Subchapter D. ACTION BY BOARD AND SUPREME COURT
Sec.
89.201. Review by Board.
89.202. Content and form of briefs on exceptions.
89.203. Action by Board.
89.204. Dismissal of proceeding.
89.205. Informal admonition, private reprimand or public reprimand following formal hearing.
89.206. Transmission of record to Supreme Court.
89.207. Review and action in the Supreme Court.
89.208. Participation by the Board before the Supreme Court.
89.209. Expenses of formal proceedings.§ 89.201. Review by Board.
(a) General rule. Upon receipt of a report and recommendation from a hearing committee or special master, the Board shall, except as otherwise provided in this rule, set the dates for submission of briefs and for oral argument before the Board or a panel of at least three of its members designated by the Chair.
(b) Oral argument and briefs. Enforcement Rule 208(d)(1) provides that both parties shall have the right to submit briefs and to present oral argument to a panel of at least three members of the Board, unless such right has been waived in the manner provided by these rules.
(c) Waiver. If neither the respondent-attorney nor the Office of Disciplinary Counsel objects to the findings and recommendations of the hearing committee or special master, oral argument and submission of briefs may be waived by stipulation, subject to approval by the Board. A participant will be conclusively deemed to have waived all objections to the findings and recommendations of the hearing committee or special master and to have stipulated to the waiver of oral argument and submission of briefs unless such participant files exceptions as provided in subsection (d).
(d) Procedure to except to report of hearing committee or special master. Any participant desiring to object to the findings and recommendations of a hearing committee or special master shall, within 20 days after the service of a copy of a report or such other time as may be fixed by the Board Chair, file exceptions to the report or part thereof in a brief (designated ‘‘brief on exceptions’’). ‘‘Briefs opposing exceptions’’ may be filed in response to briefs on exceptions within 20 days after the filing of briefs on exceptions or such other time as may be fixed by the Board Chair. No further response will be entertained unless the Board, with or without motion, so orders.
(e) Oral argument. Unless otherwise ordered by the Board, oral argument shall be deemed waived unless expressly requested in a brief on exception or brief opposing exceptions.
(f) Participation by reviewing members. Enforcement Rule 208(d)(1) provides that members of the Board who have participated on a review panel under § 87.33 (relating to appeal by Office of Disciplinary Counsel for modification of recommendation) or § 87.34 (relating to review of recommendation of private reprimand or public reprimand) shall not participate in further consideration of the same matter or decision thereof on the merits under this section. A Board member who pursuant to § 89.32(b) (relating to withdrawal of petition for discipline) denied an application for leave to withdraw a petition for discipline shall not participate in the consideration of or decision on the merits of that matter.
Source The provisions of this § 89.201 amended March 10, 1989, effective March 11, 1989, 19 Pa.B. 952; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended November 2, 2012, effective November 3, 2012, 42 Pa.B. 6864; amended May 3, 2019, effective May 4, 2019, 49 Pa.B. 2217; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552. Immediately preceding text appears at serial pages (396671) to (396672).
§ 89.202. Content and form of briefs on exceptions.
(a) Briefs on exceptions.
(1) Briefs on exceptions shall contain:
(i) A short statement of the case.
(ii) A summary of the basic position of the party filing.
(iii) The grounds upon which the exceptions rest.
(iv) The argument in support of the exceptions with appropriate references to the record and legal authorities.
(2) There may also be included specific findings and conclusions proposed in lieu of those to which exception is taken and any proposed additional findings and conclusions.
(3) Exceptions to the form of recommended order shall specify the portions thereof to which exception is taken, and may set forth a form of order suggested in lieu of that recommended by the hearing committee or special master.
(b) Briefs opposing exceptions. Briefs opposing exceptions shall generally follow the same style prescribed for briefs on exceptions, but may omit a statement of the case if it was correctly stated in a brief on exceptions.
(c) Length. Briefs on exceptions and briefs opposing exceptions shall be self-contained and limited to 6,000 words in length in 14-point Arial typeface. For good cause shown, the limitation on length may be altered or waived for either class of briefs upon application to and order of the Board Chair at least ten days before the time fixed for filing of the respective briefs.
(d) Copies. One copy of each brief shall be filed with the Board Prothonotary in addition to the copies served on the participants in the proceedings.
Source The provisions of this § 89.202 amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended November 15, 1991, effective November 16, 1991, 21 Pa.B. 5325; amended February 5, 2010, effective February 6, 2010, 40 Pa.B. 700; amended August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended November 2, 2012, effective November 3, 2012, 42 Pa.B. 6864; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended May 8, 2020, effective 30 days after publication, 50 Pa.B. 2387; amended February 12, 2021, effective 30 days after publication, 51 Pa.B. 781. Immediately preceding text appears at serial pages (401567) to (401568).
§ 89.203. Action by Board.
Enforcement Rule 208(d)(2) provides that the Board shall either affirm or change in writing the recommendation of the hearing committee or special master within 60 days after the adjudication of the matter at a meeting of the Board.
Source The provisions of this § 89.203 amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (143999).
§ 89.204. Dismissal of proceeding.
Enforcement Rule 208(d)(2)(i) provides that in the event that the Board determines that a proceeding should be dismissed, it shall so notify the respondent-attorney. In such event the Executive Office shall notify the respondent-attorney and staff counsel by means of Form DB-11 (Notice of Dismissal of Formal Proceedings). Disciplinary Counsel shall notify the complainant in writing of the dismissal.
Source The provisions of this § 89.204 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 (404230) and (397845).
§ 89.205. Informal admonition, private reprimand or public reprimand following formal hearing.
(a) General rule. Enforcement Rule 208(d)(2)(ii) provides that in the event that the Board determines that the proceeding should be concluded by informal admonition, private reprimand, or public reprimand, the Board shall arrange to have the respondent-attorney appear in person before Disciplinary Counsel for the purpose of receiving informal admonition or before a designated panel of three members selected by the Board Chair pursuant to Enforcement Rule 205(c)(11) for the purpose of receiving private reprimand or public reprimand, in which case the designated member shall deliver the private reprimand or public reprimand. If the matter is concluded by private discipline, Disciplinary Counsel shall notify the complainant in writing of the disposition in conformance with the provisions of § 87.51(a)(1) (relating to notification of disposition of complaint) of these Rules.
(b) Taxation of expenses. Enforcement Rule 208(g)(2) provides that in the event a proceeding is concluded by informal admonition, private reprimand, or public reprimand, the Board in its discretion may direct that the necessary expenses incurred in the investigation and prosecution of the proceeding shall be paid by the respondent-attorney, and that all expenses so taxed shall be paid by the respondent-attorney within 30 days after the date of the entry of the order taxing the expenses against the respondent-attorney. The expenses taxable under this subsection shall be those prescribed by § 93.111 (relating to determination of reimbursable expenses).
c) Notice to appear.
(1) In the event that the Board determines that the proceeding should be concluded by public reprimand, the Executive Office shall notify the respondent-attorney and staff counsel by means of Form DB-12.2 (FP) (Notice to Appear for Public Reprimand Following Formal Proceedings) which shall state that Enforcement Rule 203(b)(2) and (c) expressly provides that willful failure to appear before the Board for public reprimand shall be an independent ground for discipline and that the Board is a ‘‘tribunal’’ within the meaning of the Disciplinary Rules (see, e.g., Rules 3.3, 3.4(c), and 3.5).
(2) In the event that the Board determines that the proceeding should be concluded by private reprimand, the Executive Office shall notify the respondent-attorney and staff counsel by means of Form DB-12(FP) (Notice to Appear for Private Reprimand Following Formal Proceedings) which shall state that Enforcement Rule 203(b)(2) and (c) expressly provides that willful failure to appear before the Board for private reprimand shall be an independent ground for discipline and that the Board is a ‘‘tribunal’’ within the meaning of the Disciplinary Rules (see, e.g., Rules 3.3, 3.4(c), and 3.5).
(3) In the event that the Board determines that the proceeding should be concluded by informal admonition, the Office of Disciplinary Counsel shall notify the respondent-attorney and staff counsel by means of Form DB-12.1(FP) (Notice to Appear for Informal Admonition Following Formal Proceedings), which shall state that Enforcement Rule 203(b)(2) and (c) expressly provides that willful failure to appear before Disciplinary Counsel for informal admonition shall be an independent ground for discipline and that Disciplinary Counsel, when administering informal admonitions, constitutes a ‘‘tribunal’’ within the meaning of the Disciplinary Rules (see, e.g., Rules 3.3, 3.4(c), and 3.5).
(4) The Finance Office shall notify the respondent-attorney of the expenses of the proceeding which have been taxed pursuant to subsection (b) by means of a Notice of Taxation of Expenses, which shall state that if the respondent-attorney fails to pay the taxed expenses within 30 days after the date of the entry of the order taxing such expenses, action will be taken by the Board pursuant to § 93.112 (relating to failure to pay taxed expenses) which will result in the entry of an order placing the respondent-attorney on administrative suspension.
(d) Appearance. An attorney who is given notice to appear for informal admonition or private reprimand shall appear in person at the time and place fixed in such notice, for the purpose of receiving such informal admonition or private reprimand. A permanent record shall be made of the fact of and basis for such action as is taken. The fact of receipt of such informal admonition or private reprimand shall not affect the good standing of the respondent-attorney as an attorney and shall be kept confidential to the extent provided in Chapter 93 Subchapter F (relating to confidentiality). An attorney who is given notice to appear for public reprimand shall appear in person at the time and place fixed in such notice, for the purpose of receiving such public reprimand. The proceeding shall be open to the public as provided in § 93.102(a) (relating to access to disciplinary information and confidentiality), and a record shall be made of the fact of and basis for the public reprimand, which record shall be public.
(e) Failure to appear. The neglect or refusal of the respondent-attorney to appear before Disciplinary Counsel for the purposes of informal admonition without good cause shall automatically convert the decision of the Board on informal admonition into one for private reprimand. The neglect or refusal of the respondent-attorney to appear before the Board for the purposes of private or public reprimand without good cause shall automatically convert the decision of the Board on private or public reprimand into a recommendation to the Supreme Court for censure, and the Executive Office shall notify the respondent-attorney and the Office of Disciplinary Counsel accordingly.
(f) Demand for Supreme Court review.
(1) Enforcement Rule 208(d)(2)(iii) provides that a respondent-attorney who is unwilling to have the matter concluded by an informal admonition or private reprimand must file, within 30 days after notice of the determination of the Board, a notice of appeal in the Supreme Court. Enforcement Rule 208(d)(2)(iii) provides that within 30 days after notice of the determination of the Board, the respondent-attorney must file a notice of appeal with the Supreme Court.
(2) A respondent-attorney who objects to an order taxing expenses in connection with a matter concluded by informal admonition, private reprimand, or public reprimand may file a petition for review of such order in the Supreme Court under 42 Pa.C.S. § § 725(5) and 5105(a)(2). See 210 Pa. Code Chapter 15 (relating to judicial review of governmental determinations) with respect to the time limits for seeking review and other applicable procedures.
Source The provisions of this § 89.205 amended May 18, 1979, effective May 19, 1979, 9 Pa.B. 1607; amended August 30, 1985, effective August 31, 1985, 15 Pa.B. 3080; amended January 15, 1988, effective April 1, 1988, 18 Pa.B. 242; amended December 7, 1990, effective December 8, 1990, 20 Pa.B. 6042; amended February 24, 2006, effective February 25, 2006, 36 Pa.B. 929; amended August 5, 2011, effective August 6, 2011, 41 Pa.B. 4202; amended August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended June 2, 2017, effective June 3, 2017, 47 Pa.B. 3075; 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; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (410127) to (410129).
§ 89.206. Transmission of record to Supreme Court.
(a) General rule. Enforcement Rule 208(d)(2)(iii) provides that in the event that the Board shall determine that the matter should be concluded by probation, censure, suspension, disbarment, or by informal admonition, private reprimand, or public reprimand in cases where the respondent-attorney is unwilling to have the matter concluded by informal admonition, private reprimand, or public reprimand, the Board shall file its findings and recommendations, together with the briefs, if any, before the Board and the entire record, with the Supreme Court.
(b) Procedure. The Board Prothonotary shall file the record, the briefs on exceptions and the briefs opposing exceptions, if any, and the finding and recommendations of the Board with the Supreme Court by means of Form DB-13 (Request for Supreme Court Action) and an appropriate letter of transmittal. Copies of such finding and recommendations and letter of transmittal shall be served by the Board Prothonotary upon the participants.
Source The provisions of this § 89.206 amended April 8, 1983, effective April 9, 1983, 13 Pa.B. 1244; amended March 10, 1989, effective March 11, 1989, 19 Pa.B. 952; amended September 22, 1995, effective September 23, 1995, 25 Pa.B. 3967; 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 November 2, 2012, effective November 3, 2012, 42 Pa.B. 6864; amended February 2, 2018, effective 30 days after publication, 48 Pa.B. 727; amended April 18, 2019, effective 30 days after publication, 49 Pa.B. 5552. Immediately preceding text appears at serial pages (389915) to (389916).
§ 89.207. Review and action in the Supreme Court.
(a) General rule. Enforcement Rule 208(e)(5) provides that the Supreme Court shall review the record, where appropriate consider oral argument, and enter an order. Enforcement Rule 208(a)(2)(iii) provides that review by the Supreme Court shall be de novo and the Court may impose a sanction greater or less than that recommended by the Board.
(b) Board recommendation of disbarment. Enforcement Rule 208(e)(2) provides that in the event the Board recommends that the matter should be concluded by disbarment, the respondent-attorney may, within 20 days after service of the findings and recommendations of the Board under subsection (e), submit to the Supreme Court a request to present oral argument.
(c) Board recommendations other than disbarment. Enforcement Rule 208(e)(3) provides that in the event the Board recommends a sanction less than disbarment, and the Court, after consideration of the recommendation, is of the view that a rule to show cause should be served upon respondent-attorney, why an order of disbarment not be entered, such a rule shall be issued; that a copy of the rule shall be served on Disciplinary Counsel (see § 89.27 (relating to service upon Disciplinary Counsel)); that within 20 days after service of the rule either party may submit to the Supreme Court a response thereto; that within 10 days after service of a response, the other party may submit to the Supreme Court a reply thereto; and that respondent-attorney in such case shall have the absolute right upon request for oral argument.
(d) Oral argument. Enforcement Rule 208(e)(4) provides that, except as provided in subsections (b) and (c), the respondent-attorney will not be afforded the right of oral argument.
(e) Service of papers. Enforcement Rule 208(e)(1) provides that service of the findings and recommendations of the Board upon the respondent-attorney shall be governed by 210 Pa. Code Rules 121 and 122 (relating to filing and service and content and form of proof of service). See § 85.12 (relating to filings with the Supreme Court).
Source The provisions of this § 89.207 adopted October 9, 1981, effective October 10, 1981, 11 Pa.B. 3500; amended March 10, 1989, effective March 11, 1989, 19 Pa.B. 952; amended December 7, 1990, effective December 8, 1990, 20 Pa.B. 6041; amended February 4, 1994, effective February 5, 1994, 24 Pa.B. 730. Immediately preceding text appears at serial page (154516).
§ 89.208. Participation by the Board before the Supreme Court.
(a) General rule. In cases where Disciplinary Counsel elects to urge in the Supreme Court pursuant to § 93.63(b)(2) (relating to powers and duties of Office of Disciplinary Counsel) a position inconsistent with any finding or recommendation of the Board, the Board may obtain counsel, independent of the Office of Disciplinary Counsel, who shall seek to support before the Court the findings and recommendations of the Board.
(b) Procedure. Within 20 days after transmittal of the findings and recommendations of the Board to the Chief Justice of Pennsylvania pursuant to § 89.206(b) (relating to transmission of record to Supreme Court; confidentiality) or § 89.273(a)(5) (relating to procedures for reinstatement), Chief Disciplinary Counsel shall submit to the Board a memorandum describing any position contrary to the findings and recommendations of the Board which the Office of Disciplinary Counsel has elected to urge in the Supreme Court.
Source The provisions of this § 89.208 adopted July 2, 1982, effective July 3, 1982, 12 Pa.B. 2021.
§ 89.209. Expenses of formal proceedings.
Enforcement Rule 208(g)(1) provides that unless otherwise directed by the Supreme Court, the respondent-attorney shall pay the necessary expenses incurred in the investigation and prosecution of a proceeding which results in the imposition of discipline or transfer to disability inactive status. All expenses so taxed pursuant to orders of suspension that are not stayed in their entirety or disbarment shall be paid by the respondent-attorney within 30 days after notice transmitted to the respondent-attorney of taxed expenses. In all other cases, expenses taxed under Rule 208(g)(1) shall be paid by the respondent-attorney within 30 days of entry of the order taxing the expenses against the respondent-attorney. Failure to pay such taxed expenses within 30 days after the date of the entry of the order will result in action taken by the Board pursuant to § 93.112 (relating to failure to pay taxed expenses) which will result in the entry of an order placing the respondent-attorney on administrative suspension.
Source The provisions of this § 89.209 adopted April 8, 1983, effective April 9, 1983, 13 Pa.B. 1244; amended October 12, 1984, effective October 13, 1984, 14 Pa.B. 3749; amended June 2, 2017, effective June 3, 2017, 47 Pa.B. 3075; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (397849).
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