Subchapter A. SERVICE, SUBPOENAS, DEPOSITIONS
AND RELATED MATTERS
IN GENERAL Sec.
91.1. Substituted service.
91.2. Subpoenas and investigations.
91.3. Determination of validity of subpoena.
91.4. Enforcement.
91.5. Confidentiality.
91.6. Discovery procedures inapplicable.
91.7. Production of testimony and documents for use in disciplinary proceedings in other jurisdictions.
DEPOSITIONS
91.11. Depositions.
91.12. Notice and application.
91.13. Authorization of taking deposition.
91.14. Officer before whom deposition is taken.
91.15. Oath and reduction to writing.
91.16. Scope and conduct of examination.
91.17. Status of deposition as part of record.
91.18. Fees of officers and deponents.
IN GENERAL
§ 91.1. Substituted service.
Enforcement Rule 212 provides that in the event a respondent-attorney cannot be located and personally served with notices required under the Enforcement Rules and these rules, such notices may be served upon the respondent-attorney by addressing them to the address furnished in the last registration form filed by the respondent-attorney in accordance with § 93.142 (relating to filing of annual registration form by attorneys) or, in the case of foreign legal consultant, by serving them pursuant to the designation filed by the foreign legal consultant under Pennsylvania Bar Admission Rule 341 (relating to licensing of foreign legal consultants).
Source The provisions of this § 91.1 amended August 5, 2005, effective September 1, 2005, 35 Pa.B. 4301; amended November 2, 2012, effective November 3, 2012, 42 Pa.B. 6864; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397867) to (397868).
§ 91.2. Subpoenas and investigations.
(a) General rule. Enforcement Rule 213(a) provides that:
(1) At any stage of an investigation, both Disciplinary Counsel and a respondent-attorney shall have the right to summon witnesses before a hearing committee or special master and require production of records before the same by issuance of subpoenas.
(2) Before assignment of a matter to a hearing committee or special master, Disciplinary Counsel shall have the right to require production of records by issuance of subpoenas which shall be returnable to the office of Disciplinary Counsel in which the investigation is being conducted; and that the respondent-attorney shall have the right, upon request and payment of appropriate duplicating costs, to receive copies of the records produced.
(b) Procedure. Enforcement Rule 213(b) provides that subpoenas shall be obtained by filing with the Court Prothonotary in the district of the Supreme Court where the subpoena is to be returnable a statement calling for the issuance of the subpoena (Form DB-14) (Request for Issuance of Subpoena); that on the same day that such statement is filed with the Court Prothonotary, the party seeking the subpoena shall send by certified mail a copy of such statement to either Disciplinary Counsel or the respondent-attorney, as the case may be; that upon the filing of Form DB-14, the Court Prothonotary shall forthwith issue a subpoena (Form DB-15) (Subpoena/Subpoena Duces Tecum) and it shall be served in the regular way; and that a subpoena issued pursuant to subsection (a)(2) shall not be returnable until at least ten days after the date of its issuance.
(c) Investigatory hearing committee. On application by the Office of Disciplinary Counsel or of a respondent-attorney, where no petition for discipline has yet been filed under these rules, the Executive Office shall appoint an investigatory hearing committee for the purpose of conducting an investigatory hearing under subsection (a)(1).
(d) Notice and scheduling of investigatory hearings. An investigatory hearing committee shall schedule an initial hearing on the matter to be held not later than 20 days after the committee is appointed pursuant to subsection (c). The committee shall give all persons affected at least four days written notice of each hearing held by the committee. Such a hearing may be held on less than four days notice if the chair of the committee determines that the shorter period is reasonably necessary under the circumstances.
(e) Cross reference. See § 95.2 (relating to investigation of the conversion of funds).
Source The provisions of this § 91.2 amended March 29, 1979, effective May 26, 1979, 9 Pa.B. 1665; amended November 4, 1988, effective November 5, 1988, 18 Pa.B. 4938; amended January 26, 1990, effective January 27, 1990, 20 Pa.B. 343; amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009; amended June 11, 1993, effective immediately, 23 Pa.B. 2729; 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 (376260) to (376261).
§ 91.3. Determination of validity of subpoena.
(a) In general. Enforcement Rule 213(d) provides that any attack on the validity of a subpoena issued under these rules shall be handled as follows:
(1) A challenge to a subpoena authorized by § 91.2(a)(1) (relating to subpoenas and investigations) shall be heard and determined by the hearing committee or special master before whom the subpoena is returnable in accordance with the procedure established by the Board in subsection (b).
(2) A challenge to a subpoena authorized by § 91.2(a)(2) shall be heard and determined by a member of a hearing committee in the disciplinary district in which the subpoena is returnable in accordance with the procedure established by the Board in subsection (b).
(3) A determination under paragraph (1) or (2) may be appealed to a lawyer-Member of the Board within ten days after service pursuant to § § 89.21(a) and 89.24 of the determination on the party bringing the appeal by filing a petition with the Board setting forth in detail the grounds for challenging the determination. The appealing party shall serve a copy of the petition on the non-appealing party by mail on the date that the appealing party files the appeal, and the non-appealing party shall have five business days after delivery to file a response. No attack on the validity of a subpoena will be considered by the Designated lawyer-Member of the Board unless previously raised before the hearing committee or special master. The Board Member shall decide the appeal within five business days of the filing of the non-appealing party’s response, if any. There shall be no right of appeal to the Supreme Court. Any request for review shall not serve to stay any hearing or proceeding before the hearing committee, special master or the Board unless the Court enters an order staying the proceedings.
(b) Procedure.
(1) A motion attacking a subpoena must be filed with the Board Prothonotary within ten days after service of the subpoena. A copy of the motion must be served on the other party to the investigation or proceeding. If a motion attacking a subpoena is filed by a third party to the investigation or proceeding who has been served with a subpoena, a copy of the motion must be served on Disciplinary Counsel and the respondent-attorney.
(2) Any answer to the motion must be filed with the Board Prothonotary within five business days after receipt of the motion served by the other party under paragraph (1).
(3) The Board Prothonotary must transmit the motion and any answer to the person designated in paragraphs (a)(1) or (2) to hear the motion, who must schedule a hearing on the motion within ten business days after the date by which an answer must be filed. A report with findings of fact and conclusions of law must be filed with the Board Prothonotary within ten business days after the conclusion of the hearing.
Source The provisions of this § 91.3 amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009; amended June 11, 1993, effective immediately, 23 Pa.B. 2729; amended March 11, 2005, effective immediately, 35 Pa.B. 1656; amended March 31, 2006, effective immediately, 36 Pa.B. 1490; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; 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 pages (397869) to (397870).
§ 91.4. Enforcement.
Enforcement Rule 213(g) provides that:
(1) Either Disciplinary Counsel or a respondent-attorney may petition the Supreme Court to enforce a subpoena that was not the subject of a challenge pursuant to paragraphs (a)(1) and (2) of § 91.3 (relating to validity of subpoena) or that was the subject of a challenge and has not been finally quashed by either the hearing committee or the Board Member designated to hear the appeal, provided that the party filing the petition to enforce attaches a certification in good faith that: a) the party exhausted reasonable efforts to secure the presence of the witness or the evidence within the witness’s custody or control, b) the testimony, records or other physical evidence of the witness will not be cumulative of other evidence available to the party, and c) the absence of the witness will substantially handicap the party from prosecuting or defending the charges, or from establishing a weighty aggravating or mitigating factor. If the object of a petition to enforce is a subpoena directed to the respondent-attorney for, in whole or in part, production pursuant to Enforcement Rule 221(g)(2) of required records under RPC 1.15(c) and Enforcement Rule 221(e), no certification will be required for the subpoena or portion thereof that pertains to the required records. See also § 91.151(e) (relating to contempt of the Board).
Official Note
The reference to § 91.151(e) is intended to make clear that, where the person who is resisting complying with a subpoena is the respondent-attorney, the provisions of this rule are cumulative of those in § 91.151(e).
(2) Upon receipt of a petition for enforcement of a subpoena, the Court shall issue a rule to show cause upon the person to whom the subpoena is directed, returnable within ten days, why the person should not be held in contempt. If the subpoena is directed to a respondent-attorney for production of required records and the respondent-attorney has not produced the records, the Court shall issue upon the respondent-attorney a rule to show cause why the respondent-attorney should not be placed on temporary suspension for failing to produce the records. If the period for response has passed without a response having been filed, or after consideration of any response, the Court shall issue an appropriate order.
Source The provisions of this § 91.4 amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009; amended June 11, 1993, effective immediately, 23 Pa.B. 2729; amended March 11, 2005, effective immediately, 35 Pa.B. 1656; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544. Immediately preceding text appears at serial pages (363169) to (363170).
§ 91.5. Confidentiality.
(a) General rule. Enforcement Rule 213(c) provides that:
(1) A subpoena issued under these rules shall clearly indicate on its face that the subpoena is issued in connection with a confidential investigation under the Enforcement Rules, and that it is regarded as contempt of the Supreme Court or grounds for discipline under the Enforcement Rules for a person subpoenaed to in any way breach the confidentiality of the investigation.
(2) It shall not be regarded as a breach of confidentiality for a person subpoenaed to consult with an attorney.
(3) The subpoena and deposition procedures under these rules shall be subject to the confidentiality requirements of Chapter 93 Subchapter F (relating to confidentiality).
(b) Exception. Subsection (a)(1) shall not apply to a subpoena issued in connection with a proceeding that is open to the public under § 93.102(a) (relating to access to disciplinary information and confidentiality).
Source The provisions of this § 91.5 amended June 11, 1993, effective immediately, 23 Pa.B. 2729; amended February 24, 2006, effective immediately, 36 Pa.B. 929. Immediately preceding text appears at serial page (309928).
§ 91.6. Discovery procedures inapplicable.
Enforcement Rule 213(h) provides that any rule of the Supreme Court or any statute providing for discovery shall not be applicable in disciplinary proceedings, which proceedings shall be governed by the Enforcement Rules alone.
Source The provisions of this § 91.6 amended June 11, 1993, effective immediately, 23 Pa.B. 2729. Immediately preceding text appears at serial page (147055).
§ 91.7. Production of testimony and documents for use in disciplinary proceedings in other jurisdictions.
Enforcement Rule 213(i) provides that:
(1) The Supreme Court may order a person domiciled or found within this Commonwealth to give testimony or a statement or to produce documents or other things for use in a lawyer discipline or disability proceeding in another state, territory or province or in a court of the United States or any other jurisdiction.
(2) The order may be made upon the application of any interested person or in response to a letter rogatory, and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of a tribunal outside this Commonwealth, for the taking of the testimony or statement or producing the documents or other things. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with the applicable provisions of this subpart. The order may direct that the testimony or statement be given, or document or other thing be produced, before a person appointed by the Court or before a commissioner appointed by a court or by an authorized disciplinary agency of another jurisdiction, any of whom shall have the power to administer any necessary oath.
(3) Any order to testify or to produce documents or other things issued as prescribed in this section may be enforced as any subpoena of the Supreme Court is enforced, upon petition of any party interested in the subject attorney discipline or disability proceeding.
Source The provisions of this § 91.7 adopted March 10, 1989, effective March 11, 1989, 19 Pa.B. 952; amended June 11, 1993, effective immediately, 23 Pa.B. 2729. Immediately preceding text appears at serial pages (147055) to (147056).
DEPOSITIONS
§ 91.11. Depositions.
Enforcement Rule 213(f) provides that with the approval of the hearing committee or special master, testimony may be taken by deposition or by commission if the witness is not subject to service of subpoena or is unable to attend or testify at the hearing because of age, illness or other compelling reason, and that a complete record of the testimony so taken shall be made and preserved.
Source The provisions of this § 91.11 amended March 6, 1981, effective March 7, 1981, 11 Pa.B. 782; amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009. Immediately preceding text appears at serial page (144020).
§ 91.12. Notice and application.
Unless notice is waived, no deposition shall be taken except after at least ten days’ notice to the participants if the deposition is to be taken within this Commonwealth, and 15 days’ notice when a deposition is to be taken elsewhere. Such notice shall be given in writing (Form DB-16) (Notice of Deposition) by the participant proposing to take such deposition to the other participants and to the hearing committee or special master. In such notice and application to take evidence by deposition, the participant desiring to take the deposition shall state the name and post office address of the witness, the subject matter concerning which the witness is expected to testify, the time and place of taking the deposition, the name and post office address of the notarial officer before whom it is desired that the deposition be taken, and the reason why such deposition should be taken. The other participants may, within the time stated in this section, make any appropriate response to such notice and application.
Source The provisions of this § 91.12 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial pages (144020) and (136811).
§ 91.13. Authorization of taking deposition.
If an application for the taking of a deposition so warrants, the hearing committee or special master will issue and serve, within a reasonable time in advance of the time fixed for taking testimony, upon the participants an authorization on Form DB-17 (Authorization to Take Deposition) naming the witness whose deposition is to be taken, and the time, place and notarial officer before whom the witness is to testify, but such time, place and notarial officer so specified may or may not be the same as those named in the Form DB-16. (Notice of Deposition).
Source The provisions of this § 91.13 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (136811).
§ 91.14. Officer before whom deposition is taken.
(a) Within the United States. Depositions may be taken before the hearing committee or special master, any notary public or any other person authorized to administer oaths not being counsel for any of the participants, or interested in the proceeding or investigation, according to such designation as may be made in the Form DB-17 (Authorization to take Deposition).
(b) In foreign countries. Where such deposition is taken in a foreign country, it may be taken before a secretary of an embassy or legation, consul general, consul, vice consul or consular agent of the United States, or before such person or officer as may be designated in the Form DB-17 or agreed upon by the participants by stipulation in writing filed with and approved by the hearing committee or special master.
Source The provisions of this § 91.14 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (136811).
§ 91.15. Oath and reduction to writing.
(a) General rule. Every person whose testimony is taken by deposition shall be sworn, or shall affirm concerning the matter about which such person shall testify, before any questions are put or testimony given. The testimony shall be reduced to writing by, or under the direction of, the notarial officer. When the testimony is fully transcribed the deposition shall be submitted to the witness for inspection and signing and shall be read to or by the witness and shall be signed by the witness, unless the inspection, reading and signing are waived by the witness and by all participants who attended the taking of the deposition, or the witness is ill or cannot be found or refuses to sign. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the notarial officer with a statement of the reasons given by the witness for making the changes. If the deposition is not signed by the witness, the notarial officer shall certify it in the usual form and state on the record the fact of the waiver or of the illness or absence of the witness or the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless the hearing committee, special master or the Board holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(b) Transmission. Unless otherwise directed in the Form DB-17 (Authorization to take Deposition), after the deposition has been certified, it shall, together with the number of copies specified in the authorization, the copies being made by, or under the direction of, such notarial officer, be forwarded by such notarial officer in a sealed envelope addressed to the Executive Office at the address set forth in § 85.6 (relating to location of Executive Office), with sufficient stamps for postage affixed. Upon receipt thereof, the Board Prothonotary shall file the original in the proceeding and shall forward a copy to each participant and to each member of the hearing committee or the special master conducting the proceeding.
Source The provisions of this § 91.15 amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009; amended June 11, 1993, effective immediately, 23 Pa.B. 2729; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552. Immediately preceding text appears at serial page (363173).
§ 91.16. Scope and conduct of examination.
Unless otherwise directed in the Form DB-17 (Authorization to take Deposition), the deponent may be examined regarding any matter not privileged which is relevant to the subject matter of the proceedings. Participants shall have the right of cross-examination, objection and exception. In making objections to questions or evidence, the grounds relied upon shall be stated briefly, but no transcript filed by the notarial officer shall include argument or debate. Objections to questions or evidence shall be noted by the notarial officer upon the deposition, but the notarial officer shall not have the power to decide on the competency of a witness or the relevancy or materiality of evidence. Objections to the competency of a witness or to the relevancy, or materiality of the testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which was known to the objecting party and which might have been obviated or removed if made at that time.
§ 91.17. Status of deposition as part of record.
No part of a deposition shall constitute a part of the record in the proceeding, unless offered in evidence before the hearing committee or special master. At the hearing, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any participant who was present or represented at the taking of the deposition or who had notice thereof. If only part of a deposition is offered in evidence by a participant, a participant with an adverse interest may require the offering participant to introduce any other part which ought in fairness to be considered with the part introduced, and any participant may introduce any other parts. The introduction in evidence of the deposition or any part thereof for any purpose other than contradicting or impeaching the deponent, makes the deponent the witness of the party introducing the deposition.
Source The provisions of this § 91.17 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial pages (136812) to (136813).
§ 91.18. Fees of officers and deponents.
Deponents whose depositions are taken and the notarial officers taking such depositions shall be entitled to the same fees as are paid for like services in the courts of common pleas, which fees shall be paid by the participant at whose instance the depositions are taken.
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