THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CH. 83 ]
Proposed Amendments to Pennsylvania Rules of Disciplinary Enforcement 102, 218 and 219 to Adopt New Terminology to Differentiate Between the Annual Attorney Registration Fees Paid by Active and Inactive Attorneys; and to Provide for the Assessment of a Paper Processing Fee When an Attorney Elects Not to File the Annual Fee Form Electronically, Beginning With the 2015-2016 Assessment Year
[44 Pa.B. 1865]
[Saturday, March 29, 2014]
Notice of Proposed Rulemaking 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 102, 218 and 219 as set forth in Annex A.
Charging attorneys an annual fee to assume or remain on inactive status went into effect beginning with the 2009-2010 assessment year. The annual fee for inactive status is less than the base annual fee assessed against active attorneys, and inactive attorneys are exempt from paying the additional annual fees imposed upon active attorneys by PA RPC 1.15(u), which assessment is for use by the IOLTA Board, and by Enforcement Rule 502(b), which assessment is for use by the Pennsylvania Lawyers Fund for Client Security. The Board believes that clarity would be added to the Enforcement Rules by adopting new terminology to describe and differentiate between the active fees and the inactive fee. To this end, the proposed amendments introduce the terms ''active annual fee'' and ''inactive annual fee.'' Throughout the proposed Rules, annual ''fee'' is in the plural when necessary to reflect the combination of fees paid by active attorneys. A new Note after subdivision (a) of Rule 219 serves to explain the source of the fees assessed against active attorneys.
Through amendments to subdivisions (a) and (j)(1) of Rule 219, the Board is also proposing that a paper processing fee of $25.00 be assessed against attorneys who elect not to file the annual fee form electronically; this assessment would begin with the 2015-2016 assessment year. The Attorney Registration Office (ARO) incurs significant costs both prior to and after the receipt, by mail or delivery in person to the ARO, of a completed annual fee form and the check or money order in payment of the annual fee. These costs, which include materials, labor and handling, are associated with the printing of the annual fee forms and of various documents that are instructional or informational in nature; purchasing envelopes, return envelopes, and postage; placing the annual fee forms and the various inserts into envelopes; maintaining a lockbox; scanning filed forms; negotiating the checks and money orders; and reviewing and rejecting forms that are incomplete or ineligible for processing. The ARO was responsible for the processing of 73,878 registrations during the 2011-2012 assessment year, 74,623 registrations during the 2012-2013 assessment year, and 75,618 registrations for the 2013-2014 registration year as of January 28, 2014. A proposed amendment to Rule 219(a) reflects that the additional $25.00 paper processing fee as well as the base annual fee paid by both active and inactive attorneys, will be used to defray the costs of registration of attorneys.
Electronic filing reduces the costs associated with attorney registration. The number of electronic filers, however, has not reached a point where the costs associated with the current volume of paper filings have been significantly reduced. When electronic filing first became available, which was during the 2011-2012 assessment year, only slightly more than 20% of registrants filed electronically. During the two subsequent registration periods, that number increased to roughly 28% and 31%, respectively.
A few states have instituted mandatory electronic filing, although a hardship exemption may be granted upon application. While the Board is of the view that mandatory electronic filing in Pennsylvania is on the horizon, the Board decided that it would be appropriate to preserve the status quo provided that the increased costs associated with maintaining the current paper system of registration are borne by those attorneys who register in paper form. Attorneys who wish to avoid the paper processing fee have the option of filing the annual fee form electronically and paying a nominal fee, which is currently $2.75, to cover the cost of processing the electronic payment.
Attorneys who wish to take advantage of the convenience and benefits of electronic filing should do so timely, as electronic filing is no longer available after the Supreme Court enters an order administratively suspending the attorney pursuant to subdivision (f) of Rule 219. Under subdivisions (h) and (k) of Rule 219, administratively suspended attorneys who subsequently register as active or inactive must do so in paper form, thereby requiring the payment of the $25.00 paper processing fee in addition to the applicable annual fee or fees and other assessments.
Interested persons are invited to submit written comments by mail, email, or facsimile regarding the proposed amendments to the Office of the Secretary, The Dis- ciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, Email address Dboard.comments@pacourts, Facsimile number (717-231-3382), on or before May 12, 2014.
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 A. PRELIMINARY PROVISIONS Rule 102. Definitions.
(a) General rule. Subject to additional definitions contained in subsequent provisions of these rules which are applicable to specific provisions of these rules, the following words and phrases when used in these rules shall have, unless the context clearly indicates otherwise, the meanings given to them in this rule:
* * * * * Administrative suspension—Status of an attorney, after Court order, who: failed to pay the annual [fee] fees and/or file the form required by subdivisions (a) and (d) of Enforcement Rule 219; failed to pay the inactive annual fee required by subdivision (j)(1) of Enforcement Rule 219 and/or file the form required by subdivisions (c) 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.
* * * * *
Subchapter B. MISCONDUCT Rule 218. Reinstatement.
* * * * * (f) The Supreme Court in its discretion may direct that the necessary expenses incurred in the investigation and processing of the petition for reinstatement be paid by the petitioner-attorney. A reinstatement fee of $300 shall be assessed against a petitioner-attorney who was administratively suspended at the time of the filing of the petition. The annual [fee] fees required by Rule 219(a) and the reinstatement fee, if applicable, shall be paid to the Attorney Registration Office after the Supreme Court order is entered.
* * * * * Rule 219. Annual registration of attorneys.
(a) Every attorney admitted to practice law in this Commonwealth shall pay an active annual fee of $130.00 and file the annual fee form provided for in this rule. If an attorney elects not to file the form electronically, an additional $25.00 paper processing fee shall be paid. The active annual fee and paper processing fee shall be collected under the supervision of the Attorney Registration Office, which shall send or cause to be sent 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] fees. The said [fee] fees shall be used to defray the costs of registration of attorneys, and 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.
Official Note: PA RPC 1.15(u) imposes an additional annual fee for use by the IOLTA Board, and Pa.R.D.E. 502(b) imposes an additional annual fee for use by the Pennsylvania Lawyers Fund for Client Security.
(b) The following shall be exempt from paying the active annual fee required by subdivision (a):
* * * * * (d) On or before July 1 of each year all 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:
* * * * * (2) Payment of the annual fee and paper processing fee shall accompany the form. IOLTA, trust, escrow and other fiduciary account checks tendered in payment of the [annual fee] said fees will not be accepted. If the form and payment are incomplete or if a check in payment of the [annual fee] fees has been returned to the Board unpaid, the annual fee and paper processing 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.
* * * * * (e) Upon receipt of a form, or notice of change of information contained therein, filed by an attorney in accordance with the provisions of subdivision (d) of this rule, and of payment of the required [annual fee] fees to practice law in this Commonwealth, receipt thereof shall be acknowledged on a certificate or license.
(f) Any attorney who fails to complete registration by July 31 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 August 31, 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 paper processing 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 rule.
(g) The Attorney Registration Office shall provide to the Board [secretary] Secretary a copy of any certification filed by the Attorney Registration Office with the Supreme Court pursuant to the provisions of this rule.
(h) The procedure for reinstatement of an attorney who has been administratively suspended pursuant to subdivision (f) for three years or less is as follows:
(1) The formerly admitted attorney shall submit by mail or delivery in person to the Attorney Registration Office the form required by subdivision (d)(1) along with payment of:
(i) the current active annual fee and the paper processing fee required by subdivision (a) of this rule;
(ii) the active annual fee that was due in the year in which the attorney was administratively suspended;
(iii) the late payment penalties required by paragraph (3);
(iv) any unpaid collection fee; and
(v) a reinstatement fee of $300.00.
* * * * * (i) Retired Status: An attorney who has retired shall file with the Attorney Registration Office an application for retirement or annual fee form, along with payment of any late payment penalties incurred. Upon the transmission of such application from the Attorney Registration Office to the Supreme Court, the Court shall enter an order transferring the attorney to retired status, and the attorney shall no longer be eligible to practice law. The retired attorney will be relieved from the payment of the [fee] fees imposed by this rule upon active practitioners and Enforcement Rule 217 (relating to formerly admitted attorneys) shall not be applicable to the formerly admitted attorney unless ordered by the Court in connection with the entry of an order of suspension or disbarment under another provision of these rules. An attorney on retired status for three years or less may be reinstated in the same manner as an inactive attorney, except that the retired attorney shall pay the [annual] active annual fee for the three most recent years or such shorter period in which the attorney was on retired status instead of the amounts required to be paid by an inactive attorney seeking reinstatement. The Chief Justice may delegate the processing and entry of orders under this subdivision to the Prothonotary.
(j) Inactive Status: 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 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 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 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 inactive annual fee of $70.00. If an attorney elects not to file the form electronically, an additional $25.00 paper processing fee shall be paid. 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 pursuant to and in accordance with the provisions of subdivision (f) of this rule.
(2) Administrative Change in Status from Inactive Status to Active Status: An attorney [on inactive status may] who has registered as inactive under subsection (1) of this subdivision (j) may thereafter request resumption of active status before the end of the current assessment year on a form provided by the Attorney Registration Office for that particular purpose. Resumption of active status shall be granted unless the inactive attorney is subject to an outstanding order of suspension or disbarment, 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 annual fee for the assessment year in which the application for resumption of active status is made or the difference between the active annual fee and the inactive annual fee that has been paid for that year; and
(ii) any 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.
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 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] fees 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 inactive annual fee and the $25.00 paper processing 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 active annual fee required by this rule must comply with subdivision (h) before becoming eligible to register as inactive or retired.
* * * * * (n) A former or retired justice or judge who is not the subject of an outstanding order of discipline affecting his or her right to practice law and who wishes to resume the practice of law shall file with the Attorney Registration Office a notice in writing to that effect. The notice shall:
* * * * * (iii) be accompanied by payment of the [full] active annual fee for the assessment year in which the notice is filed.
[Pa.B. Doc. No. 14-629. Filed for public inspection March 28, 2014, 9:00 a.m.]
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