THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CHS. 87, 89, 91, 93 AND 95 ]
Amendments to Rules of Organization and Procedure of the Disciplinary Board of the Supreme Court of Pennsylvania; Order No. 76
[45 Pa.B. 544]
[Saturday, January 31, 2015]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 Order dated December 30, 2014, effective February 28, 2015, the Supreme Court of Pennsylvania amended Pa.R.D.E. 208, 213, 215, 217, 218, 219, and 221, respectively. By this Order, the Board is making conforming changes to its Rules to reflect the adoption of those amendments.
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 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 30 days after publication in the Pennsylvania Bulletin.
(4) This Order shall take effect on March 2, 2015 and shall govern all matters commenced on or after that date and, insofar as just and practicable, matters then pending.
(5) The amendments to Board Rules 91.93 and 91.95 shall apply to persons who are formerly admitted attorneys on the effective date of this Order and to persons becoming formerly admitted attorneys on or after the effective date of this Order.
(6) The amendments to Board Rule 93.142 relating to filing of annual form by attorneys shall be applicable beginning with the 2015-2016 assessment year.
By The Disciplinary Board of the
Supreme Court of PennsylvaniaELAINE M. BIXLER,
Secretary
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 87. INVESTIGATIONS AND INFORMAL PROCEEDINGS
Subchapter A. PRELIMINARY PROVISIONS
COMPLAINTS § 87.7. Notification to respondent-attorney of complaint and duty to respond; duty to produce Pa.R.P.C. 1.15's required records and effect of failure to produce.
* * * * * (d) Effect of failure to respond. Enforcement Rule 203(b)(7) provides that failure by a respondent-attorney without good cause to respond to a request (Form DB-7) or supplemental request (Form DB-7A) by Disciplinary Counsel for a statement of the respondent-attorney's position shall be grounds for discipline. Failure to respond may also be a violation of Rule of Professional Conduct 8.1(b).
Official Note: [If] Except as provided in subsection (e) of this section, if Disciplinary Counsel's request or supplemental request for a statement of position contains a separate request for production of records or documents (other than required records under Pa.R.P.C. 1.15(c) and § 91.177 of Chapter 91 Subchapter H of these Rules), the respondent-attorney's nonproduction shall not be a basis for discipline under Enforcement Rule 203(b)(7) but may constitute evidence of non-cooperation with Disciplinary Counsel's inquiry. Disciplinary Counsel may obtain a subpoena to compel production of the records and documents requested in the Form DB-7 or DB-7A, and the respondent-attorney's wilful failure to comply with the subpoena would serve as a basis for discipline under RPC 8.4(d) and various provisions of the Enforcement Rules.
(e) Duty to produce Pa.R.P.C. 1.15's required records and time for production. Notwithstanding any other provision in this section, if Disciplinary Counsel requests records required to be maintained under Pa.R.P.C. 1.15(c), Enforcement Rule 221(e), and § 91.177(a) (all of which relate to required records) in a Form DB-7 (Request for Statement of Respondent's Position) or Form DB-7A (Supplemental Request for Statement of Respondent's Position), the respondent-attorney shall provide the records to Disciplinary Counsel within ten business days of receipt of the Form DB-7 or Form DB-7A, as the case may be, whether or not the respondent-attorney files the statement of position required to be filed under subsection (b) of this section. The Form DB-7 or Form DB-7A will be considered received for purposes of this subsection if: 1) personal service of the Form DB-7 or Form DB-7A on the respondent-attorney is accomplished; 2) a copy of the Form DB-7 or Form DB-7A is delivered to an employee, agent or other responsible person at the office of the respondent-attorney as determined by the address furnished by the respondent-attorney in the last registration statement filed by the respondent-attorney pursuant to Enforcement Rule 219(d) (relating to annual registration of attorneys); or 3) mailed by certified mail with return receipt requested to one or more of the addresses furnished by the respondent-attorney in the last registration statement and delivery is accepted as shown by electronic or paper return receipt containing the name or signature of the respondent-attorney or other person who accepted delivery. The time in which to produce the required records (ten business days) is separate from the time fixed for the filing of the respondent-attorney's statement of position under paragraph (b)(2).
(f) Effect of failure to produce Pa.R.P.C. 1.15's required records. Enforcement Rule 221(g)(3) and § 91.179 of Chapter 91 Subchapter H of these Rules provide that failure to produce Pa.R.P.C. 1.15 records in response to a request or demand for such records may result in the initiation of proceedings pursuant to Enforcement Rule 208(f)(1) or (f)(5) (relating to emergency temporary suspension orders and related relief), the latter of which specifically permits Disciplinary Counsel to commence a proceeding for the temporary suspension of a respondent-attorney who fails to maintain or produce Pa.R.P.C. 1.15(c) records after receipt of a request or demand authorized by subdivision (g) of Enforcement Rule 221 or any provision of these Rules.
Subchapter D. ABATEMENT OF INVESTIGATION § 87.73. Resignations by attorneys under disciplinary investigation.
(a) Voluntary resignation. Enforcement Rule 215(a) provides that 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 Disciplinary Counsel or the Secretary of the Board a verified statement stating that the attorney desires to resign and that:
(1) The resignation 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 resignation; and whether or not the attorney has consulted or followed the advice of counsel in connection with the decision to resign.
(2) The attorney is aware that there is a presently pending investigation into allegations that the attorney has been guilty of misconduct the nature of which the verified statement shall specifically set forth.
(3) The attorney acknowledges that the material facts upon which the complaint is predicated are true.
(4) The resignation is being submitted because the attorney knows that if charges were predicated upon the misconduct under investigation the attorney could not successfully defend against them.
(5) The attorney is fully aware that the submission of the resignation statement is irrevocable and that the attorney can only apply for reinstatement to the practice of law pursuant to the provisions of Enforcement Rule 218(b) and (c).
(6) The attorney is aware that pursuant to subsection (c) of Enforcement Rule 215, the fact that the attorney has tendered his or her resignation shall become a matter of public record immediately upon delivery of the resignation statement to Disciplinary Counsel or the Secretary of the Board.
(7) Upon entry of the order disbarring the attorney on consent, the attorney will promptly comply with the notice, withdrawal, resignation, trust accounting, and cease-and-desist provisions of subdivisions (a), (b), (c) and (d) of Enforcement Rule 217.
(8) After the entry of the order disbarring the attorney on consent, the attorney will file a verified statement of compliance as required by subdivision (e)(1) of Enforcement Rule 217; and
(9) The attorney is aware that the waiting period for eligibility to apply for reinstatement to the practice of law under Enforcement Rule 218(b) shall not begin until the attorney files the verified statement of compliance required by Enforcement Rule 217(e)(1), and if the order of disbarment contains a provision that makes the disbarment retroactive to an earlier date, then the waiting period will be deemed to have begun on that earlier date.
(b) Representation by counsel. The verified statement under subsection (a) shall indicate whether or not the attorney has consulted or followed the advice of counsel (naming such counsel, if any) in connection with the decision to resign.
(c) Order of disbarment. Enforcement Rule 215(b) provides that receipt of the required statement, the Secretary of the Board shall file it with the Supreme Court and the Court shall enter an order disbarring the attorney on consent.
(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 Secretary of the Board 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 Secretary of the Board; 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:
(1) upon order by the Supreme Court[.],
(2) pursuant to an express written waiver by the attorney,
(3) upon a request of another jurisdiction for purposes of a reciprocal disciplinary proceeding,
(4) upon a request by the Pennsylvania Client Security Fund Board pursuant to Enforcement Rule 521(a) (relating to cooperation with Disciplinary Board), or
(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) (relating to emergency temporary suspension orders and related relief) or pursuant to Enforcement Rule 214 (relating to attorneys convicted of crimes).
CHAPTER 89. FORMAL PROCEEDINGS
Subchapter F. REINSTATEMENT AND RESUMPTION OF PRACTICE
REINSTATEMENT OF FORMERLY ADMITTED ATTORNEYS § 89.272. Waiting period.
(a) General rule relating to disbarment. Enforcement Rule 218(b) provides that a person who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment, except that a person who has been disbarred pursuant to § 91.51 (relating to reciprocal discipline and disability) may apply for reinstatement at any earlier date on which reinstatement may be sought in the jurisdiction of initial discipline. Enforcement Rule 217(e)(3) and its Note, and Enforcement Rule 218(b) provide that after the entry of an order of disbarment, which order has been entered on or after February 28, 2015, the waiting period for eligibility to apply for reinstatement to the practice of law shall not begin until the formerly admitted attorney files the verified statement required by § 91.96 (relating to proof of compliance); and that if the order of disbarment contains a provision that makes the disbarment retroactive to an earlier date, the waiting period will be deemed to have begun on that earlier date.
(b) General rule relating to suspension for a period exceeding one year. Enforcement Rule 217(e)(3) and its Note provide that after the entry of an order of suspension for a period exceeding one year, which order has been entered on or after February 28, 2015, the waiting period for eligibility to apply for reinstatement to the practice of law shall not begin until the formerly admitted attorney files the verified statement required by § 91.96 (relating to proof of compliance); and that if the order of suspension contains a provision that makes the suspension retroactive to an earlier date, the waiting period will be deemed to have begun on that earlier date.
[(b)] (c) Premature petitions. Unless otherwise provided in an order of suspension or disbarment, the Board will not entertain a petition for reinstatement filed prior to the expiration of the period set forth in subsection (a), or more than nine months prior to the expiration of the term of suspension, as the case may be. The Board will also not entertain a petition for reinstatement filed before the formerly admitted attorney has paid in full any costs taxed under § 89.209 (relating to expenses of formal proceedings) or under § 89.278 (relating to expenses of reinstatement proceedings) with respect to any previous reinstatement proceeding and has made any required restitution to the Lawyers Fund for Client Security under Enforcement Rule 531 (relating to restitution a condition for reinstatement).
[(c)] (d) Second or subsequent petitions. Where a petition for reinstatement has been finally denied, the Board, unless otherwise ordered by the Supreme Court in a specific case, will not entertain a second or subsequent petition for reinstatement until after the expiration of at least one year after the immediately preceding petition has been finally denied.
CHAPTER 91. MISCELLANEOUS MATTERS
Subchapter A. SERVICE, SUBPOENAS, DEPOSITIONS AND RELATED MATTERS
IN GENERAL § 91.3. Determination of validity of subpoena.
(a) In [General] general. Enforcement Rule 213(d) provides that any attack on the validity of a subpoena issued under these rules shall be handled as follows:
(1) A challenge to a subpoena authorized by § 91.2(a)(1) (relating to subpoenas and investigations)[;] shall be heard and determined by the hearing committee or special master before whom the subpoena is returnable in accordance with the procedure established by the Board in subsection (b).
(2) A challenge to a subpoena authorized by § 91.2(a)(2) shall be heard and determined by a member of a hearing committee in the disciplinary district in which the subpoena is returnable in accordance with the procedure established by the Board in subsection (b).
(3) A determination under paragraph (1) or (2) may [not] be appealed to a lawyer-Member of the Board[, but may be appealed to the Supreme Court under § 91.4 (relating to appeal of challenges to subpoenas)] within ten days after service pursuant to §§ 89.21 and 89.24 of the determination on the party bringing the appeal by filing a petition with the Board setting forth in detail the grounds for challenging the determination. The appealing party shall serve a copy of the petition on the non-appealing party by mail on the date that the appealing party files the appeal, and the non-appealing party shall have five business days after delivery to file a response. No attack on the validity of a subpoena will be considered by the Designated lawyer-Member of the Board unless previously raised before the hearing committee. The Board Member shall decide the appeal within five business days of the filing of the non-appealing party's response, if any. There shall be no right of appeal to the Supreme Court. Any request for review shall not serve to stay any hearing or proceeding before the hearing committee or the Board unless the Court enters an order staying the proceedings.
(b) Procedure.
(1) A motion attacking a subpoena must be filed with the Office of the Secretary within ten days after service of the subpoena. A copy of the motion must be served on the other party to the investigation or proceeding. If a motion attacking a subpoena is filed by a third party to the investigation or proceeding who has been served with a subpoena, a copy of the motion must be served on Disciplinary Counsel and the respondent-attorney.
(2) Any answer to the motion must be filed with the Office of the Secretary within five business days after [service] receipt of the motion [on] served by the other party under paragraph (1).
(3) The Office of the Secretary must transmit the motion and any answer to the person designated in [subsection] paragraphs (a)(1) or (2) to hear the motion, who must schedule a hearing on the motion within ten business days after the date by which an answer must be filed. A report with findings of fact and conclusions of law must be filed with the Office of the Secretary within ten business days after the conclusion of the hearing.
§ 91.4. Appeal of challenges to subpoenas.
Enforcement Rule 213(g) provides that:
(1) Either Disciplinary Counsel or a respondent-attorney may petition the Supreme Court to enforce a subpoena [or to review a determination under § 91.3 (relating to determination of validity of subpoena) on the validity of a subpoena, and no attack on the validity of a subpoena will be considered by the Court unless previously raised as provided in § 91.3] that was not the subject of a challenge pursuant to paragraphs (a)(1) and (2) of § 91.3 (relating to validity of subpoena) or that was the subject of a challenge and has not been finally quashed by either the hearing committee or the Board Member designated to hear the appeal, provided that the party filing the petition to enforce attaches a certification in good faith that: a) the party exhausted reasonable efforts to secure the presence of the witness or the evidence within the witness's custody or control, b) the testimony, records or other physical evidence of the witness will not be cumulative of other evidence available to the party, and c) the absence of the witness will substantially handicap the party from prosecuting or defending the charges, or from establishing a weighty aggravating or mitigating factor. If the object of a petition to enforce is a subpoena directed to the respondent-attorney for, in whole or in part, production pursuant to Enforcement Rule 221(g)(2) of required records under RPC 1.15(c) and Enforcement Rule 221(e), no certification will be required for the subpoena or portion thereof that pertains to the required records. See also § 91.151(e) (relating to contempt of the Board).
Official Note: The reference to § 91.151(e) is intended to make clear that, where the person who is resisting complying with a subpoena is the respondent-attorney, the provisions of this rule are cumulative of those in § 91.151(e).
(2) Upon receipt of a petition for enforcement of a subpoena, the Court shall issue a rule to show cause upon the person to whom the subpoena is directed, returnable within ten days, why the person should not be held in contempt. If the subpoena is directed to a respondent-attorney for production of required records and the respondent-attorney has not produced the records, the Court shall issue upon the respondent-attorney a rule to show cause why the respondent-attorney should not be placed on temporary suspension for failing to produce the records. If the period for response has passed without a response having been filed, or after consideration of any response, the Court shall issue an appropriate order.
[(3) A petition for review of a determination made under § 91.3 must set forth in detail the grounds for challenging the determination. Upon timely receipt of a petition for review, the Court shall issue a rule to show cause upon the party to the proceeding who is not challenging the determination, returnable within ten days, why the determination should not be reversed. If the period for response has passed without a response having been filed, or after consideration of any response, the Court shall issue an appropriate order.]
Subchapter E. FORMERLY ADMITTED ATTORNEYS § 91.91. Notification of clients in nonlitigation matters.
(a) General rule. Enforcement Rule 217(a) provides that a formerly admitted attorney shall promptly notify [by registered or certified mail, return receipt requested], or cause to be promptly notified, all clients being represented in pending matters, other than litigation or administrative proceedings, of the disbarment, suspension, administrative suspension or transfer to inactive status and the consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status and shall advise [such] said clients to seek legal advice elsewhere. Such notices shall be in substantially the language of Form DB-23 (Nonlitigation Notice of Disbarment, Suspension, Administrative Suspension or Transfer to Inactive Status). The notice required by this subsection (a) may be delivered by the most efficient method possible as long as the chosen method is successful and provides proof of receipt.
Official Note: Notice may be accomplished, for example, by delivery in person with the lawyer securing a signed receipt, electronic mailing with some form of acknowledgement from the client other than a ''read receipt,'' and mailing by registered or certified mail return receipt requested.
(b) Copies of notices and proofs of receipt. [The formerly admitted attorney shall file photocopies of such notices and returned receipts in the Office of the Secretary.] At the time of the filing of the verified statement of compliance required by § 91.96 of this Subchapter E, the formerly admitted attorney shall file copies of the notices required by this section and proofs of receipt with the Secretary of the Board and shall serve a conforming copy on the Office of Disciplinary Counsel.
§ 91.92. Notification of clients in litigation matters.
(a) General rule. Enforcement Rule 217(b) provides that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, [by registered or certified mail, return receipt requested,] all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the disbarment, suspension, administrative suspension or transfer to inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status. Such rule further provides that the notice to be given to the client shall advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney; that in the event the client does not obtain substitute counsel before the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status, it shall be the responsibility of the formerly admitted attorney to move in the court or agency in which the proceeding is pending for leave to withdraw; and that the notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the formerly admitted attorney. Such notices shall be in substantially the language of Form DB-24 (Litigation Notice of Disbarment, Suspension, Administrative Suspension or Transfer to Inactive Status). The notice required by this subsection (b) may be delivered by the most efficient method possible as long as the chosen method is successful and provides proof of receipt. See Note after subsection (a) of § 91.91 (relating to notification of clients in nonlitigation matters).
(b) Copies of notices and proofs of receipt. [The formerly admitted attorney shall file photocopies of such notices and returned receipts in the Office of the Secretary.] At the time of the filing of the verified statement of compliance required by § 91.96 of this Subchapter E, the formerly admitted attorney shall file copies of the notices required by this section and proofs of receipt with the Secretary of the Board and shall serve a conforming copy on the Office of Disciplinary Counsel.
§ 91.93. Notification of other persons.
(a) General rule. Enforcement Rule 217(c) provides that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, of the disbarment, suspension, administrative suspension or transfer to inactive status[, by registered or certified mail, return receipt requested]:
(1) all persons or their agents or guardians, including but not limited to wards, heirs and beneficiaries, to whom a fiduciary duty is or may be owed at any time after the disbarment, suspension, administrative suspension or transfer to inactive status[, and];
(2) all other persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that he or she continues as an attorney in good standing[.]; and
(3) any other tribunal, court, agency or jurisdiction in which the attorney is admitted to practice.
(b) Method of delivery. Enforcement Rule 217(c) further provides that the notices required by subsection (a) may be delivered by the most efficient method possible as long as the chosen method is successful and provides proof of receipt. See Note after § 91.91(a) of this Subchapter E.
(c) Copies of notices and proofs of receipt. Enforcement Rule 217(c) further provides that at the time of the filing of the verified statement of compliance required by § 91.96 of this Subchapter E, the formerly admitted attorney shall file copies of the notices required by this section and proofs of receipt with the Secretary of the Board and shall serve a conforming copy on the Office of Disciplinary Counsel.
[(b)] (d) Responsibility to provide notice. Enforcement Rule 217(c) further provides that the responsibility of the formerly admitted attorney to provide the notice required by this section shall continue for as long as the formerly admitted attorney is disbarred, suspended, [administrative suspension] administratively suspended or on inactive status.
§ 91.94. Effective date of suspension, disbarment, administrative suspension or transfer to inactive status.
(a) Effective date. Enforcement Rule [217(d)] 217(d)(1) provides that orders imposing suspension, disbarment, administrative suspension or transfer to inactive status shall be effective 30 days after entry; that the formerly admitted attorney, after entry of the disbarment, suspension, administrative suspension or transfer to inactive status order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature; but that, during the period from the entry date of the order to its effective date the formerly admitted attorney may wind up and complete, on behalf of any client, all matters which were pending on the entry date.
(b) Effect of verified statement on waiting period for reinstatement. Enforcement Rule 217(e)(3) provides that after the entry of an order of disbarment or suspension for a period exceeding one year, the waiting period for eligibility to apply for reinstatement to the practice of law shall not begin until the formerly admitted attorney files the verified statement required by subsection (a) of this section; and that if the order of disbarment or suspension contains a provision that makes the discipline retroactive to an earlier date, the waiting period will be deemed to have begun on that earlier date.
Official Note: Subsection (b) of this section and the corresponding provisions in § 89.272(a) and (b) (relating to waiting period) apply only to orders entered on or after February 28, 2015.
(Editor's Note: The following rule is new and printed in regular type to enhance readability.)
§ 91.95. Additional steps to be taken to disengage from the practice of law.
(a) Cease and desist from using all forms of communication that convey eligibility to practice. Enforcement Rule 217(d)(2) provides that in addition to the steps that a formerly admitted attorney must promptly take under other provisions of this section to disengage from the practice of law, a formerly admitted attorney shall promptly cease and desist from using all forms of communication that expressly or implicitly convey eligibility to practice law in the state courts of Pennsylvania, including but not limited to professional titles, letterhead, business cards, signage, websites, and references to admission to the Pennsylvania Bar.
(b) Additional steps for certain types of discipline or disability. Enforcement Rule 217(d)(3) provides that in cases of disbarment, suspension for a period exceeding one year, temporary suspension under Enforcement Rule 208(f) or 213(g), or disability inactive status under Enforcement Rule 216 or 301, a formerly admitted attorney shall also promptly:
(1) resign all appointments as personal representative, executor, administrator, guardian, conservator, receiver, trustee, agent under a power of attorney, or other fiduciary position;
(2) close every IOLTA, Trust, client and fiduciary account;
(3) properly disburse or otherwise transfer all client and fiduciary funds in his or her possession, custody or control; and
(4) take all necessary steps to cancel or discontinue the next regular publication of all advertisements and telecommunication listings that expressly or implicitly convey eligibility to practice law in the state courts of Pennsylvania.
Official Note: Paragraph (b) of this section does not preclude a respondent-attorney who voluntarily assumes inactive or retired status, is placed on administrative suspension, is temporarily suspended under Enforcement Rule 214, or is suspended for one year or less, from completing existing appointments and accepting new appointments of the nature identified in paragraph (b)(1). Nonetheless, in order to comply with §§ 91.91 (relating to notification of clients in nonlitigation matters), 91.92 (relating to notification of clients in litigation matters), and 91.93 (relating to notification of other persons) of this Subchapter E, the formerly admitted attorney who desires to complete existing appointments or accept future appointments must give written notice of the formerly admitted attorney's registration status or change in that status to appointing and supervising judges and courts, wards, heirs, beneficiaries, interested third parties, and other recipients of the formerly admitted attorney's fiduciary services, as notice of the formerly admitted attorney's other-than-active status gives all interested parties an opportunity to consider replacing the formerly admitted attorney or enlisting a person other than the formerly admitted attorney to serve as the fiduciary in the first instance. Although the formerly admitted attorney would not be precluded by paragraph (b)(2) of this section from continuing to use a fiduciary account registered with the bank as an IOLTA or Trust Account, subsection (a) of this section and § 91.101(e)(4) (relating to prohibited activities of a formerly admitted attorney) prohibit the formerly admitted attorney from using or continuing to use account checks and deposit slips that contain the word ''IOLTA,'' ''attorney,'' ''lawyer,'' ''esquire,'' or similar appellation that could convey eligibility to practice in the state courts of Pennsylvania. Notwithstanding the specific prohibitions of § 91.101 (relating to law-related activities of formerly admitted attorneys), the formerly admitted attorney is authorized to perform those services necessary to carry out the appointment with the exception of any service that would constitute the unauthorized practice of law if engaged in by a nonlawyer. In relation to formerly admitted attorneys who are disbarred, suspended for a period exceeding one year, temporarily suspended under Enforcement Rule 208(f) or 213(g), or transferred to disability inactive status, the requirements of paragraph (b)(1) of this section continue throughout the term of the disbarment, suspension, temporary suspension, or disability inactive status, thereby precluding any new appointment or engagement.
(c) Compliance records and submission thereof. Enforcement Rule 217(d)(3) further provides that the formerly admitted attorney shall maintain records to demonstrate compliance with the provisions of subsections (a) and (b) of this section and shall provide proof of compliance at the time the formerly admitted attorney files the verified statement required by § 91.96 of this Subchapter E.
§ [91.95] 91.96. Proof of compliance.
(a) General rule. Enforcement Rule [217(e)] 217(e)(1) provides that within ten days after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status order, the formerly admitted attorney shall file with the Secretary of the Board a verified statement (Form DB-25) (Statement of Compliance) [showing] and serve a copy on Disciplinary Counsel. In the verified statement, the formerly admitted attorney shall:
(1) [That] aver that the provisions of the order and the Enforcement Rules have been fully complied with; [and]
(2) [All] list all other state, federal and administrative jurisdictions to which [such person] the formerly admitted attorney is admitted to practice[.];
[(b) Notice of address. Enforcement Rule 217(e) further provides that such Form DB-25 shall also set forth the residence or other address of the formerly admitted attorney where communications to such person may thereafter be directed.]
(3) aver that he or she has attached copies of the notices required by subdivisions (a), (b), and (c)(1) and (c)(2) of Enforcement Rule 217 and proofs of receipt, or, in the alternative, aver that he or she has no clients, third persons to whom a fiduciary duty is owed, or persons with whom the formerly admitted attorney has professional contacts, to so notify;
(4) in cases of disbarment or suspension for a period exceeding one year, aver that he or she has attached his or her attorney registration certificate for the current year, certificate of admission, any certificate of good standing issued by the Prothonotary, and any other certificate required by subdivision (h) of Enforcement Rule 217 to be surrendered; or, in the alternative, aver that he or she has attached all such documents within his or her possession, or that he or she is not in possession of any of the certificates required to be surrendered;
(5) aver that he or she has complied with the requirements of paragraph (2) of subdivision (d) of Enforcement Rule 217, and aver that he or she has, to the extent practicable, attached proof of compliance, including evidence of the destruction, removal, or abandonment of indicia of Pennsylvania practice; or, in the alternative, aver that he or she neither had nor employed any indicia of Pennsylvania practice;
(6) in cases of disbarment, suspension for a period exceeding one year, temporary suspension under Enforcement Rule 208(f) or 213(g), or disability inactive status under Enforcement Rule 216 or 301, aver that he or she has complied with the requirements of paragraph (3) of subdivision (d) of Enforcement Rule 217, and aver that he or she has attached proof of compliance, including resignation notices, evidence of the closing of accounts, copies of cancelled checks and other instruments demonstrating the proper distribution of client and fiduciary funds, and requests to cancel advertisements and telecommunication listings; or, in the alternative, aver that he or she has no applicable appointments, accounts, funds, advertisements, or telecommunication listings;
(7) aver that he or she has served a copy of the verified statement and its attachments on the Office of Disciplinary Counsel;
(8) set forth the residence or other address where communications to such person may thereafter be directed; and
(9) sign the statement.
Official Note: A respondent-attorney who is placed on temporary suspension is required to comply with subsection (a) and file a verified statement. Upon the entry of a final order of suspension or disbarment, the respondent-attorney must file a supplemental verified statement containing the information and documentation not applicable at the time of the filing of the initial statement, or all of the information and documentation required by subsection (a) if the respondent-attorney has failed to file the initial statement. Although the grant of retroactivity is always discretionary, a respondent-attorney who fails to file a verified statement at the time of temporary suspension should not expect a final order to include a reference to retroactivity.
(b) Required certification. Enforcement Rule 217(e)(1) also provides that the statement shall contain an averment that all statements contained therein are true and correct to the best of the formerly admitted attorney's knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
(c) Cooperation required. Enforcement Rule 217(e)(2) provides that a formerly admitted attorney shall cooperate with Disciplinary Counsel and respond completely to questions by Disciplinary Counsel regarding compliance with the provisions of this section.
[(c)] (d) Cross reference. See § 95.3 (relating to monitoring of notices to be sent by formerly admitted attorneys).
§ [91.96] 91.97. Publication of notice of suspension, disbarment, administrative suspension or transfer to inactive status.
Enforcement Rule 217(f) provides that the Board shall cause a notice of the suspension, disbarment, administrative suspension or transfer to inactive status to be published in the legal journal and a newspaper of general circulation in the county in which the formerly admitted attorney practiced. If there is no such legal journal, the notice shall be published in the legal journal of an adjoining county. Upon entry of an order imposing suspension, disbarment, administrative suspension or transfer to inactive status, such notice shall be published forthwith and shall be transmitted to such courts as may be appropriate. The cost of publication shall be assessed against the formerly admitted attorney.
§ [91.97] 91.98. Action to protect clients of formerly admitted attorney.
Enforcement Rule 217(g) provides that the Board shall promptly transmit a certified copy of the order of suspension, disbarment, administrative suspension or transfer to inactive status to the president judge of the court of common pleas in the judicial district in which the formerly admitted attorney practiced; and that the president judge shall make such further order as may be necessary to fully protect the rights of the clients of the formerly admitted attorney.
§ [91.98] 91.99. Maintenance of records.
(a) General rule. Enforcement Rule 217(i) provides that a formerly admitted attorney shall keep and maintain records of the various steps taken by such person under the Enforcement Rules so that, upon any subsequent proceeding instituted by or against such person, proof of compliance with the Enforcement Rules and with the disbarment, suspension, administrative suspension or transfer to inactive status order will be available; and that proof of compliance with the Enforcement Rules shall be a condition precedent to any petition for reinstatement.
(b) Cross reference. See § 95.3 (relating to monitoring of notices to be sent by formerly admitted attorneys).
§ [91.99] 91.100. Indicia of licensure.
Enforcement Rule 217(h) provides that within ten days after the effective date of an order of disbarment or suspension for a period longer than one year, the formerly admitted attorney shall surrender to the Board the certificate issued by the Attorney Registration Office under § 93.143 (relating to issue of certificate as evidence of compliance) for the current year, along with any certificate of good standing issued under Pennsylvania Bar Admission Rule 201(d) (relating to certification of good standing), certificate of admission issued under Pennsylvania Bar Admission Rule 231(d)(3) (relating to action by Prothonotary), certificate of licensure issued under Pennsylvania Bar Admission Rule 341(e)(3) (relating to motion for licensure), Limited In-House Corporate Counsel License issued under Pennsylvania Bar Admission Rule 302 (relating to limited in-house corporate counsel license) or limited certificate of admission issued under Pennsylvania Bar Admission Rule 303 (relating to limited admission of military attorneys). The Board may destroy the annual certificate issued under § 93.143, but shall retain any other documents surrendered under this subdivision and shall return those documents to the formerly admitted attorney in the event that he or she is subsequently reinstated.
§ [91.100] 91.101. 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.
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Subchapter F. PROTECTION OF THE INTERESTS OF CLIENTS § 91.121. Appointment of conservator to protect interests of clients of absent attorney.
(a) General rule. Enforcement Rule 321(a) provides that upon application of Disciplinary Counsel or any other interested person with the written concurrence of Disciplinary Counsel, the president judge of a court of common pleas shall have the power to appoint one or more eligible persons to act as conservators of the affairs of an attorney or formerly admitted attorney if:
(1) the attorney maintains or has maintained an office for the practice of law within the judicial district; and
(2) any of the following applies:
(i) the attorney is made the subject of an order under § 91.151 (relating to emergency temporary suspension orders and related relief); or
(ii) the president judge of the court of common pleas pursuant to § [91.97] 91.98 (relating to action to protect clients of formerly admitted attorney) by order directs Disciplinary Counsel to file an application under Enforcement Rule 321; or
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Subchapter G. EMERGENCY PROCEEDINGS § 91.151. Emergency temporary suspension orders and related relief.
* * * * * (e) Contempt of the Board. Enforcement Rule 208(f)(5) provides that:
(1) the Board on its own motion, or upon the petition of Disciplinary Counsel, may issue a rule to show cause why the respondent-attorney should not be placed on temporary suspension whenever it appears that the respondent-attorney has disregarded an applicable provision of the Enforcement Rules, [refused] failed to maintain or produce the records required to be maintained and produced under Pa.R.P.C. 1.15(c) and subdivisions (e) and (g) of Enforcement Rule 221 in response to a request or demand authorized by Enforcement Rule 221(g) or any provision of these Rules, failed to comply with a valid subpoena, or engaged in other conduct that in any such instance materially delays or obstructs the conduct of a proceeding under this Subpart;
(2) the rule to show cause shall be returnable within [30] ten days;
(3) if the response to the rule to show cause raises issues of fact, the [Chair of the] Board Chair may direct that a hearing be held before a member of the Board who shall submit a report to the Board upon the conclusion of the hearing;
(4) if the period for response to the rule to show cause has passed without a response having been filed, or after consideration of any response and any report of a Board member following a hearing under paragraph (3), the Board may recommend to the Supreme Court that the respondent-attorney be placed on temporary suspension; and
(5) the recommendation of the Board shall be reviewed by the Supreme Court as provided in § 89.207 (relating to review and action in the Supreme Court), although the time for either party to file with the Court a petition for review of the recommendation or determination of the Board shall be fourteen days after the entry of the Board's recommendation or determination, and any answer or responsive pleading shall be filed within ten days after service of the petition for review.
* * * * *
Subchapter H. FUNDS OF CLIENTS AND THIRD PERSONS; MANDATORY OVERDRAFT NOTIFICATION § 91.177. Required records.
(a) In general. Enforcement Rule 221(e) provides that an attorney shall maintain and preserve for a period of five years after termination of the client-lawyer or Fiduciary relationship or after distribution or disposition of the property, whichever is later, the following records:
(1) the writing required by Pa.R.P.C. 1.5 (relating to the requirement of a writing communicating the basis or rate of the fee);
(2) the records identified in Pa.R.P.C. 1.5(c) (relating to the requirement of a written fee agreement and distribution statement in a contingent fee matter); and
(3) the following books and records for each Trust Account and for any other account in which Rule 1.15 Funds are held:
[(1)] (i) all transaction records provided to the attorney by the [Eligible] Financial Institution, such as periodic statements, canceled checks in whatever form, deposited items and records of electronic transactions; and
[(2)] (ii) check register or separately maintained ledger, which shall include the payee, date, purpose and amount of each check, withdrawal and transfer, the payor, date, and amount of each deposit, and the matter involved for each transaction; provided, however, that where an account is used to hold funds of more than one client, a lawyer shall also maintain an individual ledger for each trust client, showing the source, amount and nature of all funds received from or on behalf of the client, the description and amounts of charges or withdrawals, the names of all persons or entities to whom such funds were disbursed, and the dates of all deposits, transfers, withdrawals and disbursements.
(b) Regular trial balance and monthly reconciliations. Enforcement Rule 221(e) also provides that: a regular trial balance of the individual client trust ledgers shall be maintained; the total of the trial balance must agree with the control figure computed by taking the beginning balance, adding the total of moneys received in trust for the client, and deducting the total of all moneys disbursed; on a monthly basis, a lawyer shall conduct a reconciliation for each fiduciary account; and the reconciliation is not complete if the reconciled total cash balance does not agree with the total of the client balance listing.
(c) Preservation of records and computations. Enforcement Rule 221(e) provides that a lawyer shall preserve for a period of five years copies of all records and computations sufficient to prove compliance with the requirement of subsection (b).
[(b)] (d) Form. Enforcement Rule 221(f) provides that the records required by this [rule] section may be maintained in [electronic or] hard copy form or by electronic, photographic, or other media provided that the records otherwise comply with this section and that printed copies can be produced. Whatever method is used to maintain required records must have a backup so that the records are secure and always available. If records are kept only in electronic form, then such records shall be backed up [at least monthly on a separate electronic storage device], on a separate electronic storage device, at least at the end of any day on which entries have been entered into the records.
[(c) Availability. Enforcement Rule 221(g) provides that the records required by this rule may be subject to subpoena and must be produced in connection with an investigation or hearing pursuant to these rules; and that failure to produce such records may result in the initiation of proceedings pursuant to § 91.151 (relating to emergency temporary suspension orders and related relief), which permits disciplinary counsel to commence a proceeding for the temporary suspension of a respondent-attorney who refuses to comply with a valid subpoena.]
(Editor's Note: Rules 91.178 and 91.179 are new and printed in regular type to enhance readability.)
§ 91.178. Availability of required records and requirement to produce.
(a) In general. Enforcement Rule 221(g) provides that the records required to be maintained by Pa.R.P.C. 1.15 shall be readily accessible to the lawyer and available for production to the Pennsylvania Lawyers Fund for Client Security and the Office of Disciplinary Counsel in a timely manner upon request or demand by either agency made pursuant to the Enforcement Rules, these Rules, the Pennsylvania Lawyers Fund for Client Security Board Rules and Regulations, agency practice, or subpoena.
(b) Request for production by letter. Enforcement Rule 221(g)(1) provides that upon a request by Disciplinary Counsel under subdivision (g) of that Enforcement Rule, which request may take the form of a letter to the respondent-attorney briefly stating the basis for the request and identifying the type and scope of the records sought to be produced, a respondent-attorney must produce the records within ten business days after personal service of the letter on the respondent-attorney or after the delivery of a copy of the letter to an employee, agent or other responsible person at the office of the respondent-attorney as determined by the address furnished by the respondent-attorney in the last registration statement filed by the respondent-attorney pursuant to Enforcement Rule 219(d) (relating to annual registration of attorneys), but if the latter method of service is unavailable, within ten business days after the date of mailing a copy of the letter to the last registered address or addresses set forth on the statement.
(c) Request for production pursuant to Board Rule. Enforcement Rule 221(g)(2) provides in part that when Disciplinary Counsel's request or demand for Pa.R.P.C. 1.15 records is made under an applicable provision of these Rules, the respondent-attorney must produce the records and must do so within the time frame established by these Rules. See § 87.7(e) (relating to production of Pa.R.P.C. 1.15 records upon Disciplinary Counsel's request in a Form DB-7 (Request for Statement of Respondent's Position) or Form DB-7A (Supplemental Request for Statement of Respondent's Position)).
(d) Request for production by subpoena. Enforcement Rule 221(g)(2) provides in part that when Disciplinary Counsel's request or demand for Pa.R.P.C. 1.15 records is made by subpoena under Enforcement Rule 213(a), the respondent-attorney must produce the records and must do so within the time frame established by Enforcement Rule 213 and these Rules. See Enforcement Rule 213(b) and § 91.2(b) (both of which relate to procedure for issuance of subpoenas).
§ 91.179. Effect of failure to produce required records.
Enforcement Rule 221(g)(3) provides that failure to produce Pa.R.P.C. 1.15 records in response to a request or demand for such records may result in the initiation of proceedings pursuant to Enforcement Rule 208(f)(1) or (f)(5) (relating to emergency temporary suspension orders and related relief), the latter of which specifically permits Disciplinary Counsel to commence a proceeding for the temporary suspension of a respondent-attorney who fails to maintain or produce Pa.R.P.C. 1.15 records after receipt of a request or demand authorized by subdivision (g) of Enforcement Rule 221 or any provision of these Rules; and that if at any time a hearing is held before the Board pursuant to Enforcement Rule 208(f) (or § 91.151 relating to emergency temporary suspension orders and related relief) as a result of a respondent-attorney's alleged failure to maintain or produce Pa.R.P.C. 1.15 records, a lawyer-Member of the Board shall be designated to preside over the hearing.
Official Note: If Disciplinary Counsel files a petition for temporary suspension, the respondent-attorney will have an opportunity to raise at that time any claim of impropriety pertaining to the request or demand for records.
CHAPTER 93. ORGANIZATION AND ADMINISTRATION
Subchapter G. FINANCIAL MATTERS
TAXATION OF COSTS § 93.111. Determination of reimbursable expenses.
(a) General rule. Enforcement Rule 208(g)(2) provides that expenses taxable by the Board pursuant to § 89.205(b) (relating to informal admonition or private reprimand following formal hearing) shall be prescribed by these rules. See also § 89.209 (relating to expenses of formal proceedings) and § 89.278 (relating to expenses of reinstatement proceedings).
(b) Enumeration of expenses. Taxable expenses under these rules shall include, but not be limited to, the following:
(1) court reporter fees and transcript costs;
(2) the fees and expenses of expert and other witnesses;
(3) the cost of serving subpoenas, pleadings and briefs;
(4) the charges by banks and other institutions for production of statements, checks and other records in response to subpoenas or otherwise;
(5) the cost of reproducing documents introduced or offered as evidence at hearings; [and]
(6) the cost of reproducing pleadings and briefs[.]; and
(7) the cost of publishing notices in the legal journal and a newspaper of general circulation as required by Enforcement Rule 217(f) (relating to publication of a notice of suspension, disbarment, administrative suspension or transfer to inactive status) or § 89.274(b) (relating to publication of a notice of reinstatement hearing).
(c) Administrative fee. Enforcement Rule 208(g)(3) provides that the expenses taxable under § 89.205(b) (relating to informal admonition, private reprimand, or public reprimand following formal hearing) or § 89.209 (relating to expenses of formal proceedings) may include an administrative fee except that an administrative fee shall not be included where the discipline imposed is an informal admonition; and that the administrative fee shall be $250.
ANNUAL REGISTRATION OF ATTORNEYS § 93.142. Filing of annual fee form by attorneys.
(a) Transmission of form. Enforcement Rule 219(c) provides that on or before May 15 of each year the Attorney Registration Office shall transmit to all attorneys required by the rule to pay an annual fee, except those attorneys who have elected electronic filing, a form required by subsection (b) of this section; and that on or before May 15 of each year subsequent to the year in which an attorney elects electronic filing, the Attorney Registration Office shall transmit to such attorney a notice by e-mail to register by July 1.
(b) Filing of annual fee form. Enforcement Rule 219(d) provides that on or before July 1 of each year all attorneys required by the rule to pay an annual fee shall file with the Attorney Registration Office a signed or electronically endorsed form prescribed by the Attorney Registration Office in accordance with the following procedures:
(1) The form shall set forth:
(i) The date on which the attorney was admitted to practice, licensed as foreign legal consultant, granted limited admission as an attorney participant in defender and legal services programs pursuant to Pa.B.A.R. 311, or issued a Limited In-House Corporate Counsel License, and a list of all courts (except courts of this Commonwealth) and jurisdictions in which the person has ever been license' to practice law, with the current status thereof.
(ii) The current residence and office addresses of the attorney, each of which shall be an actual street address or rural route box number, and the Attorney Registration Office shall refuse to accept a form that sets forth only a post office box number for either required address. A preferred mailing address different from those addresses may also be provided on the form and may be a post office box number. The attorney shall indicate which of the addresses, the residence, office or mailing address, as well as telephone and fax number will be accessible through the website of the Board (http://www.padisciplinaryboard.org/) and by written or oral request to the Board. Upon an attorney's written request submitted to the Attorney Registration Office and for good cause shown, the contact information provided by the attorney will be nonpublic information and will not be published on the Board's website or otherwise disclosed.
Official Note: The Note to Enforcement Rule 219(d)(1)(ii) explains that public web docket sheets will show the attorney's address as entered on the court docket.
(iii) The name of each [financial institution in Pennsylvania] Financial Institution, as defined in § 91.171 (Definitions), within or outside this Commonwealth in which the attorney on May 1 of the current year or at any time during the preceding 12 months held funds of a client or a third person subject to Rule 1.15 of the Pennsylvania Rules of Professional Conduct. The form shall include the name and account number for each account in which the [lawyer holds] attorney held such funds, and each IOLTA Account shall be identified as such. The form provided to a person holding a Limited In-House Corporate Counsel License or a Foreign Legal Consultant License need not request the information required by this subparagraph.
Official Note: If an attorney employed by a law firm receives fiduciary funds from or on behalf of a client and deposits or causes the funds to be deposited into a law firm account, the attorney must report the account of deposit under this subparagraph.
(iv) Every account not reported under subparagraph (iii), that held funds of a client or third party, and over which the attorney had sole or shared signature authority or authorization to transfer funds to or from the account, during the same time period specified in subparagraph (iii). For each account, the attorney shall provide the name of the financial institution (whether or not the entity qualifies as a ''Financial Institution'' under RPC 1.15(a)(4)), location, and account number.
(v) Every business operating account maintained or utilized by the attorney in the practice of law during the same time period specified in subparagraph (iii). For each account, the attorney shall provide the name of the financial institution, location and account number.
[(iv)] (vi) A certification reading as follows: ''I certify that all Trust Accounts that I maintain are in financial institutions approved by the Supreme Court of Pennsylvania for the maintenance of such accounts pursuant to Pennsylvania Rule of Disciplinary Enforcement 221 (relating to mandatory overdraft notification) and that each Trust Account has been identified as such to the financial institution in which it is maintained.''
[(v)] (vii) A statement that any action brought against the attorney by the Pennsylvania Lawyers Fund for Client Security for the recovery of monies paid by the Fund as a result of claims against the attorney may be brought in the Court of Common Pleas of Allegheny, Dauphin or Philadelphia County.
[(vi)] (viii) Whether the attorney is covered by professional liability insurance on the date of registration in the minimum amounts required by Rule of Professional Conduct 1.4(c). Rule 1.4(c) does not apply to attorneys who do not have any private clients, such as attorneys in full-time government practice or employed as in-house corporate counsel.
Official Note: The Disciplinary Board will make the information regarding insurance available to the public upon written or oral request and on its website. The requirement of Rule 219(d)(3) that every attorney who has filed an annual fee form or elects to file the form electronically must notify the Attorney Registration Office of any change in the information previously submitted within 30 days after such change will apply to the information regarding insurance.
[(vii)] (ix) Such other information as the Attorney Registration Office may from time to time direct.
(2) Payment of the annual fee shall accompany the form. IOLTA, trust, escrow and other fiduciary account checks tendered in payment of the annual fee will not be accepted. If the form and payment are incomplete or if a check in payment of the annual fee has been returned to the Board unpaid, the annual fee shall not be deemed to have been paid until a collection fee, and one or both of the late payment penalties prescribed in § 93.144(a)(1) and (2) of these rules if assessed, shall also have been paid. The amount of the collection fee shall be established by the Board annually after giving due regard to the direct and indirect costs incurred by the Board during the preceding year for checks returned to the Board unpaid. On or before July 1 of each year the Office of the Secretary shall publish in the Pennsylvania Bulletin a notice of the collection fee established by the Board for the coming registration year.
(3) Every attorney who has filed the form or elects to file the form electronically shall notify the Attorney Registration Office of any change in the information previously submitted, including e-mail address, within 30 days after such change.
(4) Upon original admission to the bar of this Commonwealth, licensure as a Foreign Legal Consultant, issuance of a Limited In-House Corporate Counsel License, or limited admission as an attorney participant in defender and legal services programs pursuant to Pa.B.A.R. 311, a person shall concurrently file a form under this section for the current registration year, but no annual fee shall be payable for the registration year in which originally admitted or licensed.
CHAPTER 95. STATEMENTS OF POLICY § 95.2. Investigation of the mishandling and conversion of funds.
[Where the Office of Disciplinary Counsel receives evidence of the conversion of entrusted funds by a respondent-attorney, it is the policy of the Board that Disciplinary Counsel shall seek the issuance of a subpoena duces tecum to the respondent-attorney and any relevant financial institution for at least the following records:]
(a) Where the Office of Disciplinary Counsel has some factual basis to support a suspicion or concern that there has been improper commingling or mishandling of entrusted funds or a failure to promptly account for or distribute such funds by a respondent-attorney, it is the policy of the Board that Disciplinary Counsel shall make a request or demand to the respondent-attorney for all relevant records, including the records required to be maintained under Pa.R.P.C. 1.15(c), Enforcement Rule 221(e), and § 91.177(a) (all of which relate to required records), unless such a request or demand would jeopardize an ongoing investigation. Disciplinary Counsel shall utilize one or more of the procedures authorized by Enforcement Rule 221(g) and § 91.178 (relating to availability of required records and requirement to produce), and Enforcement Rule 213 and § 91.2 (relating to subpoenas).
Official Note: An administrative agency's request or demand for production of required records has been upheld if the agency has some factual basis to support a suspicion or concern that the law has been violated even if the evidence does not establish a violation, or the circumstances justify the agency's seeking assurances that the law has not been violated; 2) the records sought are reasonably relevant to the inquiry; and 3) the demand is not too indefinite or overbroad. United States v. Morton Salt Co., 338 U.S. 632, 642-643, 652 (1950), cited in State Real Estate Com. v. Roberts, 441 Pa. 159, 164-165, 271 A.2d 246, 248 (1970), cert. denied, 402 U.S. 905 (1971); Unnamed Attorney v. Attorney Grievance Comm'n, 313 Md. 357, 364-365, 545 A.2d 685, 689 (1988).
(b) Where the Office of Disciplinary Counsel receives evidence of the misappropriation or conversion of entrusted funds by a respondent-attorney, it is the policy of the Board that Office of Disciplinary Counsel shall seek to obtain relevant records under the procedures in subsection (a), and, where deemed appropriate or necessary, seek the issuance of a subpoena duces tecum to the respondent-attorney and any relevant financial institution for some or all of the following records:
(1) all accounts into which the respondent-attorney may have deposited or otherwise transferred entrusted funds during a period reasonably related to that during which the misappropriation or conversion occurred; [and]
(2) those records which are required to be maintained under [the Disciplinary Rules relating to the handling or holding of funds or other property.] Pa.R.P.C. 1.15(c), Enforcement Rule 221(e), and § 91.177(a)—(c); and
[Official Note: The records referred to in paragraph (2) include those maintained under former DR 9-102 of the Code of Professional Responsibility and Rules 1.5(c) and 1.15 of the Rules of Professional Conduct.]
(3) all other records that may be relevant or necessary to confirming, corroborating or determining the extent of the misappropriation or conversion.
(c) No limitation intended. This section does not prohibit Disciplinary Counsel, at any stage of an investigation, from: 1) verbally requesting that a respondent-attorney voluntarily produce records; 2) seeking records from a financial institution or a person other than the respondent-attorney; or 3) seeking relevant records, by any authorized manner, of any type or nature and in relation to a suspected violation of a type other than one identified in this section.
§ 95.3. Monitoring of notices to be sent by formerly admitted attorneys.
It is the practice of the Office of the Secretary to monitor the filing by formerly admitted attorneys of the verified statement of compliance required under § [91.95] 91.96 (relating to proof of compliance) and, if the statement is not filed within the prescribed period, the Office of the Secretary will mail to the formerly admitted attorney a reminder of the obligation under § [91.95] 91.96 to file the statement. Failure by the Office of the Secretary to mail the reminder, or failure by the formerly admitted attorney to receive the reminder, shall not relieve the formerly admitted attorney of the obligation to file the verified statement of compliance. As required by § [91.98] 91.99 (relating to maintenance of records), the Office of the Secretary will not accept for filing a petition for reinstatement until the formerly admitted attorney has filed the verified statement of compliance or obtained a waiver from the Board of the requirement to file the statement. As required by Enforcement Rule 217(e)(3) and subsections (a) and (b) of § 89.272 (relating to waiting period), if an order of disbarment or suspension for a period exceeding one year is entered on or after February 28, 2015, the waiting period for eligibility to apply for reinstatement to the practice of law shall not begin until the formerly admitted attorney who is the subject of that order files the verified statement of compliance required by § 91.96.
[Pa.B. Doc. No. 15-152. Filed for public inspection January 30, 2015, 9:00 a.m.]
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