amount of time by the conservator, and the Board is accordingly proposing that conservators be compensated in the same fashion as other court appointments. See the amendments to Pa.R.D.E. 328.

   Interested persons are invited to submit written comments regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, First Floor, Two Lemoyne Drive, Lemoyne, PA 17043, on or before April 14, 2000.

By The Disciplinary Board of the
Supreme Court of Pennsylvania

ELAINE BIXLER,   
Secretary

Annex A

TITLE 204.  JUDICIAL SYSTEM GENERAL PROVISIONS

PART V.  PROFESSIONAL ETHICS AND CONDUCT

Subpart B.  DISCIPLINARY ENFORCEMENT

CHAPTER 83.  PENNSYLVANIA RULES OF DISCIPLINARY ENFORCEMENT

Subchapter C.  DISABILITY AND RELATED MATTERS CONSERVATORS FOR INTERESTS OF CLIENTS

Rule 321.  Appointment of conservator to protect interests of clients of absent attorney.

   (a)  Upon application of Disciplinary Counsel or any other interested person, the president judge of a court of common pleas shall have the power to appoint one or more eligible persons to act as conservators of the affairs of an attorney or formerly admitted attorney if:

   (1)  the attorney maintains or has maintained an office for the practice of law within the judicial district;

   (2)  [(Reserved).] any of the following applies:

*      *      *      *      *

   (b)  A copy of the application for appointment of a conservator under this rule [shall]:

   (1)  Shall be personally served upon the absent attorney or the personal representative or guardian of the estate of a deceased or incompetent absent attorney. If personal service cannot be obtained, then a copy of the application shall be served in the manner prescribed by Enforcement Rule 212 (relating to substituted service).

   (2)  Shall be filed with the Secretary of the Board.

   (c)  The president judge of the court of common pleas shall conduct a hearing on the application no later than seven days after the filing of the application. At the hearing the applicant shall have both the burden of production and the burden of persuading the court by the preponderance of the credible evidence that grounds exist for appointment of a conservator. All proceedings in the court of common pleas shall be kept confidential unless and until an order is entered appointing a conservator.

   (d)  Within three days after the conclusion of the hearing on the application, the president judge shall enter an order either granting or denying the application. The order shall contain findings of fact and a statement of the grounds upon which the order is based. If no appearance has been entered on behalf of the absent attorney, the clerk of the court shall serve a copy of the order [shall be served] upon the absent attorney in the manner prescribed by subdivision [(b)] (b)(1) of this rule and shall file a copy of the order with the Secretary of the Board.

*      *      *      *      *

   (f)  The filing by Disciplinary Counsel or any other interested person of an application for the appointment of a conservator under these rules shall be deemed for the purposes of any statute of limitations or limitation on time for appeal as the filing in [the court of common pleas or other proper court or] every court, tribunal, magisterial district of this Commonwealth or other government unit on behalf of every client of the absent attorney of a complaint or other proper process commencing any action, proceeding, appeal or other matter arguably suggested by any information appearing in the files of the absent attorney if:

   (1)  the application for appointment of a conservator is granted, and

   (2)  substitute counsel actually files an appropriate document in a court [or], tribunal, magisterial district or other government unit within 30 days after [executing] substitute counsel executes a receipt for the file relating to the matter.

   Official Note:  Under 42 Pa.C.S. 5503(b) (relating to implementing court rules) the Supreme Court may define by rule the document which when filed constitutes the commencement of a matter for purposes of Chapter 55 of the Judicial Code (relating to limitation of time). Thus the application by Disciplinary Counsel or any other interested person under this rule is an omnibus pleading which stays the running of all statutes of limitations and appeal times pending a 30-day review of the files of the absent attorney.

   (g)  The filing by Disciplinary Counsel or any other interested person of an application for the appointment of a conservator under these rules shall operate as an automatic stay of all pending legal or administrative proceedings in this Commonwealth where the absent attorney is counsel of record until the earliest of such time as:

   (1)  the application for appointment of a conservator is denied;

   (2)  the conservator is discharged;

   (3)  the court, tribunal, magisterial district or other government unit in which a matter is pending orders that the stay be lifted; or

   (4)  30 days after the court, tribunal, magisterial district or other government unit in which a matter is pending is notified that substitute counsel has been retained.

   (h)  As used in this rule, the term ''government unit'' has the meaning set forth in 42 Pa.C.S. § 102 (relating to definitions).

Rule 322.  Duties of conservator.

*      *      *      *      *

   (e)  The conservator shall file a written report with the appointing court and the Board no later than 30 days after the date of appointment covering the matters specified in subdivisions (a) through (c) of this rule. If those duties have not been accomplished, then the conservator shall state what progress has been made in that regard. Thereafter, the conservator shall file a similar written report every [30 days] three months until discharged.

   (f)  As soon as reasonably practicable following entry of the order appointing a conservator, the conservator shall cause a notice of the establishment of the conservatorship to be published in the legal journal and a newspaper of general circulation in the county or counties embraced by the judicial district in which the conservator was appointed.

Rule 325.  Duration of conservatorship.

   [Appointment of a conservator pursuant to these rules shall be for a period of no longer than six months. The appointing court shall have the power, upon application of the conservator and for good cause, to extend the appointment for an additional three months. Any order granting such an extension shall include findings of fact in support of the extension.] A conservator shall serve until discharged pursuant to Rule 326 (relating to discharge of conservator) or until other order of the appointing court.

Rule 327.  Liability of conservator.

   A conservator appointed under these rules shall:

   (1)  Not be regarded as having an attorney-client relationship with clients of the absent attorney, except that the conservator shall be bound by the obligation of confidentiality imposed by the [Code of Professional Responsibility] Rules of Professional Conduct with respect to information acquired as conservator.

*      *      *      *      *

Rule 328.  Compensation and expenses of conservator.

   (a)  A conservator shall [normally serve without compensation, but where a conservatorship is expected to be prolonged or require greater effort than normal the appointing court may, with the prior written approval of the Board Chairman, order that the conservator be compensated on an agreed basis. Any such agreement shall be filed with the Office of the Secretary] be compensated pursuant to a written agreement between the conservator and the Board which shall include provisions for payment of the compensation of the conservator at reasonable intervals and at the same hourly rate as court appointed counsel in the judicial district where the conservator was appointed.

   (b)  [Upon the completion of a conservatorship, the appointing court, with the prior written approval of the Board Chairman, shall have the power to award compensation or to increase compensation previously agreed to upon application of the conservator and upon demonstration by the conservator that the nature of the conservatorship was extraordinary and that failure to award or increase previously agreed compensation would work a substantial hardship on the conservator. In such event, compensation shall be awarded only to the extent that the efforts of the conservator have exceeded those normally required or reasonably anticipated at the time the original compensation agreement was approved.] (Repealed.)

   (c)  The necessary expenses (including the fees and expenses of a certified public accountant engaged pursuant to Enforcement Rule 324(c)) and [any] the compensation of [a] the conservator shall, if possible, be [paid] reimbursed by the absent attorney or his or her estate. [If not so paid, then upon certification by the president judge of the appointing court and approval by the Board Chairman, the] Any expenses and [any] compensation of the conservator that are not reimbursed to the Board shall be [paid] treated as a cost of disciplinary administration and enforcement. [See Enforcement Rule 219(a) (relating to periodic assessment of attorneys).] Payment of any costs incurred by the Board pursuant to this rule that have not been reimbursed to the Board may be made a condition of reinstatement of a formerly admitted attorney or may be ordered in a disciplinary proceeding brought against the absent attorney.

[Pa.B. Doc. No. 00-335. Filed for public inspection February 25, 2000, 9:00 a.m.]


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