THE COURTS
Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CHS. 87, 91 and 93 ]
Amendments to Rules of Organization and Procedure of The Disciplinary Board of The Supreme Court of Pennsylvania
[39 Pa.B. 2687]
[Saturday, May 30, 2009]
Order No. 68 The Rules of Organization and Procedure of the Board have been drafted to restate in full the substance of the Pennsylvania Rules of Disciplinary Enforcement. By Orders dated April 1, 2008, September 4, 2008, December 12, 2008 and April 3, 2009, the Supreme Court of Pennsylvania amended Pa.R.D.E. 219(a), 502(b), 221, 208(a), 215(c), 402(c) and 205. By this Order, the Board is making conforming changes to its Rules to reflect the adoption of those amendments.
The Disciplinary Board of the Supreme Court of Pennsylvania finds that:
(1) To the extent that 42 Pa.C.S. § 1702 (relating to rule making procedures) and Article II of the act of July 31, 1968 (P. L. 769, No. 240), known as the Commonwealth Documents Law, would otherwise require notice of proposed rulemaking with respect to the amendments adopted hereby, those proposed rulemaking procedures are inapplicable because the amendments adopted hereby relate to agency procedure and are perfunctory in nature.
(2) The amendments to the Rules of Organization and Procedure of the Board adopted hereby are not inconsistent with the Pennsylvania Rules of Disciplinary Enforcement and are necessary and appropriate for the administration of the affairs of the Board.
The Board, acting pursuant to Pa.R.D.E. 205(c)(10), orders:
(1) Title 204 of the Pennsylvania Code is hereby amended as set forth in Annex A hereto.
(2) The Secretary of the Board shall duly certify this Order, and deposit the same with the Administrative Office of Pennsylvania Courts as required by Pa.R.J.A. 103(c).
(3) The amendments adopted hereby shall take effect upon publication in the Pennsylvania Bulletin.
(4) This Order shall take effect immediately.
ELAINE M. BIXLER,
Secretary
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart C. DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
CHAPTER 87. INVESTIGATIONS AND INFORMAL PROCEEDINGS § 87.7. Notification to respondent-attorney of complaint.
(a) General rule Condition precedent to recommendation for discipline. Enforcement Rule 207(b)(2) provides that except in matters requiring dismissal because the complaint is frivolous or falls outside the jurisdiction of the Board, no disposition] Condition precedent to recommendation for disciplie. Disciplinary Counsel shall [be] not [recommended] recommend or [undertaken by Disciplinary Counsel] undertake a disposition of discipline under Enforcement Rule 204 (relating to types of discipline) until the accused attorney has been notified of the allegations and the time for response under § 89.54 (relating to answer), if applicable, has expired.
* * * * * § 87.8. District office action or recommendation.
(a) General rule. Enforcement Rule 208(a)(2) provides that upon the conclusion of an investigation, Disciplinary Counsel may dismiss the complaint as frivolous [or], as falling outside the jurisdiction of the Board, or on the basis of Board policy or prosecutorial discretion. Disciplinary Counsel may recommend:
* * * * * (b) District office procedure. Following completion of any investigation of the complaint and after consideration of any statement of position filed by the respondent-attorney pursuant to § 87.7 (relating to notification to respondent-attorney of complaint) the Assistant Disciplinary Counsel assigned to the district office shall promptly [report the district office disposition of the matter to the Chief Disciplinary Counsel by means of] complete the appropriate form specified in subsection (c). The action taken or disposition recommended shall be one of the following:
(1) Dismissal for lack of jurisdiction.
(2) Dismissal because frivolous.
(3) Dismissal on the basis of prosecutorial discretion.
(4) Dismissal on the basis of Board policy.
(5) Dismissal for any other reason.
[(4)](6) Conditional or unconditional informal admonition or private reprimand. An informal admonition or private reprimand shall be administered in those cases in which a violation of § 85.7 (relating to grounds for discipline) is found, but which is determined to be of insufficient gravity to warrant prosecution of formal charges.
[(5)](7) Prosecution of formal charges before a hearing committee or special master.
(c) Selection of form. Action under subsection (b)(1) [or], (2), (3), (4) or (5) of this section may be [taken] recommended by the assigned Assistant Disciplinary Counsel[-in-charge] and taken with the written concurrence of [any other] the Assistant Disciplinary Counsel-in-Charge, any other Assistant Disciplinary Counsel designated to serve in his or her absence or unavailability, the Chief Disciplinary Counsel, or an Assistant Disciplinary Counsel designated by the Chief Disciplinary Counsel to review such recommendations. In such cases the district office shall prepare and attach to the file Form DB-4 (Final Disposition of Complaint). In other cases where disposition under subsection (b)(1) [or], (2), (3), (4) or (5) may be appropriate, the assigned Assistant Disciplinary Counsel[-in-charge] shall prepare a Form DB-5 (Recommendation on Final Disposition of Complaint) and forward such form and the related file to Chief Disciplinary Counsel or his or her designee for review and action. In all other cases, Assistant Disciplinary Counsel shall prepare and attach to the file Form DB-3 (Referral of Complaint to Reviewing Hearing Committee Member).
§ 87.9. Office of Disciplinary Counsel action.
(a) [Frivolous or no jurisdiction] Dismissal of the complaint.If the district office or Chief Disciplinary Counsel or his or her designee, determines that the complaint should be dismissed under § 87.8(b)(1) [or], (2), (3), (4) or (5) (relating to district office action or recommendation), the Office of Disciplinary Counsel shall notify the complainant of such disposition by [means of Form DB-33 (Notice of Dismissal of Complaint)] letter and close the file on the matter. Wherever possible [in cases of lack of jurisdiction], the Office of Disciplinary Counsel shall advise the complainant that he or she may bring the matter to the attention of the authorities of the appropriate jurisdiction, to another agency or jurisdiction that has disciplinary authority over the respondent-attorney, to any fee disputes committee which may have been established for the county involved, to a criminal prosecution agency, or to any other duly constituted body which may be able to provide forum for the consideration of the grievance. Where the respondent-attorney has been previously notified of the pendency of the complaint by means of Form DB-7 (Request for Statement of Respondent's Position) or otherwise, the Office of Disciplinary Counsel shall[,] notify the respondent-attorney of the dismissal and may [in any other case,] transmit a copy of [Form DB-33] the dismissal letter to the respondent-attorney.
(b) Other cases. In all other cases the Office of Disciplinary Counsel shall forward to the Office of the Secretary [Form DB-32 (Request] a request for the [Designation] assignment of a Reviewing Hearing Committee Member[)].
(c) Review of dismissed complaints. The Office of Disciplinary Counsel will review complaints dismissed under subsection (a) of this section upon request of the complainant. The request shall be in writing and submitted to the Assistant Disciplinary Counsel-in-Charge of the district office that dismissed the complaint. The request should specify the reason or reasons why Office of Disciplinary Counsel should reopen the investigation under § 87.6 and include any evidence that was not previously brought to the attention of Disciplinary Counsel. The Assistant Disciplinary Counsel-in-Charge or designated Assistant Disciplinary Counsel who concurred in the recommendation to dismiss the complaint pursuant to § 87.8(c) shall conduct the review and notify the complainant in writing of the decision to grant or deny the request. Where the request is denied by the Assistant Disciplinary Counsel-in-Charge, the complainant may direct a written request for further review to the Chief Disciplinary Counsel or his or her designee. The decision of the Chief Disciplinary Counsel or the designee shall be final for purposes of this subsection.
(d) No right to appeal. A complainant shall have no right to appeal the dismissal or any other disposition of a complaint under § 87.8 (relating to district office action or recommendation) or a final decision under paragraph (c) of this subsection to deny a request to reopen the investigation.
Subpart D. ABATEMENT OF INVESTIGATION § 87.73. Resignation by attorneys under disciplinary investigation.
* * * * * (d) Confidentiality of resignation statement. Enforcement Rule 215(c) provides that the order disbarring the attorney on consent shall be a matter of public record; and that, if the statement required by subsection (a) is submitted before the filing and service of a petition for discipline and the filing of an answer or the time to file an answer has expired, the statement shall not be publicly disclosed or made available for use in any proceeding other than a subsequent reinstatement proceeding except:
* * * * * (3) upon a request of another jurisdiction for purposes of a reciprocal disciplinary proceeding, [or]
(4) upon a request by the Pennsylvania Client Security Fund Board pursuant to Enforcement Rule 521(a) (relating to cooperation with Disciplinary Board)[.], or
(5) when the resignation is based on an order of temporary suspension from the practice of law entered by the Court either pursuant to Enforcement Rule 208(f)(1) (relating to emergency temporary suspension orders and related relief) or pursuant to Enforcement Rule 214 (relating to attorneys convicted of crimes).
CHAPTER 91. MISCELLANEOUS MATTERS
Subchapter H. FUNDS OF CLIENTS AND THIRD PERSONS; MANDATORY OVERDRAFT NOTIFICATION Sec.
91.171. Definitions 91.172. Maintenance of fiduciary accounts. 91.173. Approval and termination of [financial institutions] Eligible Institutions. 91.174. Reports of overdrafts. 91.175. Fiduciary accounts. 91.176. Rules for determining reporting obligation. 91.177. Required records. § 91.171. Definitions.
The following terms when used in this subchapter shall have the meanings given to them in this section:
[''Financial institution.'' Enforcement Rule 221(e) provides that the term ''financial institution'' includes savings and loan associations, credit unions, saving banks and any other business which accepts for deposit funds held in trust by attorneys.
Trust Account.'' Enforcement Rule 221(a) provides that a Trust Account of an attorney is an account in which an attorney, in accordance with Rule 1.15 of the Pennsylvania Rules of Professional Conduct, deposits funds received from a client or a third person in connection with a client-lawyer relationship, excluding funds which the attorney receives while acting as fiduciary for an estate, trust, guardianship or conservatorship.]
Eligible Institution. An Eligible Institution is a Financial Institution which has been approved as a depository of Trust Accounts pursuant to section (h), infra.
Financial Institution. A Financial Institution is an entity which is authorized by federal or state law and licensed to do business in the Commonwealth of Pennsylvania as one of the following: a bank, bank and trust company, trust company, credit union, savings bank, savings and loan association or foreign banking corporation, the deposits of which are insured by an agency of the Federal government, or as an investment adviser registered under the Investment Advisers Act of 1940 or with the Pennsylvania Securities Commission, an investment company registered under the Investment Company Act of 1940, or a broker dealer registered under the Securities Exchange Act of 1934.
Fiduciary Funds. Fiduciary Funds are Rule 1.15 Funds which an attorney holds as a Fiduciary, as defined in Rule 1.15(a)(2) of the Pennsylvania Rules of Professional Conduct. Fiduciary Funds may be either Qualified Funds or Non-Qualified Funds.
Rule 1.15 Funds. Rule 1.15 Funds are funds which an attorney receives from a client or third person in connection with a client-lawyer relationship, or as an escrow agent, settlement agent or representative payee, or as a Fiduciary, or receives as an agent, having been designated as such by a client or having been so selected as a result of a client-lawyer relationship or the attorney's status as such. When the term ''property'' appears with ''Rule 1.15 Funds,'' it means property of a client or third person which the attorney receives in any of the foregoing capacities.
Trust Account. A Trust Account is an account in an Eligible Institution in which an attorney holds Rule 1.15 Funds. A Trust Account must be maintained either as an IOLTA Account or as a Non-IOLTA Account, as defined in Rule 1.15(a)(5) and (7) of the Pennsylvania Rules of Professional Conduct.
§ 91.172. Maintenance of fiduciary accounts.
Enforcement Rule 221(b) provides that a Trust Account may be maintained only in [a financial institution] an Eligible Institution approved by the Supreme Court of Pennsylvania for the maintenance of such accounts.
§ 91.173. Approval and termination of [financial institutions] Eligible Institutions.
(a) Approval. Enforcement Rule 221[(c)] (h) provides that [a financial institution] an Eligible Institution shall be approved as a depository for Trust Accounts if it shall file with the Board an agreement (in a form provided by the Board) in which the [financial institution] Eligible Institution agrees to make a prompt report to the Lawyers Fund for Client Security Board under the circumstances described in § 91.174 (relating to reports of overdrafts). Upon receiving a signed agreement from [a financial institution] an Eligible Institution as required by this subsection, the Board shall report that fact to the Supreme Court with a recommendation that the Court enter an order approving the [financial institution] Eligible Institution as a depository for Trust Accounts.
(b) Termination of approval. Enforcement Rule 221[(m)] (k) provides that a failure on the part of [a financial institution] an Eligible Institution to make a report called for by this subchapter may be cause for termination of its approval by the Supreme Court, but such failure shall not, absent gross negligence, give rise to a cause of action by any person who is proximately caused harm thereby. Upon learning that a financial institution has failed to make a report called for by this subchapter, the Board shall report that fact to the Supreme Court with a recommendation that the Court enter an order terminating the approval of the financial institution as a depository for Trust Accounts.
(c) List of approved [financial institutions] Eligible Institutions. The Board will periodically publish in the Pennsylvania Bulletin a list of [financial institutions] Eligible Institutions that are approved at the time as depositories for Trust Accounts under this subchapter. The current list shall also be published in the Pennsylvania Code as an appendix to this section.
§ 91.174. Reports of overdrafts.
(a) General rule. Enforcement Rule 221[(c)] (h) provides that [a financial institution] an Eligible Institution shall report to the Lawyers Fund for Client Security Board whenever any check or similar instrument is presented against a Trust Account when such account contains insufficient funds to pay the instrument, regardless of:
(1) whether the instrument is honored; or
(2) whether funds are subsequently deposited that cover the overdraft or the dishonored instrument is made good.
(b) Timing of report. Enforcement Rule 221[(r)] (p) provides that the report required to be made under this subchapter shall be made by the [financial institution] Eligible Institution to the Lawyers Fund for Client Security Board within five business days of the presentation of the instrument.
(c) Handling of report. Enforcement Rule 221[(q)] (o) provides that a designated representative of the Lawyers Fund for Client Security Board shall conduct a preliminary inquiry regarding the report and shall, where appropriate, refer the matter to the Office of Disciplinary Counsel for further investigation.
(d) Effect of report or referral. Enforcement Rule 221[(k)] (o) also provides that neither a report filed with the Lawyers Fund for Client Security Board pursuant to this subchapter nor a referral of such report to the Office of Disciplinary Counsel shall, in and of itself, be considered a disciplinary complaint.
(e) Immunity. Enforcement Rule 221[(n)] (l) provides that [financial institutions] Eligible Institutions shall be immune from suit for the filing of any reports required by this subchapter or believed in good faith to be required by this subchapter. See § 91.173(b) (relating to termination of approval).
§ 91.175. Fiduciary accounts.
(a) Identification. Enforcement Rule 221[(f)] (d) provides that the responsibility for identifying an account as a Trust Account shall be that of the attorney in whose name the account is held.
(b) Service charge. Enforcement Rule 221[(o)] (m) provides that [a financial institution] an Eligible Institution shall be free to impose a reasonable service charge upon the attorney in whose name the account is held for the filing of the report required by this subchapter.
§ 91.176. Rules for determining reporting obligation.
For purposes of this subchapter:
(1) Enforcement Rule 221[(d)] (i)(1) provides that a Trust Account shall not be deemed to contain insufficient funds to pay a check or similar instrument solely because it contains insufficient collected funds to pay the instrument, and no report shall be required in the case of an instrument presented against uncollected or partially uncollected funds. This provision shall not be deemed an endorsement of the practice of drawing checks against uncollected funds.
(2) Enforcement Rule 221[(j)] (i)(2) provides that funds deposited in an account prior to the close of business on the calendar date of presentation of an instrument shall be considered to be in the account at the close of business on that date notwithstanding the [financial institution's] Eligible Institution's treatment of such funds, for other purposes, as being received at the opening of the next banking day pursuant to 13 Pa.C.S. § 4108(b) (relating to items or deposits received after cutoff hour).
(3) Enforcement Rule 221[(k)] (i)(3) provides that a check or draft against a Trust Account shall be deemed to be presented at the close of business on the date of presentation.
(4) Enforcement Rule 221[(l)] (j) provides that no report need be made when [a financial institution] the Eligible Institution determines that an instrument presented against insufficient funds had been issued in reliance on a deposited instrument that was ultimately dishonored. This provision shall not be deemed an endorsement of the practice of drawing checks against uncollected funds.
§ 91.177. Required records
(a) In general. Enforcement Rule 221[(g)] (e) provides that an attorney shall maintain the following books and records [shall be maintained] for each Trust Account and for any other account in which Rule 1.15 Funds are held:
(1) [bank statements and check registers (which shall include the payee, date, amount and the client matter involved);
(2)] all transaction records [returned] provided to the attorney by the [financial institution] Eligible Institution, [including] such as periodic statements, canceled checks in whatever form, deposited items and records of electronic transactions; and
[(3) records of deposits and a ledger separately listing each deposited item and the client or third person for whom the deposit is being made.]
(2) check register or separately maintained ledger, which shall include the payee, date and amount of each check, withdrawal and transfer, the payor, date, and amount of each deposit, and the matter involved for each transaction.
(b) Form. Enforcement Rule 221[(h)] (f) provides that the records required by this rule may be maintained in electronic or [other form if they can be retrieved in printed] hard copy form[; and that electronic records must be regularly backed up by an appropriate storage device]. If records are kept only in electronic form, then such records shall be backed up at least monthly on a separate electronic storage device.
(c) Availability. Enforcement Rule 221[(i)] (g) provides that the records required by this rule may be subject to subpoena and must be produced in connection with an investigation or hearing pursuant to these rules; and that failure to produce such records may result in the initiation of proceedings pursuant to § 91.151 (relating to emergency temporary suspension orders and related relief), which permits disciplinary counsel to commence a proceeding for the temporary suspension of a respondent-attorney who refuses to comply with a valid subpoena.
CHAPTER 93. ORGANIZATION AND ADMINISTRATION
Subchapter B. THE DISCIPLINARY BOARD § 93.21. The Disciplinary Board.
Enforcement Rule 205(a) and (b) provide that the Supreme Court shall appoint a board to be known as ''The Disciplinary Board of the Supreme Court of Pennsylvania'' which shall be composed of [14] 12 members of the bar of this Commonwealth and two non-lawyer electors; that the regular terms of members of the Board shall be for three years; that no member shall serve for more than two consecutive three-year terms [and that the terms of one-third of the members of the Board, as nearly as may be, shall expire on April 1 of each year].
Subchapter F. CONFIDENTIALITY § 93.102. Access to disciplinary information and confidentiality.
* * * * * (c) Exceptions to initial confidentiality. Enforcement Rule 402(c) provides that, until the proceedings are open under subsection (a) or (b), all proceedings involving allegations of misconduct by or disability of an attorney shall be kept confidential unless:
* * * * * (3) the proceeding is based on an order of temporary suspension from the practice of law entered by the Court pursuant to Enforcement Rule 208(f)(1) (relating to emergency temporary suspension orders and related relief),
[(3)] (4) in matters involving alleged disability, the Supreme Court enters its order transferring the respondent-attorney to inactive status pursuant to Chapter 91 Subchapter D (relating to disability), or
[(4)] (5) there is a need to notify another person or organization, including the Lawyers' Fund for Client Security, in order to protect the public, the administration of justice, or the legal profession.
* * * * * § 93.104. Access by judicial system agencies to confidential information.
* * * * * (c) Exception to required notice to respondent-attorney. Enforcement Rule 402(h) provides that, if an agency or board requesting the release of information under subsection (a) other than the Judicial Conduct Board and the Pennsylvania Lawyers Fund for Client Security Board has not obtained an applicable waiver of confidentiality from the respondent-attorney, and the agency or board requests that the information be released without giving notice to the respondent-attorney, the requesting agency or board shall certify that:
* * * * *
Subchapter G. FINANCIAL MATTERS
ANNUAL ASSESSMENT [OR] ATTORNEY'S § 93.141. Annual assessment
(a) General rule. Enforcement Rule 219(a) provides that 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 under such rule of [$130.00] $140.00; that the annual fee shall be collected under the supervision of the Administrative Office, which shall send and receive, or cause to be sent and received, the notices and statements provided for in this subchapter, and that the fee shall be used to defray the costs of disciplinary administration and enforcement under the Enforcement Rules, and for such other purposes as the Board shall, with the approval of the Supreme Court, from time to time determine.
* * * * *
[Pa.B. Doc. No. 09-975. Filed for public inspection May 29, 2009, 9:00 a.m.]
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