THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
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. 98
[50 Pa.B. 4014]
[Saturday, August 8, 2020]By this Order, the Disciplinary Board of the Supreme Court of Pennsylvania amends its Board Rules and Procedures to modify Rules § 85.11 related to recusal; § 89.2 related to procedure in formal proceedings; § 89.21 related to notice and service; § 89.55 related to pleadings; § 89.93 related to presentation by the parties; § 91.3 related to determination of validity of subpoena; § 93.22 related to quorum and manner of acting; and § 93.23 related to powers and duties of the Board.
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 Executive Director 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.
By the Disciplinary Board of the
Supreme Court of PennsylvaniaJESSE G. HEREDA,
Executive Director
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart C. DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
CHAPTER 85. GENERAL PROVISIONS § 85.11. Recusal.
* * * * * (b) Procedure for recusal. Enforcement Rule 220(b) provides that a motion to disqualify a member of the Board or a hearing committee member or a special master shall be made in accordance with these rules, but the making of such a motion shall not stay the conduct of the proceedings or disqualify the challenged member or special master pending disposition of the motion. The procedures applicable to a motion for recusal shall be as follows:
(1) The motion shall be filed and served in accordance with Subchapter 89A (relating to preliminary provisions).
(2) In the case of a motion to disqualify a hearing committee member or special master, the motion must be filed within 15 days after the party filing the motion has been given notice of the referral of the matter to the hearing committee or special master and must specify the grounds upon which the motion is based.
(3) The motion shall be ruled upon by the challenged member or special master.
(4) An interlocutory appeal from the decision on the motion[, which appeal shall be ruled upon by the Board Chair,] may be filed with the Board within five business days after the decision on the motion. The appealing party shall serve a copy of the appeal on the nonappealing party by mail on the date that the appealing party files the appeal, and the nonappealing party may file a response within five business days after delivery. The appeal shall be ruled upon by the Board Chair, or the Vice-Chair when the Chair is unavailable.
CHAPTER 89. FORMAL PROCEEDINGS
Subchapter A. PRELIMINARY PROVISIONS
GENERAL MATTERS § 89.2. [Equity procedure to apply] Procedure in formal proceedings to be governed by Board Rules, Enforcement Rules, and decisional law; limitations on motions.
[Except where inconsistent with these rules, formal proceedings before hearing committees, special masters and the Board shall conform generally to the practice in actions in equity under the Pennsylvania Rules of Civil Procedure.]
(a) Enforcement Rules 208(c) and (d) provide that the procedure in formal proceedings before hearing committees, special masters, and the Board shall be governed by these Rules, the Enforcement Rules, and the decisional law of the Court and the Board in attorney discipline and reinstatement matters.
Official Note: The Pennsylvania Rules of Civil Procedure relating to pleadings, answers to pleadings, motions, and responses to motions, are not applicable to formal proceedings before hearing committees, special masters and the Board.
(b) Limitations on prehearing motions. A motion for summary judgment or judgment on the pleadings, a motion to strike the petition for discipline or portions thereof, a motion to dismiss based on insufficient evidence to proceed with formal charges, any motion attacking the validity of the proceedings or pre-petition procedures, or any similarly-styled motion, shall not be accepted for filing, but if accepted for filing, shall not be entertained.
(c) Limitations on hearing motions. A motion for directed verdict or nonsuit, a motion to dismiss based on insufficient evidence, any motion attacking the validity of the proceedings, or any similarly-styled motion, shall not be accepted for filing, but if accepted for filing, shall not be entertained.
SERVICE OF DOCUMENTS § 89.21. Notice by the Board to participants; Service of original process by the Board.
[Orders, notices and other documents originating with the Board, including all forms of Board action, petitions and similar process, and other documents designated by the Board for this purpose, shall be served by the Executive Office by mail, except when service by another method shall be specifically required by these rules, by mailing a copy thereof to the person to be served, addressed to the person designated in the initial pleading or submittal at the address of record of such person. When service is not accomplished by mail, personal service may be effected by any one duly authorized by the Executive Office.]
(a) Notice to participants. The Board shall give notice of orders, notices and other documents generated by the Board by mailing a copy to the participants.
(b) Service of original process on the Board's own motion. A copy of original process in the form of a petition filed, or order issued, by the Board on its own motion shall be personally served upon the respondent-attorney by anyone duly authorized by the Executive Office unless another method of service shall be specifically required by these Rules or the Enforcement Rules; provided, however, that if personal service cannot be made after reasonable efforts to locate and serve the respondent-attorney, service may be made by delivering a copy to an employee, agent or other responsible person at the office of the respondent-attorney, and if that method of service is unavailable, then by mailing a copy in the manner provided in Enforcement Rule 212 (relating to substituted service).
Subchapter B. INSTITUTION OF PROCEEDINGS § 89.55. No other pleadings.
Pleadings shall be limited to a petition for discipline (or for reinstatement) and an answer thereto.
Official Note: Preliminary objections to the petition for discipline are not permitted. If an answer to a petition for discipline contains new matter, a reply to the new matter is not required.
Subchapter C. HEARING PROCEDURES
HEARING § 89.93. Presentation by the parties.
(a) General rule. The respondent-attorney and staff counsel shall have the right of presentation of evidence, cross-examination, objection, motion and argument. The taking of evidence and subsequent proceedings shall proceed with all reasonable diligence and with the least practicable delay.
Official Note: See D.Bd. Rules § 89.2(c) (relating to equity procedure to apply) for limitations on hearing motions.
(b) Objections. When objections to the admission or exclusion of evidence or other procedural objections are made, the grounds relied upon shall be stated briefly, if so requested by the hearing committee or special master, and may be stated briefly if no such request is made. Formal exceptions are unnecessary and shall not be taken to procedural rulings.
* * * * *
CHAPTER 91. MISCELLANEOUS MATTERS
Subchapter A. SERVICE, SUBPOENAS, DEPOSITIONS AND RELATED MATTERS
IN GENERAL § 91.3. Determination of validity of subpoena.
(a) In 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 be appealed to a lawyer-Member of the Board within ten days after service pursuant to §§ [89.21] 89.21(a) 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 or special master. 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, special master or the Board unless the Court enters an order staying the proceedings.
* * * * *
CHAPTER 93. ORGANIZATION AND ADMINISTRATION
Subchapter B. THE DISCIPLINARY BOARD § 93.22. Quorum and manner of acting.
(a) General rule. Enforcement Rule 205(b) provides that seven members of the Board shall constitute a quorum and that, except when acting under § 93.23(a)(5), (7) [and], (8), (9) and (16) (relating to powers and duties), the Board shall act only with the concurrence of not less than the lesser of:
1. seven members, or
2. a majority of the members in office who are not disqualified from participating in the matter or proceeding.
(b) Determination of quorum. Enforcement Rule 205(b) further provides that the presence of members who are disqualified from participating in one or more matters to be considered at a meeting shall nonetheless be counted for purposes of determining the existence of a quorum for the consideration of all matters on the agenda.
§ 93.23. Powers and duties.
(a) General rule. Enforcement Rule 205(c) provides that the Board shall have the power and duty:
* * * * * (15) To recommend the temporary suspension of a respondent-attorney pursuant to Enforcement Rule 208(f)(5) (relating to emergency temporary suspension orders and related relief).
(16) To decide, through the Board Chair, the Vice-Chair, or a designated lawyer-member of the Board, an interlocutory appeal to the Board when such appeal is permitted by the Enforcement Rules, these rules, or other law.
[16] (17) To exercise the powers and perform the duties vested in and imposed upon the Board by law.
(b) Consultations with local bar associations. Enforcement Rule 205(d) provides that the Board shall, to the extent it deems feasible, consult with officers of local bar associations in the counties affected concerning any appointment which it is authorized to make under the Enforcement Rules.
[Pa.B. Doc. No. 20-1067. Filed for public inspection August 7, 2020, 9:00 a.m.]
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