THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
[ 204 PA. CODE CH. 83 ]
Proposed Amendments to the Pennsylvania Rules of Disciplinary Enforcement Regarding Procedure
[48 Pa.B. 5830]
[Saturday, September 22, 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 Rule of Disciplinary Enforcement (Pa.R.D.E.) 208 relating to the assessment of a penalty on untimely paid taxed expenses, as set forth in Annex A.
Current Rule 208(g) provides that the necessary expenses incurred in the investigation and prosecution of disciplinary proceedings shall be paid by the respondent-attorney, as directed by the Supreme Court of Pennsylvania or the Disciplinary Board. The Board proposes adding new subdivision (g)(5) to provide that the failure to pay taxed expenses within 30 days of the assessment becoming final shall result in the assessment of a penalty. This penalty shall be levied monthly at a rate of 0.8% of the unpaid principal balance, or such other rate as established by the Supreme Court from time to time. The proposed amendment gives the Board discretion to reduce the penalty or waive it in its entirety, for good cause shown.
The proposed amendment is intended to incentivize prompt payment of the taxed expenses, as a respondent-attorney will not only be subject to the assessment of a penalty for untimely payment, but may be transferred to administrative suspension pursuant to current Rule 208(g)(3) (regarding active-status attorneys who fail to timely pay taxed expenses). Respondent-attorneys will continue to have 30 days after issuance of the notice of taxed expenses to pay and to engage in discussion with the Board's Finance Office regarding payment.
Upon the Board's research, at present, there are approximately 600 respondents with outstanding taxed expenses due and owing the Board. This proposed rule amendment is not intended to be retroactive in application. Past unpaid taxed expenses will not be recalculated to reflect a monthly penalty. However, upon the rule's effective date, all respondent-attorneys who owe monies to the Board will be subject to the assessment of a penalty on the principal, going forward.1
Other jurisdictions assess similar penalties on administrative fees and costs.2 Additionally, the Pennsylvania Lawyers Fund for Client Security3 and the Pennsylvania Interest on Lawyers Trust Accounts Board4 assess interest on monies due and owing. The rate varies among the jurisdictions; predominantly 9 or 10% per annum. The Board's proposal levies a monthly penalty at 0.8% of the unpaid principal, totaling 9.6% per annum. The Board determined to assess this penalty on a monthly basis as opposed to per annum for ease of reconciliation and implementation for the Finance Office.
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 (717-231-3381), Email address Dboard.comments@pacourts.us on or before October 22, 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 B. MISCONDUCT Rule 208. Procedure.
(a) Informal proceedings.
(1) All investigations, whether upon complaint or otherwise, shall be initiated and conducted by Disciplinary Counsel.
(2) 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:
(i) Dismissal of the complaint.
(ii) A conditional or unconditional informal admonition of the attorney concerned.
(iii) A conditional or unconditional private reprimand by the Board of the attorney concerned.
(iv) A conditional or unconditional public reprimand by the Board of the attorney concerned.
(v) The prosecution of formal charges before a hearing committee or special master.
(3) Except where Disciplinary Counsel dismisses the complaint as frivolous, as falling outside the jurisdiction of the Board, or on the basis of Board policy or prosecutorial discretion, the recommended disposition shall be reviewed by a member of a hearing committee in the appropriate disciplinary district who may approve or modify.
(4) Disciplinary Counsel may appeal the recommended disposition directed by a hearing committee member to a reviewing panel composed of three members of the Board which shall order that the matter be concluded by dismissal, conditional or unconditional informal admonition, 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.
(5) 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.
(6) 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, but may demand as of right that a formal proceeding be instituted against such attorney in the appropriate disciplinary district. In the event of such demand, the respondent-attorney need not appear for the administration of the informal admonition, 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 paragraph (g)(2) of this rule.
* * * * * (g) Costs.
(1) The Supreme Court in its discretion may direct that the necessary expenses incurred in the investigation and prosecution of a proceeding which results in the imposition of discipline shall be paid by the respondent-attorney. All expenses taxed under this paragraph pursuant to orders of suspension that are not stayed in their entirety or disbarment shall be paid by the respondent-attorney within 30 days after notice transmitted to the respondent-attorney of taxed expenses. In all other cases, expenses taxed under this paragraph shall be paid by the respondent-attorney within 30 days of entry of the order taxing the expenses against the respondent-attorney.
(2) In the event a proceeding is concluded by informal admonition, 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. All expenses taxed by the Board under this paragraph shall be paid by the respondent-attorney within 30 days of entry of the order taxing the expenses against the respondent-attorney. The expenses which shall be taxable under this paragraph shall be prescribed by Board rules.
(3) Failure to pay taxed expenses within 30 days after the date of the entry of the order taxing such expenses in cases other than a suspension that is not stayed in its entirety or disbarment will be deemed a request to be administratively suspended pursuant to Rule 219(l).
(4) The expenses under paragraph (1) or (2) may 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.
(5) Assessed Penalties on Unpaid Taxed Expenses
(i) Failure to pay taxed expenses within thirty days of the assessment becoming final in accordance with subdivisions (g)(1) and (g)(2) shall result in the assessment of a penalty, levied monthly at the rate of 0.8% of the unpaid principal balance, or such other rate as established by the Supreme Court of Pennsylvania, from time to time.
(ii) Monthly penalties shall not be retroactively assessed against unpaid balances existing prior to the enactment of the rule; monthly penalties shall be assessed against these unpaid balances prospectively, starting 30 days after the effective date of the rule.
(iii) The Disciplinary Board for good cause shown, may reduce the penalty or waive it in its entirety.
* * * * *
[Pa.B. Doc. No. 18-1479. Filed for public inspection September 21, 2018, 9:00 a.m.] _______
1 The Finance Office will notify all affected attorneys upon issuance of an Order.
2 Florida, Illinois, Louisiana, Maryland, New Jersey, Ohio, Virginia, Washington
3 Pursuant to Rule 531, Pa.R.D.E., when a formerly admitted attorney seeks reinstatement to the bar, that attorney is required to reimburse the Fund in full, plus 1023c00er annum interest, on all disbursements made on behalf of that attorney.
4 IOLTA charges interest at the IRS penalty percentage rate on IOLTA funds that have not been paid to them.
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
