Subchapter A. PRELIMINARY PROVISIONS
GENERAL MATTERS Sec.
89.1. Construction of chapter.
89.2. Procedure in formal proceedings to be governed by Board Rules, Enforcement Rules, and decisional law; limitations on motions.
89.3. Filings generally.
89.4. Representation of respondent-attorney.
89.5. Format of pleadings and documents.
89.6. Execution.
89.7. Continuances.
SERVICE OF DOCUMENTS
89.21. Notice by the Board to participants; Service of original process by the Board.
89.22. Service by a participant.
89.23. Effect of service upon counsel.
89.24. Date of service.
89.25. Proof of service.
89.26. Form of certificate of service.
89.27. Service upon Disciplinary Counsel.
AMENDMENT OR WITHDRAWAL OF PLEADINGS
89.31. Amendments of pleadings.
89.32. Withdrawal of petition for discipline.
GENERAL MATTERS
§ 89.1. Construction of chapter.
(a) General rule. This chapter is promulgated for the purpose of assisting the Office of Disciplinary Counsel, the respondent-attorney and the Board to develop the facts relating to, and to reach a just and proper determination of, grievances brought to the attention of the Board. The Board recognizes the temptation in disciplinary matters to raise procedural defenses where substantive defenses would be unavailing and, therefore, the Board will not hold action of a hearing committee, hearing committee member or special master invalid by reason of any nonprejudicial irregularity, or for any error not resulting in a miscarriage of justice.
(b) Relationship to informal proceedings. The filing of a petition for discipline under this chapter shall be conclusive evidence that all conditions precedent thereto under Chapter 87 (relating to investigations and informal proceedings) have been satisfied. Failure to comply with any requirement of Chapter 87 shall not affect the validity of proceedings under this chapter and no proceeding or other matter under Chapter 87 shall be an issue in formal proceedings under this chapter.
Source The provisions of this § 89.1 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended March 11, 2005, effective immediately, 35 Pa.B. 1656. Immediately preceding text appears at serial pages (198369) to (198370).
§ 89.2. Procedure in formal proceedings to be governed by Board Rules, Enforcement Rules, and decisional law; limitations on motions.
(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.
Source The provisions of this § 89.2 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended August 7, 2020, effective in 30 days, 50 Pa.B. 4014. Immediately preceding text appears at serial page (397818).
§ 89.3. Filings generally.
(a) General rule. The filing of pleadings, briefs and other documents in connection with a formal proceeding under these rules shall be as follows:
(1) Except as otherwise requested by the Board Prothonotary, at the time any pleading or other document is filed in a formal proceeding that is not at the time in the hands of a hearing committee or special master, there shall be furnished to the Board Prothonotary an original and one conformed copy thereof, including all exhibits, if any.
(2) Except as otherwise provided by these rules in the case of briefs, at the time any document is filed in a formal proceeding that is at the time in the hands of a hearing committee, there shall be furnished to the hearing committee an original and three conformed copies thereof, including all exhibits, if any, and one conformed copy with exhibits, if any, shall be filed with the Board Prothonotary.
(3) Except as otherwise provided by these rules in the case of briefs, at the time any document is filed in a formal proceeding that is at the time in the hands of a special master, there shall be furnished to the special master an original and one conformed copy thereof, including all exhibits, if any, and one conformed copy with exhibits, if any, shall be filed with the Board Prothonotary.
(4) Notwithstanding paragraphs (2) and (3), it shall not be necessary to file with the Board Prothonotary a copy of any prepared testimony or documentary exhibits submitted in connection with a hearing.
(5) Briefs shall be filed in accordance with § 89.164 (relating to filing and service of briefs).
(b) Timely filing required. Pleadings, briefs or other documents in formal proceedings required or permitted to be filed under these rules must be received for filing by the Board Prothonotary within the time limits, if any, for such filing. The date of receipt by the Board Prothonotary and not the date of deposit in the mail is determinative.
(c) Copies furnished to hearing committee members. Where copies of pleadings, briefs or other documents are furnished to members of a hearing committee, each member shall retain possession of one complete set of papers and, following conclusion of the work of the committee with respect to a particular proceeding, each such member shall independently permanently destroy the set of papers or coordinate with the Executive Office.
(d) Papers of special masters. Following conclusion of his or her work with respect to a particular proceeding, a special master shall permanently destroy the set of papers or coordinate with the Executive Office.
Source The provisions of this § 89.3 amended January 26, 1990, effective January 27, 1990, 20 Pa.B. 343; amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552; amended October 29, 2020, effective in 30 days from date of publication, 51 Pa.B. 781. Immediately preceding text appears at serial pages (402442) to (402443).
§ 89.4. Representation of respondent-attorney.
(a) Appearance in propria persona. When a respondent-attorney appears pro se in a formal proceeding such attorney shall file with the Board Prothonotary, with proof of service of a copy upon the Office of Disciplinary Counsel, an address at which any notice or other written communication required to be served upon such attorney may be sent.
(b) Representation of respondent-attorney by counsel. When a respondent-attorney is represented by counsel in a formal proceeding counsel shall file with the Board Prothonotary, with proof of service of a copy upon the Office of Disciplinary Counsel, a written notice of such appearance, which shall state the name, address and telephone number of such counsel, the name and address of the respondent-attorney on whose behalf such counsel appears, and the caption and docket number of the subject proceeding. Any additional notice or other written communication required to be served on or furnished to a respondent-attorney may be sent to the counsel of record for such respondent-attorney at the stated address of the counsel in lieu of transmission to the respondent-attorney. In any proceeding where counsel has filed a notice of appearance pursuant to this subsection, any notice or other written communication required to be served upon or furnished to the respondent-attorney shall also be served upon or furnished to such counsel (or one of such counsel if the respondent-attorney is represented by more than one counsel) in the same manner as prescribed for the respondent-attorney, notwithstanding the fact that such communication may be furnished directly to the respondent-attorney.
(c) Restrictions on representation. Members of the Board, partners or employes of any firm in which a member of the Board practices, hearing committee members and special masters shall not appear as counsel for a respondent-attorney.
Source The provisions of this § 89.4 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended March 11, 2005, effective immediately, 35 Pa.B. 1656; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552. Immediately preceding text appears at serial pages (317719) to (317720).
§ 89.5. Format of pleadings and documents.
(a) In general. Pleadings and documents other than exhibits filed in formal proceedings shall be in a typeface not less than 10-points, on unglazed paper 8 1/2 inches wide by 11 inches long and with margins of at least 1 inch. The text shall be double-spaced except for indented quotations. Pleadings and documents other than correspondence shall be bound in a manner that may be taken apart easily.
(b) Incorporation by reference. Any document on file with the Board in a formal proceeding may, subject to the restrictions of Chapter 93 Subchapter F (relating to confidentiality), be incorporated by reference into a subsequently filed pleading or other document. A document may be so incorporated only by reference to the specific document and to the prior filing in which it was physically filed, not to another document which incorporates it by reference.
(c) Identification. Pleadings or other documents filed in a formal proceeding shall set forth:
(1) The caption and docket number of the proceeding.
(2) A brief description title of the pleading or document.
(3) The name of the agency or person in whose behalf the filing is made.
Source The provisions of this § 89.5 adopted January 26, 1990, effective January 27, 1990, 20 Pa.B. 343; amended February 24, 2006, effective immediately, 36 Pa.B. 929. Immediately preceding text appears at serial pages (309900) to (309901).
§ 89.6. Execution.
(a) Signature. Except as may be otherwise ordered or requested by the Board, the original copy of each pleading or other document shall be signed in ink by the party in interest, or by counsel for such party, and shall show the office, post office address and telephone number of such party or counsel. All other copies filed shall be fully conformed thereto.
(b) Effect. The signature of the person subscribing any document filed in a formal proceeding constitutes a certificate by such individual that the subscriber has read the document being subscribed and filed, and knows the contents thereof; that if executed in any representative capacity, the document has been subscribed and executed in the capacity specified upon the document with full power and authority so to do; that the contents are true as stated, except as to matters and things, if any, stated on information and belief, and that as to those matters and things, the subscriber believes them to be true.
(c) Penalty. All statements of fact in pleadings or other documents filed in a formal proceeding are subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities), and it shall not be necessary to verify under oath any such document.
(d) Cross reference. See § 85.13 (relating to verification by respondent-attorneys).
Source The provisions of this § 89.6 amended July 13, 2001, effective immediately, 31 Pa.B. 3731. Immediately preceding text appears at serial page (198373).
§ 89.7. Continuances.
(a) Avoidance of delay. All formal proceedings under these rules shall be as expeditious as possible, but the failure of the Board to comply with any of the procedural time periods in these rules shall not result in the dismissal of a petition for discipline or a lessening of the charges set forth therein. Only the Board Chair may extend the time for hearing or grant any other extension of time in a formal proceeding.
(b) Notice to other tribunals. Upon receipt of notice fixing a date in connection with a formal proceeding (including a hearing date before a hearing committee or special master or oral argument before the Board) or the date of a meeting of the Board, any involved person within 48 hours thereafter shall deliver written notice (which shall not identify the respondent-attorney) of the fixing of such date to the clerk, prothonotary, court administrator, chairperson or other appropriate administrative officer of any court, administrative agency or other body with which a conflict might reasonably arise, and shall file a copy of such notice with the Board Prothonotary.
(c) Application for continuance. An application for continuance of a hearing shall be made either in writing or on the record at the hearing and shall set forth the basis for the application and the facts supporting it. The application shall be addressed to the chair of the hearing committee or the special master conducting the hearing, who may deny it or recommend its approval to the Board Chair. A denial by the chair of a hearing committee or special master may be reviewed by the Board Chair. A continuance of a hearing other than adjournment to a day certain not more than 15 days hence shall not be granted by a hearing committee or special master without the concurrence of the Board Chair.
(d) Grounds for continuances. Enforcement Rule 208(i) provides that all formal proceedings under this chapter be conducted as expeditiously as possible; that ordinarily the engagement of an involved person will be recognized as a basis for continuance of a formal proceeding or meeting of the Board only where the involved person is actually engaged before an appellate court of this Commonwealth or a court of the United States; and that engagement of an involved person before any other court, administrative agency or other body shall not be recognized as a basis for continuance except upon a showing of unforeseen and compelling circumstances prohibiting appearance.
(e) Definition. As used in this section, the term ‘‘involved person’’ includes a member of the Board, a hearing committee member assigned to act on any aspect of the matter, a special master assigned to the matter and counsel for the respondent-attorney, as well as the respondent-attorney.
Source The provisions of this § 89.7 amended through May 18, 1979, effective May 26, 1979, 9 Pa.B. 1665; amended January 26, 1990, effective January 27, 1990, 20 Pa.B. 343; amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended July 29, 1994, effective July 30, 1994, 24 Pa.B. 3706; amended March 11, 2005, effective immediately, 35 Pa.B. 1656; amended November 2, 2012, effective November 3, 2012, 42 Pa.B. 6864; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552. Immediately preceding text appears at serial pages (364161) to (364162).
SERVICE OF DOCUMENTS
§ 89.21. Notice by the Board to participants; Service of original process by the Board.
(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).
Source The provisions of this § 89.21 amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552; amended August 7, 2020, effective in 30 days, 50 Pa.B. 4014. Immediately preceding text appears at serial page (397822).
§ 89.22. Service by a participant.
All pleadings, briefs and other documents, filed in formal proceedings, when filed or tendered to the Board for filing, shall be served upon all participants in the proceeding. Such service shall be made by delivering in person or by mailing, properly addressed with postage prepaid, one copy to each participant.
Source The provisions of this § 89.22 amended May 17, 1991, effective May 18, 1991, 21 Pa.B. 2335. Immediately preceding text appears at serial page (147011).
§ 89.23. Effect of service upon counsel.
When any participant has appeared by counsel, service upon such counsel shall be deemed service upon the participant as provided in § 89.4(b) (relating to representation by respondent-attorney) and separate service on the party may be omitted as provided in such subsection.
§ 89.24. Date of service.
The date of service shall be the day when the document served is deposited in the United States mail, or is delivered in person, as the case may be.
§ 89.25. Proof of service.
There shall accompany and be attached to the original of each pleading or other document filed with the Board, when service is required to be made by the parties, a certificate of service in the form prescribed by § 89.26 (relating to form of certificate of service). All other copies filed shall be fully conformed thereto.
§ 89.26. Form of certificate of service.
I hereby certify that I have this day served by
(indicate method of service)
the foregoing document upon all parties of record in this proceeding in accordance with the requirements of 204 Pa. Code § 89.22 (relating to service by a participant).Dated this
day of
, 19
.
(Signature) Of counsel for
§ 89.27. Service upon Disciplinary Counsel.
Whenever any provision of these rules refers to service of any pleading, petition or other document upon Disciplinary Counsel, such service shall be made by, and these rules shall be deemed to require, service of the pleading, petition or other document in accordance with this subchapter separately upon both the Board Prothonotary and Disciplinary Counsel.
Source The provisions of this § 89.27 reserved May 17, 1991, effective May 18, 1991, 21 Pa.B. 2335; amended February 4, 1994, effective February 5, 1994, 24 Pa.B. 730; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552. Immediately preceding text appears at serial page (364163).
AMENDMENT OR WITHDRAWAL OF PLEADINGS
§ 89.31. Amendments of pleadings.
No amendment of any petition for discipline or other pleading may be made except on leave granted by the Board Chair or the hearing committee or special master before which the matter is then pending.
Source The provisions of this § 89.31 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended November 2, 2012, effective November 3, 2012, 42 Pa.B. 6864. Immediately preceding text appears at serial page (363146).
§ 89.32. Withdrawal of petition for discipline.
(a) General rule. Chief Disciplinary Counsel may at any stage of the proceeding apply for leave to withdraw a petition for discipline when it shall appear that it was improvidently filed. The application shall be set forth on Form DB-44 (Application for Leave to Withdraw Petition for Discipline), shall set forth briefly the grounds relied upon by the Office of Disciplinary Counsel for recommending withdrawal, and shall be filed with the Board Prothonotary.
(b) Action by Board. The Executive Office shall transmit the Form DB-44, any answer thereto, and related file to a member of the Board designated by the Chair, who shall consider and act upon the application on behalf of the Board. The Executive Office shall notify the parties of the action taken by the Board.
Source The provisions of this § 89.32 amended November 2, 2012, effective November 3, 2012, 42 Pa.B. 6864; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552. Immediately preceding text appears at serial page (364164).
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