EVIDENCE ON TYPE OF DISCIPLINE
§ 89.151. Separate consideration of evidence relevant to type of discipline.
(a) General rule. The receipt of evidence which is relevant solely on the issue of the type of discipline to be imposed shall be deferred until after the hearing committee or special master has found that the evidence establishes a prima facie violation of at least one of the disciplinary rules or enforcement rules alleged in the petition for discipline to have been violated. However, the hearing committee or special master need not specify the rule or rules found to have been violated before proceeding with the receipt of evidence under this rule.
(b) Type of evidence desired. While the participants may offer any evidence which is relevant and material on the issue of the type of discipline to be imposed, experience has shown that information concerning the respondent-attorney on the following subjects will be particularly helpful to the Board:
(1) Address, age and residence.
(2) Name, address, age and residence and relationship of dependents.
(3) Schools attended and degrees obtained.
(4) Date of admission in each jurisdiction to which admitted, and general history of the occupation of the respondent-attorney, with the names of all partners, associates in business and employers, if any, the dates and duration of all such relationships and employments during at least the preceding ten years.
(5) If during the period covered by the response to paragraph (4) the respondent-attorney was, while admitted to the practice of law, also engaged in any other occupation, the approximate number of hours per week devoted to each type of occupation and the approximate proportion of income derived therefrom, stated separately for each period during which the information materially differs from such information applicable to other periods.
(6) In cases involving charges of mishandling or misuse of funds of clients or others, a financial net worth statement of respondent-attorney summarizing assets and liabilities.
(7) A statement showing the dates, general nature and final disposition of every civil action during at least the preceding ten years in which the respondent-attorney was or is a party defendant and which placed in issue his or her conduct or competency or charged a violation of any disciplinary rule.
(8) A statement showing the dates, general nature and ultimate disposition of every matter involving the arrest or prosecution of the respondent-attorney during the preceding ten years.
(9) A statement of every disciplinary proceeding or procedure of inquiry concerning the standing of the respondent-attorney as a member of any profession or organization, or holder of any license or office, which involved the censure, removal, suspension, revocation of license or discipline of the respondent-attorney; and as to each, the dates, facts and disposition thereof, except that no evidence shall be received of proceedings and dispositions under these rules where the official records thereof are under § 93.104(d) (relating to restrictions on available information) not available for use against the respondent-attorney.
(10) Any history of substance abuse by the respondent-attorney, and any rehabilitation programs currently or previously participated in by the respondent-attorney.
Official Note
Where a respondent-attorney seeks to be placed on probation under § 89.291 (relating to probation), evidence under paragraph (b)(10) will be particularly important. The respondent-attorney should be prepared to offer evidence to assist the Board in fixing the conditions of probation, including the selection of a recognized or accredited residential treatment or rehabilitation program in which the respondent-attorney may be required to participate.
(c) Responsibility of hearing committee or special master. Where the hearing committee or special master concludes that the presentation of the participants does not appear to have developed an adequate background picture of the respondent-attorney the hearing committee or special master should consider the desirability of augmenting the record through appropriate questioning. The hearing committee or special master shall, in appropriate cases, make a finding on whether restitution has been made.
(d) Procedure. The hearing committee or special master may make appropriate provision for the timing of the receipt of evidence under this rule, e.g. by:
(1) immediately proceeding to the reception of evidence after announcement of a general adverse finding on the issue of misconduct in the manner provided by subsection (a).
(2) receiving written submissions by the participants within a fixed time (not to exceed 10 days) after service of findings and conclusions on the issue of misconduct, or
(3) reconvening the hearing where necessary to resolve a factual issue relevant to the type of discipline to be imposed.
The 60-day period of § 89.171 (relating to filing of report) runs from the conclusion of the hearing or briefing, as the case may be, on the issue of alleged misconduct and is not extended by the time required for any proceedings under this section.
Source The provisions of this § 89.151 amended May 18, 1979, effective May 19, 1979, 9 Pa.B. 1607; amended April 8, 1983, effective April 9, 1983, 13 Pa.B. 1244; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 243; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended February 24, 2006, effective February 25, 2006, 36 Pa.B. 929. Immediately preceding text appears at serial pages (198388) to (198390).
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