THE COURTS
Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS
[ 204 PA. CODE CH. 83 ]
Amendment of the Pennsylvania Rules of Disciplinary Enforcement and Rule 1.17 of the Pennsylvania Rules of Professional Conduct; Disciplinary Rules Doc. No. 1; No. 75
[39 Pa.B. 2193]
[Saturday, May 2, 2009]
Order Per Curiam:
And now, this 16th day of April, 2009, Rules 102, 201, 204, 205, 217, 218, 219, 502 and 531 of the Pennsylvania Rules of Disciplinary Enforcement are amended to read as set forth in Annex A hereto and Rule 1.17 of the Pennsylvania Rules of Professional Conduct is amended to read as set forth in Annex B hereto.
This Order shall be processed in accordance with Rule 103(b) of the Pennsylvania Rules of Judicial Administration. The amendments to Rules 102, 201, 204, 205, 217, 218, 219, 502 and 531 and Rule of Professional Conduct 1.17 shall take effect upon publication in the Pennsylvania Bulletin and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending.
The amendments to Rules 102, 201, 204, 217, 218 and 219 relating to administrative suspensions for failure to meet the requirements of Rule 219, Pa.R.D.E. and Rule 111(b), Pa.R.C.L.E., retired status, and assessing inactive fees shall be applicable beginning with the 2009-2010 assessment year.
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart B. DISICIPLINARY ENFORCEMENT
CHAPTER 83. PENNSYLVANIA RULES OF DISCIPLINARY ENFORCEMENT
Subchapter A. PRELIMINARY PROVISIONS Rule 102. Definitions.
(a) General Rule. Subject to additional definitions contained in subsequent provisions of these rules which are applicable to specific provisions of these rules, the following words and phrases when used in these rules shall have, unless the context clearly indicates otherwise, the meanings given to them in this rule:
* * * * * Administrative suspension--Status of an attorney, after Court order, who: failed to pay the annual fee and/or file the form required by subdivisions (a) and (d) of Enforcement Rule 219; was reported to the Court by the Pennsylvania Continuing Legal Education Board under Rule 111(b), Pa.R.C.L.E., for having failed to satisfy the requirements of the Pennsylvania Rules for Continuing Legal Education; failed to pay any expenses taxed pursuant to Enforcement Rule 208(g); or failed to meet the requirements for maintaining a limited law license as a Limited In-House Corporate Counsel, a foreign legal consultant, an attorney participant in defender and legal services programs pursuant to Pa.B.A.R. 311, or a military attorney.
* * * * * Attorney Registration Office--The administrative division of the Disciplinary Board which governs the annual registration of every attorney admitted to, or engaging in, the practice of law in this Commonwealth, with the exception of attorneys admitted to practice pro hac vice under Pa.B.A.R. 301.
* * * * * Formerly admitted attorney--A disbarred, suspended, administratively suspended, retired or inactive attorney.
* * * * * Petitioner-attorney--Includes any person subject to these rules who has filed a petition for reinstatement to the practice of law.
* * * * *
Subchapter B. MISCONDUCT Rule 201. Jurisdiction.
(a) The exclusive disciplinary jurisdiction of the Supreme Court and the Board under these rules extends to:
* * * * * (3) Any formerly admitted attorney, with respect to acts prior to suspension, disbarment, administrative suspension, or transfer to retired or inactive status, or with respect to acts subsequent thereto which amount to the practice of law or constitute the violation of the Disciplinary Rules, these rules or rules of the Board adopted pursuant hereto.
* * * * * Rule 204. Types of discipline.
* * * * * (c) A reference in these rules to disbarment, suspension, temporary suspension, administrative suspension, or transfer to or assumption of retired or inactive status shall be deemed to mean, in the case of a respondent-attorney who holds a Limited In-House Corporate Counsel License, expiration of that license. A respondent-attorney whose Limited In-House Corporate Counsel License expires for any reason:
(1) shall be deemed to be a formerly admitted attorney for purposes of Rule 217 (relating to formerly admitted attorneys); and
(2) shall not be entitled to seek reinstatement under Rule 218 (relating to reinstatement) or [Rule 219(h) or (l)] Rule 219 (relating to periodic assessment of attorneys; voluntary inactive status) and instead must reapply for a Limited In-House Corporate Counsel License under Pennsylvania Bar Admission Rule 302.
Rule 205. The Disciplinary Board of the Supreme Court of Pennsylvania.
* * * * * (c) The Board shall have the power and duty:
* * * * * (7) To assign periodically, through its Secretary, senior or experienced hearing committee members within each disciplinary district to:
* * * * * (iii) consider a petition for reinstatement to active status from inactive status under Enforcement Rule [218(c)(3)(ii)] 218 (relating to reinstatement) of a formerly admitted attorney who has not been suspended or disbarred.
* * * * * Rule 217. Formerly admitted attorneys.
(a) A formerly admitted attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, all clients being represented in pending matters, other than litigation or administrative proceedings, of the disbarment, suspension, administrative suspension or transfer to inactive status and the consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status and shall advise said clients to seek legal advice elsewhere.
(b) A formerly admitted attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the disbarment, suspension, administrative suspension or transfer to inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status. The notice to be given to the client shall advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney. In the event the client does not obtain substitute counsel before the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status, it shall be the responsibility of the formerly admitted attorney to move in the court or agency in which the proceeding is pending for leave to withdraw. The notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the formerly admitted attorney.
(c) A formerly admitted attorney shall promptly notify, or cause to be notified, of the disbarment, suspension, administrative suspension or transfer to inactive status, by registered or certified mail, return receipt requested:
(1) all persons or their agents or guardians to whom a fiduciary duty is or may be owed at any time after the disbarment, suspension, administrative suspension or transfer to inactive status, and
(2) all other persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that he or she continues as an attorney in good standing.
The responsibility of the formerly admitted attorney to provide the notice required by this subdivision shall continue for as long as the formerly admitted attorney is disbarred, suspended, administratively suspended or on inactive status.
(d) Orders imposing suspension, disbarment, administrative suspension or transfer to inactive status shall be effective 30 days after entry. The formerly admitted attorney, after entry of the disbarment, suspension, administrative suspension or transfer to inactive status order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. However, during the period from the entry date of the order and its effective date the formerly admitted attorney may wind up and complete, on behalf of any client, all matters which were pending on the entry date.
(e) Within ten days after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status order, the formerly admitted attorney shall file with the Board a verified statement showing:
(1) that the provisions of the order and these rules have been fully complied with; and
(2) all other state, federal and administrative jurisdictions to which such person is admitted to practice. Such statement shall also set forth the residence or other address of the formerly admitted attorney where communications to such person may thereafter be directed.
(f) The Board shall cause a notice of the suspension, disbarment, administrative suspension or transfer to inactive status to be published in the legal journal and a newspaper of general circulation in the county in which the formerly admitted attorney practiced.
(g) The Board shall promptly transmit a certified copy of the order of suspension, disbarment, administrative suspension or transfer to inactive status to the president judge of the court of common pleas in the judicial district in which the formerly admitted attorney practiced. The president judge shall make such further order as may be necessary to fully protect the rights of the clients of the formerly admitted attorney.
(h) Within ten days after the effective date of an order of disbarment or suspension for a period longer than one year, the formerly admitted attorney shall surrender to the Board the certificate issued by the [Court Administrator of Pennsylvania] Attorney Registration Office under Rule 219(e) (relating to periodic assessment of attorneys; voluntary inactive status) for the current year, along with any certificate of good standing issued under Pennsylvania Bar Admission Rule 201(d) (relating to certification of good standing), certificate of admission issued under Pennsylvania Bar Admission Rule 231(d)(3) (relating to action by Prothonotary), certificate of licensure issued under Pennsylvania Bar Admission Rule 341(e)(3) (relating to motion for licensure), Limited In-House Corporate Counsel License issued under Pennsylvania Bar Admission Rule 302 (relating to limited in-house corporate counsel license) or limited certificate of admission issued under Pennsylvania Bar Admission Rule 303 (relating to limited admission of military attorneys). The Board may destroy the annual certificate issued under Rule 219(e), but shall retain any other documents surrendered under this subdivision and shall return those documents to the formerly admitted attorney in the event that he or she is subsequently reinstated.
(i) A formerly admitted attorney shall keep and maintain records of the various steps taken by such person under these rules so that, upon any subsequent proceeding instituted by or against such person, proof of compliance with these rules and with the disbarment, suspension, administrative suspension or transfer to inactive status order will be available. Proof of compliance with these rules shall be a condition precedent to any petition for reinstatement.
* * * * * Rule 218. Reinstatement.
(a) [No attorney suspended for a period exceeding one year, transferred to inactive status for more than three years prior to resumption of practice or transferred to inactive status as a result of the sale of his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct, or disbarred may resume practice until reinstated by order of the Supreme Court after petition therefor pursuant to these rules.] An attorney may not resume practice until reinstated by order of the Supreme Court after petition pursuant to this rule if the attorney was:
(1) suspended for a period exceeding one year;
(2) retired, on inactive status or on administrative suspension for more than three years;
(3) transferred to inactive status as a result of the sale of his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct; or
(4) disbarred.
(b) A person who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment, except that a person who has been disbarred pursuant to Rule 216 (relating to reciprocal discipline) may apply for reinstatement at any earlier date on which reinstatement may be sought in the jurisdiction of initial discipline.
(c) The procedure for petitioning for reinstatement from suspension for a period exceeding one year or disbarment is as follows:
(1) Petitions for reinstatement [by formerly admitted attorneys] shall be filed with the Board.
(2) Within 60 days after the filing of a petition for reinstatement, Disciplinary Counsel shall file a response thereto with the Board and serve a copy on the formerly admitted attorney. Upon receipt of the response, the Board shall refer the petition and response to a hearing committee in the disciplinary district in which the formerly admitted attorney maintained an office at the time of the disbarment[,] or suspension [or transfer to inactive status]. If any other formal disciplinary proceedings are then pending or have been authorized against the formerly admitted attorney, the reinstatement and disciplinary matters may be heard by the same hearing committee. In such case the combined hearing shall be held not later than 45 days after receipt by the Board of the response to the petition for reinstatement.
Official Note: If Disciplinary Counsel objects to reinstatement of the formerly admitted attorney, the response to the petition for reinstatement should explain in reasonable detail the reasons for the objection.
(3) The hearing committee shall promptly schedule a hearing at which[:]
[(i) A] a disbarred or suspended attorney shall have the burden of demonstrating by clear and convincing evidence that such person has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth and that the resumption of the practice of law within the Commonwealth by such person will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.
Official Note: When the petitioner-attorney is seeking reinstatement from disbarment, the threshold inquiry articulated in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 579, 506 A.2d 872, 875 (1986) and its progeny applies.
[(ii) A formerly admitted attorney who has been on inactive status shall have the burden of demonstrating that such person has the moral qualifications, competency and learning in the law required for admission to practice in the Commonwealth.]
(4) At the conclusion of the hearing, the hearing committee shall promptly file a report containing its findings and recommendations and transmit same, together with the record, to the Board.
(5) The Board shall review the report of the hearing committee and the record and shall promptly file its own findings and recommendations, together with the briefs, if any, before the Board and the entire record, with the Supreme Court.
(6) In the event the Board recommends reinstatement and the Supreme Court, after consideration of that recommendation, is of the view that a rule to show cause should be served upon the [respondent-attorney] petitioner-attorney why an order denying reinstatement should not be entered, the same shall be issued setting forth the areas of the Court's concern. A copy of the rule shall be served on Disciplinary Counsel. Within 20 days after service of the rule, [respondent-attorney] petitioner-attorney, as well as Disciplinary Counsel, may submit to the Supreme Court a response thereto. Unless otherwise ordered, matters arising under this rule will be considered without oral argument.
[(7) A petition for reinstatement to active status from inactive status by a formerly admitted attorney who has not been suspended or disbarred shall be considered by a single senior or experienced hearing committee member who shall perform the functions of a hearing committee under this subdivision (c), and the rules of the Board may provide for abbreviated procedures to be followed by that hearing committee member.]
(d) The procedure for petitioning for reinstatement from retired status for more than three years, inactive status for more than three years or administrative suspension for more than three years, or after transfer to inactive status as a result of the sale of a law practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct is as follows:
(1) Petitions for reinstatement shall be filed with the Board.
(2) Within 60 days after the filing of a petition for reinstatement, Disciplinary Counsel shall either:
(i) file a response thereto with the Board and serve a copy on the formerly admitted attorney; or
(ii) file a certification with the Board Secretary stating that after a review of the petition for reinstatement and reasonably diligent inquiry, Disciplinary Counsel has determined that there is no impediment to reinstatement and that the petitioner-attorney will meet his or her burden of proof under paragraph (d)(3) if the petition were to proceed to hearing under (d)(4).
Official Note: If Disciplinary Counsel objects to reinstatement of the formerly admitted attorney under (d)(2)(i), the response to the petition for reinstatement should explain in reasonable detail the reasons for the objection.
(3) A formerly admitted attorney who has been on retired status, inactive status or administrative suspension shall have the burden of demonstrating that such person has the moral qualifications, competency and learning in the law required for admission to practice in the Commonwealth.
(4) Upon receipt of a response under (d)(2)(i), the Board shall refer the petition and response to a single senior or experienced hearing committee member in the disciplinary district in which the formerly admitted attorney maintained an office at the time of transfer to or assumption of retired or inactive status, or transfer to administrative suspension; the single senior or experienced hearing committee member shall promptly schedule a hearing during which the hearing committee member shall perform the functions of a hearing committee under this subdivision (d). The rules of the Board may provide for abbreviated procedures to be followed by the hearing committee member, except that the abbreviated procedure shall not be available at any hearing conducted after review by a designated Board Member pursuant to paragraph (d)(6) of this rule. If any other formal disciplinary proceedings are then pending or have been authorized against the formerly admitted attorney, the reinstatement and disciplinary matters may be heard by the same hearing committee. In such case the combined hearing shall be held not later than 45 days after receipt by the Board of the response to the petition for reinstatement.
(5) At the conclusion of the hearing, the hearing committee member shall promptly file a report containing the member's findings and recommendations and transmit same, together with the record, to the Board. Thereafter, the matter will proceed in accordance with the provisions of (c)(5) and (c)(6) of this rule.
(6) Upon receipt of a certification filed by Disciplinary Counsel under (d)(2)(ii), the Board Chair shall designate a single member of the Board to review the record and certification and to issue a report and recommendation.
(i) If the Board Member decides that reinstatement should be denied or that a hearing on the petition is warranted, the designated Board Member shall issue a report setting forth the areas of the designated Board Member's concern and direct the Board Secretary to schedule the matter for hearing pursuant to subdivision (d)(4) of this rule.
(ii) Upon receipt of a report and recommendation for an order of reinstatement, the Court may enter an order reinstating the formerly admitted attorney to active status and direct that the necessary expenses incurred in the investigation and processing of the petition be paid by the petitioner-attorney. The Chief Justice may delegate the processing and entry of orders under this subdivision to the Prothonotary.
[(d)] (e) In all proceedings upon a petition for reinstatement, cross-examination of the [respondent-attorney's] petitioner-attorney's witnesses and the submission of evidence, if any, in opposition to the petition shall be conducted by Disciplinary Counsel.
[(e)] (f) The Supreme Court in its discretion may direct that the necessary expenses incurred in the investigation and processing of the petition for reinstatement be paid by the [respondent-attorney] petitioner-attorney. A reinstatement fee of $300 shall be assessed against a petitioner-attorney who was administratively suspended at the time of the filing of the petition. The annual fee required by Rule 219(a) and the reinstatement fee, if applicable, shall be paid to the Attorney Registration Office after the Supreme Court order is entered.
[(f)] (g) (1) Upon the expiration of any term of suspension not exceeding one year and upon the filing thereafter by the formerly admitted attorney with the Board of a verified statement showing compliance with all the terms and conditions of the order of suspension and of Enforcement Rule 217 (relating to formerly admitted attorneys), the Board shall certify such fact to the Supreme Court, which shall immediately enter an order reinstating the formerly admitted attorney to active status, unless such person is subject to another outstanding order of suspension or disbarment.
(2) Paragraph (1) of this subdivision shall not be applicable and a formerly admitted attorney shall be subject instead to the other provisions of this rule requiring the filing of a petition for reinstatement, if:
(i) other formal disciplinary proceedings are then pending or have been authorized against the formerly admitted attorney;
(ii) the formerly admitted attorney has been on inactive status or administrative suspension for more than three years; or
(iii) the order of suspension has been in effect for more than three years.
[(g)] (h) Attorneys who have been on inactive status, retired status or administrative suspension for three years or less may be reinstated pursuant to Enforcement Rule 219(h), (i), [or] (j), (k) or (m) (relating to periodic assessment of attorneys) as appropriate. This subdivision [(g)] (h) does not apply to an attorney who has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct.
[(h)] (i) The Board may cause a notice of the reinstatement to be published in one or more appropriate legal journals and newspapers of general circulation.
[(i)] (j) The Board when appropriate shall promptly transmit to the president judge of the court of common pleas in the judicial district in which the formerly admitted attorney practiced a copy of:
(1) the certification filed with the Prothonotary under Enforcement Rule 219(h) or [(l)] (m); or
(2) any other order of reinstatement entered under these rules.
[(j)] (k) If Disciplinary Counsel shall have probable cause to believe that any formerly admitted attorney:
(1) has failed to comply with this rule or Rule 217 (relating to formerly admitted attorneys), or
(2) is otherwise continuing to practice law, Disciplinary Counsel may bring an action in any court of competent jurisdiction for such injunctive and other relief as may be appropriate.
Rule 219. Periodic assessment of attorneys; voluntary inactive status.
(a) Every attorney admitted to practice law in this Commonwealth[, other than a military attorney holding a limited certificate of admission issued under Pennsylvania Bar Admission Rule 303 (relating to limited admission of military attorneys)], shall pay an annual fee of $140.00 under this rule. The annual fee shall be collected under the supervision of the [Administrative] Attorney Registration Office, which shall send and receive, or cause to be sent and received, the notices and [statements] forms provided for in this rule. The said fee shall be used to defray the costs of disciplinary administration and enforcement under these rules, and for such other purposes as the Board shall, with the approval of the Supreme Court, from time to time determine.
(b) The following shall be exempt from paying the annual fee required by subdivision (a):
(1) Justices [and] or [Judges] judges serving in the following Pennsylvania courts of record shall be exempt for such time as they serve in office[.]: Supreme, Superior, Commonwealth, Common Pleas, and Philadelphia Municipal; and justices or judges serving an appointment for life on any federal court;
(2) retired attorneys; and
(3) military attorneys holding a limited certificate of admission issued under Pa.B.A.R. 303 (relating to admission of military attorneys).
Official Note: The exemption created by subdivision (b)(1) does not include Philadelphia Traffic Court judges, Pittsburgh Municipal Court judges, magisterial district judges, arraignment court magistrates or administrative law judges.
(c) On or before May 15 of each year the [Administrative] Attorney Registration Office shall transmit by ordinary mail to all persons required by this rule to pay an annual fee a form [for completing the statement] required by subdivision (d) of this rule.
(d) On or before July 1 of each year all persons required by this rule to pay an annual fee shall file with the [Administrative] Attorney Registration Office a signed [statement on the] form prescribed by the [Administrative] Attorney Registration Office in accordance with the following procedures:
(1) The [statement] form shall set forth:
(i) The date on which the attorney was [first] admitted to practice, licensed as a foreign legal consultant, granted limited admission as an attorney participant in defender and legal services programs pursuant to Pa.B.A.R. 311, or issued a Limited In-House Corporate Counsel License, and a list of all courts (except courts of this Commonwealth) and jurisdictions in which the person has ever been licensed to practice law, with the current status thereof.
(ii) The current residence and office addresses of the attorney, each of which shall be an actual street address or rural route box number, and the [Administrative] Attorney Registration Office shall refuse to accept a [statement] form that sets forth only a post office box number for either required address. A preferred mailing address different from those addresses may also be provided on the [statement] form and may be a post office box number. The attorney shall indicate which of the addresses, the residence, office or mailing address, will be accessible through the website of the Board (http://www.padisciplinaryboard.org/) and by written or oral request to the Board.
Official Note: Public web docket sheets will show the attorney's address as entered on the court docket.
(iii) The name of each financial institution in this Commonwealth in which the attorney on May 1 of the current year or at any time during the preceding 12 months held funds of a client or a third person subject to Rule 1.15 of the Pennsylvania Rules of Professional Conduct. The [statement] form shall include the name and account number for each account in which the lawyer holds such funds, and each IOLTA Account shall be identified as such. The [statement] form provided to a person holding a Limited In-House Corporate Counsel License or a Foreign Legal Consultant License need not request the information required by this subparagraph.
(iv) A statement that the attorney is familiar and in compliance with Rule 1.15 of the Pennsylvania Rules of Professional Conduct regarding the handling of funds and other property of clients and others and the maintenance of IOLTA Accounts, and with Rule 221 of the Pennsylvania Rules of Disciplinary Enforcement regarding the mandatory reporting of overdrafts on fiduciary accounts.
(v) A statement that any action brought against the attorney by the Pennsylvania Lawyers Fund for Client Security for the recovery of monies paid by the Fund as a result of claims against the attorney may be brought in the Court of Common Pleas of Allegheny, Dauphin or Philadelphia County.
(vi) Such other information as the [Administrative] Attorney Registration Office may from time to time direct.
(2) Payment of the annual fee shall accompany the [statement] form. Where a check in payment of the annual fee has been returned to the Board unpaid, the annual fee shall not be deemed to have been paid until a collection fee shall also have been paid. The amount of the collection fee shall be established by the Board annually after giving due regard to the direct and indirect costs incurred by the Board during the preceding year for checks returned to the Board unpaid.
(3) Every person who has filed such a [statement] form shall notify the [Administrative] Attorney Registration Office in writing of any change in the information previously submitted within 30 days after such change.
(4) Upon original admission to the bar of this Commonwealth, licensure as a [foreign legal] Foreign Legal [consultant] Consultant, [or] issuance of a Limited In-House Corporate Counsel License, or limited admission as an attorney participant in defender and legal services programs pursuant to Pa.B.A.R. 311, a person shall concurrently file a [statement] form under this subdivision for the current assessment year, but no annual fee shall be payable for the assessment year in which originally admitted or licensed.
(e) [Within 20 days of the] Upon receipt of a [statement] form, or notice of change of information contained therein, filed by an attorney in accordance with the provisions of subdivision (d) of this rule, and of payment of [any] the required annual fee to practice law in this Commonwealth, receipt thereof shall be acknowledged[,] on a certificate [issued by the Court Administrator of Pennsylvania, evidencing compliance with such subdivision] or license.
(f) The [Administrative] Attorney Registration Office shall transmit by [certified] ordinary mail[, return receipt requested,] to every attorney who fails to timely file the [statement] form and pay the annual fee required by this rule, addressed to the last known mailing address of the attorney, a notice stating:
(1) That unless the attorney shall comply with the requirements of subdivision (d) of this rule within 30 days after the date of the notice, such failure to comply will be deemed a request [for transfer to inactive status] to be administratively suspended, and at the end of such period the name of the attorney will be certified to the Supreme Court, which will [immediately] enter an order [transferring the attorney to inactive status] administratively suspending the attorney.
(2) That upon the entry of an order [transferring the attorney to inactive status] of administrative suspension, the attorney shall comply with Enforcement Rule 217 (relating to formerly admitted attorneys), a copy of which shall be enclosed with the notice.
(g) The [Administrative] Attorney Registration Office [or the Board] shall certify to the Supreme Court the names of every attorney who has failed to respond to a notice issued pursuant to subdivisions (f) and [(k)] (l) of this rule within the 30-day period provided therein and the Court shall [immediately] enter an order [transferring the attorney to inactive status] administratively suspending the attorney. A copy of any such certification from the [Administrative] Attorney Registration Office to the Supreme Court shall be given to the Board Secretary. The Chief Justice may delegate the processing and entry of orders under this subdivision to the Prothonotary.
(h) The procedure for reinstatement of an attorney who has been administratively suspended for three years or less pursuant to subdivision (g) is as follows:
(1) [Upon compliance by the formerly admitted attorney with the provisions of subdivision (d) of this rule, including payment of all arrears due from the date to which such person was last paid] The formerly admitted attorney shall submit to the Attorney Registration Office the form required by subdivision (d)(1) along with payment of:
(i) the current annual fee;
(ii) the annual fee that was due in the year in which the attorney was administratively suspended;
(iii) the late payment penalty required by paragraph (3);
(iv) a reinstatement fee of $300.00.
(2) Upon receipt of the annual fee form, a verified statement showing compliance with Enforcement Rule 217 (relating to formerly admitted attorneys), and the payments required by paragraph (1), the [Administrative] Attorney Registration Office shall so certify to the Board Secretary and to the Supreme Court. Unless [such person] the formerly admitted attorney is subject to another outstanding order of suspension or disbarment or the order has been in effect for more than three years, the filing of the certification from the [Administrative] Attorney Registration Office with the Prothonotary of the Supreme Court shall operate as an order reinstating the person to active status.
[(2) For the purposes of this rule arrearages shall include a late payment penalty payable by every attorney to whom a notice has been transmitted under subdivision (f) of this rule plus the actual cost of any publication effected pursuant to Enforcement Rule 217(f).] (3) A formerly admitted attorney who is administratively suspended pursuant to subdivision (g) must pay a late payment penalty with respect to that year. The amount of the late payment penalty shall be established by the Board annually after giving due regard to such factors as it considers relevant, including the direct and indirect costs incurred by the Board during the preceding year in processing the records of attorneys who fail to timely file the statement required by subdivision (d) of this rule.
(i) Retired Status: An attorney who has retired[, is not engaged in practice or who has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct] shall file with the [Administrative] Attorney Registration Office [a notice in writing that the attorney desires voluntarily to assume inactive status and discontinue the practice of law] an application for retirement. Upon the transmission of such [notice] application from the [Administrative] Attorney Registration Office to the Supreme Court, the Court shall enter an order transferring the attorney to [inactive] retired status, and the attorney shall no longer be eligible to practice law [but shall continue to file the statement required by this rule for six years thereafter in order that the formerly admitted attorney can be located in the event complaints are made about the conduct of such person while such person was engaged in practice]. The [formerly admitted] retired attorney[, however,] will be relieved from the payment of the fee imposed by this rule upon active practitioners and Enforcement Rule 217 (relating to formerly admitted attorneys) shall not be applicable to the formerly admitted attorney unless ordered by the Court in connection with the entry of an order of suspension or disbarment under another provision of these rules. An attorney on retired status for three years or less may be reinstated in the same manner as an inactive attorney, except that the retired attorney shall pay the annual active fee for the three most recent years or such shorter period in which the attorney was on retired status instead of the amounts required to be paid by an inactive attorney seeking reinstatement. The Chief Justice may delegate the processing and entry of orders under this subdivision to the Prothonotary.
(j) Inactive Status: [Upon the filing of a notice voluntarily to assume inactive status, an] An attorney who is not engaged in practice in Pennsylvania, has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct, or is not required by virtue of his or her practice elsewhere to maintain active licensure in the Commonwealth may request voluntary inactive status or continue that status once assumed. The attorney shall be removed from the roll of those classified as active until such person requests and is granted reinstatement to the active rolls.
(1) An inactive attorney under this subdivision (j) shall continue to file the annual form required by subdivision (d) and shall pay an annual fee of $70.00. Noncompliance with this provision will result in the inactive attorney being placed on administrative suspension after the Attorney Registration Office provides notice in accordance with the provisions of paragraph (f). An attorney who voluntarily assumed inactive status under former subdivision (j) of this rule shall continue to file the annual form required by subdivision (d) and pay an annual fee of $70.00 commencing with the next regular assessment year. Noncompliance with this provision will result in the inactive attorney being placed on administrative suspension after notice in accordance with the provisions of paragraph (f).
(2) Reinstatement shall be granted unless the [formerly admitted] inactive attorney is subject to an outstanding order of suspension or disbarment or unless the [order] inactive status has been in effect for more than three years, upon the payment of [any assessment in effect] the active fee for the assessment year in which the [request] application for resumption of active status is made or the difference between the active fee and the inactive fee that has been paid for that year, and any arrears accumulated prior to [transfer to] the assumption of inactive status.
(3) [Disciplinary proceedings may be initiated and maintained against a formerly admitted attorney who has voluntarily assumed inactive status. See Rule 201(a)(3).] In transmitting the annual fee form under subdivision (c) of this rule, the Attorney Registration Office shall include a notice of this subdivision (j).
Official Note: Under prior practice, an attorney who was neither retiring nor selling his or her law practice was given the option of assuming or continuing inactive status and ceasing the practice of law in Pennsylvania, and no annual fee was required. Under new subdivision (j), payment of an annual fee is required to assume and continue inactive status, and failure to pay the annual fee required by subdivision (j) and file the form required by subdivision (d) will result in an order administratively suspending the attorney.
(k) On the effective date of this subdivision (k), any attorney who is on inactive status:
(1) by order after having failed to pay the annual fee or file the form required by subdivisions (a) and (d) of this rule,
(2) by order pursuant to Rule 111(b), Pa.R.C.L.E., after having failed to satisfy the requirements of the Pennsylvania Rules for Continuing Legal Education,
(3) by order after having failed to pay any expenses taxed pursuant to Enforcement Rule 208(g), or
(4) by order after having failed to meet the requirements for maintaining a limited law license as a Limited In-House Corporate Counsel, a foreign legal consultant, an attorney participant in defender legal services programs pursuant to Pa.B.A.R. 311, or a military attorney, shall have a grace period of one year, commencing on July 1 of the year in which the next annual form under paragraph (d) is due, in which to request reinstatement to active status under an applicable provision of this rule, or to be reinstated to active status under Rule 218(a), as the case may be. Failure to achieve active status before the expiration of the grace period shall be deemed a request to be administratively suspended. An attorney who is on inactive status by court order will not be eligible to transfer to voluntary inactive status under subdivision (j) of this rule until the attorney first achieves active status. During the grace period, the inactive attorney shall remain ineligible to practice law. In transmitting the annual form under subdivision (c) of this rule, the Attorney Registration Office shall include a notice of this subdivision (k).
Official Note: Attorneys who voluntarily assumed inactive status under former paragraph (j) of Enforcement Rule 219 are governed by the provisions of paragraph (j). Attorneys who were transferred to inactive status by order after having failed to pay any expenses taxed pursuant to Enforcement Rule 208(g) are governed by the provisions of paragraph (m).
[(k)] (l) The Board shall transmit by certified mail, return receipt requested, to every attorney who fails to pay any expenses taxed pursuant to Enforcement Rule 208(g) (relating to costs), addressed to the last known address of the attorney, a notice stating:
(1) That unless the attorney shall pay all such expenses within 30 days after the date of the notice, such failure to pay will be deemed a request [for transfer to inactive status] to be administratively suspended, and at the end of such period the name of the attorney will be certified to the Supreme Court, which will [immediately] enter an order [transferring the attorney to inactive status] administratively suspending the attorney.
(2) That upon entry of the order [transferring the attorney to inactive status] of administrative suspension, the attorney shall comply with Enforcement Rule 217 (relating to formerly admitted attorneys), a copy of which shall be enclosed with the notice.
[(l)] (m) Upon payment of all expenses taxed pursuant to Enforcement Rule 208(g) by a formerly admitted attorney [transferred to inactive status] on administrative suspension solely for failure to comply with subdivision [(k)] (l) of this rule, the Board shall so certify to the Supreme Court. Unless such person is subject to another outstanding order of suspension or disbarment or the order has been in effect for more than three years, the filing of the certification from the Board with the Prothonotary of the Supreme Court shall operate as an order reinstating the person to active status.
[(m)] (n) A former or retired justice or judge who is not the subject of an outstanding order of discipline affecting his or her right to practice law and who wishes to resume the practice of law shall file with the [Administrative] Attorney Registration Office a notice in writing to that effect. The notice shall:
(i) describe:
(A) any discipline imposed within six years before the date of the notice upon the justice or judge by the Court of Judicial Discipline [or the former Judicial Inquiry and Review Board];
(B) any proceeding before the Judicial Conduct Board or the Court of Judicial Discipline settled within six years before the date of the notice on the condition that the justice or judge resign from judicial office or enter a rehabilitation program;
(ii) include a waiver by the justice or judge, if the notice discloses a proceeding described in paragraph (i), of the confidentiality of the record in that proceeding for the limited purpose of making the record available to the Board in any subsequent proceeding under these rules;
(iii) be accompanied by payment of the full annual fee for the assessment year in which the notice is filed.
Subchapter E. PENNSYLVANIA LAWYERS FUND FOR CLIENT SECURITY
GENERAL PROVISIONS Rule 502. Pennsylvania Lawyers Fund for Client Security.
* * * * * (b) Additional assessment. Every attorney who is required to pay an active annual assessment under Rule 219 (relating to periodic assessment of attorneys; voluntary inactive status) shall pay an additional annual fee of $35.00 for use by the Fund. Such additional assessment shall be added to, and collected with and in the same manner as, the basic annual assessment, but the statement mailed by the [Administrative] Attorney Registration Office pursuant to Rule 219 shall separately identify the additional assessment imposed pursuant to this subdivision. All amounts received pursuant to this subdivision shall be credited to the Fund.
(c) Transfers to Fund. The Administrative Office and Attorney Registration Office shall transfer to the Fund all bequests and gifts hereafter made for use by the Fund. All monies or other assets of the Fund shall constitute a trust and shall be held in the name of the Fund, subject to the direction of the Board.
* * * * *
REINSTATEMENT Rule 531. Restitution a condition for reinstatement.
The Board shall file with the Supreme Court a list containing the names of all formerly admitted attorneys with respect to the Dishonest Conduct of which the Board has made unrecovered disbursements from the Fund. No person will be reinstated by the Supreme Court under Rule 218 (relating to reinstatement), [Rule 219(h)] Rule 219 (relating to periodic assessment of attorneys; voluntary inactive status), Rule 301(h) (relating to proceedings where an attorney is declared to be incompetent or is alleged to be incapacitated), Pennsylvania Rules of Continuing Legal Education, Rule 111(b) (relating to noncompliance with continuing legal education rules) or who has been suspended from the practice of law for any period of time, including, but not limited to suspensions under Rule 208(f) (relating to emergency temporary suspension) and 219(f) (relating to administrative suspension) until the Fund has been repaid in full, plus 10% per annum interest, for all disbursements made from the Fund with respect to the Dishonest Conduct of such person.
Annex B
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart A. RULES OF PROFESSIONAL CONDUCT
Subchapter A. RULES OF PROFESSIONAL CONDUCT Rule 1.17. Sale of Law Practice.
* * * * * (f) In the case of a sale by reason of disability, if a proceeding under Rule 301 of the Pennsylvania Rules of Disciplinary Enforcement has not been commenced against the selling lawyer, the selling lawyer shall file the notice and request for transfer to voluntary inactive status, as of the date of the sale, pursuant to Rule [219(i)] 219(j) thereof.
* * * * *
[Pa.B. Doc. No. 09-792. Filed for public inspection May 1, 2009, 9:00 a.m.]
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