Subchapter D. ABATEMENT OF INVESTIGATION
Sec.
87.71. Refusal of complainant to proceed, compromise, etc.
87.72. Matters involving related pending civil or criminal litigation.
87.73. Resignation by attorneys under disciplinary investigation.
87.74. Discipline on consent.§ 87.71. Refusal of complainant to proceed, compromise, etc.
Enforcement Rule 210 provides that neither unwillingness or neglect of the complainant to sign a complaint or to prosecute a charge, nor settlement, compromise or restitution, shall, in itself, justify abatement of an investigation into the conduct of an attorney.
§ 87.72. Matters involving related pending civil or criminal litigation.
(a) General rule. Enforcement Rule 211(a) provides that the processing of complaints involving material allegations which are substantially similar to the material allegations of pending criminal or civil litigation shall not be deferred unless the Board in its discretion, for good cause shown, authorizes such deferment; that in the event a deferment of disciplinary investigation or proceeding is authorized by the Board as the result of pending related litigation, the respondent-attorney shall make all reasonable efforts to obtain the prompt trial and disposition of such pending litigation; and that in the event the respondent-attorney fails to take reasonable steps to assure prompt disposition of the litigation, the investigation and subsequent disciplinary proceedings indicated shall be conducted promptly.
(b) Procedure. An original and three conformed copies of an application for deferment of action under subsection (a) of this section shall be filed with the Board Prothonotary with proof of service on the Office of Disciplinary Counsel. The Office of Disciplinary Counsel may file and serve a written response thereto within 20 days thereafter.
(c) Effect of acquittal. Enforcement Rule 211(b) provides that the acquittal of the respondent-attorney on criminal charges or a verdict or judgment in favor of the respondent-attorney in a civil litigation involving substantially similar material allegations shall not in and of itself justify abatement of a disciplinary investigation predicated upon the same material allegations.
Source The provisions of this § 87.72 amended February 5, 2010, effective February 6, 2010, 40 Pa.B. 700; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552. Immediately preceding text appears at serial pages (363140) and (376251).
§ 87.73. Resignation 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 Board Prothonotary 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 Board Prothonotary.
(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 upon receipt of the required statement, the Board Prothonotary 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 Board Prothonotary 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 Board Prothonotary; 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 of 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) (relating to emergency temporary suspension orders and related relief) or pursuant to Enforcement Rule 214 (relating to a criminal proceeding).
Source The provisions of this § 87.73 amended May 18, 1979, effective May 19, 1979, 9 Pa.B. 1607; amended March 6, 1981, effective March 7, 1981, 11 Pa.B. 782; amended March 10, 1989, effective March 11, 1989, 19 Pa.B. 952; amended April 21, 1989, effective April 22, 1989, 19 Pa.B. 1719; amended August 5, 2005, effective August 6, 2005, 35 Pa.B. 4301; amended February 24, 2006, effective February 25, 2006, 36 Pa.B. 929; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended April 29, 2022, effective 30 days after publication, 52 Pa.B. 2581. Immediately preceding text appears at serial pages (397812) to (397814).
§ 87.74. Discipline on consent.
(a) General rule. Enforcement Rule 215(d) provides that at any stage of a disciplinary investigation or proceeding, a respondent-attorney and Disciplinary Counsel may file a joint Petition in Support of Discipline on Consent; and that the Petition shall be accompanied by an affidavit stating that the attorney consents to the recommended discipline and that:
(1) the consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of submitting the consent; and whether or not the attorney has consulted or followed the advice of counsel in connection with the decision to consent to discipline;
(2) the attorney is aware that there is presently pending an investigation into, or proceeding involving, allegations that the respondent-attorney has been guilty of misconduct as set forth in the Petition;
(3) the attorney acknowledges that the material facts set forth in the Petition are true; and
(4) the attorney consents because the attorney knows that if charges predicated upon the matter under investigation were filed, or continued to be prosecuted in the pending proceeding, the attorney could not successfully defend against them.
(b) Contents of Petition. Enforcement Rule 215(d) provides that a Petition shall include the specific factual allegations that the respondent-attorney admits he or she committed, the specific Disciplinary Rules and Enforcement Rules allegedly violated and a specific recommendation for discipline. The Petition must also set forth:
(1) any past discipline imposed on the attorney in any jurisdiction;
(2) a discussion of applicable precedent and how the recommended discipline compares with that imposed in reported cases;
(3) any aggravating or mitigating factors; and
(4) if the recommended discipline includes probation, a statement that the attorney understands that violation of the probation may result in the commencement of a proceeding under § 89.292 (relating to violation of probation).
(c) Handling of Petition. Enforcement Rule 215(e) provides that the Petition shall be filed with the Board; that the filing of the Petition shall stay any pending proceeding before a hearing committee, special master or the Board; and that the Petition shall be reviewed by a panel composed of three members of the Board who may approve or deny.
Official Note
The fact that a Petition is being negotiated is not grounds for a continuance, and formal proceedings will continue unabated until the Petition is filed as provided in subsection (c).
(d) Private discipline. Enforcement Rule 215(f) provides that if a panel approves a Petition consenting to an informal admonition or private reprimand, with or without probation, the Board shall enter an appropriate order, and the Board shall arrange to have the respondent-attorney appear before Disciplinary Counsel for the purpose of receiving an informal admonition or before a designated panel of three members selected by the Board Chair for the purpose of receiving a private reprimand.
(e) Public discipline. Enforcement Rule 215(g) provides that: (1) if a panel approves a Petition consenting to a public reprimand, the Board shall enter an appropriate order, and the Board shall arrange to have the attorney appear before the Board or a designated panel of three members selected by the Board Chair for the purpose of receiving a public reprimand; and (2) if a panel approves a Petition consenting to public censure or suspension, the Board shall file the recommendation of the panel and the Petition with the Supreme Court; if the Court grants the Petition, the Court shall enter an appropriate order disciplining the respondent-attorney on consent.
(f) Denial of Petition. Enforcement Rule 215(h) provides that, if either the panel of the Board or the Supreme Court denies a Petition, the members of the Board who participated on the reviewing panel shall not participate in further consideration of the same matter; and that any stayed proceedings shall resume as if the Petition had not been filed and neither the Petition nor the affidavit may be used against the respondent-attorney in any disciplinary proceeding or any other judicial proceeding.
(g) Costs. Enforcement Rule 215(i) provides that all expenses taxed under this subdivision shall be paid by the attorney in accordance with Rule 208(g).
Source The provisions of this § 87.74 adopted August 5, 2005, effective August 6, 2005, 35 Pa.B. 4301; amended February 24, 2006, effective February 25, 2006, 36 Pa.B. 929; amended August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended June 2, 2017, effective June 3, 2017, 47 Pa.B. 3075. Immediately preceding text appears at serial pages (376252) to (376253) and (363143) to (363144).
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