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 Relating to Hearing Committees
[48 Pa.B. 5717]
[Saturday, September 15, 2018]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.'') 102 and 206, relating to the definitions of hearing committee member statuses and the procedures for appointing hearing committee members in disciplinary and reinstatement proceedings, as set forth in Annex A.
Hearing committees serve a vital function in Pennsylvania's disciplinary system. Pursuant to Rule 206(b), upon assignment by the Board, these committees have the power and duty to conduct investigatory hearings and hearings into formal charges of misconduct, and to submit their conclusions to the Board. Further, hearing committees are authorized under Rule 218(c)(3) to conduct hearings on the reinstatement of attorneys who have been disbarred or suspended for more than one year, and to submit findings and recommendations to the Board.
Recently, the Board has encountered administrative challenges in appointing hearing committees in districts with heavy caseloads that require frequent committee member involvement, particularly in the districts of Philadelphia and its surrounding counties.
Current Rule 206(a) provides that when a hearing committee is necessary to handle a matter, the Board appoints a committee consisting of three members from the appropriate disciplinary district1 , all of whom are members of the bar of this Commonwealth. The hearing committee composition is prescribed by Rule 206(a) and must have one ''senior'' member, and another member who is either a ''senior'' or ''experienced'' member. Although not explicitly stated, the third member may be a new, experienced or senior member.
Current Rule 102 defines the criteria for ''senior'' and ''experienced'' members, which are two-fold in nature. A ''senior'' hearing committee member is one who at the time of appointment to a committee, has previously served for a full 3-year term2 as a member and has served on hearing committees that have conducted at least two hearings into formal charges of misconduct by respondent-attorneys. Additionally, a ''senior'' hearing committee member may be an attorney who has previously served as a member of the Board. An ''experienced'' hearing committee member is one who at the time of appointment to a committee, has served as a member for least 1 year and on a hearing committee that has conducted at least one hearing into formal charges of misconduct by a respondent-attorney.
The requirement that a hearing committee be composed of at least two members who have experience with disciplinary proceedings ensures a knowledgeable review of matters. Additionally, we note that senior and experienced members have heightened duties and are authorized to take certain actions that new members are not, such as chair a hearing committee (senior members only)3 , review and approve recommendations by Disciplinary Counsel4 and consider petitions for reinstatement to active status from formerly admitted attorneys who have not been disbarred or suspended.5
As mentioned, the Rules, as currently written, pose challenges. These challenges lie in forming committees for hearings and appointing members to serve in capacities requiring elevated levels of service from the eligible pool in a particular district, as there are a dearth of members classified as ''experienced.'' This situation impacts the timeliness of the committee appointment process and the scheduling of hearings, as the administrative task of securing committee members who have the requisite levels of experience takes longer to accomplish.
The current requirement that a member must serve a specified number of years before transitioning to a higher classification poses an obstacle to the appointment process, in that the member may have participated in the required number of hearings before the time limit passes, yet the Board is unable to use that member at the more advanced classification until the end of the time limit.Following review and analysis, the Board concludes that it is more critical to the efficient functioning of the disciplinary system that a member serve on a set number of hearings to ensure the member has the practical knowledge necessary to conduct disciplinary matters; the timing is less relevant.
The Board proposes two amendments to remedy administrative burdens and ensure timely appointment of hearing committees and scheduling of hearings and other matters.
The proposed amendments to Rule 102 modify the definitions of ''senior'' and ''experienced'' hearing committee members by eliminating the time requirements to attain those statuses. The main thrust of these proposed amendments is to increase the pool of experienced and senior members eligible to conduct matters by more quickly transitioning members to those elevated statuses.
The proposed amendment to Rule 206(a) gives the Board discretion, in exigent circumstances, to appoint a committee member or members from outside of the respondent's geographical disciplinary district, or to require that a disciplinary matter be transferred to another disciplinary district. This proposal gives the Board needed flexibility in situations where it experiences difficulty in the prompt appointment of a hearing committee panel. As indicated by the proposed word ''exigent,'' the Board does not intend to deviate from the normal appointment process within a disciplinary district unless necessary to advance a matter.
Interested persons are invited to submit written comments 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 (717-231-3381), Email address Dboard.comments@pacourts.us on or before October 15, 2018.
By the Disciplinary Board of the
Supreme Court of PennsylvaniaJULIA 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 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:
* * * * * ''Experienced hearing committee member.''—An attorney who at the time is a member of the panel of hearing committee members in a disciplinary district and who has served [as a member of a panel of hearing commit-tee members for at least one year and on a hearing committee that has conducted at least one hearing into formal charges of misconduct by a respondent-attorney] on at least one hearing committee that has conducted a hearing into formal charges of misconduct by a respondent-attorney.
* * * * * ''Senior hearing committee member.''—An attorney who at the time is a member of the panel of hearing committee members in a disciplinary district and who has [previously] served either (i) as a member of the Board, or (ii) [a full three-year term on a panel of hearing committee members and on hearing committees that have conducted hearings into formal charges of misconduct by respondent-attorneys] on at least two hearing committees that have conducted hearings into formal charges of misconduct by respondent-attorneys.
* * * * *
Subpart B. MISCONDUCT Rule 206. Hearing committees and special masters.
(a) When a hearing committee is required to handle a matter, the Board shall appoint a hearing committee consisting of three hearing committee members from the appropriate disciplinary district. Under exigent circumstances, the Board has the discretion to appoint a hearing committee member(s) from outside the appropriate disciplinary district, or to require that a matter be transferred to another disciplinary district. At least one of the members of the hearing committee shall be a senior hearing committee member, and another member shall be either a senior hearing committee member or an experienced hearing committee member. The Board shall designate one of the members so appointed as the chair for the committee, who shall be a senior hearing committee member. The terms of hearing committee members shall be three years and no member shall serve for more than two consecutive three-year terms. Board rules may authorize a hearing committee member whose term has expired to continue to serve until the conclusion of any matter commenced before the member prior to the expiration of such term. A hearing committee member who has served two consecutive three-year terms may be reappointed after the expiration of one year. A hearing committee shall act only with the concurrence of a majority of its members and two members shall constitute a quorum, except that a single senior or experienced hearing committee member may act for the committee when the committee is sitting as an investigatory hearing committee under Enforcement Rule 213(a)(1) (relating to subpoena power, depositions and related matters) or when conducting a prehearing conference. The terms of hearing committee members shall commence on July 1.
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[Pa.B. Doc. No. 18-1443. Filed for public inspection September 14, 2018, 9:00 a.m.] _______
1 Pennsylvania is divided into four disciplinary districts, as set forth in Rule 202(a), Pa.R.D.E.
2 Members are appointed to two consecutive 3-year terms.
3 Rule 206(a), Pa.R.D.E.
4 Disciplinary Board Rule § 85.2(a)
5 Rule 218(d)(4), Pa.R.D.E.
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