Subchapter F. PROTECTION OF THE INTERESTS OF CLIENTS
Sec.
91.121. Appointment of conservator to protect interests of clients of absent attorney.
91.122. Duties of conservator.
91.123. Cooperation with conservator.
91.124. Bank and other accounts.
91.125. Duration of conservatorship.
91.126. Discharge of conservator.
91.127. Liability of conservator.
91.128. Compensation and expenses of conservator.
91.129. Review by Supreme Court.
Source The provisions of this Subchapter F amended March 6, 1981, effective March 7, 1981, 11 Pa.B. 782, unless otherwise noted. Immediately preceding text appears at serial page (31759).
§ 91.121. Appointment of conservator to protect interests of clients of absent attorney.
(a) General rule. Enforcement Rule 321(a) provides that 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 § 91.151 (relating to emergency temporary suspension orders and related relief); or
(ii) the president judge of the court of common pleas pursuant to § 91.98 (relating to action to protect clients of formerly admitted attorney) by order directs Disciplinary Counsel to file an application under Enforcement Rule 321; 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) Service of application. Enforcement Rule 321(b) provides that a copy of the application for appointment of a conservator under that 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; and that if personal service cannot be obtained, then a copy of the application shall be served in the manner prescribed by § 91.1 (relating to substituted service).
(c) Hearing. Enforcement Rule 321(c) and (d) provide that 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; that 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; that 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; that the order shall contain findings of fact and a statement of the grounds upon which the order is based; and that 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 subsection (b) of this section.
(d) Qualifications of conservator. Enforcement Rule 321(e) provides that 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.
(e) Tolling of limitation times. Enforcement Rule 321(f) provides that the filing by Disciplinary Counsel or any other interested person of an application for the appointment of a conservator under the Enforcement 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.
(f) Enforcement Rule 321(g) provides that 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.
(g) Enforcement Rule 321(h) provides that as used in this section, the term ‘‘government unit’’ has the meaning set forth in 42 Pa.C.S. § 102 (relating to definitions).
Source The provisions of this § 91.121 amended through July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (376276) to (376278).
§ 91.122. Duties of conservator.
(a) General rule. Enforcement Rule 322(a)—(c) provides that:
(1) The conservator shall take immediate possession of all files of the absent attorney; that 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; and that 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.
(2) The conservator shall make a written inventory of all files taken into his or her possession.
(3) 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.
(4) 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.
(5) 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.
(b) Prohibited conduct. Enforcement Rule 322(d) provides that 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.
(c) Written report. Enforcement Rule 322(e) provides that 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 subsection (a) of this section; that if those duties have not been accomplished, then the conservator shall state what progress has been made in that regard; and that thereafter, the conservator shall file a similar written report every 60 days until discharged.
(d) Enforcement Rule 322(f) provides that 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 § 91.128(3) (relating to compensation and expenses of conservator).
Source The provisions of this § 91.122 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725. Immediately preceding text appears at serial pages (198440) to (198441).
§ 91.123. Cooperation with conservator.
Enforcement Rule 323 provides that 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; and that wilful failure to so cooperate shall constitute a separate violation of the Enforcement Rules for the purposes of Enforcement Rule 203(b)(3) (relating to grounds for discipline).
§ 91.124. Bank and other accounts.
Enforcement Rule 324 provides that:
(1) 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; that 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; and that 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.
(2) 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.
(3) 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.
(i) 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.
(4) 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 § 91.128 (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 § 91.124 amended May 4, 1984, effective May 5, 1984, 14 Pa.B. 1547; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725. Immediately preceding text appears at serial pages (198441) to (198442).
§ 91.125. Duration of conservatorship.
Enforcement Rule 325 provides that appointment of a conservator pursuant to the Enforcement Rules shall be for a period of no longer than six months; that 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; that any order granting such an extension shall include findings of fact in support of the extension; and that no additional extensions shall be granted absent a showing of extraordinary circumstances.
Source The provisions of this § 91.125 amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725. Immediately preceding text appears at serial page (198442).
§ 91.126. Discharge of conservator.
Enforcement Rule 326 provides that:
(1) 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.
(2) 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.
§ 91.127. Liability of conservator.
Enforcement Rule 327 provides that a conservator appointed under the Enforcement 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; and that 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 § 91.127 amended January 15, 1988, effective April 1, 1988, 18 Pa.B. 242; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725. Immediately preceding text appears at serial page (198443).
§ 91.128. Compensation and expenses of conservator.
Enforcement Rule 328 provides that:
(1) 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.
(2) The necessary expenses (including, but not limited to, expenses of a certified public accountant engaged under § 91.124(3) (relating to bank and other accounts)) and any compensation of a conservator or any attendant staff shall, if possible, be paid by the absent attorney or his or her estate; and 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 Enforcement Rule 328 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 § 91.128 amended through May 4, 1984, effective May 5, 1984, 14 Pa.B. 1547; amended September 22, 1995, effective September 23, 1995, 25 Pa.B. 3967; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; amended April 29, 2022, effective 30 days after publication, 52 Pa.B. 2581. Immediately preceding text appears at serial page (376282).
§ 91.129. Review by Supreme Court.
Enforcement Rule 329 and 42 Pa.C.S. § 722(1) (relating to direct appeals from courts of common pleas) provide that:
(1) 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 210 Pa. Code (relating to Appellate Procedure) for review of orders relating to the supervision of investigating grand juries (see 210 Pa. Code Rule 3331 (relating to review of special prosecutions or investigations)).
(2) Review in the Supreme Court under this section shall not stay proceedings below unless the court of common pleas or the Supreme Court or a justice thereof shall so order.
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