Subchapter B. THE DISCIPLINARY BOARD
Sec.
93.21. The Disciplinary Board.
93.22. Quorum and manner of acting.
93.23. Powers and duties.
93.24. Officers.
93.25. Official seal.
93.26. Meetings of the Board.
93.27. Conference telephone meetings.
93.28. Agenda.
93.29. Panels.
93.30. Prohibitions during term of membership.§ 93.21. The Disciplinary Board.
Enforcement Rule 205(a) and (b) provide that the Supreme Court shall appoint a board to be known as ‘‘The Disciplinary Board of the Supreme Court of Pennsylvania’’ which shall be composed of ten members of the bar of this Commonwealth and two non-lawyer electors; that the regular term of members of the Board shall be for six years, unless otherwise specified by order of the Court; and that no member shall serve for more than one term.
Source The provisions of this § 93.21 amended through October 9, 1981, effective October 10, 1981, 11 Pa.B. 3500; amended March 1, 1991, effective March 2, 1991, 21 Pa.B. 827; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687; amended February 5, 2010, effective February 6, 2010, 40 Pa.B. 700; amended January 31, 2020, effective 30 days after publication, 50 Pa.B. 651. Immediately preceding text appears at serial page (397900).
§ 93.22. Quorum and manner of acting.
(a) General rule. Enforcement Rule 205(b) provides that seven members of the Board shall constitute a quorum and that, except when acting under § 93.23(a)(5), (7), (8), (9) and (16) (relating to powers and duties), the Board shall act only with the concurrence of not less than the lesser of:
1. seven members, or
2. a majority of the members in office who are not disqualified from participating in the matter or proceeding.
(b) Determination of quorum. Enforcement Rule 205(b) further provides that the presence of members who are disqualified from participating in one or more matters to be considered at a meeting shall nonetheless be counted for purposes of determining the existence of a quorum for the consideration of all matters on the agenda.
Source The provisions of this § 93.22 amended through October 9, 1981, effective October 10, 1981, 11 Pa.B. 3500; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended March 1, 1991, effective March 2, 1991, 21 Pa.B. 827; amended August 7, 2020, effective 30 days after publication, 50 Pa.B. 4014. Immediately preceding text appears at serial pages (400492) and (397901).
§ 93.23. Powers and duties.
(a) General rule. Enforcement Rule 205(c) provides that the Board shall have the power and duty:
(1) To consider the conduct of any person subject to the Enforcement Rules after investigation by Disciplinary Counsel pursuant to Enforcement Rule 207(b)(1). Complaints filed directly with the Board shall be forwarded to Chief Disciplinary Counsel for assignment to a district office.
Official Note
In order to avoid the commingling of prosecutorial and adjudicative functions, which would be a violation of due process, see Lyness v. Com. of Pa., State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), the Office of Disciplinary Counsel is charged with the duty of investigating and prosecuting all disciplinary matters subject to adjudication by the Board. See Enforcement Rule 208(a)(1), (a)(2)(iv). Under Enforcement Rule 208(d)(1), Board Members appointed in a matter to review Disciplinary Counsel’s charging decisions or recommended disposition are precluded from further participation in that matter.
(2) To appoint an Executive Director, a Chief Disciplinary Counsel, Legal Counsel and such staff as may from time to time be required to properly perform the functions prescribed in the Enforcement Rules.
(3) To appoint not less than 18 hearing committee members within each disciplinary district.
(4) To assign special masters pursuant to Enforcement Rule 206(d).
(5) To assign formal charges or the conduct of an investigatory hearing to a hearing committee or special master, and to assign a reinstatement petition to a hearing committee.
(6) To review the conclusions of hearing committees and special masters with respect to formal charges or petitions for reinstatement, and to prepare and forward its own findings and recommendations, together with the record of the proceeding before the hearing committee or special master, to the Supreme Court.
(7) To assign:
(i) hearing committee members to review and approve or modify recommendations by Disciplinary Counsel for dismissals, informal admonitions, private reprimands, public reprimands and institution of formal charges;
(ii) senior or experienced hearing committee members to hear and determine attacks on the validity of subpoenas issued pursuant to § 91.2 (relating to subpoenas and investigations), as provided in § 91.3(a)(2) (relating to determination of validity of subpoenas); or
(iii) senior or experienced hearing committee members to consider a petition for reinstatement to active status from retired or inactive status, or administrative suspension, under § 89.273(b) (relating to procedures for reinstatement).
(8) To review, through a designated panel of three members, and approve or modify a determination by a reviewing hearing committee member that a matter should be concluded by dismissal, private informal admonition, private reprimand, public reprimand or the institution of formal charges before a hearing committee.
(9) To review, through a designated panel of three members, and approve or reject a joint petition in support of discipline on consent filed with the Board pursuant to Enforcement Rule 215(d).
(10) To review, through a single member designated by the Board Chair, and approve or reject a certification filed by Disciplinary Counsel under Enforcement Rule 218(d)(2)(ii) indicating that Disciplinary Counsel has determined that there is no impediment to reinstatement of the petitioner, and to issue the report and recommendation required by subdivision (d) of Enforcement Rule 218.
(11) To administer, by the Board or through a designated panel of three members selected by the Board Chair, private reprimands or public reprimands to attorneys for misconduct.
(12) To adopt rules of procedure not inconsistent with the Enforcement Rules. Such rules may provide for the delegation to the Board Chair or the Vice-Chair of the power to act for the Board on administrative and procedural matters.
(13) To cause testimony relating to the conduct of formerly admitted attorneys to be perpetuated.
(14) To petition the Court under § 91.74 (relating to petition by Board for determination of professional competency) to determine whether an attorney is incapacitated from continuing the practice of law by reason of mental infirmity or illness or because of addiction to drugs or intoxicants, and to retain counsel other than Disciplinary Counsel to represent the Board in such proceedings when the Board considers such separate representation to be appropriate.
(15) To recommend the temporary suspension of a respondent-attorney pursuant to Enforcement Rule 208(f)(5) (relating to emergency temporary suspension orders and related relief).
(16) To decide, through the Board Chair, the Vice-Chair, or a designated lawyer-member of the Board, an interlocutory appeal to the Board when such appeal is permitted by the Enforcement Rules, these rules, or other law.
(17) To authorize the use of electronic means to conduct prehearing conferences and post-hearing proceedings before a hearing committee, special master or the Board, but all adjudicatory proceedings shall be conducted in person unless warranted by extraordinary circumstances. Witness testimony may be presented via advanced communication technology (ACT) upon motion for cause shown. All proceedings shall be conducted in accordance with Board Rules, Enforcement Rules and the decisional law of the Court and the Board.
(18) To establish, assess and collect:
(i) the necessary expenses incurred in the investigation and prosecution of a proceeding that results in the imposition of discipline, or the investigation and processing of a petition for reinstatement and in any proceeding resulting therefrom;
(ii) late payment penalties under Enforcement Rule 219(f)(1) for failure to timely complete annual registration; and
(iii) administrative fees for status changes where a petition for reinstatement is not required.
(19) To assess and collect reinstatement filing fees, administrative fees based on the imposition of a type of discipline or transfer to disability inactive status under Enforcement Rule 301(e), and penalties on unpaid taxed expenses and administrative fees.
(20) To establish, charge and collect a collection fee for any payment under paragraphs (18) and (19) that has been returned to the Board unpaid.
(21) To exercise the powers and perform the duties vested in and imposed upon the Board by law.
(b) Consultations with local bar associations. Enforcement Rule 205(d) provides that the Board shall, to the extent it deems feasible, consult with officers oflocal bar associations in the counties affected concerning any appointment which it is authorized to make under the Enforcement Rules.
Source The provisions of this § 93.23 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; 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 December 7, 1990, effective December 8, 1990, 20 Pa.B. 6041; amended June 11, 1993, effective June 12, 1993, 23 Pa.B. 2729; amended July 29, 1994, effective July 30, 1994, 24 Pa.B. 3706; amended February 3, 1995, effective February 4, 1995, 25 Pa.B. 375; amended March 11, 2005, effective March 12, 2005, 35 Pa.B. 1656; amended April 5, 2011, effective April 6, 2011, 41 Pa.B. 4202; amended August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended August 7, 2020, effective 30 days after publication, 50 Pa.B. 4014; amended November 4, 2022, effective 30 days after publication, 52 Pa.B. 6841; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (411867) to (411869).
§ 93.24. Officers.
Chair and Vice-Chair. Enforcement Rule 205(a) provides that the Supreme Court shall designate the Board Chair and the Board Vice-Chair. In case of the vacancy in office, absence, disability or other unavailability of the Board Chair, the Board Vice-Chair shall exercise the powers and perform the duties of the Board Chair.
Source The provisions of this § 93.24 amended May 18, 1979, effective May 19, 1979, 9 Pa.B. 1607; amended through March 6, 1981, effective March 7, 1981, 11 Pa.B. 782; amended April 25, 1997, effective April 26, 1997, 27 Pa.B. 2037; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (411869).
§ 93.25. Official Seal.
The official seal of the Board shall be in the form and style as follows:
§ 93.26. Meetings of the Board.
(a) Call and notice. Meetings shall be held upon the call in writing of the Chair or of any two members of the Board at any place designated in the call or at any other place designated for such purpose by resolution of the Board or in the absence of such resolution as designated by the Chair. Notice of special meetings shall be given in person or by telephone, mail, or electronic mail to each member of the Board (at the address furnished to the Executive Office for that purpose) at least 24 hours prior to the time fixed for the special meeting. Notice of a special meeting may be waived in writing and shall be waived by attendance at the meeting.
(b) Organization. The Chair shall preside at meetings of the Board. In the absence of the Chair one of the following persons in the order stated shall preside:
(1) The Vice-Chair;
(2) An acting chair selected by the Board for such purpose.
Source The provisions of this § 93.26 amended March 11, 2005, effective March 12, 2005, 35 Pa.B. 1656; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (411869) to (411870).
§ 93.27. Conference telephone meetings.
One or more members of the Board may participate in a meeting of the Board by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this section shall constitute presence in person at such meeting.
Source The provisions of this § 93.27 amended February 12, 2021, effective 30 days after publication, 51 Pa.B. 781. Immediately preceding text appears at serial page (402466).
§ 93.28. Agenda.
An agenda for each meeting of the Board shall be prepared by the Executive Office with the approval of the Chair.
Source The provisions of this § 93.28 amended March 11, 2005, effective March 12, 2005, 35 Pa.B. 1656; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552. Immediately preceding text appears at serial page (363184).
§ 93.29. Panels.
(a) General rule. The Board Chair may designate panels of at least three Board members for the purpose of hearing oral argument in formal proceedings.
(b) Organization. The first-named member of each panel shall be the chair thereof. Except as otherwise provided by these rules, meetings and proceedings of a panel of the Board shall be governed insofar as applicable by the provisions of these rules governing meetings and proceedings of the Board.
(c) Quorum. A majority of the members of a panel of the Board shall constitute a quorum of the panel.
Source The provisions of this § 93.29 amended March 11, 2005, effective March 12, 2005, 35 Pa.B. 1656. Immediately preceding text appears at serial page (203550).
§ 93.30. Prohibitions during term of membership.
During the term of Board membership, a member shall not:
(a) represent a respondent or petitioner in any disciplinary proceeding under the Enforcement Rules or these rules;
(b) testify as an expert witness in any disciplinary proceeding under the Enforcement Rules or these rules;
(c) serve as an expert witness in a legal professional liability dispute, absent exigent circumstances and prior Board approval; or
(d) serve as an expert witness on ethics in litigation or trial in any state or federal court or before any other tribunal.
Source The provisions of this § 93.30 added November 10, 2023, effective 30 days after publication, 53 Pa.B. 6997.
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