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 Permanent Resignation for Attorneys Under Disciplinary Investigation
[53 Pa.B. 7574]
[Saturday, December 9, 2023]Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania (the ''Board'') is considering recommending to the Supreme Court of Pennsylvania amendments to Pennsylvania Rule of Disciplinary Enforcement (''Pa.R.D.E.'') 404 (Permanent Resignation and Readmission).
EXPLANATORY REPORT The Board is considering a rule change to permit attorneys who are under disciplinary investigation to permanently resign from the practice of law. Permanent resignation under these rules prohibits the attorney from practicing law in Pennsylvania on a permanent basis. The proposal provides for the following process and procedures.
Rule 404(c)(1) sets forth criteria for attorneys who are the subject of a pending disciplinary investigation or proceeding and who seek voluntary permanent resignation from the bar. ln order to qualify, an attorney must be either 65 years of age or older or suffer from a physical or mental impairment. The attorney must also agree to relinquish any license to practice law in another state or federal court or jurisdiction within 20 days of an order of permanent resignation in Pennsylvania.
Rule 404(c)(2) provides that permanent resignation may only be granted upon the filing of a petition to the Supreme Court of Pennsylvania. The petition filed by the attorney must state the facts that qualify the attorney for permanent resignation. Office of Disciplinary Counsel (''ODC'') must give written consent to the attorney's request for permanent resignation and has discretion to consent only if the attorney meets certain conditions. Paragraph (c)(3) sets forth four conditions: the disciplinary investigation or proceeding does not involve allegations that the attorney converted or misappropriated funds or property of a client or third party; the investigation or proceeding does not involve allegations that the attorney engaged in criminal conduct that reflects adversely on the attorney's honesty; the attorney has repaid to the Pennsylvania Lawyers Fund for Client Security any disbursement made from the Fund; and the public interest will not be adversely affected by the acceptance of the permanent resignation. These conditions ensure that attorneys who are under investigation for serious misconduct will not be able to avoid the disciplinary process and that attorneys will not be able to shirk obligations to the Fund. As well, the effect of an attorney's permanent resignation on the interests of the public must be weighed in every request.
Upon ODC's consent to the permanent resignation, the petition is reviewed by a Board member, as set forth in paragraph (c)(4). Upon the member's approval, the petition for permanent resignation is filed with the Court. Rule 404(c)(5) and (6) govern the Court's action, confidentiality of the record, and notification of other jurisdictions. The Court has the final review of the petition for permanent resignation. Upon approval, the open investigation or proceeding is closed and the petition and order are confidential and non-public. The rules require the permanently resigned attorney to notify other jurisdictions in which he or she is licensed of the Court's order of permanent resignation within 20 days of the order and provide a copy of the notification to ODC. Rule 404(c)(7) directs ODC to notify the complainant in the disciplinary matter that the attorney has permanently resigned, the disciplinary investigation has been closed, and the attorney is prohibited from practicing law in Pennsylvania.
Rule 404(d)(2) addresses readmission and sets forth that an attorney who has permanently resigned under this rule may not at any time seek a license status change or apply for reinstatement under the Pa.R.D.E., or otherwise seek admission to the bar under the Pennsylvania Bar Admission Rules.
A note at the end of the rule clarifies that while permanent resignation in Pennsylvania ends any disciplinary proceeding in Pennsylvania, it does not affect disciplinary proceedings in other jurisdictions, nor does the permanent resignation have an effect on pending or potential civil, criminal, or administrative litigation or action against the attorney.
The Board's proposal for permanent resignation benefits Pennsylvania attorneys facing disciplinary investigation, as it permits an older attorney or one who suffers from an impairment the opportunity to give up their law license permanently, rather than endure a disciplinary proceeding. In turn, the public is protected by removal of the attorney from practice and the resources of the disciplinary system are preserved.
Interested persons are invited to submit written comments, suggestions or objections by mail, email or facsimile 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 January 8, 2024.
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 D. MISCELLANEOUS PROVISIONS Rule 404. Permanent Resignation and Readmission.
* * * * * (c) Resignation while under disciplinary investigation.
(1) An attorney who is the subject of a pending disciplinary investigation or proceeding may seek permanent resignation from the practice of law if:
(i) The attorney is 65 years of age or older or suffers from a physical or mental impairment; and
(ii) The attorney either does not have an active license to practice law in any other state or federal court or jurisdiction or agrees to relinquish any such license within 20 days of entry of an order under this rule.
(2) Contents of petition. Permanent resignation status may be granted to an attorney under disciplinary investigation only upon petition to the Supreme Court. The petition filed by the attorney must set forth facts qualifying the attorney for permanent resignation status.
(3) Consent to petition. The attorney must obtain the written consent of the Office of Disciplinary Counsel to permanent resignation and must attach the written consent to the petition. The Office of Disciplinary Counsel has discretion to consent to permanent resignation only if the attorney qualifies under paragraph (1) and the following conditions are present:
(i) The investigation or proceeding does not involve allegations provable by a preponderance of the evidence that the attorney converted or misappropriated funds or property of a client or third party;
(ii) The investigation or proceeding does not involve allegations provable by a preponderance of the evidence that the attorney engaged in criminal conduct that reflects adversely on the attorney's honesty;
(iii) The attorney has repaid to the Pennsylvania Lawyers Fund for Client Security any disbursements made from the Fund with respect to the Dishonest Conduct of the attorney, plus 10% per annum interest; and
(iv) The public interest will not be adversely affected by the acceptance of the permanent resignation.
(4) Board review. The petition with attached written consent of Office of Disciplinary Counsel shall be filed with the Board for review by a single Board member. Upon approval of the Board member, the Board shall file the petition for permanent resignation with the Court.
(5) Court action and confidentiality of record. Upon the Court's grant of a petition for permanent resignation, the open investigation or proceeding shall be closed. Petitions and orders under this subdivision (c) shall be confidential and non-public.
(6) Notification of other jurisdictions. The permanently resigned attorney shall notify other jurisdictions in which he or she is licensed to practice law of his or her permanent resignation in Pennsylvania within 20 days of the date of the Court's order and provide a copy of the notification to Office of Disciplinary Counsel. The permanently resigned attorney may not reactivate a license to practice law or obtain a license to practice law in any other jurisdiction and shall notify the other jurisdictions that the inability to reactivate or obtain a license to practice law is a condition of the permanent resignation.
(7) Notification of complainant. The Office of Disciplinary Counsel shall notify any complainant to any pending complaints that the attorney has permanently resigned from the practice of law, that the attorney will not be permitted to practice law in Pennsylvania, and that the disciplinary investigation has been closed.
(d) Readmission.
(1) An attorney who has permanently resigned from the practice of law in this Commonwealth pursuant to subdivision (a) or (b) of this rule may not be reinstated under the Enforcement Rules and must seek readmission to the bar pursuant to the Pennsylvania Bar Admission Rules.
(2) An attorney who has permanently resigned from the practice of law in this Commonwealth pursuant to subdivision (c) of this rule may not at any time seek a license status change or apply for reinstatement under these Enforcement Rules and may not seek readmission to the bar pursuant to the Pennsylvania Bar Admission Rules.
Note: Permanent resignation obtained under subdivision (c) ends any disciplinary proceeding in Pennsylvania. It does not affect any disciplinary proceedings in any other jurisdiction. Further, this Rule is not intended to have any effect on any pending or potential civil or criminal or administrative litigation or action against the attorney, even if that litigation arises from the same transaction as the disciplinary complaint and investigation which were dismissed as part of the permanent resignation.
[Pa.B. Doc. No. 23-1682. Filed for public inspection December 8, 2023, 9:00 a.m.]
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