THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CHS. 85, 87, 89, 91 AND 93 ]
Amendments to Rules of Organization and Procedure of the Disciplinary Board of the Supreme Court of Pennsylvania; Order No. 73
[42 Pa.B. 5156]
[Saturday, August 11, 2012]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 19, 2012, April 9, 2012, and May 17, 2012, the Supreme Court of Pennsylvania amended Pa.R.D.E. 216, 218, 214, 219, 102, 203, 204, 205, 207, 208, 215 and 402, respectively. By this Order, the Board is making conforming changes to its Rules to reflect the adoption of those amendments. This order also updates the address of the Board's District III Office, reduces the number of briefs required to be filed with the Board and makes clarifying corrections to Rule 89.4(c) and the third official note to Rule 89.273.
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)(12), 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.
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 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 this subpart shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
* * * * * Prothonotary—The Prothonotary of the Supreme Court of Pennsylvania.
Public Reprimand—Public reprimand by the Board.
Respondent-attorney—Includes any person subject to the Enforcement Rules (See § 85.3(a) (relating to jurisdiction)).
* * * * * § 85.5. Location of Office of Disciplinary Counsel.
* * * * * (b) Disciplinary District Offices. The present locations of the district offices of the Office of Disciplinary Counsel and the office of the Assistant Disciplinary Counsel for each such disciplinary district are:
* * * * * (3) District III Office
Office of Disciplinary Counsel
The Disciplinary Board of the
Supreme Court of Pennsylvania
[100 Pine Street
Suite 400
Harrisburg, PA 17101-1228]
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 5800
PO Box 62675
Harrisburg, PA 17106-2675
(717) 772-8572
(fax: (717) 772-7463)* * * * * § 85.7. Grounds for discipline.
* * * * * (b) Enforcement Rule 203(b) provides that the following shall also be grounds for discipline:
(1) Conviction of a crime.
(2) Wilful failure to appear before the Supreme Court, the Board or Disciplinary Counsel for censure, public or private reprimand, or informal admonition.
* * * * * § 85.8. Types of discipline.
(a) General rule. Enforcement Rule 204(a) provides that misconduct shall be grounds for any of the following:
* * * * * (5) Public reprimand by the Board with or without probation.
(6) Private reprimand by the Board with or without probation.
[(6)] (7) Private informal admonition by [the] Disciplinary Counsel.
[(7)] (8) Revocation of an attorney's admission or license to practice law in the circumstances provided in § 85.7(b)(6) (relating to grounds for discipline).
(b) Conditions attached to discipline. Enforcement Rule 204(b) provides that conditions may be attached to an informal admonition [or], private reprimand, or public reprimand and that failure to comply with such conditions shall be grounds for reconsideration of the matter and prosecution of formal charges against the respondent-attorney.
* * * * *
CHAPTER 87. INVESTIGATIONS AND INFORMAL PROCEEDINGS
Subchapter A. PRELIMINARY PROVISIONS
COMPLAINTS § 87.7. Notification to respondent-attorney of complaint and duty to respond.
(a) Condition precedent to recommendation for discipline. Disciplinary Counsel shall not recommend or undertake a disposition of discipline under Enforcement Rule 204 (relating to types of discipline) until the [accused attorney] respondent-attorney has been notified of the allegations and the time for response under [§ 89.54 (relating to answer) ] subdivision (b)(2) of this rule, if applicable, has expired.
* * * * * § 87.8. District office action or recommendation.
(a) General rule. Enforcement Rule 208(a)(2) provides that upon the conclusion of an investigation, Disciplinary Counsel may dismiss the complaint as frivolous, as falling outside the jurisdiction of the Board, or on the basis of Board policy or prosecutorial discretion. Disciplinary Counsel may recommend:
(1) Dismissal of the complaint.
(2) A conditional or unconditional informal admonition of the attorney concerned.
(3) A conditional or unconditional private reprimand by the Board of the attorney concerned.
(4) A conditional or unconditional public reprimand by the Board of the attorney concerned.
(5) The prosecution of formal charges before a hearing committee or special master.
(b) District office procedure. Following completion of any investigation of the complaint and after consideration of any statement of position filed by the respondent-attorney pursuant to § 87.7 (relating to notification to respondent-attorney of complaint) the Assistant Disciplinary Counsel assigned to the district office shall promptly complete the appropriate form specified in subsection (c). The action taken or disposition recommended shall be one of the following:
* * * * * (6) Conditional or unconditional informal admonition [or], private reprimand, or public reprimand. An informal admonition [or], private reprimand, or public reprimand shall be administered in those cases in which a violation of § 85.7 (relating to grounds for discipline) is found, but which is determined to be of insufficient gravity to warrant prosecution of formal charges.
* * * * *
Subchapter B. REVIEW OF RECOMMENDED DISPOSITION OF COMPLAINT § 87.32. Action by reviewing hearing committee member.
* * * * * (c) Modification. If the reviewing hearing committee member determines to modify the recommendation of the Office of Disciplinary Counsel, the member shall set forth the determination on Form DB-3 (Referral of Complaint to Reviewing Hearing Committee Member) together with a brief statement of the reasons therefor. Such determination shall be one of the following:
(1) Dismissal of the complaint.
(2) A conditional or unconditional informal admonition.
(3) A conditional or unconditional private reprimand.
(4) A conditional or unconditional public reprimand.
(5) Prosecution of formal charges.
* * * * * § 87.33. Appeal by Office of Disciplinary Counsel [for] from modification of recommendation.
* * * * * (c) Action by Board. The Office of the Secretary shall transmit the Form DB-8 and related file to a panel of three members of the Board designated by the Chairman, who shall consider the appeal and, as provided by Enforcement Rule 208(a)(4), order that the matter be concluded by dismissal, conditional or unconditional informal admonition [or], conditional or unconditional private reprimand, or conditional or unconditional public reprimand, or direct that a formal proceeding be instituted before a hearing committee or special master in the appropriate disciplinary district.
* * * * * § 87.34. Review of recommendation of private reprimand or public reprimand.
(a) General rule. Enforcement Rule 208(a)(5) provides that a recommendation by a reviewing hearing committee member for a conditional or unconditional private or public reprimand shall be reviewed by a panel composed of three members of the Board who may approve or modify.
(b) Procedure. Where a recommendation by a reviewing hearing committee member for a conditional or unconditional private or public reprimand is not appealed by Disciplinary Counsel, the Office of the Secretary shall transmit the file to a panel of three members of the Board designated by the Chairman, who shall consider the matter and, as provided by Enforcement Rule 208(a)(5), approve or modify the recommendation for private or public reprimand.
(c) Notice of Board [Action] action. The Office of the Secretary shall return the file, showing the action of the reviewing panel of the Board, to the Office of Disciplinary Counsel and shall notify the reviewing hearing committee member of the action taken by the Board.
Subchapter C. FINAL DISPOSITION WITHOUT FORMAL PROCEEDINGS § 87.51. Notification of disposition of complaint.
(a) General [Rule] rule. Upon completion of the procedures prescribed by Subchapter B (relating to review of recommended disposition of complaint), the Office of the Secretary or the Office of Disciplinary Counsel, as appropriate, shall:
(1) Notify the complainant of the disposition of the complaint.
(2) Unless the disposition involves the institution of formal proceedings, notify the respondent-attorney:
(i) that the complaint has been dismissed; or
(ii) that the respondent-attorney shall appear in person before the Chief Disciplinary Counsel [or Board] for the purpose of receiving an informal admonition or before the Board for the purpose of receiving a private or public reprimand. The respondent-attorney shall also be notified of the place and date to appear. The date fixed shall be not earlier than 20 days after the date of the notice to the respondent-attorney of the disposition of the complaint.
(b) Contents of notice.
(1) The notice to appear for public reprimand shall be on Form DB-12.2(IP) (Notice to Appear for Public Reprimand Following Informal Proceedings) and shall contain the statement required by § 89.205(c)(1) (relating to notice to appear).
(2) The notice to appear for private reprimand shall be on Form DB-12(IP) (Notice to Appear for Private Reprimand Following Informal Proceedings) and shall contain the statement required by [§ 89.205(c)(1) (relating to informal admonition or private reprimand following formal hearings)] § 89.205(c)(2) (relating to notice to appear).
[(2)] (3) The notice to appear for informal admonition shall be given by the Office of Disciplinary Counsel on Form DB-12.1(IP) (Notice to Appear for Informal Admonition Following Informal Proceedings) and shall contain the statement required by [§ 89.205(c)(2)] § 89.205(c)(3) (relating to notice to appear).
[(3)] (4) The notice to appear for informal admonition or private reprimand shall advise the respondent-attorney of:
(i) The right of the respondent-attorney under § 87.54 (relating to demand by respondent-attorney for formal proceedings) to demand the institution of formal proceedings.
(ii) The limited availability of the record of informal admonition or private reprimand under § 93.104(d) (relating to restrictions on available information).
(5) The notice to appear for public reprimand shall advise the respondent-attorney of the right of the respondent-attorney under § 87.54 (relating to demand by respondent-attorney for formal proceedings) to demand the institution of formal proceedings.
§ 87.53. Private reprimand or public reprimand without formal hearing.
(a) General rule relating to private reprimand. A respondent-attorney who is given notice of private reprimand pursuant to § 87.51 (relating to notification of disposition of complaint) and who does not timely demand the institution of a formal proceeding pursuant to § 87.54 (relating to demand by respondent-attorney for formal proceedings) shall appear in person before the Board, at the time and place fixed for the administration of the private reprimand. A record shall be made of the fact of and basis for the private reprimand, which record shall be available only as provided in § 93.104(d) (relating to restrictions on available information).
(b) General rule relating to public reprimand. A respondent-attorney who is given notice of public reprimand pursuant to § 87.51 (relating to notification of disposition of complaint) and who does not timely demand the institution of a formal proceeding pursuant to § 87.54 (relating to demand by respondent-attorney for formal proceedings) shall appear in person before the Board, at the time and place fixed for the administration of the public reprimand, which proceeding shall be open to the public as provided in § 93.102(a) (relating to access to disciplinary information and confidentiality). A record shall be made of the fact of and basis for the public reprimand, which record shall be public.
(c) Failure to appear. The neglect or refusal of the respondent-attorney to appear for the purposes of private or public reprimand without good cause shall (as provided by Enforcement Rule 203(b)(2)) constitute an independent act of professional misconduct and shall automatically result in the institution of formal proceedings relating to such act of misconduct and to the grievance upon which such private or public reprimand was to relate.
§ 87.54. Demand by respondent-attorney for formal proceedings.
(a) General rule. Enforcement Rule 208(a)(6) provides that in cases where no formal proceeding has been conducted, a respondent-attorney shall not be entitled to appeal an informal admonition, a private reprimand, a public reprimand, or any conditions attached thereto [in cases where no formal proceeding has been conducted], but may demand as of right that a formal proceeding be instituted against such attorney in the appropriate disciplinary district; and that in the event of such demand, the respondent-attorney need not appear for the administration of the informal admonition [or], private reprimand, or public reprimand, and the matter shall be disposed of in the same manner as any other formal proceeding, but any expenses of the proceeding taxed against the respondent-attorney shall be paid as required by § 89.205(b) (relating to taxation of expenses).
* * * * *
Subchapter D. ABATEMENT OF INVESTIGATION § 87.74. Discipline on consent.
* * * * * (d) Private discipline. Enforcement Rule 215(f) provides that if a panel approves a Petition consenting to an informal admonition or private reprimand, with or without probation, the Board shall enter an appropriate order, and [it] the Board shall arrange to have the respondent-attorney appear before Disciplinary Counsel for the purpose of receiving an informal admonition or before a designated panel of three members selected by the Board Chair for the purpose of receiving a private reprimand.
(e) Public discipline. Enforcement Rule 215(g) provides that[,]: (1) if a panel approves a Petition consenting to a public reprimand, the Board shall enter an appropriate order, and the Board shall arrange to have the attorney appear before the Board or a designated panel of three members selected by the Board Chair for the purpose of receiving a public reprimand; and (2) if a panel approves a Petition consenting to public censure or suspension, the Board shall file the recommendation of the panel and the Petition with the Supreme Court; [and that,] if the Court grants the Petition, the Court shall enter an appropriate order disciplining the respondent-attorney on consent.
* * * * *
CHAPTER 89. FORMAL PROCEEDINGS
Subchapter B. INSTITUTION OF PROCEEDINGS § 89.51. Grounds for institution of formal proceedings.
[The] (a) Except where the Office of Disciplinary Counsel and the respondent-attorney file a joint petition in support of public discipline on consent pursuant to § 87.74 (relating to discipline on consent) or the respondent-attorney submits a resignation statement under § 87.73 (relating to voluntary resignation by attorneys under disciplinary investigation and disbarment on consent), the Office of Disciplinary Counsel shall institute formal disciplinary proceedings by filing with the Board a petition under § 89.52 (relating to petition for discipline) in [either of] the following cases:
(1) [Pursuant to a referral from the Supreme Court under § 91.35(a) (relating to institution of formal proceedings upon conviction of serious crime) following the conviction of the respondent-attorney for a crime. See Chapter 91 Subchapter B (relating to attorneys convicted of crimes).] Where a certificate of conviction is filed with the Supreme Court under § 91.33 (relating to notification by Office of Disciplinary Counsel of conviction of attorneys) and the Supreme Court directs that formal proceedings be instituted;
(2) After the Supreme Court has entered an order temporarily suspending the respondent-attorney under § 91.34(c) (relating to temporary suspension following the conviction of the respondent-attorney for a crime) or § 91.34(f) (relating to joint petition for temporary suspension); or
(3) Pursuant to a determination to institute formal proceedings made under Chapter 87 (relating to investigations and informal proceedings).
(b) Except where the Office of Disciplinary Counsel shall institute formal disciplinary proceedings pursuant to the provisions of subsection (a), the Office of Disciplinary Counsel may, upon the filing of a certificate of conviction with the Supreme Court under § 91.33 (relating to notification by Office of Disciplinary Counsel of conviction of attorneys), institute formal disciplinary proceedings by filing with the Board a petition under § 89.52 (relating to petition for discipline). See § 91.35(a) (relating to authority of Office of Disciplinary Counsel to commence a formal proceeding following the conviction of a respondent-attorney for a crime).
Subchapter C. HEARING PROCEDURES
ABBREVIATED PROCEDURE § 89.181. Abbreviated procedure.
(a) Scope. [Experience has shown that frequently at the conclusion of the hearings it] At the conclusion of the hearing, it may be obvious to all participants that no showing of misconduct has been made or that there has been adequate proof of a violation of § 85.7 (relating to grounds for discipline) and that some form of private discipline or a public reprimand 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).
* * * * * (c) Procedures.
* * * * * (8) Thereafter the Board shall either:
(i) affirm the finding that no violation of § 85.7 has been shown and dismiss the proceeding;
(ii) impose or cause to be imposed the type of private discipline, stipulated by the participants; [or]
(iii) impose the public reprimand, stipulated by the participants; or
(iv) remand the record to the hearing committee with instructions to fix a briefing schedule and to proceed as provided in paragraph (6), if for any reason the type of discipline stipulated by the parties is not accepted by the Board.
(9) Where the proceeding is disposed of as provided by paragraph (8)(i) [or], (ii), or (iii), the official reporter shall preserve the untranscribed notes or recording of testimony in the manner and for the duration specified by the Office of the Secretary.
Subchapter D. ACTION BY BOARD AND SUPREME COURT § 89.202. Content and form of briefs on exceptions.
* * * * * (d) Copies. [Fourteen] Three copies of each brief shall be filed with the Office of the Secretary in addition to the copies served on the participants in the proceedings.
§ 89.205. Informal admonition [or], private reprimand or public reprimand following formal hearing.
(a) General rule. Enforcement Rule 208(d)(2)(ii) provides that in the event that the Board determines that the proceeding should be concluded by informal admonition [or], private reprimand, [it] or public reprimand, the Board shall arrange to have the respondent-attorney appear in person before Disciplinary Counsel for the purpose of receiving informal admonition or before a designated panel of three members selected by the Board Chair pursuant to Pa.R.D.E. 205(c)(11) for the purpose of receiving private reprimand or public reprimand, in which case the [Chairman] designated member shall deliver the private reprimand or public reprimand. [In such event the Office of the Secretary shall notify the respondent-attorney and staff counsel by means of Form DB-12 (Notice to Appear for Admonition or Reprimand). The notice shall state that Enforcement Rule 203(b)(2) and (c) expressly provides that wilful failure to appear before the Board or Disciplinary Counsel for private reprimand or informal admonition shall be an independent ground for discipline and that the Board and (when administering informal admonitions) Disciplinary Counsel are ''tribunals'' within the meaning of the Disciplinary Rules (see, e.g. DR 7-106(C)).]
(b) Taxation of expenses. Enforcement Rule 208(g)(2) provides that in the event a proceeding is concluded by informal admonition [or], private reprimand, or public reprimand, the Board in its discretion may direct that the necessary expenses incurred in the investigation and prosecution of the proceeding shall be paid by the respondent-attorney, and that all expenses so taxed shall be paid by the respondent-attorney on or before the date fixed for the appearance of the respondent-attorney before Disciplinary Counsel for informal admonition or the Board for [informal admonition or] private or public reprimand. The expenses taxable under this subsection shall be those prescribed by § 93.111 (relating to determination of reimbursable expenses).
(c) Notice to appear.
(1) In the event that the Board determines that the proceeding should be concluded by public reprimand, the Office of the Secretary shall notify the respondent-attorney and staff counsel by means of Form DB-12.2 (FP) (Notice to Appear for Public Reprimand Following Formal Proceedings) which shall state that Enforcement Rule 203(b)(2) and (c) expressly provides that willful failure to appear before the Board for public reprimand shall be an independent ground for discipline and that the Board is a ''tribunal'' within the meaning of the Disciplinary Rules (see, e.g., Rules 3.3, 3.4(c) and 3.5).
(2) In the event that the Board determines that the proceeding should be concluded by private reprimand, the Office of the Secretary shall notify the respondent-attorney and staff counsel by means of Form DB-12(FP) (Notice to Appear for Private Reprimand Following Formal Proceedings) which shall state that Enforcement Rule 203(b)(2) and (c) expressly provides that willful failure to appear before the Board for private reprimand shall be an independent ground for discipline and that the Board is a ''tribunal'' within the meaning of the Disciplinary Rules (see, e.g. [§ 81.4 (relating to rules of professional conduct)], Rules 3.3, 3.4(c) and 3.5).
[(2)] (3) In the event that the Board determines that the proceeding should be concluded by informal admonition, the Office of Disciplinary Counsel shall notify the respondent-attorney and staff counsel by means of Form DB-12.1(FP) (Notice to Appear for Informal Admonition Following Formal Proceedings), which shall state that Enforcement Rule 203(b)(2) and (c) expressly provides that willful failure to appear before Disciplinary Counsel for informal admonition shall be an independent ground for discipline and that Disciplinary Counsel, when administering informal admonitions, constitutes a ''tribunal'' within the meaning of the Disciplinary Rules (see, e.g. [§ 81.4,] Rules 3.3, 3.4(c) and 3.5).
[(3)] (4) The Office of the Secretary shall notify the respondent-attorney of the expenses of the proceeding which have been taxed pursuant to subsection (b) by means of Form DB-41 (Notice of Taxation of Expenses), which shall state that if the respondent-attorney fails to pay the taxed expenses on or before the date fixed for the appearance of the respondent-attorney before the Board [or Disciplinary Counsel] for private or public reprimand or before Disciplinary Counsel for informal admonition, action will be taken by the Board pursuant to § 93.112 (relating to failure to pay taxed expenses) which will result in the entry of an order placing the respondent-attorney on administrative suspension.
(d) Appearance. An attorney who is given notice to appear for informal admonition or private reprimand shall appear in person at the time and place fixed in such notice, for the purpose of receiving such informal admonition or private reprimand. A permanent record shall be made of the fact of and basis for such action as is taken. The fact of receipt of such informal admonition or private reprimand shall not affect the good standing of the [respondant attorney] respondent-attorney as an attorney and shall be kept confidential to the extent provided in Chapter 93 Subchapter F (relating to confidentiality). An attorney who is given notice to appear for public reprimand shall appear in person at the time and place fixed in such notice, for the purpose of receiving such public reprimand. The proceeding shall be open to the public as provided in § 93.102(a) (relating to access to disciplinary information and confidentiality), and a record shall be made of the fact of and basis for the public reprimand, which record shall be public.
(e) Failure to appear. The neglect or refusal of the respondent-attorney to appear before Disciplinary Counsel for the purposes of informal admonition without good cause shall automatically convert the decision of the Board on informal admonition into one for private reprimand. The neglect or refusal of the respondent-attorney to appear before the Board for the purposes of private or public reprimand without good cause shall automatically convert the decision of the Board on private or public reprimand into a recommendation to the Supreme Court for censure, and the Office of the Secretary shall notify the respondent-attorney, and the Office of Disciplinary Counsel accordingly. [The intention of a respondent-attorney to proceed further under subsection (d) shall not excuse the neglect or failure of the respondent-attorney to appear before the Board under this section.]
(f) Demand for Supreme Court review.
(1) Enforcement Rule 208(d)(2)(iii) provides that a respondent-attorney who is unwilling to have the matter concluded by an informal admonition or private reprimand must file, within 30 days after notice of the determination of the Board, a notice of appeal in the Supreme Court. Enforcement Rule 208(d)(2)(iii) provides that within 30 days after notice of the determination of the Board, the respondent-attorney must file a notice of appeal with the Supreme Court.
(2) A respondent-attorney who objects to an order taxing expenses in connection with a matter concluded by informal admonition or private reprimand may file a petition for review of such order in the Supreme Court under 42 Pa.C.S. §§ 725(5) and 5105(a)(2) (relating to direct appeals from constitutional and judicial agencies and right to appellate review). See 210 Pa. Code Chapter 15 (relating to judicial review of governmental determinations) with respect to the time limits for seeking review and other applicable procedures.
§ 89.206. Transmission of record to Supreme Court.
(a) General rule. Enforcement Rule 208(d)(2)(iii) provides that in the event that the Board shall determine that the matter should be concluded by probation, censure, suspension, disbarment, or by informal admonition [or], private reprimand, or public reprimand in cases where the respondent-attorney is unwilling to have the matter concluded by informal admonition [or], private reprimand, or public reprimand, [it] the Board shall file its findings and recommendations, together with the briefs, if any, before the Board and the entire record, with the Supreme Court.
* * * * *
Subchapter F. REINSTATEMENT AND RESUMPTION OF PRACTICE
REINSTATEMENT OF FORMERLY ADMITTED ATTORNEYS § 89.272. Waiting period.
(a) General rule. Enforcement Rule 218(b) provides that a person who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment, except that a person who has been disbarred pursuant to § 91.51 (relating to reciprocal discipline and disability) may apply for reinstatement at any earlier date on which reinstatement may be sought in the jurisdiction of initial discipline.
* * * * * § 89.273. Procedures for reinstatement.
(a) Enforcement Rule 218(c) provides that the procedure for petitioning for reinstatement from suspension for a period exceeding one year or disbarment is as follows:
* * * * * (3) The hearing committee shall promptly schedule a hearing at which 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] Counsel v. Keller, 509 Pa. 573, [576] 579, 506 A.2d 872, 875 (1986) and its progeny applies.
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 and the response from Disciplinary Counsel has been received, unless the [chair] chairman of the hearing committee extends that time for good cause shown.
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CHAPTER 91. MISCELLANEOUS MATTERS
Subchapter B. ATTORNEYS CONVICTED OF CRIMES § 91.31. Notification by attorneys convicted of crimes.
Enforcement Rule 214(a) provides that an attorney convicted of a [serious] crime shall report the fact of such conviction within 20 days to the [Secretary of the Board] Office of Disciplinary Counsel; and that the responsibility of the attorney to make such report shall not be abated because the conviction is under appeal or the clerk of the court has transmitted a certificate to Disciplinary Counsel pursuant to § 91.32 (relating to notification by clerks of conviction of attorneys).
§ 91.32. Notification by clerks of conviction of attorneys.
Enforcement Rule 214(b) provides that the clerk of any court within the Commonwealth in which an attorney is convicted of any crime, or in which any such conviction is reversed, shall within 20 days after such disposition transmit a certificate thereof to Disciplinary Counsel, who shall file such certificate with the Supreme Court [(Form DB-18) (Certification of Conviction of Attorney)].
§ 91.33. Notification by Office of Disciplinary Counsel of conviction of attorneys.
Enforcement Rule 214(c) provides that upon being advised that an attorney has been convicted of a crime [within this Commonwealth], Disciplinary Counsel shall secure and file a [Form DB-18 (Certification of Conviction of Attorney) in accordance with the provisions of § 91.32 (relating to notification by clerks of conviction of attorneys); and that if the conviction occurred in another jurisdiction, it shall be the responsibility of Disciplinary Counsel to secure and file a] certificate of such conviction with the Supreme Court.
§ 91.34. Temporary suspension upon conviction of [serious] a crime.
(a) Commencement of summary [proceeding] proceedings Enforcement Rule [214(d)] 214(d)(1) provides that upon the filing with the Supreme Court of a certified copy of an order demonstrating that an attorney has been convicted of a [serious] crime, the Court may enter a rule directing the respondent-attorney to show cause why the respondent-attorney should not be placed on temporary suspension, which rule shall be returnable within ten days.
(b) Subject of summary proceeding. The Note to Enforcement Rule 214(d) provides that the subject of the summary proceedings authorized by this section [is] will ordinarily be limited to whether the [conditions] condition triggering the application of this section [exist] exists, i.e., proof that the respondent-attorney is the same person as the individual convicted of the offense charged [and that the offense is a serious crime], [and will not include] although the Court has the discretion to consider such subjects as mitigating or aggravating circumstances.
* * * * * (f) [At] Joint petition for temporary suspension. Enforcement Rule 214(d)(5) provides that at any time before a plea or verdict or after a guilty plea or verdict of guilt in the criminal proceeding, Disciplinary Counsel and the respondent-attorney may file with the Court a joint petition for temporary suspension of the respondent-attorney on the ground that the respondent-attorney's temporary suspension is in the best interest of the respondent and the legal system.
§ 91.35. Institution of formal proceedings upon conviction of [serious] a crime.
(a) General rule. Enforcement Rule 214(f)(1) provides that upon [receipt] the filing of a certificate of conviction of an attorney for a [serious] crime, [the Court shall, in addition to any order of suspension it may enter in accordance with the provisions of § 91.34 (relating to temporary suspension upon conviction of serious crime), also refer the matter to the Board for the institution of a formal proceeding before a hearing committee in the appropriate disciplinary district in which the sole issue to be determined shall be the extent of the final discipline to be imposed, except that a disciplinary proceeding so instituted shall not be brought to hearing until sentencing and all appeals from the conviction are concluded. The Office of the Secretary shall transmit the file to the Office of Disciplinary Counsel by means of Form DB-31 (Reference for Proceedings in Response to Conviction).] Disciplinary Counsel may commence either an informal proceeding under Chapter 87 (relating to investigations and informal proceedings) or a formal proceeding under Subchapter 89B (relating to institution of formal proceedings), except that Disciplinary Counsel may institute a formal proceeding before a hearing committee or special master by filing a petition for discipline under § 89.52 (relating to petition for discipline) without seeking approval for the prosecution of formal charges under Subchapter 87B (relating to review of recommended disposition by reviewing hearing committee member). If a petition for discipline is filed, a hearing on the petition shall be deferred until sentencing and all direct appeals from the conviction have been concluded. The sole issue at the hearing shall be the extent of the discipline or, where the Court has temporarily suspended the attorney under § 91.34(c), the final discipline to be imposed.
* * * * * § 91.36. [Proceedings upon conviction of other crimes] (Reserved).
[(a) Enforcement Rule 214(g) provides that upon receipt of a certificate of conviction of any attorney for a crime other than a serious crime, the Court shall take such action as it deems warranted; and that the Court may in its discretion take no action with respect to convictions for minor offenses.
(b) The Official Note to Enforcement Rule 214(g) provides that the actions the Court may take under Subsection (a) include reference of the matter to the Office of Disciplinary Counsel for investigation and possible commencement of either a formal or informal proceeding, or reference of the matter to the Board with direction that it institute a formal proceeding.]
[§ 91.37] § 91.36. Effect of reversal of conviction.
(a) General rule. Enforcement Rule [214(h)] 214(g) provides that an attorney suspended under the provisions of § 91.34 (relating to temporary suspension upon conviction of [serious] a crime) may be reinstated immediately upon the filing by the Board with the Supreme Court of a certificate demonstrating that the underlying conviction has been reversed, but that the reinstatement shall not terminate any formal proceeding then pending against the attorney.
* * * * * [§ 91.38] § 91.37. Definition of ''[serious] crime.''
As [used in this Subchapter 91B,] Enforcement Rule [214(i)] 214(h) provides [that] and as used in this Subchapter 91B, the term ''[serious] crime'' means a crime that is punishable by imprisonment [for one year or upward in this or any other jurisdiction] in the jurisdiction of conviction, whether or not a sentence of imprisonment is actually imposed. It does not include parking violations or summary offenses, both traffic and non-traffic, unless a term of imprisonment is actually imposed.
[§ 91.39] § 91.38. Definition of ''conviction.''
As [used in this Subsection 91B,] Enforcement Rule [214(j)] 214(i) provides [that] and as used in this Subchapter 91B, the term ''conviction'' means any guilty verdict, whether after trial by judge or jury, or finding of guilt, and any plea of guilty or nolo contendere that has been accepted by the court, whether or not sentence has been imposed.
Subchapter C. RECIPROCAL DISCIPLINE AND DISABILITY § 91.51. Reciprocal discipline and disability.
Enforcement Rule 216 provides as follows:
(1) Upon receipt of a certified copy of [an order, judgment or disciplinary directive of another court, a federal government] a final adjudication any court or any body authorized by law or by rule of court to conduct disciplinary proceedings against attorneys by any state or territory of the United States or of the District of Columbia, a United States court, or government administrative agency or a military tribunal demonstrating that an attorney admitted to practice in this Commonwealth has been disciplined by suspension, disbarment, [or] revocation of license or pro hac vice admission, or has resigned from the bar or otherwise relinquished his or her license to practice while under disciplinary investigation in another jurisdiction or has been transferred to disability inactive status, the Supreme Court shall forthwith issue a notice (Form DB-19) (Notice of Reciprocal Discipline) directed to the respondent-attorney containing:
(i) A copy of [said order, judgment or directive from the other court, federal government agency or military tribunal] the final adjudication described in paragraph (a).
(ii) An order directing that the respondent-attorney inform the Court within 30 days from service of the notice, of any claim by the respondent-attorney that the imposition of the identical or comparable discipline or disability inactive status in the Commonwealth would be unwarranted, and the reasons therefor. The Office of the Secretary shall cause this notice to be served upon the respondent-attorney by mailing it to the address furnished by the respondent-attorney in the last registration statement filed by such person in accordance with § 93.142(b) (relating to filing of annual [statement] form by attorneys) or, in the case of a foreign legal consultant, by serving it pursuant to the designation filed by the foreign legal consultant under Pennsylvania Bar Admission Rule 341(b)(8) (relating to licensing of foreign legal consultants).
(2) In the event the discipline imposed in the [other court, federal government agency or military tribunal] original jurisdiction has been stayed there, any reciprocal discipline imposed in the Commonwealth shall be deferred until such stay expires.
(3) Upon the expiration of 30 days from service of the [Form DB-19] notice issued pursuant to the provisions of subdivision (1), the Supreme Court may impose the identical or comparable discipline or transfer to disability inactive status unless Disciplinary Counsel or the respondent-attorney demonstrates, or the Court finds that upon the [face] fact of the record upon which the discipline is predicated it clearly appears:
* * * * * (5) An attorney who has been transferred to disability inactive status or disciplined in another court or by any body authorized by law or by rule of court to conduct disciplinary proceedings against attorneys by any state or territory of the United States or of the District of Columbia, a United States court, or by a federal [government] administrative agency or a military tribunal, by suspension, disbarment, or revocation of license or pro hac vice admission, or who has resigned from the bar or otherwise relinquished his or her license to practice while under disciplinary investigation in another jurisdiction, shall report the fact of such transfer, suspension, disbarment, revocation or resignation to the Secretary of the Board within 20 days after the date of the order, judgment or directive imposing or confirming the discipline or transfer to disability inactive status.
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:
(i) review and approve or modify recommendations by Disciplinary Counsel for dismissals, informal admonitions, private reprimands, public reprimands and institution of formal charges;
(ii) hear and determine attacks on the validity of subpoenas issued pursuant to § 91.2 (relating to subpoenas and investigations), as provided in [§ 91.3(2)] § 91.3(a)(2) (relating to determination of validity of subpoena; or
(iii) consider a petition for reinstatement to active status from retired or inactive status, or administrative suspension, under § 89.273(b) (relating to procedures for reinstatement).
(8) To review, through a designated panel of three members, and approve or modify a determination by a reviewing hearing committee member that a matter should be concluded by dismissal, private informal admonition, private reprimand, public reprimand or the institution of formal charges before a hearing committee.
(9) To review, through a designated panel of three members, and approve or reject a joint petition in support of discipline on consent filed with the Board pursuant to Enforcement Rule 215(d).
(10) To review, through a single member designated by the Board Chair, and approve or reject a certification filed by Disciplinary Counsel under Enforcement Rule 218(d)(2)(ii) indicating that Disciplinary Counsel has determined that there is no impediment to reinstatement of the petitioner, and to issue the report and recommendation required by subdivision (d) of Enforcement Rule 218.
(11) To administer, by the Board or through a designated panel of three members selected by the Board Chair, private reprimands or public reprimands to attorneys for misconduct.
* * * * *
Subchapter D. OFFICE OF DISCIPLINARY COUNSEL § 93.63. Powers and duties of Office of Disciplinary Counsel.
(a) General rule. The Office of Disciplinary Counsel shall have the power and duty (pursuant to Enforcement Rule 207(b)):
(1) To investigate all matters involving alleged misconduct called to its attention whether by complaint or otherwise except, unless as otherwise directed by the Supreme Court or the Board, complaints against Disciplinary Counsel and members of the Board.
(2) To dispose of any matter that is governed by Enforcement Rules 214 (Attorneys convicted of crimes), 215 (Discipline on Consent), and 216 (Reciprocal discipline) in accordance with the substantive and procedural provisions of those rules, and to dispose of all other matters [(subject to review by a senior or experienced hearing committee matter when required by these rules)] involving alleged misconduct by dismissal[,] or (subject to review by a senior or experienced hearing committee member) by recommendation for informal admonition, [recommendation for] private or public reprimand, or the prosecution of formal charges before a hearing committee or special master.
* * * * * (b) Party status of Disciplinary Counsel. Enforcement Rule 207(c) provides that Disciplinary Counsel:
(1) Shall be a party to all proceedings and other matters before the Board or the Supreme Court under the Enforcement Rules.
(2) May urge in the Supreme Court a position inconsistent with any recommendation of the Board where in the judgment of Disciplinary Counsel a different disposition of the matter is warranted by the law or the facts.
(3) May within the time and in the manner prescribed by [210 Pa. Code] Title 210 (relating to the Pennsylvania Rules of Appellate Procedure) obtain in the Supreme Court judicial review of any final determination of the Board, except a determination to conclude a matter by dismissal, informal admonition [or], private reprimand, or public reprimand.
(4) May within the time and in the manner prescribed by [210 Pa. Code] Title 210 petition the Supreme Court for allowance of an appeal from any final determination of the Board to conclude a matter by dismissal, informal admonition [or], private reprimand, or public reprimand.
Subchapter F. CONFIDENTIALITY § 93.102. Access to disciplinary information and confidentiality.
(a) General rule. Enforcement Rule 402(a) provides that, except as provided in subsections (b) and (d) and §§ 93.104 (relating to access by judicial system agencies to confidential information) and 93.108 (relating to restoration of confidentiality), all proceedings under these rules shall be open to the public after:
(1) the filing of an answer to a petition for discipline;
(2) the time to file an answer to a petition for discipline has expired without an answer being filed;
(3) the filing and service of a petition for reinstatement; [or]
(4) the Board has entered an Order determining a public reprimand; or
(5) after the expiration of any order restricting access to disciplinary information.
* * * * *
Subchapter G. FINANCIAL MATTERS
TAXATION OF COSTS § 93.111. Determination of reimbursable expenses.
* * * * * (c) Administrative fee. Enforcement Rule 208(g)(3) provides that the expenses taxable under § 89.205(b) (relating to informal admonition [or], private reprimand, or public reprimand following formal hearing) or § 89.209 (relating to expenses of formal proceedings) may include an administrative fee except that an administrative fee shall not be included where the discipline imposed is an informal admonition; and that the administrative fee shall be $250.
[Pa.B. Doc. No. 12-1501. Filed for public inspection August 10, 2012, 9:00 a.m.]
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