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PA Bulletin, Doc. No. 02-561

THE COURTS

Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS

PART V.  PROFESSIONAL ETHICS AND CONDUCT

[204 PA. CODE CHS. 85, 89 AND 93]

Amendments to Rules of Organization and Procedure of the Disciplinary Board of the Supreme Court of Pennsylvania; Order No. 56; Doc. Nos. R-130 and R-131

[32 Pa.B. 1838]

   In this Order, the Disciplinary Board of the Supreme Court of Pennsylvania is amending its Rules of Organization and Procedure to: (i)  change the time limitation on complaints against respondent-attorneys alleging ineffective assistance of counsel, and (ii)  make conforming amendments as a result of recent orders of the Supreme Court of Pennsylvania amending the Rules of Disciplinary Enforcement.

   The Rules of the Board provide that complaints against respondent-attorneys involving alleged misconduct occurring more than four years before the date of the complaint will generally not be considered. See 204 Pa. Code § 85.10. The Board has found that it may take more than four years for some cases of ineffective assistance of counsel or prosecutorial misconduct to come to the attention of the Board. By this Order, the Board is accordingly amending 204 Pa. Code § 85.10 to provide that the generally applicable four year period within which complaints must be submitted will be tolled while there is litigation pending that results in a finding of ineffective assistance of counsel or prosecutorial misconduct. Notice of this proposed change was published in the Pennsylvania Bulletin on November 3, 2001 and no comments were received in response.

   The Rules of the Board have been drafted to restate in full the substance of the Rules of Disciplinary Enforcement. By Orders dated April 5, 2001, May 18, 2001 and June 28, 2001, the Supreme Court amended Pa.R.D.E. 218 and 219. The Board is taking this opportunity to make conforming changes to its Rules to reflect the changes in the Rules of Disciplinary Enforcement made by those Orders of the Supreme Court.

   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. 69, No. 40), known as the Commonwealth Documents Law, would otherwise require notice of proposed rulemaking with respect to some of the amendments adopted hereby, such proposed rulemaking procedures are inapplicable because those amendments 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

§ 85.10.  Stale matters.

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   (b)  Exceptions. The four year limitation in subsection (a) shall:

*      *      *      *      *

   (2)  Be tolled during any period when there has been litigation pending that has resulted in a finding that the subject acts or omissions involved civil fraud, ineffective assistance of counsel or prosecutorial misconduct by the respondent-attorney.

CHAPTER 89.  FORMAL PROCEEDINGS

Subchapter F.  REINSTATEMENT AND RESUMPTION OF PRACTICE

REINSTATEMENT OF FORMERLY ADMITTED ATTORNEYS

§ 89.271.  Reinstatement only by Court order.

   Enforcement Rule 218(a) provides that no attorney suspended for a period exceeding one year, transferred to inactive status more than three years prior to resumption of practice or transferred to inactive status as a result of the sale of his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct, or disbarred may resume practice until reinstatement by order of the Supreme Court after petition therefor pursuant to the Enforcement Rules.

§ 89.273.  Procedures for reinstatement.

*      *      *      *      *

   (b)  Attorneys suspended for less than one year. Enforcement Rule 218(f) provides that:

   (1)  Upon the expiration of any term of suspension not exceeding one year and upon the filing thereafter by the [suspended] formerly admitted attorney with the Board of a verified statement showing compliance with all the terms and conditions of the order of suspension and of Chapter 91 of Subchapter E (relating to formerly admitted attorneys), the Board shall certify such fact to the Supreme Court, which shall immediately enter an order reinstating the formerly admitted attorney to active status, unless such person is subject to another outstanding order of suspension or disbarment.

   (2)  [If] Paragraph (1) of this subsection shall not be applicable and a formerly admitted attorney shall be subject instead to the other provisions of this rule requiring the filing of a petition for reinstatement, if:

   (i)  other formal disciplinary proceedings are then pending or have been authorized against the formerly admitted attorney[, paragraph (1) shall not be applicable and such person shall file a petition for reinstatement.];

   (ii)  the formerly admitted attorney has been on inactive status for more than three years; or

   (iii)  the order of suspension has been in effect for more than three years.

*      *      *      *      *

   (c)  Attorneys on inactive status for less than three years. Enforcement Rule 218(g) provides that attorneys who have been on inactive status for three years or less may be reinstated pursuant to § 93.145 (relating to reinstatement) or § 93.146(b) (relating to [voluntarily retired or inactive attorneys] reactivation) as appropriate. This subsection (c) does not apply to any attorney who has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct.

CHAPTER 93.  ORGANIZATION AND ADMINISTRATION

Subchapter G.  FINANCIAL MATTERS

ANNUAL ASSESSMENT OF ATTORNEYS

§ 93.141.  Annual assessment.

   (a)  General rule. Enforcement Rule 219(a) provides that every attorney admitted to practice in any court of this Commonwealth shall pay an annual fee under such rule of [$105.00] $130.00; that the annual fee shall be collected under the supervision of the Administrative Office, which shall send and receive, or cause to be sent and received, the notices and statements provided for in this subchapter, and that the fee shall be used to defray the costs of disciplinary administration and enforcement under the Enforcement Rules, and for such other purposes as the Board shall, with the approval of the Supreme Court, from time to time determine.

*      *      *      *      *

§ 93.146.  Voluntarily retired or inactive attorneys.

   (a)  General rule. Enforcement Rule 219(i) provides that an attorney who has retired [or], is not engaged in practice or who has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct shall file with the Administrative Office a notice in writing (Form DB-28) (Notice of Voluntary Assumption of Inactive Status) that the attorney desires voluntarily to assume inactive status and discontinue the practice of law; that upon the transmission of such notice from the Administrative Office to the Supreme Court, the Court shall enter an order transferring the attorney to inactive status, and the attorney shall no longer be eligible to practice law but shall continue to file the statement specified in § 93.142(b) (relating to filing of annual statement by attorneys) for six years thereafter in order that the formerly admitted attorney can be located in the event complaints are made about the conduct of such person while such person was engaged in practice; that the formerly admitted attorney will be relieved from the payment of the fee specified in § 93.141 (relating to annual assessment); and that Chapter 91 Subchapter E (relating to formerly admitted attorneys) shall not be applicable to the formerly admitted attorney unless ordered by the Supreme Court in connection with the entry of an order of suspension or disbarment under another provision of the Enforcement Rules.

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[Pa.B. Doc. No. 02-561. Filed for public inspection April 12, 2002, 9:00 a.m.]


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