THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[204 PA. CODE CH. 83]
[52 Pa.B. 965]
[Saturday, February 12, 2022]Proposed Amendment to Pennsylvania Rule of Disciplinary Enforcement 208(f) to Allow Disciplinary Counsel to Request and the Court to Issue a Rule Upon a Temporarily Suspended Respondent-Attorney to Show Cause Why He or She Should Not Be Disbarred When the Respondent-Attorney Has Been on Temporary Suspension for More than Two Years, a Formal Proceeding Has Not Been Commenced, and Disciplinary Counsel Demonstrates Post-Suspension Factors that Warrant Disbarment.
Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania (''Disciplinary Board'') is considering recommending to the Pennsylvania Supreme Court (''Court'') that the Court amend Rule 208(f) of the Pennsylvania Rules of Disciplinary Enforcement (''Enforcement Rules'') by adding paragraphs (8) and (9), as set forth in Annex A. The intent of the amendment is that the disciplinary system dispense with the requirement of a formal proceeding in order to achieve final discipline when one or more enumerated facts or circumstances, as identified in the proposed rule, have occurred after the entry of the order of temporary suspension and are of such gravity that the disciplinary system is justified in assigning to the respondent-attorney the ultimate burden of convincing the Court that the respondent-attorney should not be disbarred from the legal profession at that time. Disciplinary Counsel will not be able to employ this procedure unless the respondent-attorney has had at least two years to satisfactorily remediate the situation that resulted in the order of temporary suspension. The proposal places the initial burden on Disciplinary Counsel to demonstrate facts that warrant the Court's issuance of the rule to show cause and gives the respondent-attorney the opportunity to submit a response to the rule within thirty days.
The current proposal does not affect the rights conferred by paragraphs (f)(4) and (f)(6) of current Enforcement Rule 208. Paragraph (f)(4) gives a temporarily suspended attorney the right at any time to petition the Court for dissolution or modification of the order of temporary suspension. Paragraph (f)(6) gives the temporarily suspended attorney the right to request an accelerated disposition of the charges which formed the basis for the temporary suspension.
Some temporarily suspended attorneys make a legitimate effort to resolve pending disciplinary matters with a view to restoring their ability to practice law as soon as reasonably possible or at some other time in the future. Proposed paragraphs (f)(8) and (9) are intended to address those situations where the respondent-attorney, after the entry of the order of temporary suspension: fails to cooperate with Disciplinary Counsel to resolve pending disciplinary matters; shows disrespect or disdain toward the disciplinary system or defiance and contempt for the authority of the Court; or exhibits no interest in restoring his or her license to practice law. Such post-suspension aggravators could include the respondent-attorney's:
• failure to comply with conditions imposed in the order of temporary suspension or with the requirements of Enforcement Rule 217.
• conduct that materially delays or obstructs Disciplinary Counsel's ability to fully investigate the allegations of misconduct that formed the basis for the order of temporary suspension, or any other investigation or proceeding pending against the respondent-attorney.
• failure to respond to a DB-7 letter or subpoena or otherwise provide information or records.
• disappearance or efforts to evade disciplinary authorities, thereby preventing Disciplinary Counsel, despite reasonably diligent efforts, from contacting the respondent-attorney and establishing actual service of notices or other process at the respondent-attorney's last known addresses.
• disappearance or inertia that requires the appointment of a conservator to protect the interests of the respondent-attorney's clients or their funds, or both.
• failure to participate in proceedings before the Pennsylvania Lawyers Fund for Client Security resulting in an award.
When a respondent-attorney is recalcitrant or disappears during the early stages of Disciplinary Counsel's investigation into the respondent-attorney's misconduct, Disciplinary Counsel is often faced with the prospect of moving forward with formal charges on a case that is less-than-fully investigated, which may allow the respondent-attorney to avoid a discipline that might be enhanced if the investigation were complete. At times, the lack of active participation by the respondent-attorney leaves a record with no explanation (or a speculative one) of the reason for the misconduct or the respondent-attorney's absence, or both. In any event, Disciplinary Counsel should not be faced with the choice of allowing a case to remain in limbo indefinitely or moving forward on less than a complete investigation, nor should the disciplinary system be forced to devote its limited resources to pursuing formal charges in cases where the respondent-attorney has shown no interest for more than two years in retaining his or her privilege of practicing law in the Commonwealth. Additionally, the proposed amendments would advance the disciplinary system's goal of deterrence, in that the amendments would signal to respondent-attorneys who are suspended on an interim basis that the failure to comply with post-suspension professional obligations, or engaging in obstructionist conduct to impede pending investigations or proceedings, will not be tolerated. The current proposal supports the Board's compelling interest in fostering efficiency within the disciplinary system while simultaneously advancing its goals.
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 14, 2022.
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 B. DISCIPLINARY ENFORCEMENT
CHAPTER 83. PENNSYLVANIA RULES OF DISCIPLINARY ENFORCEMENT
Subchapter B. MISCONDUCT Rule 208. Procedure.
* * * * * (f) Emergency temporary suspension orders and related relief.
(1) Disciplinary Counsel, with the concurrence of a reviewing member of the Board, whenever it appears by an affidavit demonstrating facts that the continued practice of law by a person subject to these rules is causing immediate and substantial public or private harm because of the misappropriation of funds by such person to his or her own use, or because of other egregious conduct, in manifest violation of the Disciplinary Rules or the Enforcement Rules, may petition the Supreme Court for injunctive or other appropriate relief. A copy of the petition shall be personally served upon the respondent-attorney by Disciplinary Counsel. If Disciplinary Counsel cannot make personal service after reasonable efforts to locate and serve the respondent-attorney, Disciplinary Counsel may serve the petition 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 of the petition by regular and certified mail addressed to the addresses furnished by the respondent-attorney in the last registration statement filed by the respondent-attorney pursuant to Rule 219(d). Service is complete upon delivery or mailing, as the case may be. The Court, or any justice thereof, may enter a rule directing the respondent-attorney to show cause why the respondent-attorney should not be placed on temporary suspension, which rule shall be returnable within ten days. The Court, or any justice thereof, may, before or after issuance of the rule, issue:
(i) such orders to the respondent-attorney, and to such financial institutions or other persons as may be necessary to preserve funds, securities or other valuable property of clients or others which appear to have been misappropriated or mishandled in manifest violation of the Disciplinary Rules;
(ii) an order directing the president judge of the court of common pleas in the judicial district where the respondent-attorney maintains his or her principal office for the practice of law or conducts his or her primary practice, to take such further action and to issue such further orders as may appear necessary to fully protect the rights and interests of the clients of the respondent-attorney when:
(A) the respondent-attorney does not respond to a rule to show cause issued after service of the petition pursuant to subdivision (f)(1); or
(B) Disciplinary Counsel's petition demonstrates cause to believe that the respondent-attorney is unavailable to protect the interests of his or her clients for any reason, including the respondent-attorney's disappearance, abandonment of practice, incarceration, or incapacitation from continuing the practice of law by reason of mental infirmity or illness or because of addiction to drugs or intoxicants.
Where the Court enters an order under (f)(1)(ii), the Board shall promptly transmit a certified copy of the order to the president judge, whose jurisdiction and authority under this rule shall extend to all client matters of the respondent-attorney.
Where the Court enters an order under (f)(1)(i) or (ii) before the issuance of a rule or before the entry of an order of temporary suspension under paragraph (f)(2), the Court Prothonotary shall serve a certified copy of the Court's order on the respondent-attorney by regular mail addressed to the address furnished by the respondent-attorney in the last registration statement filed by the respondent-attorney and to an address where the respondent-attorney is located if that address is known.
(2) If a rule to show cause has been issued under paragraph (1), and the period for response has passed without a response having been filed, or after consideration of any response, the Court may enter an order requiring temporary suspension of the practice of law by the respondent-attorney pending further definitive action under these rules.
(3) Any order of temporary suspension which restricts the respondent-attorney from maintaining an attorney or other trust account shall, when served on any bank or other financial institution maintaining an account against which the respondent-attorney may make withdrawals, serve as an injunction to prevent the financial institution from making further payment from the account on any obligation except in accordance with restrictions imposed by the Court. Any order of temporary suspension issued under this rule shall preclude the respondent-attorney from accepting any new cases or other client matters, but shall not preclude the respondent-attorney from continuing to represent existing clients on existing matters during the 30 days following entry of the order of temporary suspension. Such order may also provide that any fees or portion thereof tendered to the respondent-attorney during such 30-day period shall be deposited into a trust fund from which withdrawals may be made only in accordance with restrictions imposed by the Court.
(4) The respondent-attorney may at any time petition the Court for dissolution or amendment of an order of temporary suspension. A copy of the petition shall be served upon Disciplinary Counsel and the Board. A hearing on the petition before a member of the Board designated by the Chair of the Board shall be held within ten business days after service of the petition on the Board. The designated Board member shall hear the petition and submit a transcript of the hearing and a recommendation to the Court within five business days after the conclusion of the hearing. Upon receipt of the recommendation of the designated Board member and the record relating thereto, the Court shall dissolve or modify its order, if appropriate.
(5) The Board on its own motion, or upon the petition of Disciplinary Counsel, may issue a rule to show cause why the respondent-attorney should not be placed on temporary suspension whenever it appears that the respondent-attorney has disregarded an applicable provision of the Enforcement Rules, failed to maintain or produce the records required to be maintained and produced under Pa.R.P.C. 1.15(c) and subdivisions (e) and (g) of Enforcement Rule 221 in response to a request or demand authorized by Enforcement Rule 221(g) or any provision of the Disciplinary Board Rules, failed to comply with a valid subpoena or engaged in other conduct that in any such instance materially delays or obstructs the conduct of a proceeding under these rules. The rule to show cause shall be returnable within ten days. If the response to the rule to show cause raises issues of fact, the Board Chair may direct that a hearing be held before a member of the Board who shall submit a report to the Board upon the conclusion of the hearing. If the period for response to the rule to show cause has passed without a response having been filed, or after consideration of any response and any report of a Board member following a hearing under this paragraph, the Board may recommend to the Supreme Court that the respondent-attorney be placed on temporary suspension. The recommendation of the Board shall be reviewed by the Supreme Court as provided in subdivision (e) of this rule, although the time for either party to file with the Court a petition for review of the recommendation or determination of the Board shall be fourteen days after the entry of the Board's recommendation or determination, and any answer or responsive pleading shall be filed within ten days after service of the petition for review.
(6) A respondent-attorney who has been temporarily suspended pursuant to this rule for conduct described in paragraph (1), or pursuant to the procedures of paragraph (5) where a formal proceeding has not yet been commenced shall have the right to request an accelerated disposition of the charges which form the basis for the temporary suspension by filing a notice with the Board and Disciplinary Counsel requesting accelerated disposition. Within 30 days after filing of such a notice, Disciplinary Counsel shall file a petition for discipline under subdivision (b) of this rule and the matter shall be assigned to a hearing committee for accelerated disposition. Thereafter the matter shall proceed and be concluded by the hearing committee, the Board and the Court without appreciable delay. If a petition for discipline is not timely filed under this paragraph, the order of temporary suspension shall be automatically dissolved, but without prejudice to any pending or further proceedings under this rule.
(7) A proceeding involving a respondent-attorney who has been temporarily suspended pursuant to this rule at a time when a formal proceeding has already been commenced shall proceed and be concluded without appreciable delay.
(Editor's Note: Pa.R.D.E. 208 as printed in 204 Pa. Code reads ''Official Note'' rather than ''Note.'')
Note: The ''without appreciable delay'' standard of subdivisions (f)(6) and (7) of the rule is derived from Barry v. Barchi, 443 U.S. 55, 66 (1979). Appropriate steps should be taken to satisfy this requirement, such as continuous hearing sessions, procurement of daily transcript, fixing of truncated briefing schedules, conducting special sessions of the Board, etc.
(8) Where a respondent-attorney has been temporarily suspended pursuant to paragraph (1) or paragraph (5) and more than two years have passed without the commencement of a formal proceeding, and it appears by an affidavit demonstrating facts that:
(i) the respondent-attorney has not complied with conditions imposed in the order of temporary suspension or with the requirements of Enforcement Rule 217;
(ii) the order of temporary suspension was based, in whole or in part, on the respondent-attorney's failure to provide information or records, and the respondent-attorney has not provided the information or records, or otherwise cured the deficiency;
(iii) the respondent-attorney has engaged in post-suspension conduct, by act or omission, that materially delays or obstructs Disciplinary Counsel's ability to fully investigate allegations of misconduct against the respondent-attorney;
(iv) the respondent-attorney's whereabouts are unknown, in that despite reasonably diligent efforts, Disciplinary Counsel has not been able to contact or locate the respondent-attorney for information or to serve notices or other process at the address provided by the respondent-attorney in the verified statement required by Enforcement Rule 217(e)(1) or at any other known addresses that might be current;
(v) a conservatorship of the affairs of the respondent-attorney has been appointed pursuant to Enforcement Rule 321; or
(vi) the respondent-attorney has not participated in proceedings before the Pennsylvania Lawyers Fund for Client Security in which an adjudicated claim has resulted in an award,
Disciplinary Counsel may petition the Court for the issuance of a rule to show cause why an order of disbarment should not be entered. The provisions of paragraph (1) apply to service of the petition upon the respondent-attorney by Disciplinary Counsel. Upon the filing by Disciplinary Counsel of an affidavit establishing compliance with the service requirements of paragraph (1), the Court may enter a rule directing the respondent-attorney to show cause why the respondent-attorney should not be disbarred, which rule shall be returnable within thirty days. The respondent-attorney shall serve a copy of any response on Disciplinary Counsel, who shall have fourteen days after receipt to file a reply.
(9) If a rule to show cause has been issued under paragraph (8), and the period for response has passed without a response having been filed, or after consideration of any responses, the Court may enter an order disbarring the respondent-attorney from the practice of law, discharging the rule to show cause, or directing such other action as the Court deems appropriate.
(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.
* * * * *
[Pa.B. Doc. No. 22-227. Filed for public inspection February 11, 2022, 9:00 a.m.]
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