THE COURTS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[204 PA. CODE CHS. 85, 89, 91 AND 93]
Amendments to Rules of Organization and Procedure of the Disciplinary Board of the Supreme Court of Pennsylvania; Order No. 55; Doc. Nos. R-118 and R-126
[31 Pa.B. 3731] The Rules of Organization and Procedure of the Board have been drafted to restate in full the substance of the Pennsylvania Rules of Disciplinary Enforcement. By an Order dated December 7, 2000, the Supreme Court of Pennsylvania amended Pa.R.D.E. 217 to add provisions relating to law-related activities that may be conducted by formerly admitted attorneys. By this Order, the Board is making conforming changes to its Rules to reflect the adopted of those provisions.
On February 26, 2000, the Board published a Notice of Proposed Rulemaking relating to proposed amendments to its Rules to require the verification of pleadings and certain other documents filed with the Board. 30 Pa.B. 1127. No comments were received in response and the Board is taking this opportunity to promulgate those amendments in final form.
Finally, the Board is also taking this opportunity to make certain minor technical changes to its Rules.
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, such 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)(10), orders:
(1) Title 204 of the Pennsylvania Code is hereby amended as set forth in Annex A hereto.
(2) The Secretary of the Board 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 upon publication in the Pennsylvania Bulletin.
(4) This Order shall take effect immediately.
ELAINE M. BIXLER,
Executive Director and Secretary
The Disciplinary Board of the
Supreme Court of Pennsylvania
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 (Editor's Note: The following section is new and is printed in regular type to enhance readability.)
§ 85.13. Verification by respondent-attorneys.
Every pleading or response to a letter requesting statement of position under § 87.7(b) of these rules submitted by or on behalf of a respondent-attorney in any proceeding under these rules that contains an averment of fact not appearing of record or a denial of fact shall include or be accompanied by a verified statement signed by the respondent-attorney that the averment or denial is true based upon the respondent-attorney's personal knowledge or information and belief. The respondent-attorney need not aver the source of the information or expectation of ability to prove the averment or denial. The verified statement may be based upon personal knowledge as to a part and upon information and belief as to the remainder.
CHAPTER 89. FORMAL PROCEEDINGS
Subchapter A. PRELIMINARY PROVISIONS
GENERAL MATTERS § 89.6. Execution.
* * * * * (d) Cross reference. See § 85.13 (relating to verification by respondent-attorneys).
Subchapter C. HEARING PROCEDURES
ORAL ARGUMENT AND BRIEFS § 89.164. Filing and service of briefs.
Briefs not filed and served on or before the dates fixed therefor shall not be accepted for filing, except by special permission of the hearing committee or special master. In the case of a formal proceeding that is in the hands of a hearing committee, [five copies of each brief shall be furnished for the use] one copy of each brief shall be served on each member of the committee and one copy shall be filed with the Office of the Secretary. In the case of a formal proceeding that is in the hands of a special master, two copies of each brief shall be [furnished for the use of] served on the special master and one copy shall be filed with the Office of the Secretary. A hearing committee or special master may permit or direct the [filing] service of a different number of copies of a brief [with] on the members of the hearing committee or special master.
Subchapter F. REINSTATEMENT AND RESUMPTION OF PRACTICE
REINSTATEMENT OF FORMERLY ADMITTED ATTORNEYS § 89.273. Procedures for reinstatement.
(a) General rule. Enforcement Rule 218(c) and (d) provide that:
(1) Petitions for reinstatement by formerly admitted attorneys shall be filed with the Board.
Official Note: The Board will not treat a petition for reinstatement as properly filed for purposes of commencing the procedures set forth in this section unless and until the petition is accompanied by a completed reinstatement questionnaire as required by § 89.275 (relating to completion of questionnaire by respondent-attorney).
* * * * * § 89.274. Notice of reinstatement proceedings.
* * * * * (b) Publication of notice. The Office of the Secretary shall cause a notice to be published in the legal journal and a newspaper of general circulation in the county in which the formerly admitted attorney practiced and in each county in Pennsylvania in which the formerly admitted attorney has resided since being disbarred, suspended or transferred to inactive status. The notice shall state and be confined to:
* * * * * (3) The address of the [Office of the Secretary] district office of the Office of Disciplinary Counsel that is handling the reinstatement proceeding.
§ 89.275. Completion of questionnaire by respondent-attorney.
(a) General rule. If the petition for reinstatement does not have attached thereto a fully completed Form DB-36 (Reinstatement Questionnaire), the Office of the Secretary shall forward to the formerly admitted attorney four copies of Form DB-36 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:
* * * * * (15) If the respondent-attorney has been disbarred or suspended for more than one year or has been on 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).
Official Note: For purposes of allowing the Office of Disciplinary Counsel to begin its investigation of the petition for reinstatement, the Office of the Secretary will accept a preliminary questionnaire that lists courses or lectures that the respondent-attorney is registered to take in the future if proof of that registration, such as receipted bills or canceled checks, is attached to the questionnaire. The questionnaire, however, will not be considered completed and properly filed for purposes of commencing the running of the time periods in § 89.273 (relating to procedures for reinstatement) until the respondent-attorney has actually attended those courses or lectures.
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CHAPTER 91. MISCELLANEOUS MATTERS
Subchapter E. FORMERLY ADMITTED ATTORNEYS (Editor's Note: The following section is new and is printed in regular type to enhance readability.)
§ 91.100. Law-related activities of formerly admitted attorneys.
(a) General rule. A formerly admitted attorney may not engage in any form of law-related activities in this Commonwealth except in accordance with the requirements of this section.
(b) Supervision. Enforcement Rule 217(j)(1) provides that all law-related activities of the formerly admitted attorney shall be conducted under the direct supervision of a member in good standing of the Bar of this Commonwealth who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this section. If the formerly admitted attorney is employed by a law firm, an attorney of the firm shall be designated by the firm as the supervising attorney for purposes of this subsection.
(c) Permissible activities. Enforcement Rule 217(j)(2) provides that, for purposes of this section, the only law-related activities that may be conducted by a formerly admitted attorney are the following:
(1) legal work of a preparatory nature, such as legal research, assembly of data and other necessary information, and drafting of transactional documents, pleadings, briefs, and other similar documents;
(2) direct communication with the client or third parties to the extent permitted by subsection (d); and
(3) accompanying a member in good standing of the Bar of this Commonwealth to a deposition or other discovery matter or to a meeting regarding a matter that is not currently in litigation, for the limited purpose of providing clerical assistance to the member in good standing who appears as the representative of the client.
(d) Communications with clients. Enforcement Rule 217(j)(3) provides that a formerly admitted attorney may have direct communication with a client or third party regarding a matter being handled by the attorney or firm for which the formerly admitted attorney works only if the communication is limited to ministerial matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages. The formerly admitted attorney shall clearly indicate in any such communication that he or she is a legal assistant and identify the supervising attorney.
(e) Prohibited activities. Enforcement Rule 217(j)(4) provides that, without limiting the other restrictions in this section, a formerly admitted attorney is specifically prohibited from engaging in any of the following activities:
(1) performing any law-related activity for a law firm or lawyer if the formerly admitted attorney was associated with that law firm or lawyer on or after the date on which the acts which resulted in the disbarment or suspension occurred, through and including the effective date of disbarment or suspension;
(2) performing any law-related services from an office that is not staffed, on a full time basis, by a supervising attorney;
(3) performing any law-related services for any client who in the past was represented by the formerly admitted attorney;
(4) representing himself or herself as a lawyer or person of similar status;
(5) having any contact with clients either in person, by telephone, or in writing, except as provided in subsection (d);
(6) rendering legal consultation or advice to a client;
(7) appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body;
(8) appearing as a representative of the client at a deposition or other discovery matter;
(9) negotiating or transacting any matter for or on behalf of a client with third parties or having any contact with third parties regarding such a negotiation or transaction;
(10) receiving, disbursing or otherwise handling client funds.
(f) Notice to Board. Enforcement Rule 217(j)(5) provides that the supervising attorney and the formerly admitted attorney shall file with the Board a notice of employment, identifying the supervising attorney, certifying that the formerly admitted attorney has been employed and that the formerly admitted attorney's activities will be monitored for compliance with this section. The supervising attorney and the formerly admitted attorney shall file a notice with the Disciplinary Board immediately upon the termination of the employment of the formerly admitted attorney.
(g) Jurisdiction over supervising attorney. Enforcement Rule 217(j)(6) provides that the supervising attorney shall be subject to disciplinary action for any failure by either the formerly admitted attorney or the supervising attorney to comply with the provisions of this section.
Official Note: This section is addressed only to the special circumstance of formerly admitted attorneys engaging in law-related activities and should not be read more broadly to define the permissible activities that may be conducted by a paralegal, law clerk, investigator, etc. who is not a formerly admitted attorney. This section is also not intended to establish a standard for what constitutes the unauthorized practice of law. Finally, this section is not intended to prohibit a formerly admitted attorney from performing services that are not unique to law offices, such as physical plant or equipment maintenance, courier or delivery services, catering, typing or transcription or other similar general office support activities.
CHAPTER 93. ORGANIZATION AND ADMINISTRATION
Subchapter C. OFFICE OF THE SECRETARY § 93.53. Dockets.
* * * * * (b) Numbering. Except as otherwise ordered by the Board, matters submitted to the Board for action shall be assigned a docket number consisting of the letters ''DB'' and the [last two digits of the] calendar year in which the matter is docketed, which shall be preceded by the serial number of the matter in such calendar year, e.g.: 1 DB [73 et seq.] 2001.
* * * * *
[Pa.B. Doc. No. 01-1267. Filed for public inspection July 13, 2001, 9:00 a.m.]
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