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PA Bulletin, Doc. No. 04-2022

THE COURTS

Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS

PART V.  PROFESSIONAL ETHICS AND CONDUCT

[204 PA. CODE CH. 83]

Amendments to the Pennsylvania Rules of Disciplinary Enforcement Relating to Discipline on Consent

[34 Pa.B. 6130]

   Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Pennsylvania Supreme Court that it amend the Pennsylvania Rules of Disciplinary Enforcement as set forth in Annex A to provide for the imposition of discipline other than disbarment upon consent.

   The Rules of Disciplinary Enforcement currently provide that an attorney who is the subject of an investigation into misconduct may request disbarment, but the rules do not provide a procedure for an attorney to consent to a type of discipline less than disbarment. The Board believes that the disciplinary process could be improved if attorneys were also permitted to agree to the imposition of a lesser sanction.

   Interested persons are invited to submit written comments regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, First Floor, Two Lemoyne Drive, Lemoyne, PA 17043, on or before January 7, 2005.

By The Disciplinary Board of the Supreme Court of Pennsylvania

ELAINE M. BIXLER,   
Secretary of the Board

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 215. [Resignations by attorneys under disciplinary investigation] Discipline on Consent.

   (a)  Voluntary resignation.--An attorney who is the subject of an investigation into allegations of misconduct by the attorney may submit a resignation, but only by delivering to the Board a verified statement stating that the attorney desires to resign and that:

*      *      *      *      *

   (b)  Order of disbarment.--Upon receipt of the required statement, the Board shall file it with the Supreme Court and the Court shall enter an order disbarring the attorney on consent.

   (c)  Confidentiality of resignation statement.--The order disbarring the attorney on consent shall be a matter of public record, but for the purposes of Enforcement Rule 402(a)(1) (relating to confidentiality) the order shall not be an order for the imposition of public discipline. The statement required under the provisions of subdivision (a) of this rule shall not be publicly disclosed or made available for use in any proceeding other than a subsequent reinstatement proceeding except:

*      *      *      *      *

   (d)  Other Discipline on Consent.--At any stage of a disciplinary investigation or proceeding, a respondent-attorney and Disciplinary Counsel may file a joint Petition in Support of Discipline on Consent. The Petition shall include the specific factual allegations that the attorney admits he or she committed, the specific Rules of Professional Conduct and Rules of Disciplinary Enforcement allegedly violated and a specific recommendation for discipline. The Petition shall be accompanied by an affidavit stating that the attorney consents to the recommended discipline and that:

   (1)  the consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of submitting the consent; and whether or not the attorney has consulted or followed the advice of counsel in connection with the decision to consent to discipline;

   (2)  the attorney is aware that there is presently pending an investigation into, or proceeding involving, allegations that the respondent-attorney has been guilty of misconduct as set forth in the Petition;

   (3)  the attorney acknowledges that the material facts set forth in the Petition are true; and

   (4)  the attorney consents because the attorney knows that if charges predicated upon the matter under investigation were filed, or continued to be prosecuted in the pending proceeding, the attorney could not successfully defend against them.

   (e)  Handling of Petition.--The Petition shall be filed with the Board. The filing of the Petition shall stay any pending proceeding before a hearing committee, special master or the Board. The Petition shall be reviewed by a panel composed of three members of the Board who may approve or deny.

   (f)  Private discipline.--If a panel approves a Petition consenting to an informal admonition or private reprimand, with or without probation, the Board shall enter an appropriate order, and it shall arrange to have the attorney appear before Disciplinary Counsel for the purpose of receiving an informal admonition or before a designated panel of three members selected by the Board Chair for the purpose of receiving a private reprimand.

   (g)  Public discipline.--If a panel approves a Petition consenting to public censure or suspension, the Board shall file the recommendation of the panel and the Petition with the Supreme Court. If the Court grants the Petition, the Court shall enter an appropriate order disciplining the attorney on consent. The order and the Petition shall be a matter of public record in accordance with Enforcement Rule 402.

   (h)  Denial of Petition.--If either the panel of the Board or the Supreme Court denies a Petition, the members of the Board who participated on the reviewing panel shall not participate in further consideration of the same matter. Any stayed proceedings shall resume as if the Petition had not been filed and neither the Petition nor the affidavit may be used against the attorney in any disciplinary proceeding or any other judicial proceeding.

   (i)  Costs.--The panel of the Board in its discretion may direct that the necessary expenses incurred in the investigation and prosecution of the matter shall be paid by the attorney as a condition to the grant of the Petition. All expenses taxed under this subdivision shall be paid by the attorney before the imposition of discipline under subdivision (f) or (g).

[Pa.B. Doc. No. 04-2022. Filed for public inspection November 12, 2004, 9:00 a.m.]


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