Subchapter C. DISABILITY AND RELATED MATTERS
Rule
301. Proceedings where an attorney is declared to be incapacitated or severely mentally disabled.
302. [Rescinded].
CONSERVATORS FOR INTERESTS OF CLIENTS
321. Appointment of conservator to protect interests of clients of absent attorney.
322. Duties of conservator.
323. Cooperation with conservator.
324. Book and other accounts.
325. Duration of conservatorship.
326. Discharge of conservator.
327. Liability of conservator.
328. Compensation and expenses of conservator.
329. Review by Supreme Court.Rule 301. Proceedings where an attorney is declared to be incapacitated or severely mentally disabled.
(a) The clerk of any court within this Commonwealth that declares that an attorney is incapacitated or that orders involuntary treatment of an attorney on the grounds that the attorney is severely mentally disabled or that denies a petition for review of a certification by a mental health review officer subjecting an attorney to involuntary treatment shall within 24 days of such disposition transmit a certificate thereof to Disciplinary Counsel, who shall file such certificate with the Supreme Court.
Official Note
It is the responsibility of each local court to adopt any necessary procedures so that mental health officers and individual judges notify the clerk of the court that the respondent in a matter is an attorney and that a certificate must accordingly be sent to Disciplinary Counsel under this rule.
(b) Upon being advised that an attorney has been declared incapacitated or involuntarily committed to an institution on the grounds of incapacity or severe mental disability, Disciplinary Counsel shall secure and file a certificate in accordance with the provisions of subdivision (a) of this rule. If the declaration of incapacity or commitment occurred in another jurisdiction, it shall be the responsibility of Disciplinary Counsel to secure and file a certificate of such declaration or commitment.
(c) Where an attorney has been judicially declared incapacitated or involuntarily committed on the grounds of incapacity or severe mental disability, the Supreme Court, upon proper proof of the fact, shall enter an order transferring such attorney to disability inactive status effective immediately and for an indefinite period until the further order of the Court. A copy of such order shall be served upon such formerly admitted attorney, the guardian of such person and/or the director of the institution to which such person has been committed in such manner as the Court may direct. Where an attorney has been transferred to disability inactive status by an order in accordance with the provisions of this subdivision and, thereafter, in proceedings duly taken, the person is judicially declared to be competent, the Court upon application may dispense with further evidence that the disability has been removed and may direct reinstatement to active status upon such terms as are deemed proper and advisable.
(d) Whenever the Board shall petition the Court to determine whether an attorney is incapacitated from continuing the practice of law by reason of mental infirmity or illness or because of addiction to drugs or intoxicants, the Court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including the examination of the attorney by such qualified medical experts as the Court shall designate. If, upon due consideration of the matter, the Court concludes that the attorney is incapacitated from continuing to practice law, it shall enter an order transferring the attorney to disability inactive status on the ground of such disability for an indefinite period and until the further order of the Court. If examination of a respondent-attorney by a qualified medical expert reveals that the respondent lacks the capacity to aid effectively in the preparation of a defense, the Court may order that any pending disciplinary proceeding against the respondent shall be held in abeyance except for the perpetuation of testimony and the preservation of documentary evidence. The order of abatement may provide for reexaminations of the respondent-attorney at specified intervals or upon motion by Disciplinary Counsel. The Court shall provide for such notice to the respondent-attorney of proceedings in the matter as it deems proper and advisable and may appoint an attorney to represent the respondent if the respondent is without adequate representation.
(e) If, during the course of a disciplinary proceeding, the respondent contends that the respondent is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which makes it impossible for the respondent to prepare an adequate defense, the respondent shall complete and file with the Court a certificate of admission of disability. The respondent shall serve a copy of the certificate on the Board and Disciplinary Counsel. The certificate shall:
(1) identify the precise nature of the disability and the specific or approximate date of the onset or initial diagnosis of the disabling condition;
(2) contain an explanation of the manner in which the disabling condition makes it impossible for the respondent to prepare an adequate defense;
(3) have appended thereto the opinion of at least one medical expert that the respondent is unable to prepare an adequate defense and a statement containing the basis for the medical expert’s opinion; and
(4) contain a statement, signed by the respondent, that all averments of material fact contained in the certificate and attachments are true upon the respondent’s knowledge or information and belief and made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
The respondent may attach to the certificate affidavits, medical records, additional medical expert reports, official records, or other documents in support of the existence of the disabling condition or the respondent’s contention of lack of physical or mental capacity to prepare an adequate defense.
Upon receipt of the certificate, the Court thereupon shall enter an order immediately transferring the respondent to disability inactive status until a determination is made of the respondent’s capacity to aid effectively in the preparation of a defense or to continue to practice law in a proceeding instituted in accordance with the provisions of subdivision (d) of this rule unless the Court finds that the certificate does not comply with the requirements of this subdivision, in which case the Court may deny the request for transfer to disability inactive status or enter any other appropriate order. Before or after the entry of the order transferring the respondent to disability inactive status under this subdivision, the Court may, upon application by Disciplinary Counsel and for good cause shown, take or direct such action as the Court deems necessary or proper to a determination of whether it is impossible for the respondent to prepare an adequate defense, including a direction for an examination of the respondent by such qualified medical experts as the Court shall designate. In its discretion, the Court may direct that the expense of such an examination shall be paid by the respondent.
The order transferring the attorney to disability inactive status under this subdivision shall be a matter of public record. The certificate of admission of disability and attachments to the certificate shall not be publicly disclosed or made available for use in any proceeding other than a subsequent reinstatement or disciplinary proceeding except:
(i) upon order of the Supreme Court;
(ii) pursuant to an express written waiver by the attorney; or
(iii) upon a request by the Pennsylvania Lawyers Fund for Client Security Board pursuant to Enforcement Rule 521(a) (relating to cooperation with Disciplinary Board).
If the Court shall determine at any time that the respondent is able to aid effectively in the preparation of a defense or is not incapacitated from practicing law, it shall take such action as it deems proper and advisable including a direction for the resumption of the disciplinary proceeding against the respondent.
(f) The Board shall cause a notice of transfer to disability inactive status to be published in the legal journal and a newspaper of general circulation in the county in which the disabled attorney practiced.
(g) The Board shall promptly transmit a certified copy of the order of transfer to disability inactive status to the president judge of the court of common pleas of the judicial district in which the disabled attorney practiced and shall request such action under the provisions of Enforcement Rule 321 (relating to appointment of conservator to protect interests of clients of absent attorney) as may be indicated in order to protect the interests of the disabled attorney and the clients of the disabled attorney.
(h) Except as provided in subdivision (c), a disabled attorney may not resume active status until reinstated by order of the Court upon petition for reinstatement pursuant to Rule 218 (relating to reinstatement proceedings). A disabled attorney shall be entitled to apply for reinstatement to active status once a year or at such shorter intervals as the Court may direct in the order transferring the respondent to disability inactive status or any modification thereof. Such application shall be granted by the Court upon a showing by clear and convincing evidence that the formerly admitted attorney’s disability has been removed and such person is fit to resume the practice of law. Upon such application, the Court may take or direct such action as it deems necessary or proper to a determination of whether the formerly admitted attorney’s disability has been removed including a direction for an examination of the formerly admitted attorney by such qualified medical experts as the Court shall designate. In its discretion, the Court may direct that the expense of such an examination shall be paid by the formerly admitted attorney.
(i) In a proceeding seeking a transfer to disability inactive status under this rule, the burden of proof shall rest with the Board. In a proceeding seeking an order of reinstatement to active status under this rule, the burden of proof shall rest with the respondent-attorney.
(j) The filing of an application for reinstatement to active status by a formerly admitted attorney transferred to disability inactive status shall be deemed to constitute a waiver of any doctor-patient privilege with respect to any treatment of the formerly admitted attorney during the period of disability. The formerly admitted attorney shall be required to disclose the name of every psychiatrist, psychologist, physician and hospital or other institution by whom or in which the formerly admitted attorney has been examined or treated since transfer to disability inactive status and shall furnish to the Court written consent to each to divulge such information and records as requested by court appointed medical experts.
(k) As used in this rule, the term ‘‘disabled attorney’’ means an attorney transferred to disability inactive status under this rule.
(l) See Rule 601(a) (relating to statutes and other authorities suspended or abrogated).
Source The provisions of this Rule 301 amended through April 1, 1983, effective April 2, 1983, 13 Pa.B. 1179; amended November 7, 1988, effective November 25, 1988, 18 Pa.B. 5246; amended January 3, 2011, effective in 30 days, 41 Pa.B. 331; amended April 18, 2019, effective in 30 days, 49 Pa.B. 2209; amended July 19, 2023, effective September 1, 2023, 53 Pa.B. 4385. Immediately preceding text appears at serial pages (396654) to (396657).
Rule 302. [Rescinded].
Source The provisions of this Rule 302 rescinded October 10, 1980, effective February 8, 1981, 10 Pa.B. 4029. Immediately preceding text appears at serial page (31691).
CONSERVATORS FOR INTERESTS OF CLIENTS
Source The provisions of these Rules 321—329 adopted October 10, 1980, effective February 8, 1981, 10 Pa.B. 4029, unless otherwise noted.
Rule 321. Appointment of conservator to protect interests of clients of absent attorney.
(a) 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 Enforcement Rule 208(f) (relating to emergency interim suspension orders and related matters); or
(ii) the president judge of the court of common pleas pursuant to Enforcement Rule 217(g) (relating to formerly admitted attorneys) by order directs Disciplinary Counsel to file an application under this rule; or
(iii) the attorney abandons his or her practice, disappears, dies or is transferred to disability inactive status; and
(3) no partner or other responsible successor to the practice of the attorney is known to exist.
(b) A copy of the application for appointment of a conservator under this rule shall be personally served upon the absent attorney or the personal representative or guardian of the estate of a deceased or incompetent absent attorney. If personal service cannot be obtained, then a copy of the application shall be served in the manner prescribed by Enforcement Rule 212 (relating to substituted service).
(c) The president judge of the court of common pleas shall conduct a hearing on the application no later than seven days after the filing of the application. At the hearing the applicant shall have both the burden of production and the burden of persuading the court by the preponderance of the credible evidence that grounds exist for appointment of a conservator.
(d) Within three days after the conclusion of the hearing on the application, the president judge shall enter an order either granting or denying the application. The order shall contain findings of fact and a statement of the grounds upon which the order is based. If no appearance has been entered on behalf of the absent attorney, a copy of the order shall be served upon the absent attorney in the manner prescribed by Subdivision (b) of this rule.
(e) The conservator or conservators shall be appointed by the president judge, from among members of the bar of this Commonwealth, subject to the following:
(1) non-disciplinary counsel conservators:
(i) shall not represent any party who is adverse to any known client of the absent attorney; and
(ii) shall have no adverse interest or relationship with the absent attorney or his or her estate.
Official Note
Nothing in the Rules of Professional Conduct relating to conflict of interest, confidentiality, or any other provision, shall prevent the Office of Disciplinary Counsel from serving as conservator, and from subsequently pursuing an investigation, and disciplinary prosecution of the absent attorney, based upon information gathered during the course of Disciplinary Counsel’s service as a conservator.
(f) The filing by Disciplinary Counsel or any other interested person of an application for the appointment of a conservator under these rules shall be deemed for the purposes of any statute of limitations or limitation on time for appeal as the filing in the court of common pleas or other proper court or magisterial district court of this Commonwealth on behalf of every client of the absent attorney of a complaint or other proper process commencing any action, proceeding, appeal or other matter arguably suggested by any information appearing in the files of the absent attorney if:
(1) the application for appointment of a conservator is granted, and
(2) substitute counsel actually files an appropriate document in a court or magisterial district court within 30 days after executing a receipt for the file relating to the matter.
Official Note
Under 42 Pa.C.S. § 5503(b) (relating to implementing court rules) the Supreme Court may define by rule the document which when filed constitutes the commencement of a matter for purposes of Chapter 55 of the Judicial Code (relating to limitation of time). Thus the application by Disciplinary Counsel under this rule is an omnibus pleading which stays the running of all statutes of limitations and appeal times pending a 30-day review of the files of the absent attorney.
(g) The filing by Disciplinary Counsel or any other interested person of an application for the appointment of a conservator under these rules shall operate as an automatic stay of all pending legal or administrative proceedings in this Commonwealth where the absent attorney is counsel of record until the earliest of such time as:
(1) the application for appointment of a conservator is denied;
(2) the conservator is discharged;
(3) the court, tribunal, magisterial district court or other government unit in which a matter is pending orders that the stay be lifted; or
(4) 30 days after the court, tribunal, magisterial district court or other government unit in which a matter is pending is notified that substitute counsel has been retained.
(h) As used in this rule, the term ‘‘government unit’’ has the meaning set forth in 42 Pa.C.S. § 102 (relating to definitions).
Official Note
Under 42 Pa.C.S. § 5503(b) (relating to implementing court rules) the Supreme Court may define by rule the document which when filed constitutes the commencement of a matter for purposes of Chapter 55 of the Judicial Code (relating to limitation of time). Thus the application by Disciplinary Counsel under this rule is an omnibus pleading which stays the running of all statutes of limitations and appeal times pending a 30-day review of the files of the absent attorney.
Source The provisions of this Rule 321 amended April 1, 1983, effective April 2, 1983, 13 Pa.B. 1179; amended March 28, 2009, effective upon publication, 39 Pa.B. 1846; amended July 19, 2023, effective September 1, 2023, 53 Pa.B. 4385. Immediately preceding text appears at serial pages (396658) to (396660).
Rule 322. Duties of conservator.
(a) The conservator shall take immediate possession of all files of the absent attorney. If such possession cannot be obtained peaceably, the conservator shall apply to the appointing court for issuance of a warrant authorizing seizure of the files. Probable cause for issuance of such a warrant shall be an affidavit executed by the conservator reciting the existence of the conservatorship and the fact that the persons in control of the premises where the files are or may be located will not consent to a search for them or their removal or other facts showing that the files cannot be obtained without the use of the process of the court.
(b) The conservator shall make a written inventory of all files taken into his or her possession.
(c)(1) The conservator shall make a reasonable effort to identify all clients of the absent attorney whose files were opened within five (5) years of the appointment of the conservator, regardless of whether the case is active or not, and a reasonable effort to identify all clients whose cases are active, regardless of the age of the file. The conservator shall send all such clients, and former clients, written notice of the appointment of a conservator, the grounds which required such appointment, and the possible need of the clients to obtain substitute counsel. All such notices shall include the name, address and telephone number of any lawyer referral service or similar agency available to assist in the location of substitute counsel. The conservator shall, if necessary, send a second written notice to all clients of the absent attorney whose files appear to be active.
(2) All clients whose files are identified by the conservator as both inactive and older than five (5) years shall be given notice by publication of the appointment of a conservator, the grounds which required such appointment, and the possible need of the clients to obtain substitute counsel. All such notices shall include the name, address and telephone number of any lawyer referral service or similar agency available to assist in the location of substitute counsel. The specific method of publication shall be approved by the appointing court, as to both the method, and duration, of publication. The conservator shall deliver proofs of publication to the appointing court at the time of filing the application for discharge.
(3) A file may be returned to a client upon the execution of a written receipt, or released to substitute counsel upon the request of the client and execution of a written receipt by such counsel. The conservator shall deliver all such receipts to the appointing court at the time of filing the application for discharge. On approval by the appointing court of the application for discharge, all files remaining in the possession of the conservator shall be destroyed by the conservator in a secure manner which protects the confidentiality of the files.
(d) Neither the conservator nor any partner, associate or other lawyer practicing in association with the conservator shall:
(1) Make any recommendation of counsel to any client identified as a result of the conservatorship in connection with any matter identified during the conservatorship.
(2) Represent such a client in connection with:
(i) any matter identified during the conservatorship; or
(ii) any other matter during or for a period of three years after the conclusion of the conservatorship.
(e) The conservator shall file a written report with the appointing court and the Board no later than 30 days after the date of appointment covering the matters specified in Subdivisions (a) through (c) of this rule. If those duties have not been accomplished, then the conservator shall state what progress has been made in that regard. Thereafter, the conservator shall file a similar written report every 60 days until discharge.
(f) In the case of a deceased attorney, the conservator shall notify the executor of the estate of the Disciplinary Board’s need to be reimbursed by the estate for the costs and expenses incurred in accordance with Rule 328(b) (relating to compensation and expenses of conservator).
Source The provisions of this Rule 322 amended April 1, 1983, effective April 2, 1983, 13 Pa.B. 1179; amended March 26, 2009, effective upon publication, 39 Pa.B. 1846. Immediately preceding text appears at serial pages (280364) to (280365).
Rule 323. Cooperation with conservator.
Any absent attorney who is capable of cooperating with the conservator and any partner, associate, personal representative or guardian of an absent attorney shall cooperate to the best of his or her ability with the conservator in identifying the clients and client files (including records with respect to funds of clients) of the absent attorney and any unexpended funds of such clients. Wilful failure to so cooperate shall constitute a separate violation of these rules for the purposes of Enforcement Rule 203(b)(3) (relating to grounds for discipline).
Official Note
Under Rule 329(b) (relating to review by Supreme Court), review in the Supreme Court, unless otherwise ordered, does not stay the operation of this rule or any other aspect of the conservatorship.
Rule 324. Bank and other accounts.
(a) A conservator shall notify all banks and financial institutions in which the absent attorney maintained either professional or trustee accounts of the appointment of a conservator under these rules. Service on a bank or financial institution of a certified copy of the order of appointment of the conservator shall operate as a modification of any agreement or deposit among such bank or financial institution, the absent attorney and any other party to the account so as to make the conservator a necessary signatory on any professional or trustee account maintained by the absent attorney with such bank or financial institution. The appointing court on application may by order direct that the conservator shall be sole signatory on any such account to the extent necessary for the purposes of these rules and may direct the disposition and distribution of client and other funds.
(b) The conservator shall cause all funds of clients in the custody of the absent attorney to be returned to the clients as soon as possible, allowing for deduction of expenses or other proper charges owed by the clients to the absent attorney.
(c) The conservator may engage the services of a certified public accountant when considered necessary to assist in the bookkeeping and auditing of the financial accounts and records of the absent attorney.
(1) If the state of the financial accounts and records of the absent attorney, or other relevant circumstances, render a determination as to ownership of purported client funds unreasonable and impractical, the conservator shall petition the appointing court for permission to pay all funds held by the absent attorney in any trust, escrow, or IOLTA account, to the Pennsylvania Lawyers Fund For Client Security. Any petition filed under this subsection shall be served by publication, the specific method and duration of which shall be approved by the appointing court.
(d) Whenever it appears that sufficient funds are in the possession of the conservatorship to permit the return of all client funds in the custody of the absent attorney, and otherwise to complete the conservatorship and pay its expenses authorized under Enforcement Rule 328 (relating to compensation and expenses of conservator), the conservator shall permit the absent attorney or his or her estate to take full possession of any remaining funds.
Source The provisions of this Rule 324 amended December 12, 1983, effective December 12, 1983, 13 Pa.B. 3996; amended March 26, 2009, effective upon publication, 39 Pa.B. 1846. Immediately preceding text appears at serial pages (280365) to (280366).
Rule 325. Duration of conservatorship.
Appointment of a conservator pursuant to these rules shall be for a period of no longer than six months. The appointing court shall have the power, upon application of the conservator and for good cause, to extend the appointment for an additional three months. Any order granting such an extension shall include findings of fact in support of the extension. No additional extensions shall be granted absent a showing of extraordinary circumstances.
Source The provisions of this Rule 325 amended March 26, 2009, effective upon publication, 39 Pa.B. 1846. Immediately preceding text appears at serial page (280366).
Rule 326. Discharge of conservator.
(a) The conservator shall apply to the appointing court for discharge when in the opinion of the conservator, nothing more remains to be done to protect the funds and other interests of the clients of the absent attorney.
(b) An application for discharge shall set forth a full accounting of all funds disbursed to clients of the absent attorney, expended in the conservatorship or released to the full control of the absent attorney, and a summary of all other actions taken by the conservator.
Rule 327. Liability of conservator.
A conservator appointed under these rules shall:
(1) Not be regarded as having an attorney-client relationship with clients of the absent attorney, except that the conservator shall be bound by the obligation of confidentiality imposed by the Rules of Professional Conduct with respect to information acquired as conservator.
(2) Have no liability to the clients of the absent attorney except for injury to such clients caused by intentional, wilful, or grossly negligent breach of duties as a conservator.
(3) Be immune to separate suit brought by or on behalf of the absent attorney. Any objections by or on behalf of the absent attorney or any other person to the conduct of the conservator shall be raised in the appointing court during the pendency of the conservatorship.
Source The provisions of this Rule 327 amended March 26, 2009, effective upon publication, 39 Pa.B. 1846. Immediately preceding text appears at serial page (280366).
Rule 328. Compensation and expenses of conservator.
(a) A conservator not associated with the Office of Disciplinary Counsel shall be compensated at an hourly rate identical to that received by court-appointed counsel at the non-court appearance rate in the judicial district where the conservator was appointed. When the conservator believes that extraordinary circumstances justify an enhanced hourly rate, the conservator may apply to the Board Chair for enhanced compensation. Such an application shall be granted only in those situations in which extraordinary circumstances are shown to justify enhanced compensation.
(b) The necessary expenses (including, but not limited to, the fees and expenses of certified public accountant engaged pursuant to Enforcement Rule 324(c)) and any compensation of a conservator or any attendant staff shall, if possible, be paid by the absent attorney or his or her estate. Any expenses and any compensation of the conservator that are not reimbursed to the Board shall be paid as a cost of disciplinary administration and enforcement. Payment of any costs incurred by the Board pursuant to this rule that have not been reimbursed to the Board may be made a condition of reinstatement of a formerly admitted attorney or may be ordered in a disciplinary proceeding brought against the absent attorney.
Source The provisions of this Rule 328 amended December 12, 1983, effective December 12, 1983, 13 Pa.B. 3996; amended July 18, 1995, effective August 5, 1995, 25 Pa.B. 3092; amended March 26, 2009, effective upon publication, 39 Pa.B. 1846; amended March 10, 2022, effective in 30 days, 52 Pa.B. 1733. Immediately preceding text appears at serial pages (403219) to (403220).
Rule 329. Review by Supreme Court.
(a) Any order entered by a court of common pleas upon an application for the appointment of a conservator, or arising out of the supervision, administration, operation or discharge of any conservatorship under these rules, shall be reviewable by the Supreme Court within the time and in the manner prescribed by the Pennsylvania Rules of Appellate Procedure for review of orders relating to the supervision of investigating grand juries.
(b) Review in the Supreme Court under this rule shall not stay proceedings below unless the court of common pleas or the Supreme Court or a justice thereof shall so order.
Official Note
See Rule 3331 (relating to review of special prosecutions or investigations) of the Pennsylvania Rules of Appellate Procedure.
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