THE COURTS
Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CHS. 85, 89, 91 AND 93 ]
Amendments to Rules of Organization and Procedure of The Disciplinary Board of The Supreme Court of Pennsylvania
[39 Pa.B. 4725]
[Saturday, August 8, 2009]
Order No. 69 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 March 26, 2009 and April 16, 2009, the Supreme Court of Pennsylvania amended Pa.R.D.E. 321, 322, 324, 325, 327, 328, 102, 201, 204, 205, 217, 218 and 219, respectively. 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 85. GENERAL PROVISIONS § 85.2. Definitions.
(a) Subject to additional definitions contained in subsequent provisions of this subpart which are applicable to specific chapters, subchapters or other provisions of this subpart, the following words and phrases, when used in the subpart shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
* * * * * 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.
* * * * * § 85.3. Jurisdiction.
(a) General rule. Enforcement Rule 201(a) provides that the exclusive disciplinary jurisdiction of the Supreme Court and the Board under the Enforcement 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, the Enforcement Rules or these rules.
* * * * * § 85.8. Types of discipline.
* * * * * (c) Limited In-House Corporate Counsel License. Enforcement Rule 204(c) provides that a reference in the Enforcement Rules and 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; and that a respondent-attorney whose Limited In-House Corporate Counsel License expires for any reason:
* * * * *
CHAPTER 89. FORMAL PROCEEDINGS
Subchapter C. HEARING PROCEDURES
ABBREVIATED PROCEDURE § 89.181. Abbreviated procedure.
(a) Scope. Experience has shown that frequently at the conclusion of the hearings it obvious to all participants that no showing of misconduct has been made or there has been adequate proof of a violation of § 85.7 (relating to grounds for discipline) and that some form of private discipline would be appropriate. In such circumstances the cost and delay of the preparation of a formal transcript is unnecessary and the preparation of a detailed report as provided by § 89.172 (relating to contents of report) is an unnecessary and time-consuming burden on the hearing committee and others. Where the participants can stipulate to an acceptable determination the procedures of this section minimize cost, effort and time for all participants. This section may be applicable to combined reinstatement and disciplinary hearings conducted before a hearing committee pursuant to § 89.273(b)(4) (relating to combined hearings in reinstatement matters where formal disciplinary proceedings are then pending or have been authorized against the formerly admitted attorney).
* * * * *
Subchapter F. REINSTATEMENT AND RESUMPTION OF PRACTICE
REINSTATEMENT OF FORMERLY ADMITTED ATTORNEYS § 89.271. Reinstatement only by Court order.
Enforcement Rule 218(a) provides that [no attorney suspended for a period exceeding one year, transferred to inactive status 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 the Enforcement Rules.] an attorney may not resume practice until reinstated by order of the Supreme Court after petition pursuant to Rule 218 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.
* * * * * § 89.273. Procedures for reinstatement.
(a) [General rule.] Enforcement Rule 218(c) [and (d) provide] provides that 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.
Official Note: The Board will not treat a petition for reinstatement as properly filed for purposes of commencing the procedures set forth in this section unless and until the petition is accompanied by a completed reinstatement questionnaire as required by § 89.275 (relating to completion of questionnaire by [respondent-attorney] petitioner-attorney).
(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 appointed by the Office of the Secretary pursuant to § 93.81(c) (relating to hearing committees) 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. 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.]
Official Note: The requirement that a hearing be scheduled ''promptly'' means that a hearing should ordinarily be held within 60 days after the response to the petition for reinstatement has been filed with the Board, unless the [chairman] chair of the hearing committee extends that time for good cause shown.
* * * * * (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 (see § 89.27 (relating to service upon 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 Enforcement Rule 218 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 subsection (a).
(8) In all proceedings upon a petition for reinstatement, cross-examination of the respondent-attorney and witnesses of respondent-attorney and the submission of evidence, if any, in opposition to the petition shall be conducted by Disciplinary Counsel.]
(b) Enforcement Rule 218(d) provides that 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 subsection (3) if the petition were to proceed to hearing under (4).
Official Note: If Disciplinary Counsel objects to reinstatement of the formerly admitted attorney under (b)(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 (b)(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 subsection (b). 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 paragraphs (a)(5) and (a)(6) of this section.
(6) Upon receipt of a certification filed by Disciplinary Counsel under paragraph (b)(2)(ii) of this section, 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 paragraph (b)(4) of this section.
(7) 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; the Chief Justice may delegate the processing and entry of orders under this paragraph (b)(7) to the Prothonotary.
(c) Enforcement Rule 218(e) provides that in all proceedings upon a petition for reinstatement, cross-examination of the petitioner-attorney's witnesses and the submission of evidence, if any, in opposition to the petition shall be conducted by Disciplinary Counsel.
[(b)] (d) Attorneys suspended for less than one year. Enforcement Rule [218(f)] 218(g) provides that:
* * * * * (2) Paragraph (1) of this subsection 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
* * * * * [(c)] (e) Attorneys on inactive status, retired status or administrative suspension for [less than three years] three years or less. Enforcement Rule [218(g)] 218(h) provides that attorneys who have been on inactive status, retired status or administrative suspension for three years or less may be reinstated pursuant to § 93.145 (relating to [reinstatement] administratively suspended attorneys) [or], § 93.146[(b)] (relating to [reactivation)] voluntarily retired or inactive attorneys), and § 93.112(c) (relating to reinstatement upon payment of taxed costs), as [appropriate] applicable. This subsection [(c)] (e) does not apply to any attorney who has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct.
§ 89.274. Notice of reinstatement proceedings.
(a) General rule. The Office of the Secretary shall forward a copy of the petition for reinstatement and Form DB-30 (Reference for Reinstatement Hearing) to:
* * * * * (4) The [president] executive director of the bar association of the county in which such attorney practiced.
* * * * * (b) Publication of notice. The Office of the Secretary shall cause a notice to be published in the legal journal and a newspaper of general circulation in the county in which the formerly admitted attorney practiced and in each county in Pennsylvania in which the formerly admitted attorney has resided since being disbarred[,] or suspended [or transferred to inactive status] for disciplinary reasons. The notice shall state and be confined to:
* * * * * § 89.275. Completion of questionnaire by [respondent-attorney] petitioner-attorney.
(a) General rule. If the petition for reinstatement does not have attached thereto a fully completed Form DB-36 (Reinstatement Questionnaire), the Office of the Secretary shall forward to the formerly admitted attorney four copies of Form DB-36 which shall require such attorney to set forth fully and accurately the following information and such other information as the Office of Disciplinary Counsel may require:
(1) Name, address, age and residence of the [respondent-attorney] petitioner-attorney.
(2) Name, address, age, residence, number and relationship of dependents of the [respondent-attorney] petitioner-attorney.
(3) If the formerly admitted attorney was disbarred or suspended for disciplinary reasons, the offense or misconduct upon which the disbarment or suspension was based, together with the date of the disbarment or suspension order and the caption and docket number of the proceeding in which entered. A certified copy of the disbarment[,] or suspension [or transfer to inactive status] order shall be attached to the questionnaire.
(4) The names and addresses of all complaining witnesses in any proceedings which resulted in disbarment or suspension and the names of:
(i) the hearing committee of the Board[, or the local grievance committee, committee of censors or other similar body existing prior to the establishment of the Board,] which heard the evidence in the disciplinary proceedings; and
(ii) the trial judge and prosecuting attorney, if disbarment or suspension was based on conviction of a crime.
(5) The nature in detail of the occupation of the [respondent-attorney] petitioner-attorney during the period of disbarment, suspension, administrative suspension, retired status or inactive status, with names of all partners, associates in business, and employers, if any, and dates and duration of all such business relationships and employments.
(6) A statement showing the approximate monthly earnings and other income of the [respondent-attorney] petitioner-attorney, and the sources from which all such earnings and income were derived during such period, or during the ten years preceding the filing of the petition for reinstatement, whichever is less.
(7) A statement showing all residences maintained by the [respondent-attorney] petitioner-attorney during the ten years preceding the filing of the petition for reinstatement, with the names and addresses of landlords, if any. The statement shall also indicate the county in which any such residence in Pennsylvania is located.
(8) A statement showing all financial obligations of the [respondent-attorney] petitioner-attorney at the date of the filing of the petition, together with the dates when such obligations were incurred and the names and addresses of all creditors.
(9) A statement showing the dates, general nature and final disposition of every civil action during the period of disbarment, suspension, administrative suspension, retired status or inactive status wherein the [respondent-attorney] petitioner-attorney was either a party plaintiff or defendant or in which such attorney had or claimed an interest, together with dates of filing of complaints, titles of courts and causes and the names and addresses of all parties plaintiff and defendant, names and addresses of attorneys for said parties and of the trial judge, or judges, and names and addresses of all witnesses who testified in such actions.
(10) A statement showing the dates, general nature and ultimate disposition of every matter involving the arrest or prosecution of the [respondent-attorney] petitioner-attorney during the period of disbarment, suspension, administrative suspension, retired status or inactive status for any crime, whether felony or misdemeanor, together with the names and addresses of complaining witnesses, prosecutors and trial judges.
(11) A statement as to whether or not any applications were made during such period for a license requiring proof of good character for its procurement; and as to each such application, the dates, the names and address of the authority to whom it was addressed and the disposition thereof.
(12) A statement of any procedure of inquiry, during said period, concerning the standing of the [respondent-attorney] petitioner-attorney as a member of any profession or organization, or holder of any license or office, which involved the censure, removal, suspension, revocation of license, or discipline of the [respondent-attorney] petitioner-attorney; and as to each, the dates, facts, and the disposition thereof, and the names and address of the authority in possession of the record thereof.
(13) A statement as to whether or not any charges of fraud were made, or claimed, against the [respondent-attorney] petitioner-attorney during the period of disbarment, suspension, administrative suspension, retired status or inactive status, whether formal or informal, together with the dates and names and addresses of persons making such charges.
(14) A statement of any financial or other action taken by the [respondent-attorney] petitioner-attorney in the nature of restitution or other appropriate relief.
(15) If the [respondent-attorney] petitioner-attorney has been disbarred or suspended for more than one year or has been on administrative suspension, retired status or inactive status for more than three years, a statement of the dates, locations and names of the courses or lectures taken in satisfaction of the requirements of § 89.279 (relating to evidence of competency and learning in law).
[Official Note: For purposes of allowing the Office of Disciplinary Counsel to begin its investigation of the petition for reinstatement, the Office of the Secretary will accept a preliminary questionnaire that lists courses or lectures that the respondent-attorney is registered to take in the future if proof of that registration, such as receipted bills or canceled checks, is attached to the questionnaire. The questionnaire, however, will not be considered completed and properly filed for purposes of commencing the running of the time periods in § 89.273 (relating to procedures for reinstatement) until the respondent-attorney has actually attended those courses or lectures.]
* * * * * § 89.276. Procedures before the Board.
The provisions of these rules applicable to formal proceedings shall govern the procedure for hearings before one or more hearing [committees and] committee members and subsequent review by the Board upon petitions for reinstatement.
§ 89.277. Abbreviated reinstatement procedure.
(a) Scope. This section is applicable to formal proceedings for reinstatement of formerly admitted attorneys who have been on administrative suspension, retired status or inactive status and who have never been suspended for disciplinary reasons or disbarred. See § 89.273(b)(4) (relating to hearing before a single senior or experienced hearing committee member). This section shall not be available at any hearing conducted after review by a designated Board Member pursuant to § 89.273(b)(6)(i) (relating to hearing scheduled at the direction of the designated Board Member).
(b) General rule. The formerly admitted attorney and staff counsel in the manner provided by subsection (c) of this section, may agree to waive the preparation of a transcript and the filing of formal findings and recommendations. In such situations, unless the Board directs otherwise, the hearing committee member may submit to the Board a summary determination of the hearing committee member.
(c) Procedures.
(1) Immediately after the conclusion of the hearing the hearing committee member shall, if practicable and if neither the formerly admitted attorney nor staff counsel object thereto, [temporarily recess the proceedings and] determine [in private] the findings and recommendations of the hearing committee member.
(2) The hearing committee member shall [immediately reconvene the proceedings and] deliver to the participants Form DB-46 (Hearing Committee Determination Under Abbreviated Reinstatement Procedure) setting forth in summary the findings and recommendations of the hearing committee member. The official reporter shall be directed by the hearing committee member not to prepare a transcript until receipt from the hearing committee member of specific instructions to do so.
(3) The participants shall be conclusively deemed to have accepted and to have stipulated that the Board shall recommend to the Supreme Court the findings and recommendations of the hearing committee member unless either the formerly admitted attorney or staff counsel shall, within five days after receipt of the Form DB-46 as provided in paragraph (2) of this subsection, file a copy of such Form DB-46 with objections to the findings and recommendations [to] of the hearing committee [indicated thereon] member.
(4) If a timely objection is made as provided in paragraph (3) of this subsection the participants may file briefs, the official reporter shall be directed to prepare a transcript and the hearing committee member shall submit to the Board formal findings and recommendations in the manner and within the time otherwise provided by these rules.
(5) If no timely objection is made no briefs shall be filed, no formal findings and recommendations shall be prepared by the hearing committee member and the official reporter shall not prepare a transcript. The hearing committee member shall, however, prepare and file a brief summary of the case, in the form of a letter to the Board, which summary ordinarily should not exceed two pages in length, and the record of the proceedings shall forthwith be transmitted to the Office of the Secretary which shall serve upon the formerly admitted attorney and staff counsel copies of the brief summary of the case filed by the hearing committee member.
(6) Thereafter the Board shall either:
(i) recommend to the Supreme Court the disposition stipulated by the participants; or
(ii) remand the record to the hearing committee member with instructions to fix a briefing schedule and to proceed as provided in paragraph (4) of this subsection, if for any reason the disposition stipulated by the parties is not accepted by the Board.
* * * * * § 89.278. Expenses of reinstatement proceedings.
Enforcement Rule [218(e)] 218(f) provides that 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; and the annual fee required by Enforcement Rule 219(a) and the reinstatement fee, if applicable, shall be paid to the Attorney Registration Office after the Supreme Court order is entered.
§ 89.279. Evidence of competency and learning in law.
(a) General rule. Except as provided in subsection (b), in order to permit the Board to determine under Enforcement Rule 218 (relating to reinstatement) whether a formerly admitted attorney who has been disbarred or suspended for more than one year or who has been on administrative suspension, retired status or inactive status for more than three years possesses the competency and learning in the law required for reinstatement to practice in this Commonwealth, such a formerly admitted attorney shall within one year preceding the filing of the petition for reinstatement take [(and prior to hearing on the petition, complete)] courses meeting the requirements of the current schedule published by the Office of the Secretary under subsection (c).
(b) Exceptions.
(1) If a formerly admitted attorney has passed the Pennsylvania Bar Examination subsequent to entry of the order of suspension [or], disbarment or administrative suspension, or assumption of retired or inactive status and within one year preceding the filing of the petition for reinstatement [(and prior to hearing on the petition)], the formerly admitted attorney shall be conclusively deemed to have proven that he or she has the competency and learning in law required under Enforcement Rule 218.
(2) The [Chairman] Chair of the Board may waive the requirements of subsection (a) for good cause shown in the case of a formerly admitted attorney who has been on administrative suspension, retired status or inactive status for more than three years.
(c) Publication of schedule. [At least annually the] The Office of the Secretary shall publish in the Pennsylvania Bulletin a schedule of the minimum amount, type and subjects of continuing legal education courses that will satisfy the requirements of subsection (a).
* * * * * § 89.280. Notice of reinstatement.
(a) Publication of notice. Enforcement Rule [218(h)] 218(i) provides that the Board may cause a notice of a reinstatement to be published in one or more appropriate legal journals and newspapers of general circulation.
(b) Transmission of notice to local president judge. Enforcement Rule [218(i)] 218(j) provides that 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 of the Supreme Court under § 93.145(a)(2) (relating to reinstatement of an attorney who has been administratively suspended for three years or less) or § 93.112(c) (relating to reinstatement upon payment of taxed costs); or
(2) any other order of reinstatement entered under these rules.
RESUMPTION OF PRACTICE § 89.285. Resumption of practice by justices and judges.
(a) General rule. Enforcement Rule [219(m)] 219(n) provides that 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.
(b) Notice. Enforcement Rule [219(m)] 219(n) further provides that the notice shall:
(i) describe:
([(a)]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)]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;
* * * * *
CHAPTER 91. MISCELLANEOUS MATTERS
Subchapter E. FORMERLY ADMITTED ATTORNEYS § 91.91. Notification of clients in nonlitigation matters.
(a) General rule. Enforcement Rule 217(a) provides that 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 such clients to seek legal advice elsewhere. Such notices shall be in substantially the language of Form DB-23 (Nonlitigation Notice of Disbarment, Suspension, Administrative Suspension or Transfer to Inactive Status).
* * * * * § 91.92. Notification of clients in litigation matters.
(a) General rule. Enforcement Rule 217(b) provides that 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. Such rule further provides that 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; that 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; and that 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. Such notices shall be in substantially the language of Form DB-24 (Litigation Notice of Disbarment, Suspension, Administrative Suspension or Transfer to Inactive Status).
* * * * * § 91.93. Notification of other persons.
(a) General rule. Enforcement Rule 217(c) provides that 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.
(b) Responsibility to provide notice. Enforcement Rule 217(c) further provides that the responsibility of the formerly admitted attorney to provide the notice required by this section shall continue for as long as the formerly admitted attorney is disbarred, suspended, administrative suspension or on inactive status.
§ 91.94. Effective date of suspension, disbarment, administrative suspension or transfer to inactive status.
Enforcement Rule 217(d) provides that orders imposing suspension, disbarment, administrative suspension or transfer to inactive status shall be effective 30 days after entry; that 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; but that, during the period from the entry date of the order to 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.
§ 91.95. Proof of Compliance.
(a) General rule. Enforcement Rule 217(e) provides that 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 (Form DB-25) (Statement of Compliance) showing:
* * * * * § 91.96. Publication of notice of suspension, disbarment, administrative suspension or transfer to inactive status.
Enforcement Rule 217(f) provides that the Board shall cause a notice of the suspension, disbarment, administrative suspension or transfer to inactive status [(Form DB-26) (Notice of Suspension, Disbarment 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. If there is no such legal journal, the notice shall be published in the legal journal of an adjoining county. Upon entry of an order imposing suspension, disbarment, administrative suspension or transfer to inactive status, such notice shall be published forthwith and shall be transmitted to such courts as may be appropriate.
§ 91.97. Action to protect clients of formerly admitted attorney.
Enforcement Rule 217(g) provides that 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; and that 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.
§ 91.98. Maintenance of records.
(a) General rule. Enforcement Rule 217(i) provides that a formerly admitted attorney shall keep and maintain records of the various steps taken by such person under the Enforcement Rules so that, upon any subsequent proceeding instituted by or against such person, proof of compliance with the Enforcement Rules and with the disbarment, suspension, administrative suspension or transfer to inactive status order will be available; and that proof of compliance with the Enforcement Rules shall be a condition precedent to any petition for reinstatement.
* * * * * § 91.99. Indicia of licensure.
Enforcement Rule 217(h) provides that 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 § 93.143 (relating to issue of certificate as evidence of compliance) 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 § 93.143, 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.
Subchapter F. PROTECTION OF THE INTERESTS OF CLIENTS § 91.121. Appointment of conservator to protect interests of clients of absent attorney.
(a) General rule. Enforcement Rule 321(a) provides that upon application of Disciplinary Counsel or any other interested person with the written concurrence of Disciplinary Counsel, 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; and
(2) [[Reserved];] any of the following applies:
(i) the attorney is made the subject of an order under § 91.151 (relating to emergency interim suspension orders and related relief); or
(ii) the president judge of the court of common pleas pursuant to § 91.97 (relating to action to protect clients of formerly admitted attorneys) by order directs Disciplinary Counsel to file an application under Enforcement Rule 321; or
(iii) the attorney abandons his or her practice, disappears, dies or is transferred to inactive status because of incapacity or disability[, or disappears or dies]; and
(3) no partner or other responsible successor to the practice of the attorney is known to exist.
* * * * * (c) Hearing. Enforcement Rule 321(c) and (d) provide that 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; that 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; that 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[,]; that the order shall contain findings of fact and a statement of the grounds upon which the order is based[,]; and that if no appearance has been entered on behalf of the absent attorney, a copy of the order shall be served upon the absent attorney in the manner prescribed by subsection (b) of this section.
(d) Qualifications of conservator. Enforcement Rule 321(e) provides that the conservator or conservators shall be appointed by the president judge, from among members of the bar of this Commonwealth [who], subject to the following:
(1) non-disciplinary counsel conservators:
[(1)] (i) [are not representing] shall not represent any party who is adverse to any known client of the absent attorney; and
[(2)] (ii) shall have no adverse interest or relationship with the absent attorney or his or her estate.
(e) Tolling of limitation times. Enforcement Rule 321(f) provides that the filing by Disciplinary Counsel or any other interested person of an application for the appointment of a conservator under the Enforcement 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 magisterial district court of this Commonwealth 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 magisterial district court within 30 days after executing a receipt for the file relating to the matter.
(f) Enforcement Rule 321(g) provides that 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 court 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 court or other government unit in which a matter is pending is notified that substitute counsel has been retained.
(g) Enforcement Rule 321(h) provides that as used in this section, the term ''government unit'' has the meaning set forth in 42 Pa.C.S. § 102 (relating to definitions).
§ 91.122. Duties of conservator.
(a) General rule. Enforcement Rule 322(a)--(c) provides that:
* * * * * [(3) The conservator shall send written notice to all clients of the absent attorney of the fact of the appointment of a conservator, the grounds which required such appointment, and the possible need of the clients to obtain substitute counsel; that all such notices shall include the name, address and telephone number of any lawyer referral service or similar agency available to assist in the location of substitute counsel; that the conservator shall, if necessary, send a second written notice to all clients of the absent attorney whose files appear to be active; that a file may be returned to a client upon the execution of a written receipt, or released to substitute counsel upon the request of the client and execution of a written receipt by such counsel; that the conservator shall deliver all such receipts to the appointing court at the time of filing the application for discharge; and that on approval by the appointing court of the application for discharge, all files remaining in the possession of the conservator shall be destroyed by the conservator in a secure manner which protects the confidentiality of the files.]
(3) The conservator shall make a reasonable effort to identify all clients of the absent attorney whose files were opened within five (5) years of the appointment of the conservator, regardless of whether the case is active or not, and a reasonable effort to identify all clients whose cases are active, regardless of the age of the file. The conservator shall send all such clients, and former clients, written notice of the appointment of a conservator, the grounds which required such appointment, and the possible need of the clients to obtain substitute counsel. All such notices shall include the name, address and telephone number of any lawyer referral service or similar agency available to assist in the location of substitute counsel. The conservator shall, if necessary, send a second written notice to all clients of the absent attorney whose files appear to be active.
(4) All clients whose files are identified by the conservator as both inactive and older than five (5) years shall be given notice by publication of the appointment of a conservator, the grounds which required such appointment, and the possible need of the clients to obtain substitute counsel. All such notices shall include the name, address and telephone number of any lawyer referral service or similar agency available to assist in the location of substitute counsel. The specific method of publication shall be approved by the appointing court, as to both the method, and duration, of publication. The conservator shall deliver proofs of publication to the appointing court at the time of filing the application for discharge.
(5) A file may be returned to a client upon the execution of a written receipt, or released to substitute counsel upon the request of the client and execution of a written receipt by such counsel. The conservator shall deliver all such receipts to the appointing court at the time of filing the application for discharge. On approval by the appointing court of the application for discharge, all files remaining in the possession of the conservator shall be destroyed by the conservator in a secure manner which protects the confidentiality of the files.
* * * * * (c) Written report. Enforcement Rule 322(e) provides that 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 subsection (a) of this section; that if those duties have not been accomplished, then the conservator shall state what progress has been made in that regard; and that thereafter, the conservator shall file a similar written report every [30] 60 days until discharge.
(d) Enforcement Rule 322(f) provides that in the case of a deceased attorney, the conservator shall notify the executor of the estate of the Disciplinary Board's need to be reimbursed by the estate for the costs and expenses incurred in accordance with § 91.128(3) (relating to compensation and expenses of conservator).
§ 91.124. Bank and other accounts.
Enforcement Rule 324 provides that:
* * * * * (3) The conservator may engage the services of a certified public accountant when considered necessary to assist in the bookkeeping and auditing of the financial accounts and records of the absent attorney.
(i) If the state of the financial accounts and records of the absent attorney, or other relevant circumstances, render a determination as to ownership of purported client funds unreasonable and impractical, the conservator shall petition the appointing court for permission to pay all funds held by the absent attorney in any trust, escrow, or IOLTA account, to the Pennsylvania Lawyers Fund For Client Security. Any petition filed under this subsection shall be served by publication, the specific method and duration of which shall be approved by the appointing court.
* * * * * § 91.125. Duration of conservatorship.
Enforcement Rule 325 provides that appointment of a conservator pursuant to the Enforcement Rules shall be for a period of no longer than six months; that 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; [and] that any order granting such an extension shall include findings of fact in support of the extension; and that no additional extensions shall be granted absent a showing of extraordinary circumstances.
§ 91.127. Liability of conservator.
Enforcement Rule 327 provides that a conservator appointed under the Enforcement 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 [Disciplinary Rules] Rules of Professional Conduct with respect to information acquired as conservator.
* * * * * § 91.128. Compensation and expenses of conservator.
Enforcement Rule 328 provides that:
(1) 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] not associated with the Office of Disciplinary Counsel shall be compensated pursuant to a written agreement between the conservator and the Board Chair. Compensation under such an agreement shall be paid at reasonable intervals, and at an hourly rate identical to that received by court-appointed counsel at the non-court appearance rate in the judicial district where the conservator was appointed. When the conservator believes that extraordinary circumstances justify an enhanced hourly rate, the conservator may apply to the Board Chair for enhanced compensation. Such an application shall be granted only in those situations in which extraordinary circumstances are shown to justify enhanced compensation.
[(2) 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; and that 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.
(3)] (2) The necessary expenses (including, but not limited to, the fees and expenses of a certified public accountant engaged pursuant to § 91.124(3) (relating to bank and other accounts)) and any compensation of a conservator or any attendant staff shall, if possible, be paid by the absent attorney or his or her estate; and [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 as a cost of disciplinary administration and enforcement. Payment of any costs incurred by the Board pursuant to Enforcement Rule 328 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.
CHAPTER 93. ORGANIZATION AND ADMINISTRATION
Subchapter B. THE DISCIPLINARY BOARD § 93.23. Powers and duties.
(a) General rule. Enforcement Rule 205(c) provides that 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 § 89.273[(a)(7)] (relating to procedures for reinstatement).
* * * * *
Subchapter G. FINANCIAL MATTERS
TAXATION OF COSTS § 93.112. Failure to pay taxed expenses.
(a) Action by Board. Enforcement Rule 219(g) and [(k)] (l) provide that the Board shall:
(1) Transmit by certified mail, return receipt requested, to every attorney who fails to pay any expenses taxed pursuant to § 89.205(b) (relating to taxation of expenses), or § 89.209 (relating to expenses of formal proceedings), addressed to the last known address of the attorney, a notice stating:
(i) 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; and
(ii) that upon entry of the order [transferring the attorney to inactive status] of administrative suspension, the attorney shall comply with Chapter 91 Subchapter E (relating to formerly admitted attorneys).
* * * * * (b) Action by Supreme Court. Enforcement Rule 219(g) provides that upon certification to the Supreme Court of the name of any attorney pursuant to paragraph (a)(2), the Court shall [immediately] enter an order [transferring such attorney to inactive status] administratively suspending the attorney; and that the Chief Justice may delegate the processing and entry of orders under this subsection to the Prothonotary.
(c) Reinstatement upon payment of taxed costs. Enforcement Rule 219[(l)] (m) provides that upon payment of all expenses taxed pursuant to § 89.205(b) and § 89.209 by a formerly admitted attorney [transferred to inactive status] on administrative suspension solely for failure to comply with paragraph (a)(1) of this section, the Board shall so certify to the Supreme Court; and that 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.
ANNUAL ASSESSMENT OF ATTORNEYS § 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; that 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 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.
(b) Inapplicable to justices and judges. Enforcement Rule 219(b) provides that [justices and judges] the following shall be exempt from the annual fee [for such time as they serve in office.]:
(1) Justices or 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.
§ 93.142. Filing of annual [statement] form by attorneys.
(a) Transmission of form. Enforcement Rule 219(c) provides that on or before May 15 of each year the [Administrative] Attorney Registration Office shall transmit by ordinary mail to all persons required by the rule to pay an annual fee a form [for completing the annual statement] required by subsection (b) of this section.
(b) Filing of annual [statement] form. Enforcement Rule 219(d) provides that on or before July 1 of each year all persons required by the 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 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 license` 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: The Note to Enforcement Rule 219(d)(1)(ii) explains that public web docket sheets will show the attorney's address as entered on the court docket.
(iii) The name of each financial institution in Pennsylvania 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.
* * * * * (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. On or before July 1 of each year the Office of the Secretary shall publish in the Pennsylvania Bulletin a notice of the collection fee established by the Board for the coming assessment year.
(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 consultant] Foreign Legal 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 subsection for the current assessment year, but no annual fee shall be payable for the assessment year in which originally admitted or licensed.
§ 93.143. Issue of certificate as evidence of compliance.
Enforcement Rule 219(e) provides that [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 § 93.142 (relating to filing of annual [statement] form by attorneys), and of payment of any 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 § 93.142(b) (relating to filing of annual statement)] or license.
§ 93.144. [Transfer to inactive status] Administrative suspension for failure to comply.
(a) Action by [Administrative] Attorney Registration Office. Enforcement Rule 219(f) and (g) provide that the [Administrative] Attorney Registration Office shall:
(1) 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 Subchapter, addressed to the last known mailing address of the attorney, a notice stating:
(i) That unless the attorney shall comply with the requirements of § 93.142 (relating to filing of annual [statement] form by attorneys) 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.
(ii) That upon the entry of the order [transferring the attorney to inactive status] of administrative suspension, the attorney shall comply with Chapter 91 of Subchapter E (relating to formerly admitted attorneys), and that a copy of Enforcement Rule 217 (relating to formerly admitted attorneys) shall be enclosed with the notice.
* * * * * (b) Action by the Supreme Court. Enforcement Rule 219(g) provides that upon certification to the Supreme Court of the name of any attorney pursuant to paragraph (a)(2) of this section, the Court shall [immediately] enter an order [transferring such attorney to inactive status] administratively suspending the attorney; and that the Chief Justice may delegate the processing and entry of orders under this subsection to the Prothonotary.
§ 93.145. Reinstatement.
(a) General rule. Enforcement Rule 219(h)[(1)] provides that [upon compliance by a formerly admitted attorney with the provisions of § 93.142(b) (relating to filing of annual statement by attorneys), including payment of all arrears due from the date to which such person was last paid, the Administrative] the procedure for reinstatement of an attorney who has been administratively suspended for three years or less pursuant to the provisions of § 93.144(b) is as follows:
(1) The formerly admitted attorney shall submit to the Attorney Registration Office the form required by § 93.142(b) 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 (b) of this section;
(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 (a)(1) of this section, the Attorney Registration Office shall so certify to the Board Secretary and to the Supreme Court; and that 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.
(b) Late payment penalty. Enforcement Rule 219(h)[(2)] (3) provides that [for the purposes of §§ 93.141--93.147 (relating to annual assessment of attorneys) arrearages shall include a late payment penalty payable by every attorney to whom a notice has been transmitted under § 93.144(a)(1) (relating to action by Administrative Office) plus the actual cost of any publication effected pursuant to § 91.96 (relating to publication of notice of suspension, disbarment or transfer to inactive status)] a formerly admitted attorney who is administratively suspended pursuant to § 93.142(b) 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] form required by § 93.142(b). On or before July 1 of each year the Office of the Secretary shall publish in the Pennsylvania Bulletin a notice of the late payment penalty established by the Board for the coming assessment year.
§ 93.146. Voluntarily retired or inactive attorneys.
(a) [General rule.] Retired Status: Enforcement Rule 219(i) provides that:
(1) [an] An attorney who has retired[, is not engaged in practice or who 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 (Form DB-28) (Notice of Voluntary Assumption of Inactive Status) that the attorney desires to voluntarily assume inactive status and discontinue the practice of law;] Form DB-27 (Application for Retirement).
(2) [upon] Upon the transmission of [such notice] the 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 specified in § 93.142(b) (relating to filing of annual statement by attorneys) 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;].
(3) [the] The [formerly admitted] retired attorney will be relieved from the payment of the fee specified in § 93.141 (relating to annual assessment)[;].
(4) Chapter 91 Subchapter E (relating to formerly admitted attorneys) shall not be applicable to the formerly admitted attorney unless ordered by the Supreme Court in connection with the entry of an order of suspension or disbarment under another provision of the Enforcement Rules[; and].
(5) An attorney on retired status for three years or less may be reinstated in the same manner as an inactive attorney, by filing a Form DB-29 (Application for Resumption of Active Status), 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.
(6) [the] The Chief Justice may delegate the processing and entry of orders under this subsection to the Prothonotary.
(b) [Reactivation] Inactive Status. Enforcement Rule 219(j) provides that:
(1) [Upon the filing of Form DB-28, 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 file either the annual form required by § 93.142(b) and request voluntary inactive status or file Form DB-28 (Notice of Voluntary Assumption of Inactive Status). The attorney shall be removed from the roll of those classified as active until and unless such person [requests] files [(]Form DB-29[)] (Application for Resumption of Active Status) and is granted reinstatement to the active rolls.
(2) An inactive attorney under this subsection (b) shall continue to file the annual form required by § 93.142(b) 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 § 93.144. An attorney who voluntarily assumed inactive status under former subsection (a) of this rule shall continue to file the annual form and pay an annual fee of $70.00 commencing with the next regular assessment year. Noncompliance with this paragraph will result in the inactive attorney being placed on administrative suspension after notice in accordance with the provisions of § 93.144(a)(1).
(3) [That reinstatement] 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, [automatically] upon the payment of [any assessment in effect] the active fee for the assessment year in which the [request] Form DB-29 (Application for Resumption of Active Status) is [made] filed 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. See § 93.145(b) (relating to late payment penalty).
[(3) That disciplinary proceedings may be initiated and maintained against a formerly admitted attorney who has voluntarily assumed inactive status. See § 85.3(a)(3) (relating to jurisdiction).]
(4) In transmitting the annual fee form under subsection (a) of § 93.142, the Attorney Registration Office shall include a notice of subdivision (j) of Enforcement Rule 219 (relating to request for voluntary inactive status).
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 paragraph (b)(2) of this section, payment of an annual fee is required to assume and continue inactive status, and failure to pay the annual fee required by § 93.146(b)(2) and file the form required by § 93.142(b) (relating to filing of annual form by attorneys) will result in an order administratively suspending the attorney.
§ 93.147. Notification of suspension or inactivation.
Where administrative suspension is [effected] ordered under this Subchapter, the attorney shall comply with the requirements of Chapter 91 of Subchapter E (relating to formerly admitted attorneys). Public notice of such administrative suspension shall clearly state that suspension was [effected] ordered for failure to file the required annual [statement or for failure to] form and pay the required annual assessment, or for failure to comply with § 93.112 (relating to failure to pay taxed expenses).
§ 93.148. Grace period.
Enforcement Rule 219(k) provides that on the effective date of that Rule, any attorney who is on inactive status:
(a) by order after having failed to pay the annual fee or file the form required by subdivisions (a) and (d) of Rule 219,
(b) 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,
(c) by order after having failed to pay any expenses taxed pursuant to Enforcement Rule 208(g), or
(d) 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 § 93.142(b) is due, in which to request reinstatement to active status under an applicable provision of Rule 219, 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 § 93.146(b) 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 § 93.142(a), the Attorney Registration Office shall include a notice of Enforcement Rule 219(k).
Official Note: Attorneys who voluntarily assumed inactive status under former § 93.146(a) are governed by the provisions of § 93.146(b). Attorneys who were transferred to inactive status by order after having failed to pay any expenses taxed pursuant to § 93.112 are governed by the provisions of that section.
[Pa.B. Doc. No. 09-1404. Filed for public inspection August 7, 2009, 9:00 a.m.]
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