THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[204 PA. CODE CHS. 91 AND 93]
Amendments to Rules of Organization and Procedure of The Disciplinary Board of The Supreme Court of Pennsylvania; Order No. 104
[52 Pa.B. 6841]
[Saturday, November 5, 2022]By this Order, the Disciplinary Board of the Supreme Court of Pennsylvania amends its Board Rules and Procedures to modify Rule § 91.151 (related to emergency temporary suspension orders and related relief), Rule § 93.23 (related to the Board's powers and duties), and Rule § 93.107 (related to public access to public proceedings).
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 91. MISCELLANEOUS MATTERS
Subchapter G. EMERGENCY PROCEEDINGS § 91.151. Emergency temporary suspension orders and related relief.
* * * * * (h) Temporary suspension for more than two years without a formal proceeding. Enforcement Rule 208(f)(8) provides that where a respondent-attorney has been temporarily suspended under Enforcement Rule 208(f)(1) or (f)(5) and more than two years have passed without the commencement of a formal proceeding, and it appears by an affidavit demonstrating facts that:
(1) the respondent-attorney has not complied with conditions imposed in the order of temporary suspension or with the requirements of Enforcement Rule 217;
(2) the order of temporary suspension was based, in whole or in part, on the respondent-attorney's failure to provide information or records, and the respondent-attorney has not provided the information or records, or otherwise cured the deficiency;
(3) the respondent-attorney has engaged in post-suspension conduct, by act or omission, that materially delays or obstructs Disciplinary Counsel's ability to fully investigate allegations of misconduct against the respondent-attorney;
(4) the respondent-attorney's whereabouts are unknown, in that despite reasonably diligent efforts, Disciplinary Counsel has not been able to contact or locate the respondent-attorney for information or to serve notices or other process at the address provided by the respondent-attorney in the verified statement required by Enforcement Rule 217(e)(1) or at any other known addresses that might be current;
(5) a conservatorship of the affairs of the respondent-attorney has been appointed pursuant to Enforcement Rule 321; or
(6) the respondent-attorney has not participated in proceedings before the Pennsylvania Lawyers Fund for Client Security in which an adjudicated claim has resulted in an award,
Disciplinary Counsel may petition the Court for the issuance of a rule to show cause why an order of disbarment should not be entered. The procedure set forth in Enforcement Rule 208(f)(1) as to service shall apply. Upon the filing by Disciplinary Counsel of an affidavit establishing service compliance, the Court may enter a rule directing the respondent-attorney to show cause why the respondent-attorney should not be disbarred, which rule is returnable in 30 days. The respondent-attorney shall serve a copy of any response on Disciplinary Counsel, who shall have fourteen days after receipt to file a reply.
Enforcement Rule 208(f)(9) provides that if a rule to show cause has been issued, and the period for response has passed without a response having been filed, or after consideration of any responses, the Court may enter an order disbarring the respondent-attorney from the practice of law, discharging the rule to show cause, or directing such other action as the Court deems appropriate.
[(h)] (i) Procedural requirements. The Note to Enforcement Rule [208(f)] 208(f)(7) provides that the ''without appreciable delay'' standard of subsections (f)(3) and (g) is derived from Barry v. Barchi, 443 U.S. 55, 99, (1979). Appropriate steps will be taken to satisfy this requirement, such as continuous hearing sessions, procurement of daily transcript, fixing of truncated briefing schedules, conducting special sessions of the Board, etc.
CHAPTER 93. ORGANIZATION AND ADMINISTRATION
Subchapter B. THE DISCIPLINARY BOARD § 93.23. Powers and duties.
(a) General rule. Enforcement Rule 205(c) provides that the Board shall have the power and duty:
* * * * * (17) To authorize the use of electronic means to conduct prehearing conferences and post-hearing proceedings before a hearing committee, special master or the Board, but all adjudicatory proceedings shall be conducted in person unless warranted by extraordinary circumstances. Witness testimony may be presented via ACT upon motion for cause shown. All proceedings shall be conducted in accordance with Board Rules, Enforcement Rules and the decisional law of the Court and the Board.
[(17)] (18) To exercise the powers and perform the duties vested in and imposed upon the Board by law.
* * * * *
Subchapter F. CONFIDENTIALITY § 93.107. Broadcasting and other recording of proceedings. Public access to public proceedings.
(a) Enforcement Rule [402(j)] 402(j)(1) provides that this subchapter does not permit broadcasting, televising, recording or taking photographs during a proceeding under these rules, except that a hearing committee, a special master, the Board or the Supreme Court when conducting a proceeding may authorize the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record or for other purposes of judicial administration.
(b) Enforcement Rule 402(j)(2) provides that public access to a public proceeding before a hearing committee, special master or the Board shall consist of or be supplemented by livestream technology, which access shall cease upon the conclusion of the proceeding. The official record of the proceeding shall be the record generated by the court reporter, as applicable.
(c) Enforcement Rule 402(j)(3) provides that a request for in-person access to a public proceeding other than by the parties, their attorneys and reasonably necessary staff shall be made to the Board at least 30 days in advance of the scheduled proceeding.
[Pa.B. Doc. No. 22-1685. Filed for public inspection November 4, 2022, 9:00 a.m.]
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