THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CH. 83 ]
Proposed Amendments to the Rules of Disciplinary Enforcement to Provide for Electronic Filing of the Annual Fee Form, Automatic Assessment of Late Payment Penalties, and a Request by an Attorney for Contact Information to be Non- public Information
[41 Pa.B. 2517]
[Saturday, May 21, 2011]Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Pennsylvania Supreme Court that the Court amend Pennsylvania Rules of Disciplinary Enforcement 218 and 219 as set forth in Annex A.
Enforcement Rule 219 establishes the procedure governing the annual registration of attorneys admitted to practice law in the Commonwealth. The proposed amendments to Rule 219 constitute a significant departure from prior procedure, in three respects.
First, additions to subdivisions (a), (c) and (d) give an attorney the option of filing the annual fee form by electronic medium. The new rule codifies electronic filing, which was implemented by the Disciplinary Board with the assistance of the Administrative Office of Pennsylvania Courts for use by attorneys beginning with the 2011-2012 registration year.
Second, new Rule 219 would eliminate the requirement of sending delinquency notices to attorneys who fail to timely register by July 1 and would provide for two non-waivable late payment penalties, the first to be automatically assessed on July 15 (fifteen days after the due date) and the second to be automatically assessed on September 1 (48 days after the initial delinquency assessment).
Delinquency notices are unnecessary because Rule 219 provides adequate notice to attorneys to register on an annual basis and to do so by July 1. All attorneys are required to be familiar with the rules, and Rule 219 provides constructive notice to all Pennsylvania attorneys of their obligation to complete registration by July 1. In addition, the notice provisions of subdivisions (a) and (c), which require the Attorney Registration Office, by May 15 of each year, to mail the annual fee form to all Pennsylvania attorneys or to electronically transmit an e-mail notice to those attorneys who have elected in the previous year to file the form electronically, are adequate to inform or remind attorneys of their duty to register and to do so by July 1. The Board does not believe that the Attorney Registration Office is obligated to send reminder notices to attorneys who are delinquent in complying with their obligation.
Rule 219 also gives attorneys sufficient time to complete registration in a timely manner. Because the Attorney Registration Office must, under subdivision (c), mail or e-mail the required notice to attorneys by May 15, an attorney has well over thirty days to meet the July 1 due date. Additionally, new subdivision (f), which establishes the delinquency procedure, contains an automatic fifteen-day extension of time in which to complete registration.
New subdivision (f) provides that after the assessment of the second late payment penalty, the Attorney Registration Office will refer the names of non-compliant attorneys to the Supreme Court, which shall enter an order administratively suspending those attorneys. The late payment penalties should serve as an incentive to all attorneys to be timely in completing registration and as a penalty to those who intend to continue to practice beyond the July 1 deadline undeterred by the prospect of practicing in violation of our Supreme Court's Enforcement Rule.
The third procedural change to Rule 219 is contained in subdivision (d)(1)(ii). An attorney may request through the Attorney Registration Office that the contact information provided by the attorney on the annual fee form or submitted electronically not be published on the Board's website or otherwise disclosed. The request must be in writing and provide ''good cause'' for the grant of the request. Subdivision (d)(1)(ii) does not preclude the Board from making disclosure when the Board is served with a valid subpoena.
The proposed addition to subdivision (d) of Enforcement Rule 218, new subdivisions (g)(2)(iii) and (h)(1) of that rule, and additions to subdivisions (j) of Rule 219, are all designed to make clear that the lodestar for determining whether an attorney must file a formal petition to be reinstated to active status after becoming inactive, retired, administratively suspended, or suspended for a term not exceeding one year, is an uninterrupted term of license inactivity that exceeds three years, not the length of the attorney's current status. By way of explanation, the Supreme Court and the Board have always intended that an attorney whose licensing status is non-active for a period exceeding three years, must file a petition for reinstatement under Rule 218 to be reinstated. Under the current rules, there are three administrative registration statuses (inactive, retired, and administratively suspended) and one disciplinary status (suspension for a period not exceeding one year) that do not automatically require a petition for reinstatement if the attorney desires to return to active status. Each of the three administrative statuses could be held for less than three years, and the disciplinary status could expire within one year or less, but the combined length of any two or more of these statuses could exceed three years. For example, an attorney could be on inactive status for only six months at the time the attorney seeks a return to active status, but a contiguous preceding term of inactive status followed by a term of administrative suspension, when combined with the current six-month term of inactive status, might result in a total term of license inactivity exceeding three years, in which case the attorney must apply for reinstatement under the provisions of Rule 218(d). Simply stated, any attorney whose licensing status is other than active and who has not been on active status at any time within the preceding three years, must petition for reinstatement under the provisions of Rule 218 rather than any provision that may be found in Rule 219. Given the current structure of the rules and existing options that permit an attorney to change his or her registration status, the Board anticipates that some attorneys may hold several registration statuses during any given three-year period.
The current practice of the Attorney Registration Office is to permit an inactive attorney who is administratively suspended to resume inactive status upon the filing of the annual fee form, payment of the annual fee, and payment of all collection fees and late payment penalties. New subdivision (k) of Enforcement Rule 219 codifies that agency practice. Subsection (4) of subdivision (k) requires the attorney to pay an administrative processing fee of $100.00, which fee will cover the time and cost of reviewing the attorney's records, calculating the fees and penalties, and changing the records to reflect the new status.
In contrast with an administrative transfer from administrative suspension to inactive status but also consistent with agency practice, new subdivision (k) explains that an active attorney who has been administratively suspended for failure to file the annual form and pay the annual fee must be reinstated to active status under subdivision (h) before becoming eligible to register as inactive or retired.
Finally, subdivision (k) of current Rule 219, which established a grace period of one year commencing on July 1, 2009 in which any attorney who was inactive by court order could request and achieve active status in order to avoid transfer to administrative suspension, is eliminated. Because of its historical significance in understanding how some attorneys who were previously inactive came to be administratively suspended, the substance of subdivision (k) is included in an explanatory Note that appears at the end of subdivision (k).
Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3382) on or before July 1, 2011.
By The Disciplinary Board of the
Supreme Court of PennsylvaniaELAINE M. BIXLER,
Secretary
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart B. DISCIPLINARY ENFORCEMENT
CHAPTER 83. PENNSYLVANIA RULES OF DISCIPLINARY ENFORCEMENT
Subchapter B. MISCONDUCT Rule 218. Reinstatement.
* * * * * (d) The procedure for petitioning for reinstatement from: retired status for more than three years[,]; inactive status for more than three years [or]; administrative suspension for more than three years[,]; retired status, inactive status or administrative suspension if the formerly admitted attorney has not been on active status at any time within the past 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:
* * * * * (g) (1) Upon the expiration of any term of suspension not exceeding one year and upon the filing thereafter by the formerly admitted attorney with the Board of a verified statement showing compliance with all the terms and conditions of the order of suspension and of Enforcement Rule 217 (relating to formerly admitted attorneys), the Board shall certify such fact to the Supreme Court, which shall immediately enter an order reinstating the formerly admitted attorney to active status, unless such person is subject to another outstanding order of suspension or disbarment.
(2) Paragraph (1) of this subdivision shall not be applicable and a formerly admitted attorney shall be subject instead to the other provisions of this rule requiring the filing of a petition for reinstatement, if:
(i) other formal disciplinary proceedings are then pending or have been authorized against the formerly admitted attorney;
(ii) the formerly admitted attorney has been on retired status, inactive status or administrative suspension for more than three years; [or]
(iii) on the date of the entry of the order of suspension, the formerly admitted attorney was on retired status, inactive status or administrative suspension and had not been on active status at any time within the three-year period preceding the entry of the order; or
(iv) the order of suspension has been in effect for more than three years.
(h) Attorneys who have been on inactive status, retired status or administrative suspension for three years or less may be reinstated to the roll of those classified as active pursuant to Enforcement Rule 219(h), (i), (j)[, (k)] or (m) (relating to periodic assessment of attorneys) as appropriate. This subdivision (h) does not apply to:
(1) a formerly admitted attorney who, on the date of the filing of the request for reinstatement, had not been on active status at any time within the preceding three years; or
(2) an attorney who has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct.
* * * * * Rule 219. [Periodic assessment] Annual registration of attorneys[; voluntary inactive status].
(a) Every attorney admitted to practice law in this Commonwealth[,] shall pay an annual fee of $135.00 [under] and file the annual fee form provided for in this rule. The [annual] fee shall be collected under the supervision of the Attorney Registration Office, which shall send [and receive,] or cause to be sent [and received, the notices and forms provided for in this rule] to every attorney, except an attorney who has elected to file the form electronically, the annual fee form. The Attorney Registration Office shall transmit to those attorneys who have elected to file the form electronically a notice by e-mail to register by July 1. Failure to receive the annual fee form by mail or electronically shall not excuse payment of the fee. The said fee shall be used to defray the costs of disciplinary administration and enforcement under these rules, and for such other purposes as the Board shall, with the approval of the Supreme Court, from time to time determine.
* * * * * (c) On or before May 15 of each year the Attorney Registration Office shall transmit [by ordinary mail] to all [persons] attorneys required by this rule to pay an annual fee, except those attorneys who have elected electronic filing, a form required by subdivision (d) of this rule. On or before May 15 of each year subsequent to the year in which an attorney elects electronic filing, the Attorney Registration Office shall transmit to such attorney a notice by e-mail to register by July 1.
(d) On or before July 1 of each year all [persons] attorneys required by this rule to pay an annual fee shall file with the Attorney Registration Office a signed or electronically endorsed form prescribed by the Attorney Registration Office in accordance with the following procedures:
(1) The form shall set forth:
* * * * * (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 Attorney Registration Office shall refuse to accept a 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 form and may be a post office box number. The attorney shall indicate which of the addresses, the residence, office or mailing address, as well as telephone and fax number will be accessible through the website of the Board (http://www.padisciplinaryboard.org/) and by written or oral request to the Board. Upon an attorney's written request submitted to the Attorney Registration Office and for good cause shown, the contact information provided by the attorney will be nonpublic information and will not be published on the Board's website or otherwise disclosed.
* * * * * Official Note: The Disciplinary Board will make the information regarding insurance available to the public upon written or oral request and on its web site. The requirement of Rule 219(d)(3) that every attorney who has filed an annual [registration] fee form or elects to file the form electronically must notify the Attorney Registration Office [in writing] of any change in the information previously submitted within 30 days after such change will apply to the information regarding insurance.
(vii) Such other information as the Attorney Registration Office may from time to time direct.
(2) Payment of the annual fee shall accompany the form. IOLTA, trust, escrow and other fiduciary account checks tendered in payment of the annual fee will not be accepted. [Where] If the form and payment are incomplete or if 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, and one or both of the late payment penalties prescribed in subdivision (f) of this rule if assessed, shall also have been paid. The amount of the collection fee shall be established by the Board annually after giving due regard to the direct and indirect costs incurred by the Board during the preceding year for checks returned to the Board unpaid.
(3) Every [person] attorney who has filed [such a] the form or elects to file the form electronically shall notify the Attorney Registration Office [in writing] of any change in the information previously submitted, including e-mail address, within 30 days after such change.
* * * * * (f) [The Attorney Registration Office shall transmit by ordinary mail to every attorney who fails to timely file the form and pay the annual fee required by this rule, addressed to the last known mailing address of the attorney, a notice stating:
(1) That unless the attorney shall comply with the requirements of subdivision (d) of this rule within 30 days after the date of the notice, such failure to comply will be deemed a request 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 enter an order administratively suspending the attorney.
(2) That upon the entry of an order of administrative suspension, the attorney shall comply with Enforcement Rule 217 (relating to formerly admitted attorneys), a copy of which shall be enclosed with the notice.]
Any attorney who fails to complete registration by July 15 shall be automatically assessed a non-waivable late payment penalty established by the Board. A second, non-waivable late payment penalty established by the Board shall be automatically added to the delinquent account of any attorney who has failed to complete registration by September 1, at which time the continued failure to comply with this rule shall be deemed a request to be administratively suspended. Thereafter, the Attorney Registration Office shall certify to the Supreme Court the name of every attorney who has failed to comply with the registration and payment requirements of this rule, and the Supreme Court shall enter an order administratively suspending the attorney. The Chief Justice may delegate the processing and entry of orders under this subdivision to the Prothonotary. Upon entry of an order of administrative suspension, the Attorney Registration Office shall transmit by certified mail, addressed to the last known mailing address of the attorney, or by electronic means, the order of administrative suspension and a notice that the attorney shall comply with Enforcement Rule 217 (relating to formerly admitted attorneys), a copy of which shall be included with the notice.
For purposes of assessing the late payment penalties prescribed by this subdivision (f), registration shall not be deemed to be complete until the Attorney Registration Office receives a completed annual fee form and satisfactory payment of the annual fee and of all outstanding collection fees and late payment penalties. If a check in payment of the delinquency has been returned to the Board unpaid, a collection fee, as established by the Board under subdivision (d)(2) of this rule, shall be added to the attorney's delinquent account and registration shall not be deemed to be complete until the delinquent account has been paid in full.
The amount of the late payment penalties shall be established by the Board annually pursuant to the provisions of subdivision (h)(3) of this Enforcement Rule.
(g) [The Attorney Registration Office shall certify to the Supreme Court the names of every attorney who has failed to respond to a notice issued pursuant to subdivisions (f) and (l) of this rule within the 30-day period provided therein and the Court shall enter an order administratively suspending the attorney. A] The Attorney Registration Office shall provide to the Board Secretary a copy of any [such] certification [from] filed by the Attorney Registration Office [to] with the Supreme Court [shall be given to the Board Secretary] pursuant to the provisions of this Enforcement Rule. [The Chief Justice may delegate the processing and entry of orders under this subdivision to the Prothonotary.]
(h) The procedure for reinstatement of an attorney who has been administratively suspended pursuant to subdivision (f) for three years or less [pursuant to subdivision (g)] is as follows:
(1) The formerly admitted attorney shall submit to the Attorney Registration Office the form required by subdivision (d)(1) along with payment of:
* * * * * (iii) the late payment [penalty] penalties required by paragraph (3);
(iv) any unpaid collection fee;
(v) a reinstatement fee of $300.00.
(2) Upon receipt of the annual fee form, a verified statement showing compliance with Enforcement Rule 217 (relating to formerly admitted attorneys), and the payments required by paragraph (1), the Attorney Registration Office shall so certify to the Board Secretary and to the Supreme Court. Unless 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 Attorney Registration Office with the Prothonotary of the Supreme Court shall operate as an order reinstating the person to active status.
Where a check in payment of the fees and late payment penalties has been returned to the Board unpaid, the Attorney Registration Office shall immediately return the attorney to administrative suspension, and the arrears shall not be deemed to have been paid until a collection fee, as established by the Board under subdivision (d)(2) of this rule, shall also have been paid.
(3) A formerly admitted attorney who is administratively suspended [pursuant to subdivision (g)] must pay [a] the late payment [penalty with respect to that year] penalties incurred in the year in which the formerly admitted attorney is transferred to administrative suspension. The amount of the late payment [penalty] penalties 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 subdivision (d) of this rule.
* * * * * (j) Inactive Status: An attorney who is not engaged in practice in Pennsylvania, has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct, or is not required by virtue of his or her practice elsewhere to maintain active licensure in the Commonwealth may request [voluntary] inactive status or continue that status once assumed. The attorney shall be removed from the roll of those classified as active until and unless such [person requests] inactive attorney makes a request under paragraph (2) of this subdivision (j) for an administrative return to active status and satisfies all conditions precedent to the grant of such request; or files a petition for reinstatement under subdivision (d) of Enforcement Rule 218) (relating to procedure for reinstatement of an attorney who has been on inactive status for more than three years, or who is on inactive status and had not been on active status at any time within the prior three years) and is granted reinstatement [to the active rolls] pursuant to the provisions of that Enforcement Rule.
(1) An inactive attorney under this subdivision (j) shall continue to file the annual form required by subdivision (d) and shall pay an annual fee of $70.00. Noncompliance with this provision will result in the inactive attorney incurring late payment penalties, incurring a collection fee for any check in payment that has been returned to the Board unpaid, and being placed on administrative suspension [after the Attorney Registration Office provides notice], pursuant to and in accordance with the provisions of [paragraph (f)] subdivision (f) of this rule. [An attorney who voluntarily assumed inactive status under former subdivision (j) of this rule shall continue to file the annual form required by subdivision (d) and pay an annual fee of $70.00 commencing with the next regular assessment year. Noncompliance with this provision will result in the inactive attorney being placed on administrative suspension after notice in accordance with the provisions of paragraph (f).]
(2) [Reinstatement] Administrative Change in Status from Inactive Status to Active Status: An attorney on inactive status may request resumption of active status on a form provided by the Attorney Registration Office. Resumption of active status shall be granted unless the inactive attorney is subject to an outstanding order of suspension or disbarment [or], unless the inactive attorney has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct (see Enforcement Rule 218(h)), unless the inactive status has been in effect for more than three years, or unless the inactive attorney had not been on active status at any time within the preceding three years (see Enforcement Rule 218(h)), upon the payment of:
(i) the active fee for the assessment year in which the application for resumption of active status is made or the difference between the active fee and the inactive fee that has been paid for that year[,]; and
(ii) any [arrears accumulated prior to the assumption of inactive status] collection fee or late payment penalty that may have been assessed pursuant to subdivision (f), prior to the inactive attorney's request for resumption of active status.
[(3) In transmitting the annual fee form under subdivision (c) of this rule, the Attorney Registration Office shall include a notice of this subdivision (j).
Official Note: Under prior practice, an attorney who was neither retiring nor selling his or her law practice was given the option of assuming or continuing inactive status and ceasing the practice of law in Pennsylvania, and no annual fee was required. Under new subdivision (j), payment of an annual fee is required to assume and continue inactive status, and failure to pay the annual fee required by subdivision (j) and file the form required by subdivision (d) will result in an order administratively suspending the attorney.
(k) On the effective date of this subdivision (k), any attorney who is on inactive status:
(1) by order after having failed to pay the annual fee or file the form required by subdivisions (a) and (d) of this rule,
(2) by order pursuant to Rule 111(b), Pa.R.C.L.E., after having failed to satisfy the requirements of the Pennsylvania Rules for Continuing Legal Education,
(3) by order after having failed to pay any expenses taxed pursuant to Enforcement Rule 208(g), or
(4) by order after having failed to meet the requirements for maintaining a limited law license as a Limited In-House Corporate Counsel, a foreign legal consultant, an attorney participant in defender legal services programs pursuant to Pa.B.A.R. 311, or a military attorney, shall have a grace period of one year, commencing on July 1 of the year in which the next annual form under paragraph (d) is due, in which to request reinstatement to active status under an applicable provision of this rule, or to be reinstated to active status under Rule 218(a), as the case may be. Failure to achieve active status before the expiration of the grace period shall be deemed a request to be administratively suspended. An attorney who is on inactive status by court order will not be eligible to transfer to voluntary inactive status under subdivision (j) of this rule until the attorney first achieves active status. During the grace period, the inactive attorney shall remain ineligible to practice law. In transmitting the annual form under subdivision (c) of this rule, the Attorney Registration Office shall include a notice of this subdivision (k).
Official Note: Attorneys who voluntarily assumed inactive status under former paragraph (j) of Enforcement Rule 219 are governed by the provisions of paragraph (j). Attorneys who were transferred to inactive status by order after having failed to pay any expenses taxed pursuant to Enforcement Rule 208(g) are governed by the provisions of paragraph (m).]
Where a check in payment of fees and penalties has been returned to the Board unpaid, the Attorney Registration Office shall immediately return the attorney to inactive status, and the arrears shall not be deemed to have been paid until a collection fee, as established by the Board under subdivision (d)(2), shall also have been paid.
Official Note: Subdivisions (h), (i) and (j) of this Enforcement Rule do not apply if, on the date of the filing of the request for reinstatement, the formerly admitted attorney has not been on active status at any time within the preceding three years. See Enforcement Rule 218(h)(1).
(k) Administrative Change in Status From Administrative Suspension to Inactive Status: An inactive attorney who has been administratively suspended for failure to file the annual form and pay the annual fee required by subdivision (j)(1) of this rule, may request an administrative change in status to inactive status. The Attorney Registration Office shall change the status of an attorney eligible for inactive status under this subdivision upon receipt of:
(1) the annual form required by subdivision (d);
(2) payment of the annual fee required by subdivision (j)(1);
(3) payment of all collection fees and late payment penalties assessed under subdivisions (d)(2) and (f); and
(4) payment of an administrative processing fee of $100.00.
Where a check in payment of the fees and penalties has been returned to the Board unpaid, the Attorney Registration Office shall immediately return the attorney to administrative suspension, and the arrears shall not be deemed to have been paid until a collection fee, as established by the Board under subdivision (d)(2), shall also have been paid.
An active attorney who has been administratively suspended for failure to file the annual form and pay the annual fee required by this rule must comply with subdivision (h) before becoming eligible to register as inactive or retired.
Official Note: Former subdivision (k), which was adopted by Order dated April 16, 2009 (No. 75 Disciplinary Rules Docket No. 1, Supreme Court), effective May 2, 2009, established a grace period of one year commencing on July 1, 2009 in which any attorney who was on inactive status by order of the Supreme Court, could request and achieve reinstatement to active status under Enforcement Rule 218 or another applicable subdivision of Enforcement Rule 219 in order to avoid an automatic change in status to administrative suspension. The grace period was administratively extended to August 31, 2010, and any involuntarily inactive attorney who did not achieve active status by that date was transferred to administrative suspension on September 1, 2010.
* * * * *
[Pa.B. Doc. No. 11-838. Filed for public inspection May 20, 2011, 9:00 a.m.]
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