THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[204 PA. CODE CHS. 85, 87, 89, 91 AND 93]
Amendments to Rules of Organization and Procedure of the Disciplinary Board of the Supreme Court of Pennsylvania; Order No. 102
[52 Pa.B. 2581]
[Saturday, April 30, 2022]By this Order, the Disciplinary Board of the Supreme Court of Pennsylvania amends its Board Rules and Procedures to modify Rules §§ 85.2, 85.9, 87.51, 87.73, 89.204, 89.205, 89.275, 91.128, 93.101, 93.102, 93.105, and 93.108 related to compensation and expenses of conservators, completion of the reinstatement questionnaire by a petitioner-attorney, and access to disciplinary information and confidentiality.
The Disciplinary Board of the Supreme Court of Pennsylvania finds that:
(1) To the extent that 42 Pa.C.S. § 1702 (relating to rule making procedures) and Article II of the act of July 31, 1968 (P.L. 769, No. 240), known as the Commonwealth Documents Law, would otherwise require notice of proposed rulemaking with respect to the amendments adopted hereby, those proposed rulemaking procedures are inapplicable because the amendments adopted hereby relate to agency procedure and are perfunctory in nature.
(2) The amendments to the Rules of Organization and Procedure of the Board adopted hereby are not inconsistent with the Pennsylvania Rules of Disciplinary Enforcement and are necessary and appropriate for the administration of the affairs of the Board.
The Board, acting pursuant to Pa.R.D.E. 205(c)(12), orders:
(1) Title 204 of the Pennsylvania Code is hereby amended as set forth in Annex A hereto.
(2) The Executive Director shall duly certify this Order, and deposit the same with the Administrative Office of Pennsylvania Courts as required by Pa.R.J.A. 103(c).
(3) The amendments adopted hereby shall take effect 30 days after publication in the Pennsylvania Bulletin.
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 § 85.2. Definitions.
(a) Subject to additional definitions contained in subsequent provisions of this subpart which are applicable to specific chapters, subchapters or other provisions of this subpart, the following words and phrases, when used in the subpart shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
* * * * * Formal Proceedings—[A proceeding subject to Chapter 89 (relating to formal proceedings)] Proceedings that commence with the filing of a petition for discipline. A formal proceeding does not include any of the submissions or documents generated during an informal proceeding unless they are made part of the record at the formal proceeding by motion, by stipulation, or by admission as an exhibit during a hearing. Pursuant to Enforcement Rule 402(a), formal proceedings are open to the public, except as provided in Enforcement Rules 402(b) and 402(k).
* * * * * Informal Proceedings—Proceedings that commence with the submission of a complaint to the Office of Disciplinary Counsel or an investigation initiated by the Office of Disciplinary Counsel. An informal proceeding includes all proceedings up to the filing of a petition for discipline. Informal proceedings are not open to the public.
* * * * * § 85.9. Immunity.
(a) Board personnel. Enforcement Rule [209(a)] 209(b) provides that members of the Board, members of hearing committees, special masters, Disciplinary Counsel and staff shall be immune from civil suit for any conduct in the course of their official duties; and that, for purposes of this subsection, the staff of the Board shall be deemed to include conservators and sobriety, financial or practice monitors appointed pursuant to these rules.
(b) Other persons. Enforcement Rule [209(a)] 209(b) further provides that all communications to the Board, a hearing committee, special master, or Disciplinary Counsel relating to misconduct by a respondent-attorney and all testimony given in a proceeding conducted pursuant to these rules shall be absolutely privileged and the person making the communication or giving the testimony shall be immune from civil suit based upon such communication or testimony.
* * * * *
CHAPTER 87. INVESTIGATIONS AND INFORMAL PROCEEDINGS
Subchapter C. FINAL DISPOSITION WITHOUT FORMAL PROCEEDINGS § 87.51. Notification of disposition of complaint.
(a) General rule. Upon completion of the procedures prescribed by Subchapter B (relating to review of recommended disposition of complaint), the Executive Office or the Office of Disciplinary Counsel, as appropriate, shall:
(1) Notify [the complainant of the disposition of the complaint] in writing the complainant, as to the final disposition of each disciplinary matter promptly after the matter has been concluded, notwithstanding provisions elsewhere in these Rules relating to confidentiality. Such notice shall specify whether the matter has been dismissed, or whether the matter has resulted in the imposition of a disciplinary sanction, and if so, a description of the sanction imposed. Unless the sanction imposed is public as provided pursuant to the Enforcement Rules and these Rules, the complainant shall be notified that all records and proceedings shall be private and confidential and shall not be subject to production in any later proceedings before any tribunal except future disciplinary proceedings involving the respondent-attorney before the Board or the Court where such prior proceedings may be relevant.
* * * * *
Subchapter D. ABATEMENT OF INVESTIGATION § 87.73. Resignation[s] by attorneys under disciplinary investigation.
* * * * * (d) Confidentiality of resignation statement. Enforcement Rule 215(c) provides that the fact that the attorney has submitted a resignation statement to Disciplinary Counsel or the Board Prothonotary for filing with the Supreme Court shall become a matter of public record immediately upon delivery of the resignation statement to Disciplinary Counsel or the Board Prothonotary; the order disbarring the attorney on consent shall be a matter of public record; and that, if the statement required by subsection (a) is submitted before the filing and service of a petition for discipline and the filing of an answer or the time to file an answer has expired, the statement shall not be publicly disclosed or made available for use in any proceeding other than a subsequent reinstatement proceeding except:
* * * * * (5) when the resignation is based on an order of temporary suspension from the practice of law entered by the Court either pursuant to Enforcement Rule [208(f)(1)] 208(f) (relating to emergency temporary suspension orders and related relief) or pursuant to Enforcement Rule 214 (relating to [attorneys convicted of crimes] a criminal proceeding).
CHAPTER 89. FORMAL PROCEEDINGS
Subchapter D. ACTION BY BOARD AND SUPREME COURT § 89.204. Dismissal of proceeding.
Enforcement Rule 208(d)(2)(i) provides that in the event that the Board determines that a proceeding should be dismissed, it shall so notify the respondent-attorney. In such event the Executive Office shall notify the respondent-attorney and staff counsel by means of Form DB-11 (Notice of Dismissal of Formal Proceedings). Disciplinary Counsel shall notify the complainant in writing of the dismissal.
§ 89.205. Informal admonition, private reprimand or public reprimand following formal hearing.
(a) General rule. Enforcement Rule 208(d)(2)(ii) provides that in the event that the Board determines that the proceeding should be concluded by informal admonition, private reprimand, or public reprimand, the Board shall arrange to have the respondent-attorney appear in person before Disciplinary Counsel for the purpose of receiving informal admonition or before a designated panel of three members selected by the Board Chair pursuant to Enforcement Rule 205(c)(11) for the purpose of receiving private reprimand or public reprimand, in which case the designated member shall deliver the private reprimand or public reprimand. If the matter is concluded by private discipline, Disciplinary Counsel shall notify the complainant in writing of the disposition in conformance with the provisions of § 87.51(a)(1) (relating to notification of disposition of complaint) of these Rules.
* * * * *
Subchapter F. REINSTATEMENT AND RESUMPTION OF PRACTICE § 89.275. Completion of questionnaire by petitioner-attorney.
(a) General rule. [If the petition for reinstatement does not have attached thereto a fully completed Form DB36 (Reinstatement Questionnaire), the Board Prothonotary shall forward to the formerly admitted attorney four copies of Form DB36 which shall require such attorney to set forth fully and accurately the following information and such other information as the Office of Disciplinary Counsel may require:
(1) Name, address, age and residence of the petitioner-attorney.
(2) Name, address, age, residence, number and relationship of dependents of the petitioner-attorney.
(3) If the formerly admitted attorney was disbarred or suspended for disciplinary reasons, the offense or misconduct upon which the disbarment or suspension was based, together with the date of the disbarment or suspension order and the caption and docket number of the proceeding in which entered. A certified copy of the disbarment or suspension order shall be attached to the questionnaire.
(4) The names and addresses of all complaining witnesses in any proceedings which resulted in disbarment or suspension and the names of:
(i) the hearing committee of the Board which heard the evidence in the disciplinary proceedings; and
(ii) the trial judge and prosecuting attorney, if disbarment or suspension was based on conviction of a crime.
(5) The nature in detail of the occupation of the petitioner-attorney during the period of disbarment, suspension, administrative suspension, retired status or inactive status, with names of all partners, associates in business, and employers, if any, and dates and duration of all such business relationships and employments.
(6) A statement showing the approximate monthly earnings and other income of the petitioner-attorney, and the sources from which all such earnings and income were derived during such period, or during the ten years preceding the filing of the petition for reinstatement, whichever is less.
(7) A statement showing all residences maintained by the petitioner-attorney during the ten years preceding the filing of the petition for reinstatement, with the names and addresses of landlords, if any. The statement shall also indicate the county in which any such residence in Pennsylvania is located.
(8) A statement showing all financial obligations of the petitioner-attorney at the date of the filing of the petition, together with the dates when such obligations were incurred and the names and addresses of all creditors.
(9) A statement showing the dates, general nature and final disposition of every civil action during the period of disbarment, suspension, administrative suspension, retired status or inactive status wherein the petitioner-attorney was either a party plaintiff or defendant or in which such attorney had or claimed an interest, together with dates of filing of complaints, titles of courts and causes and the names and addresses of all parties plaintiff and defendant, names and addresses of attorneys for said parties and of the trial judge, or judges, and names and addresses of all witnesses who testified in such actions.
(10) A statement showing the dates, general nature and ultimate disposition of every matter involving the arrest or prosecution of the petitioner-attorney during the period of disbarment, suspension, administrative suspension, retired status or inactive status for any crime, whether felony or misdemeanor, together with the names and addresses of complaining witnesses, prosecutors and trial judges.
(11) A statement as to whether or not any applications were made during such period for a license requiring proof of good character for its procurement; and as to each such application, the dates, the names and address of the authority to whom it was addressed and the disposition thereof.
(12) A statement of any procedure of inquiry, during said period, concerning the standing of the petitioner-attorney as a member of any profession or organization, or holder of any license or office, which involved the censure, removal, suspension, revocation of license, or discipline of the petitioner-attorney; and as to each, the dates, facts, and the disposition thereof, and the names and address of the authority in possession of the record thereof.
(13) A statement as to whether or not any charges of fraud were made, or claimed, against the petitioner-attorney during the period of disbarment, suspension, administrative suspension, retired status or inactive status, whether formal or informal, together with the dates and names and addresses of persons making such charges.
(14) A statement of any financial or other action taken by the petitioner-attorney in the nature of restitution or other appropriate relief.
(15) If the petitioner-attorney has been disbarred or suspended for more than one year or has been on administrative suspension, retired status or inactive status for more than three years, a statement of the dates, locations and names of the courses or lectures taken in satisfaction of the requirements of § 89.279 (relating to evidence of competency and learning in law).
(16) An itemization of any costs taxed under § 89.209 (relating to expenses of formal proceedings) and any required restitution to the Lawyers Fund for Client Security under Enforcement Rule 531 (relating to restitution a condition for reinstatement), and a statement that all of those amounts have been paid in full.
(17) A concise statement of facts claimed to justify reinstatement to the bar of this Commonwealth.] The petitioner-attorney shall attach to the petition for reinstatement a fully completed Form DB-36 (Reinstatement Questionnaire) or Form DB-36A (Special Reinstatement Questionnaire), as applicable. The petitioner-attorney shall set forth fully and accurately on the questionnaire, information requested therein.
(b) Effect of questionnaire. The questionnaire shall bear a notice under 18 Pa.C.S. § 4904(b) (relating to statement ''under penalty'') to the effect that false statements made therein are punishable, and shall become a part of the record in the reinstatement proceeding.
CHAPTER 91. MISCELLANEOUS MATTERS
Subchapter F. PROTECTION OF THE INTERESTS OF CLIENTS § 91.128. Compensation and expenses of conservator.
Enforcement Rule 328 provides that:
(1) A conservator not associated with the Office of Disciplinary Counsel shall be compensated [pursuant to a written agreement between the conservator and the Board Chair. Compensation under such an agreement shall be paid at reasonable intervals, and] at an hourly rate identical to that received by court-appointed counsel at the non-court appearance rate in the judicial district where the conservator was appointed. When the conservator believes that extraordinary circumstances justify an enhanced hourly rate, the conservator may apply to the Board Chair for enhanced compensation. Such an application shall be granted only in those situations in which extraordinary circumstances are shown to justify enhanced compensation.
* * * * *
CHAPTER 93. ORGANIZATION AND ADMINISTRATION
Subchapter F. CONFIDENTIALITY § 93.101. Complaints confidential.
Enforcement Rule 209(a) provides that complaints submitted to the Executive Office or to the Office of Disciplinary Counsel shall be confidential [unless the matter results in the filing of formal charges]. Unless and until formal charges are filed and the complainant is designated as a witness at the prehearing conference, or Disciplinary Counsel determines that the complaint contains exculpatory material, the complaint shall not be provided to the respondent-attorney. At or after the prehearing conference, the senior or experienced hearing committee member may enter a protective order on cause shown to prohibit disclosure of the complaint or parts of it to the public.
§ 93.102. Access to disciplinary information and confidentiality.
* * * * * (c) Exceptions to initial confidentiality. Enforcement Rule 402(c) provides that, until the proceedings are open under subsection (a) or (b), all proceedings involving allegations of misconduct by or disability of an attorney shall be kept confidential unless:
* * * * * (3) [the proceeding is based on] an order of temporary suspension from the practice of law is entered by the Court pursuant to Enforcement Rule [208(f)(1)] 208(f) (relating to emergency temporary suspension orders and related relief) or Enforcement Rule 214(d) (relating to temporary suspension based on a criminal proceeding), in which case the proceedings and filings related to the petition, the order, and any petition to dissolve, amend or modify shall be public,
* * * * * (d) Permitted uses of otherwise confidential information. Enforcement [Rule] Rules 402(d)(2), (3), (4), (5) and [(3)] (6) [provides] provide that the provisions of subsections (a) and (b) of this section shall not be construed to:
* * * * * (3) Prevent Disciplinary Counsel or the Board from notifying the complainant of the disposition of a complaint, including the type of discipline imposed and any condition attached to the discipline.
(4) Prevent the Board from exercising its discretion to provide public access to a complaint or portions thereof, as the interests of justice may require. The affected parties shall be notified in advance of the intent to disclose otherwise confidential material.
(5) Prevent Disciplinary Counsel from making an informal referral of an attorney to Lawyers Concerned for Lawyers of Pennsylvania, Inc. (LCL-PA), if Disciplinary Counsel believes that the attorney may benefit from the services of LCL-PA. Disciplinary Counsel may share with LCL-PA information deemed confidential under these Enforcement Rules as part of the referral. LCL-PA shall not report information about the subject attorney to Disciplinary Counsel or to any staff of the Office of Disciplinary Counsel. The fact that a referral was made and its outcome shall not be relevant for any purpose and may not be considered or disclosed by Disciplinary Counsel in any proceeding under these Rules.
Note: Subsection (d)(6) is intended to facilitate mental health and substance use referrals to Pennsylvania's approved lawyers' assistance program while preserving the confidentiality that is essential to that program's success. See Pennsylvania Rules of Professional Conduct, Rule 8.3(c) and Comment (7).
* * * * * § 93.105. Protected information.
Enforcement Rule 402(e) provides that this subchapter shall not be construed to provide public access to:
(1) the work product of the Board, Disciplinary Counsel, hearing committee members, or special masters;
(2) deliberations of a hearing committee, special master, the Board or the Supreme Court; [or]
(3) information subject to a protective order issued under § 93.106 (relating to protective orders); or
(4) a complaint submitted to the Board or Disciplinary Counsel.
§ 93.108. Restoration of confidentiality.
(a) Enforcement Rule 402(k) provides that if a formal proceeding results in the imposition of private discipline or dismissal of all the charges, the proceeding shall cease to be open to the public when the decision to impose private discipline or dismiss the charges becomes final, unless the respondent-attorney requests that the record of the proceeding remain open to the public.
(b) Notwithstanding the restoration of confidentiality under subsection (a), Disciplinary Counsel shall notify the complainant in writing of the disposition in conformance with the provisions of § 87.51(a)(1) (relating to notification of disposition of complaint) of these Rules.
* * * * *
[Pa.B. Doc. No. 22-630. Filed for public inspection April 29, 2022, 9:00 a.m.]
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.
