THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[204 PA. CODE CHS. 83, 85, 89, 91 AND 93]
Proposed Amendments to the Disciplinary Board Rules and the Rules of Disciplinary Enforcement to Update the Disciplinary Board Rule Identifying the Procedure Applicable to Formal Proceedings; to Increase Efficiency In Formal Disciplinary Proceedings by Prohibiting Certain Types of Prehearing and Hearing Motions; to Clarify the Meaning and Application of the Board Rule Designating the Manner of Service of Documents Originating With the Board; and to Amend Certain Provisions of the Enabling Rules to Conform to the Rules That Allow a Single Board Member to Act for the Board on an Interlocutory Appeal
[50 Pa.B. 642]
[Saturday, February 1, 2020]Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania (Board) is considering amending Disciplinary Board Rules (''D.Bd. Rules'') §§ 85.11, 89.2, 89.21, 89.55, 89.93, 91.3, 93.22 and 93.23 as set forth in Annex A, and planning to recommend to the Supreme Court of Pennsylvania that the Court amend Rules 205, 208 and 213 of the Pennsylvania Rules of Disciplinary Enforcement (''Enforcement Rules'' or ''Pa.R.D.E.''), as set forth in Annex B.
The reference to ''action in equity'' in D.Bd. Rules § 89.2 is obsolete.
D.Bd. Rules § 89.2, titled ''Equity procedure to apply,'' currently provides that except where inconsistent with the Disciplinary Board Rules, ''formal proceedings before hearing committees, special masters and the Board shall conform generally to the practice in action in equity under the Pennsylvania Rules of Civil Procedure.'' The ''practice in action in equity'' language provides no guidance in discerning the procedure to be followed in modern-day practice before the Board because ''[t]he action in equity has been abolished. Equitable relief may be obtained through a civil action, Rule [Pa.R.C.P.] 1001 et seq.'' See Note after Pa.R.C.P. 1501 (Rescinded). The Supreme Court merged actions in equity with civil actions by Order dated December 16, 2003, effective July 1, 2004. In re: Consolidation of the Action in Equity with the Civil Action, No. 402 Civil Procedural Rules Docket No. 5, 34 Pa.B. 9 (January 3, 2004). Attempting to extrapolate ''equity practice'' or even ''equitable procedures'' from the Rules of Civil Procedure for application to attorney disciplinary proceedings is an impossible task. In summary, the term ''action in equity'' is obsolete, no longer provides tangible guidance on procedure, and therefore should be deleted from D.Bd. Rules § 89.2.
Substituting ''civil action'' for ''action in equity'' would be counterproductive.
As explained above, in 2003 the Court abolished the separate action in equity and merged it into the civil action such that equitable causes of action now require analysis of the Rules of Civil Procedure governing the civil action—i.e., Pa.R.C.P. 1001 et seq. With respect to D.Bd. Rules § 89.2, replacing the ''action in equity'' procedure with the ''civil action'' procedure as set forth in the Rules of Civil Procedure would be counterproductive because the civil action rules contain a number of detailed procedural requirements that are not inconsistent with the Board Rules but foreign to established Board practice, such as attaching a writing to a pleading when a claim or defense is based thereon. See Pa.R.C.P. 1019(h). Adding such procedural requirements to the Board Rules would likely give rise to motions and litigation over a party's nonconformity with the civil action rules, contrary to the purpose of these proposed amendments, which is to streamline the procedure in formal proceedings rather than to burden it.
Proposed rewrite of D.Bd. Rules § 89.2 via new Enforcement Rule 208(c).
To remedy the obsolete and uncertain language of current D.Bd. Rules § 89.2, the Board plans to recommend to the Court that Enforcement Rule 208(c), which is titled ''Hearing procedures,'' be retitled ''Prehearing and hearing procedures''; provide that the rule govern the procedure in ''formal'' proceedings before ''the Board'' in addition to proceedings before hearing committees and special masters; and further provide that the procedure in proceedings before all three tribunals be governed by the Board Rules, the Enforcement Rules, and the decisional law of the Court and the Board in attorney discipline and reinstatement matters. If the Court adopts the Board's recommendation, the Board would replace current D.Bd. Rules § 89.2 with proposed subdivision (a) of D.Bd. Rules § 89.2, which would reaffirm the applicable sources of procedural law established by new Enforcement Rule 208(c).
Including the Enforcement Rules within new Pa.R.D.E. 208(c) is appropriate because procedure applicable to formal proceedings can be found throughout the Enforcement Rules. E.g., Pa.R.D.E. 214(f)(1) (hearing on a petition for discipline based on a criminal conviction ''shall be deferred until sentencing and all direct appeals from the conviction have been concluded''); id. 213(g)(1) (party may file a motion to enforce subpoena if witness does not comply with a subpoena); id. 218(e) (''In all proceedings upon a petition for reinstatement, cross-examination of the petitioner-attorney's witnesses and the submission of evidence, if any, in opposition to the petition shall be conducted by Disciplinary Counsel.''). The Board is confident that the procedural framework established by the current Board Rules and Enforcement Rules is sufficient to bring a discipline or reinstatement proceeding to a prompt and fair resolution in a procedurally uniform manner. E.g., D.Bd. Rules § 89.92 (relating to order of procedure in a discipline matter and requiring Office of Disciplinary Counsel (ODC) to initiate the presentation of evidence while allowing ODC to present rebuttal evidence). Inclusion of the decisional law of the Court and the Board as a third source of disciplinary and reinstatement procedure serves as a supplement of and complement to the rules. See, e.g., Office of Disciplinary Counsel v. Duffield, 644 A.2d 1186, 1188 (Pa. 1994) (the Board reviews a hearing committee's actions on a de novo basis); Office of Disciplinary Counsel v. Zdrok, 645 A.2d 830, 833 (Pa. 1994) (holding that ODC is not required to charge a violation of Enforcement Rule 214(d) in a petition for discipline based on a criminal conviction because Rule 214(d) is a procedural rule rather than a substantive rule of law; ODC's reference to Rule 214(d) and Rule 203 in the ''Charge'' section of the petition ''clearly gives proper notice'' of the charge); Office of Disciplinary Counsel v. Frederick Seth Lowenberg, No. 9 DB 2017, D.Bd. Rpt. 11/1/17, FOF 11 at pp. 4-5, p. 7 (a respondent-attorney who receives notice that he or she is to receive an informal admonition, does not exercise his or her right to demand the institution of a formal proceeding, and does not appear for the imposition of the informal admonition, is conclusively deemed to have violated the Rules of Professional Conduct and the Enforcement Rules found to have been violated during the informal review) (S.Ct. Order 12/26/17).
The proposed Note after subdivision (a) of D.Bd. Rules § 89.2 provides that the Pennsylvania Rules of Civil Procedure relating to pleading and motion practice are not applicable to formal proceedings. This Note is designed to dispel any misunderstanding, possibly encouraged by current subdivision (a)'s reference to the Pennsylvania Rules of Civil Procedure, that the Pennsylvania Rules of Civil Procedure are applicable to pleading and motion practice within the disciplinary system. Parenthetically, Enforcement Rule 213(h) and D.Bd. Rules § 91.6 provide that any rule of the Court providing for discovery—which would include Rules of Civil Procedure providing for depositions, discovery, interrogatories, production of documents and things, and inspection (Pa.R.C.P. 4001—4025)—shall not be applicable to disciplinary proceedings.
Limiting the types of motions permitted by the Rules of Civil Procedure.
Uncertainty about the meaning of ''equity procedure'' promotes confusion about the permissible types of motions. Prehearing and hearing motions permitted by the Rules of Civil Procedure, such as motions for summary judgment and motions for directed verdict, are not specifically authorized or contemplated by Board rules and are foreign to established disciplinary practice. With a view toward streamlining the pre-hearing and hearing process by eliminating procedures that could be cumbersome or diversionary and impede the prompt disposition of a case, new proposed subdivision (b) of § 89.2 identifies several types of prehearing motions, and new proposed subdivision (c) of § 89.2 identifies several types of hearing motions, that are not to be accepted for filing, but if accepted for filing by the Board Prothonotary—who is not expected to screen every motion submitted for filing—are not to be entertained. The language of subdivision (b) that precludes ''any motion attacking the validity of the proceedings or pre-petition [for discipline] procedures, or any similarly-styled motion,'' is consistent with D.Bd. Rules § 89.1(b), which provides that the filing of a petition for discipline shall be conclusive evidence that all conditions precedent thereto have been satisfied and the failure to comply with any pre-petition requirement shall not affect the validity of formal proceedings. Proposed subdivision (b) does not preclude a party from filing a pre-hearing motion in limine for a ruling on the admissibility of evidence.
D.Bd. Rules § 89.93(a) provides, in pertinent part, that at the time of hearing, a party shall have a ''right of presentation of evidence, cross-examination, objection, motion and argument.'' (Emphasis added.) A proposed Note after D.Bd. Rules § 89.93(a) cross-references proposed D.Bd. Rules § 89.2(c) to alert the participants of the existence of limitations on the types of hearing motions that may be filed. It is important to recognize that the proposed limitations on hearing motions do not preclude a party from making appropriate oral or written motions at the time of hearing, such as a motion for sequestration of witnesses or a motion to strike a witness's answer to a question when the party's hearing objection is sustained. Nor is a respondent precluded from arguing, either during oral argument at the close of the taking of testimony or in a post-hearing brief to the hearing committee or special master, that the hearing committee or special master recommend to the Board that the charges be dismissed based on insufficient evidence to sustain the charges.
Limitation on pleadings.
D.Bd. Rules § 89.55, titled ''No other pleadings,'' limits pleadings in formal proceedings to a petition for discipline or for reinstatement and an answer thereto. A proposed Note to the Rule is designed to curtail the filing of preliminary objections to the petition for discipline and to relieve a party of filing a responsive pleading to an answer containing new matter.
The Board's ''service'' rule should be amended to clarify the meaning and application of the rule.
D.Bd. Rules § 89.21, which addresses ''service'' by the Board of orders, notices and other documents ''originating with'' the Board, provides that service is to be made by mail except when another method of service is specifically required by Board rules, and when service is attempted but not accomplished by mail, the Board may authorize another person to make personal service.
The Board proposes that D.Bd. Rules § 89.21 be amended for two purposes: first, to clarify the meaning and application of the Rule; and second, to change the method of service of filings in the form of original process issued by the Board. The language of the current Rule, which is captioned ''Service by the Board,'' appears to have been intended to apply to ''service'' by the Board of original process in the form of a petition or order generated by the Board on its own motion, such as a petition authorized by Pa.R.D.E. 301(d) (relating to disability proceedings) or a rule to show cause authorized by Pa.R.D.E. 208(f)(5) (relating to temporary suspension proceedings), and not the notice of orders and other documents that the Board, as an adjudicatory body, would be required to give to the participants in the normal course of a formal proceeding not initiated by the Board on its own motion. Hence, the Board proposes that D.Bd. Rules § 89.21 be amended to provide, in new subsection (a), that the Board may give ''notice'' of orders, notices and other documents generated by the Board to the participants by mail. In contrast, the Board would be required, under new subsection (b), to attempt personal service of original process documents generated by the Board, although if personal service could not be made after reasonable efforts, service could be made by delivering a copy of the original process to an employee, agent or other responsible person at the respondent-attorney's office, and if that method of service is unavailable, substituted service could be made by mail as permitted by Pa.R.D.E. 212. The proposed service amendments are patterned after the service requirements approved by the Court in Pa.R.D.E. 208(f)(1) (relating to temporary suspension proceedings).
Amending D.Bd. Rules § 89.21 will require a minor revision to two other rules.
Section 89.21 appears elsewhere in the rules—namely, the first sentence of Enforcement Rule 213(d)(3) (relating to appeal of challenges to a subpoena) and the first sentence of that Rule's analog, D.Bd. Rules § 91.3(a)(3). Both references to § 89.21 will have to be changed to § 89.21(a) in light of the proposal to divide the Board's service rule into subparagraphs (a) and (b).
The two Board rules that permit an interlocutory appeal require revision.
Two Board rules authorize an interlocutory appeal to the Board from a hearing committee or special master determination: D.Bd. Rules § 91.3(a)(3), which pertains to a challenge to a subpoena; and D.Bd. Rules § 85.11, which pertains to a motion to disqualify a hearing committee member or special master. Both rules require revision, as follows.
D.Bd. Rules § 91.3(a)(3)—as does its counterpart, Enforcement Rule 213(d)(3)—currently mentions an appeal only from a ''hearing committee'' but already has in place a well-defined procedure for pursuit of the appeal. Therefore, the only required revision to these two rules is to include ''special master'' as a person who may have presided over the initial attack on the subpoena.
In contrast, the language of D.Bd. Rules § 85.11(b) already includes an appeal from a special master but is lacking in procedure. This deficiency is remedied by new subparagraph (b)(4) of § 85.11, which includes a statement of the method of service to be employed by the appealing party and the time in which the non-appealing party may file a response. The proposed procedural additions are patterned after the procedure for appeal in D.Bd. Rules § 91.3(a)(3) and Enforcement Rule 213(d)(3). The new rule would also allow the Board Vice-Chair to decide the appeal when the Board Chair is unavailable, which would include the situation where the Board Chair is required to recuse him- or herself.
The enabling rules should be amended to allow a single Board member or a three-member panel to act for the Board on an appeal.
Both types of appeal under discussion are decided by a single Board member. An appeal from a challenge to a subpoena is decided by a designated lawyer-Member of the Board, while an appeal from a motion to disqualify is decided by the Board Chair.
The current enabling provisions of the Enforcement Rules do not clearly allow a single Board member to rule on an appeal if the appeal involves an issue of substantive law. Enforcement Rule 205(c)(12) gives the Board the power and duty ''[t]o adopt rules of procedure not inconsistent with the [Enforcement R]ules. Such rules may provide for the delegation to the Board Chair or the Vice-Chair of the power to act for the Board on administrative and procedural matters.'' (Emphasis added). In view of the possibility that any given appeal under either of the above-mentioned Board rules could require the interpretation or application of substantive law, the Board recommends that Enforcement Rule 205(b) and D.Bd. Rules § 93.22(a) be revised, and new Enforcement Rule 205(c)(16) and D.Bd. Rules § 93.23(a)(16) be added, to give the Board Chair, the Vice-Chair, a designated lawyer-Member of the Board, or a three-member panel of the Board the power to act for the Board on an appeal. The revisions are not intended to create new grounds for interlocutory appeal, as the proposed revisions to Enforcement Rule 205 delegate power to the Board member or panel to act only ''when such appeal is permitted by the [Enforcement R]ules, the Board Rules, or other law.''
Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Executive Office, 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 March 9, 2020.
By the Disciplinary Board of the
Supreme Court of PennsylvaniaJESSE G. HEREDA,
Executive Director
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 § 85.11. Recusal.
* * * * * (b) Procedure for recusal. Enforcement Rule 220(b) provides that a motion to disqualify a member of the Board or a hearing committee member or a special master shall be made in accordance with these rules, but the making of such a motion shall not stay the conduct of the proceedings or disqualify the challenged member or special master pending disposition of the motion. The procedures applicable to a motion for recusal shall be as follows:
(1) The motion shall be filed and served in accordance with Subchapter 89A (relating to preliminary provisions).
(2) In the case of a motion to disqualify a hearing committee member or special master, the motion must be filed within 15 days after the party filing the motion has been given notice of the referral of the matter to the hearing committee or special master and must specify the grounds upon which the motion is based.
(3) The motion shall be ruled upon by the challenged member or special master.
(4) An interlocutory appeal from the decision on the motion[, which appeal shall be ruled upon by the Board Chair,] may be filed with the Board within five business days after the decision on the motion. The appealing party shall serve a copy of the appeal on the non-appealing party by mail on the date that the appealing party files the appeal, and the non-appealing party may file a response within five business days after delivery. The appeal shall be ruled upon by the Board Chair, or the Vice-Chair when the Chair is unavailable.
CHAPTER 89. FORMAL PROCEEDINGS
Subchapter A. PRELIMINARY PROVISIONS
GENERAL MATTERS § 89.2. [Equity procedure to apply] Procedure in formal proceedings to be governed by Board Rules, Enforcement Rules, and decisional law; limitations on motions.
[Except where inconsistent with these rules, formal proceedings before hearing committees, special masters and the Board shall conform generally to the practice in actions in equity under the Pennsylvania Rules of Civil Procedure.]
(a) Enforcement Rule 208(c) provides that the procedure in formal proceedings before hearing committees, special masters, and the Board shall be governed by these Rules, the Enforcement Rules, and the decisional law of the Court and the Board in attorney discipline and reinstatement matters.
Official Note: The Pennsylvania Rules of Civil Procedure relating to pleadings, answers to pleadings, motions, and responses to motions, are not applicable to formal proceedings before hearing committees, special masters, and the Board.
(b) Limitations on prehearing motions. A motion for summary judgment or judgment on the pleadings, a motion to strike the petition for discipline or portions thereof, a motion to dismiss based on insufficient evidence to proceed with formal charges, any motion attacking the validity of the proceedings or pre-petition procedures, or any similarly-styled motion, shall not be accepted for filing, but if accepted for filing, shall not be entertained.
(c) Limitations on hearing motions. A motion for directed verdict or nonsuit, a motion to dismiss based on insufficient evidence, any motion attacking the validity of the proceedings, or any similarly-styled motion, shall not be accepted for filing, but if accepted for filing, shall not be entertained.
SERVICE OF DOCUMENTS § 89.21. Notice by the Board to participants; Service of original process by the Board.
[Orders, notices and other documents originating with the Board, including all forms of Board action, petitions and similar process, and other documents designated by the Board for this purpose, shall be served by the Executive Office by mail, except when service by another method shall be specifically required by these rules, by mailing a copy thereof to the person to be served, addressed to the person designated in the initial pleading or submittal at the address of record of such person. When service is not accomplished by mail, personal service may be effected by any one duly authorized by the Executive Office.]
(a) Notice to participants. The Board shall give notice of orders, notices, and other documents generated by the Board by mailing a copy to the participants.
(b) Service of original process on the Board's own motion. A copy of original process in the form of a petition filed, or order issued, by the Board on its own motion shall be personally served upon the respondent-attorney by anyone duly authorized by the Executive Office unless another method of service shall be specifically required by these Rules or the Enforcement Rules, provided, however, that if personal service cannot be made after reasonable efforts to locate and serve the respondent-attorney, service may be made by delivering a copy to an employee, agent, or other responsible person at the office of the respondent-attorney, and if that method of service is unavailable, then by mailing a copy in the manner provided in Enforcement Rule 212 (relating to substituted service).
Subchapter B. INSTITUTION OF PROCEEDINGS § 89.55. No other pleadings.
Pleadings shall be limited to a petition for discipline (or for reinstatement) and an answer thereto.
Official Note: Preliminary objections to the petition for discipline are not permitted. If an answer to a petition for discipline contains new matter, a reply to the new matter is not required.
Subchapter C. HEARING PROCEDURES
HEARING § 89.93. Presentation by the parties.
(a) General rule. The respondent-attorney and staff counsel shall have the right of presentation of evidence, cross-examination, objection, motion and argument. The taking of evidence and subsequent proceedings shall proceed with all reasonable diligence and with the least practicable delay.
Official Note: See D.Bd. Rules § 89.2(c) for limitations on hearing motions.
* * * * *
CHAPTER 91. MISCELLANEOUS MATTERS
Subchapter A. SERVICE, SUBPOENAS, DEPOSITIONS AND RELATED MATTERS
IN GENERAL § 91.3. Determination of validity of subpoena.
(a) In general. Enforcement Rule 213(d) provides that any attack on the validity of a subpoena issued under these rules shall be handled as follows:
(1) A challenge to a subpoena authorized by § 91.2(a)(1) (relating to subpoenas and investigations) shall be heard and determined by the hearing committee or special master before whom the subpoena is returnable in accordance with the procedure established by the Board in subsection (b).
(2) A challenge to a subpoena authorized by § 91.2(a)(2) shall be heard and determined by a senior or experienced member of a hearing committee in the disciplinary district in which the subpoena is returnable in accordance with the procedure established by the Board in subsection (b).
(3) A determination under paragraph (1) or (2) may be appealed to a lawyer-Member of the Board within ten days after service pursuant to §§ [89.21] 89.21(a) and 89.24 of the determination on the party bringing the appeal by filing a petition with the Board setting forth in detail the grounds for challenging the determination. The appealing party shall serve a copy of the petition on the non-appealing party by mail on the date that the appealing party files the appeal, and the non-appealing party shall have five business days after delivery to file a response. No attack on the validity of a subpoena will be considered by the Designated lawyer-Member of the Board unless previously raised before the hearing committee or special master. The Board Member shall decide the appeal within five business days of the filing of the non-appealing party's response, if any. There shall be no right of appeal to the Supreme Court. Any request for review shall not serve to stay any hearing or proceeding before the hearing committee, special master, or the Board unless the Court enters an order staying the proceedings.
* * * * *
CHAPTER 93. ORGANIZATION AND ADMINISTRATION
Subchapter B. THE DISCIPLINARY BOARD § 93.22. Quorum and manner of acting.
(a) General rule. Enforcement Rule 205(b) provides that seven members of the Board shall constitute a quorum and that, except when acting under § 93.23(a)(5), (7) [and], (8), and (16) (relating to powers and duties), the Board shall act only with the concurrence of not less than the lesser of:
1. seven members, or
2. a majority of the members in office who are not disqualified from participating in the manner or proceeding.
(b) Determination of quorum. Enforcement Rule 205(b) further provides that the presence of members who are disqualified from participating in one or more matters to be considered at a meeting shall nonetheless be counted for purposes of determining the existence of a quorum for the consideration of all matters on the agenda.
§ 93.23. Powers and duties.
(a) General rule. Enforcement Rule 205(c) provides that the Board shall have the power and duty:
* * * * * (15) To recommend the temporary suspension of a respondent-attorney pursuant to Enforcement Rule 208(f)(5) (relating to emergency temporary suspension orders and related relief).
(16) To decide, through the Board Chair, the Vice-Chair, a designated lawyer-member of the Board, or a designated panel of three members, an interlocutory appeal to the Board when such appeal is permitted by the Enforcement Rules, these rules, or other law.
(17) To exercise the powers and perform the duties vested in and imposed upon the Board by law.
(b) Consultations with local bar associations. Enforcement Rule 205(d) provides that the Board shall, to the extent it deems feasible, consult with officers of local bar associations in the counties affected concerning any appointment which it is authorized to make under the Enforcement Rules.
Annex B
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 205. The Disciplinary Board of the Supreme Court of Pennsylvania.
* * * * * (b) The regular terms of members of the Board shall be for three years, and no member shall serve for more than two consecutive three-year terms. Except when acting under paragraph (c)(5), (7), (8) [and], (9), and (16) of this rule, the Board shall act only with the concurrence of not less than the lesser of:
(i) seven members, or
(ii) a majority of the members in office who are not disqualified from participating in the matter or proceeding.
Seven members shall constitute a quorum. The presence of members who are disqualified from participating in one or more matters to be considered at a meeting shall nonetheless be counted for purposes of determining the existence of a quorum for the consideration of all matters on the agenda.
(c) The Board shall have the power and duty:
* * * * * (15) To recommend the temporary suspension of a respondent-attorney pursuant to Enforcement Rule 208(f)(5) (relating to emergency temporary suspension orders and related relief).
(16) To decide, through the Board Chair, the Vice-Chair, a designated lawyer-member of the Board, or a designated panel of three members, an interlocutory appeal to the Board when such appeal is permitted by these rules, the Board Rules, or other law.
(17) To exercise the powers and perform the duties vested in and imposed upon the Board by law.
(d) The Board shall, to the extent it deems feasible, consult with officers of local bar associations in the counties affected concerning any appointment which it is authorized to make under these rules.
Rule 208. Procedure.
* * * * * (c) [Hearing procedures. Proceedings] Prehearing and hearing procedures.—The procedure in formal proceedings before hearing committees [and], special masters, and the Board shall be governed by Board rules, the Enforcement Rules, and the decisional law of the Court and the Board in attorney discipline and reinstatement matters. [except that, unless] Unless waived in the manner provided by [such rules] the Board Rules, at the conclusion of the hearing the hearing committee or special master shall submit a report to the Board containing the findings and recommendations of the hearing committee or special master.
* * * * * Rule 213. Subpoena power, depositions and related matters.
* * * * * (d) Challenges; appeal of challenges to subpoena. Any attack on the validity of a subpoena issued under this rule shall be handled as follows:
(1) A challenge to a subpoena authorized by subdivision (a)(1) shall be heard and determined by the hearing committee or special master before whom the subpoena is returnable in accordance with the procedure established by the Board. See D.Bd. Rules § 91.3(b) (relating to procedure).
(2) A challenge to a subpoena authorized by subdivision (a)(2) shall be heard and determined by a member of a hearing committee in the disciplinary district in which the subpoena is returnable in accordance with the procedure established by the Board. See D.Bd. Rules § 91.3(b) (relating to procedure).
(3) A determination under paragraph (1) or (2) may be appealed to a lawyer-Member of the Board, within ten days after service pursuant to D.Bd. Rules §§ [89.21] 89.21(a) and 89.24 of the determination on the party bringing the appeal by filing a petition with the Board setting forth in detail the grounds for challenging the determination. The appealing party shall serve a copy of the petition on the non-appealing party by mail on the date that the appealing party files the appeal, and the non-appealing party shall have five business days after delivery to file a response. No attack on the validity of a subpoena will be considered by the Designated lawyer-Member of the Board unless previously raised before thehearing committee or special master. The Board Member shall decide the appeal within five business days of the filing of the non-appealing party's response, if any. There shall be no right of appeal to the Supreme Court. Any request for review shall not serve to stay any hearing or proceeding before the hearing committee, special master, or the Board unless the Court enters an order staying the proceedings.
* * * * *
[Pa.B. Doc. No. 20-142. Filed for public inspection January 31, 2020, 9:00 a.m.]
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