THE COURTS

Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

[ 204 PA. CODE CH. 83 ]

Proposed Amendments to the Pennsylvania Rules of Disciplinary Enforcement Regarding Procedure and Reinstatement

[47 Pa.B. 7832]
[Saturday, December 30, 2017]

 Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania (Board) is considering recommending to the Supreme Court of Pennsylvania that it adopt amendments to Pennsylvania Rules of Disciplinary Enforcement (Pa.R.D.E.) 208 and 218 relating to administrative fees assessed in the imposition of attorney discipline and filing fees assessed in reinstatement proceedings, as set forth in Annex A.

 At present, Pa.R.D.E. 208(g)(4) allows for the Board to assess an administrative fee of $250 for the imposition of discipline, except in matters that conclude in an informal admonition. Current Pa.R.D.E. 218(f) provides for a mandatory reinstatement fee of $300 only in reinstatements from administrative suspension. In discipline matters, pursuant to Pa.R.D.E. 208(g)(1) and (2), the Court and the Board have the authority to direct the respondent to pay the expenses assessed by the Board. In reinstatement matters, pursuant to Pa.R.D.E. 218(f), the Court has the authority to direct the petitioner to pay the expenses assessed by the Board. Historically, these costs include the administrative or reinstatement fee and other charges, including, court reporter fees and transcripts, service of pleadings, briefs, and subpoenas, reproducing documents, and publishing notices of discipline and reinstatement. These costs do not include many other obligations incurred by the Board in the investigation or prosecution of a case.

 The proposed amendments, which include fee schedules increasing the administrative and filing fees, would be assessed against respondents and petitioners, in addition to the costs already assessed. The purpose of the proposed administrative fees is an attempt to shift some of the burden of the operation of the disciplinary system to the licensees who transgress from their ethical obligations. The Board suggests it is reasonable to put a heightened burden on the lawyer population that causes the administrative expenses to be incurred.

 Proposed amendments to paragraph (g)(4) would provide for mandatory assessment of administrative fees in discipline matters. A proposed fee schedule is set forth in the rule amendment. The assessed fee increases with each level of discipline, beginning with an assessment of $250 for an informal admonition, the lowest level of discipline, and rising to an assessment of $2,000 for disbarment, the most severe form of discipline.

 Proposed paragraphs (g)(4)(i) and (ii) explain the assessment when a disciplinary proceeding concludes by Joint Petition for Discipline on Consent. Prior to the commencement of a hearing, if the proceeding concludes on consent, the assessed fee is reduced by 50 percent. Where the proceeding concludes on consent after the commencement of the hearing, the Board has the discretion to reduce the fee by no more than 50 percent.

 As for the reinstatement fee, at present, this fee is paid by the petitioner-attorney to the Attorney Registration Office after the Supreme Court reinstates the attorney from administrative suspension. Proposed amendments to paragraph (f)(1) and (f)(2) would provide for mandatory, nonrefundable filing fees in reinstatements from disbarment and suspension for more than one year, from inactive/retired status for more than three years, and from administrative suspension.

 Proposed new paragraph (f)(1) would require that at the time of the filing of a petition for reinstatement with the Board, the petitioner-attorney must pay a non-refundable reinstatement filing fee. The amount of the filing fee depends on the type of reinstatement sought by petitioner. The proposed filing fees start at $250 for reinstatement from inactive or retired status for more than three years and increase to $1000 for reinstatement from disbarment or suspension for more than one year.

 Proposed amendments to paragraph (f)(2) would clarify that following the entry of the Supreme Court order in a reinstatement matter, the annual fee that is required by Rule 219(a) for the current year must be paid to the Attorney Registration Office.

 On a related note, last year, of the eighteen petitions filed for reinstatement from discipline, five were withdrawn prior to hearing. Experience suggests that some petitioner-attorneys file for reinstatement and wait to see Office of Disciplinary Counsel's response prior to determining whether to proceed, and in some circumstances withdraw, based on the response. By that point in time, Disciplinary Counsel has already undertaken the thorough investigation required to respond to the petition, spending valuable time and resources. The proposed filing fee will encourage petitioners to take pause prior to filing for reinstatement if they are not certain or intend to ''test the waters.''

 The Board reviewed administrative fees from multiple jurisdictions (based in part on the Administrative Costs and Fees Survey 2011 complied by the National Organization of Bar Counsel and more recent information received from the National Council of Lawyer Disciplinary Boards). Our research indicates that at least twelve jurisdictions have fixed fees or fee schedules relative to the level of discipline imposed. Arizona and California assess substantially higher fees than proposed herein, with Arizona¹ charging between $600 and $6,000, based on the level of discipline, and California² charging between $2,518 and $21,497, depending on the level of discipline. Of the twelve jurisdictions, at least seven utilize an administrative fee schedule ranging from $250 up to $3,000, depending on the level of discipline.³ The Board's proposed administrative fees in discipline matters align with fees assessed in the majority of these jurisdictions.

 Further, approximately sixteen jurisdictions assess an initial filing fee for reinstatement matters. Our research indicates that these fees range from a nominal sum up to $1250.⁴ The Board's proposed reinstatement filing fees align with the fees charged in those jurisdictions.

 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, P.O. Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3381), Email address Dboard.comments@pacourts.us on or before March 6, 2018.

By the Disciplinary Board of the
Supreme Court of Pennsylvania

JULIA FRANKSTON-MORRIS, Esq., 
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 208. Procedure.

*  *  *  *  *

 (g) Costs.

*  *  *  *  *

 (4) The expenses under paragraph (1) or (2) [may] shall include an administrative fee [except that an administrative fee shall not be included where the discipline imposed is an informal admonition]. The administrative fee [shall be $250.] schedule is as follows:

Informal Admonition:	$250
Private Reprimand:	$400
Public Reprimand:	$500
Public Censure:	$750
Suspension (1 year or less):	$1,000
Suspension (more than 1 year):	$1,500
Disbarment:	$2,000
Disbarment on Consent:	$1,000
Transfer to Inactive Status following  discipline	$1,000

 (i) Where a disciplinary proceeding concludes by Joint Petition for Discipline on Consent prior to the commencement of the hearing, the fee imposed shall be reduced by 50%.

 (ii) Where a disciplinary proceeding concludes by Joint Petition for Discipline on Consent subsequent to the commencement of the hearing, the Board in its discretion may reduce the fee by no more than 50%.

 (h) Violation of probation. Where it appears that a respondent-attorney who has been placed on probation has violated the terms of the probation, the Office of Disciplinary Counsel may file a petition with the Board detailing the violation and suggesting appropriate modification of the order imposing the probation, including without limitation immediate suspension of the respondent-attorney. A hearing on the petition shall be held within ten business days before a member of the Board designated by the Board Chair. If the designated Board member finds that the order imposing probation should be modified, the following procedures shall apply:

*  *  *  *  *

Rule 218. Reinstatement.

*  *  *  *  *

 (f)(1) At the time of the filing of a petition for reinstatement with the Board, a non-refundable reinstatement filing fee shall be assessed against a petitioner-attorney. The filing fee schedule is as follows:

Reinstatement from disbarment or  suspension for more than one year:	$1,000
Reinstatement from administrative  suspension:	$500
Reinstatement from inactive/retired  status (more than three years):	$250

 (2) 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] After the Supreme Court Order is entered, the annual fee required by Rule 219(a) [and the reinstatement fee, if applicable,] for the current year shall be paid to the Attorney Registration Office [after the Supreme Court order is entered].

*  *  *  *  *

[Pa.B. Doc. No. 17-2158. Filed for public inspection December 29, 2017, 9:00 a.m.]

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¹  http://www.azbar.org/media/56131/administrative 436000rder% 20re osts.pdf

²  http://www.statebarcourt.ca.gov/Portals/2/documents/Disc_Costs_2017_2.pdf

³  https://www.floridabar.org/wp-content/uploads/2017/11/2017-RRTFB-Chapter-3-11-20-17.pdf; https://www.ladb.org/Material/Publication/xix.pdf; http://www.adbmich.org/costs.pdf; https://www.judiciary.state.nj.us/attorneys/assets/rules/r1-20.pdf; https://www.ncbar.gov/lawyer-discipline/assessment-of-administrative-fees-and-actual-costs/; http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=ELC&ruleid=gaelc1313.09; https://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/c0c6ffa99df4993f86256ba50057dcb8/a2984120f552591d86256ca60052120e?OpenDocument

⁴  For example: http://www.kscourts.org/rules/Rule-Info.asp?r1=Rules+Relating+to+Discipline+of+Attorneys&r2=293; http://www.supremecourt.ohio.gov/LegalResources/Rules/govbar/govbar.pdf; https://isb.idaho.gov/wp-content/uploads/ibcr_sec05_discipline.pdf; http://www.mass.gov/courts/case-legal-res/rules-of-court/sjc/sjc401.html; https://www.nvbar.org/wp-content/uploads/Disciplinary-Rules-of-Procedure-Amended-6.28.17.pdf.

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