204 Pa. Code r. 83.208 - Procedure
(a)
Informal proceedings.
(1)
All investigations, whether upon complaint or otherwise, shall be initiated and
conducted by Disciplinary Counsel.
(2) Upon the conclusion of an investigation,
Disciplinary Counsel may dismiss the complaint as frivolous, as falling outside
the jurisdiction of the Board, or on the basis of Board policy or prosecutorial
discretion. Disciplinary Counsel may recommend:
(i) Dismissal of the complaint.
(ii) A conditional or unconditional informal
admonition of the attorney concerned.
(iii) A conditional or unconditional private
reprimand by the Board of the attorney concerned.
(iv) A conditional or unconditional public
reprimand by the Board of the attorney concerned.
(v) The prosecution of formal charges before
a hearing committee or special master.
(3) Except where Disciplinary Counsel
dismisses the complaint as frivolous, as falling outside the jurisdiction of
the Board, or on the basis of Board policy or prosecutorial discretion, the
recommended disposition shall be reviewed by a member of a hearing committee in
the appropriate disciplinary district who may approve or modify.
(4) Disciplinary Counsel may appeal the
recommended disposition directed by a hearing committee member to a reviewing
panel composed of three members of the Board which shall order that the matter
be concluded by dismissal, conditional or unconditional informal admonition,
conditional or unconditional private reprimand, or conditional or unconditional
public reprimand, or direct that a formal proceeding be instituted before a
hearing committee or special master in the appropriate disciplinary
district.
(5) A recommendation by a
reviewing hearing committee member for a conditional or unconditional private
or public reprimand shall be reviewed by a panel composed of three members of
the Board who may approve or modify.
(6) In cases where no formal proceeding has
been conducted, a respondent-attorney shall not be entitled to appeal an
informal admonition, a private reprimand, a public reprimand, or any conditions
attached thereto, but may demand as of right that a formal proceeding be
instituted against such attorney in the appropriate disciplinary district. In
the event of such demand, the respondent-attorney need not appear for the
administration of the informal admonition, private reprimand, or public
reprimand, and the matter shall be disposed of in the same manner as any other
formal proceeding, but any expenses of the proceeding taxed against the
respondent-attorney shall be paid as required by paragraph (g)(2) of this
rule.
(b)
Formal
hearing. Formal disciplinary proceedings before a hearing committee or
special master shall be as follows:
(1)
Proceedings shall be instituted by filing with the Board a petition setting
forth with specificity the charges of misconduct.
(2) A copy of the petition containing a
notice to plead shall be personally served upon the
respondent-attorney.
(3) Within 20
days after such service, the respondent-attorney shall serve an answer upon
Disciplinary Counsel and file the original thereof with the Board. In the event
the respondent-attorney fails to file an answer, the charges shall be deemed at
issue. Any factual allegation that is not timely answered shall be deemed
admitted.
(4) Following the service
of the answer, if there are any issues raised by the pleadings or if the
respondent-attorney requests the opportunity to be heard in mitigation, the
matter shall be assigned to a hearing committee or a special master. No
evidence with respect to factual allegations of the complaint that have been
deemed or expressly admitted may be presented at any hearing on the matter,
absent good cause shown.
(5) The
Board shall serve a notice of hearing upon the respondent-attorney, or upon
counsel for such attorney, indicating the date and place of the hearing at
least 15 days in advance thereof. The notice of hearing shall state that the
respondent-attorney is entitled to be represented by counsel, to cross-examine
witnesses and to present evidence in the attorney's own
behalf.
(c)
Prehearing and hearing procedures. The procedure in formal
proceedings before hearing committees and special masters shall be governed by
Board rules, the Enforcement Rules, and the decisional law of the Court and the
Board in attorney discipline and reinstatement matters. Unless waived in the
manner provided by the Board Rules, at the conclusion of the hearing the
hearing committee or special master shall submit a report to the Board
containing the findings and recommendations of the hearing committee or special
master.
(d)
Review and
action by Board.
(1) The procedure
in formal proceedings before the Board shall be governed by Board rules, the
Enforcement Rules, and the decisional law of the Court and the Board in
attorney discipline and reinstatement matters. Unless waived in the manner
provided by the Board Rules, 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.
Members of the Board who have participated on a reviewing panel under paragraph
(a)(4) or (5) of this rule shall not participate in further consideration of
the same matter or decision thereof on the merits under this subdivision
(d).
(2) The Board shall either
affirm or change in writing the recommendation of the hearing committee or
special master by taking the following action, as appropriate, within 60 days
after the adjudication of the matter at a meeting of the Board;
(i)
Dismissal. In the event
that the Board determines that a proceeding should be dismissed, it shall so
notify the respondent-attorney.
(ii)
Informal admonition, private
reprimand, or public reprimand. 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 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 Pa.R.D.E. 205(c)(9), for the purpose of
receiving private reprimand or public reprimand.
(iii)
Other discipline. 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. A respondent-attorney who is unwilling
to have the matter concluded by an informal admonition, private reprimand, or
public reprimand must file within thirty (30) days after notice of the
determination of the Board, a notice of appeal. 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.
(3) [Rescinded].
(e)
Review and action in the Supreme
Court.
(1) Service of the findings
and recommendations of the Board upon the respondent-attorney shall be governed
by Rules 121 and 122 of the Pennsylvania Rules of Appellate Procedure. See Rule
104 (relating to filings with the Supreme Court).
(2) In the event the Board recommends that
the matter should be concluded by disbarment, the respondent-attorney may,
within twenty (20) days after service of the findings and recommendations of
the Board under paragraph (1) of this subdivision, submit to the Supreme Court
a request to present oral argument.
(3) In the event the Board recommends a
sanction less than disbarment, and the Court, after consideration of said
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, the same shall
be issued. A copy of said rule is to be served on Disciplinary Counsel. Within
twenty (20) days after service of the rule either party may submit to the
Supreme Court a response thereto. Within ten (10) days after service of a
response, the other party may submit to the Supreme Court a reply thereto.
Respondent-attorney in such case shall have the absolute right upon request for
oral argument.
(4) Except as
provided in (e)(2) and (e)(3), respondent-attorney will not be afforded the
right of oral argument.
(5) The
Supreme Court shall review the record, where appropriate consider oral
argument, and enter an order.
(f)
Emergency temporary suspension
orders and related relief.
(1)
Disciplinary Counsel, with the concurrence of a reviewing member of the Board,
whenever it appears by an affidavit demonstrating facts that the continued
practice of law by a person subject to these rules is causing immediate and
substantial public or private harm because of the misappropriation of funds by
such person to his or her own use, or because of other egregious conduct, in
manifest violation of the Disciplinary Rules or the Enforcement Rules, may
petition the Supreme Court for injunctive or other appropriate relief. A copy
of the petition shall be personally served upon the respondent attorney by
Disciplinary Counsel. If Disciplinary Counsel cannot make personal service
after reasonable efforts to locate and serve the respondent-attorney,
Disciplinary Counsel may serve the petition 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 of the petition by regular and certified mail addressed to the
addresses furnished by the respondent-attorney in the last registration form
filed by the respondent-attorney pursuant to enforcement Rule 219(c). Service
is complete upon delivery or mailing, as the case may be. The Court, or any
justice thereof, may enter a rule directing the respondent-attorney to show
cause why the respondent-attorney should not be placed on temporary suspension,
which rule shall be returnable within ten days. The Court, or any justice
thereof, may, before or after issuance of the rule, issue:
(i) such orders to the respondent-attorney,
and to such financial institutions or other persons as may be necessary to
preserve funds, securities or other valuable property of clients or others
which appear to have been misappropriated or mishandled in manifest violation
of the Disciplinary Rules; and
(ii)
an order directing the president judge of the court of common pleas in the
judicial district where the respondent-attorney maintains his or her principal
office for the practice of law or conducts his or her primary practice, to take
such further action and to issue such further orders as may appear necessary to
fully protect the rights and interests of the clients of the respondent
attorney when:
(A) the respondent-attorney
does not respond to a rule to show cause issued after service of the petition
pursuant to subdivision (f)(1); or
(B) Disciplinary Counsel's petition
demonstrates cause to believe that the respondent-attorney is unavailable to
protect the interests of his or her clients for any reason, including the
respondent-attorney's disappearance, abandonment of practice, incarceration, or
incapacitation from continuing the practice of law by reason of mental
infirmity or illness or because of addiction to drugs or intoxicants.
Where the Court enters an order under (f)(1)(ii), the Board shall promptly transmit a certified copy of the order to the president judge, whose jurisdiction and authority under this rule shall extend to all client matters of the respondent-attorney.
Where the Court enters an order under (f)(1)(i) or (ii) before the issuance of a rule or before the entry of an order of temporary suspension under paragraph (f)(2), the Court Prothonotary shall serve a certified copy of the Court's order on the respondent-attorney by regular mail addressed to the address furnished by the respondent attorney in the last registration form filed by the respondent-attorney and to an address where the respondent-attorney is located if that address is known.
(2) If a rule to show cause has been issued
under paragraph (1), and the period for response has passed without a response
having been filed, or after consideration of any response, the Court may enter
an order requiring temporary suspension of the practice of law by the
respondent-attorney pending further definitive action under these
rules.
(3) Any order of temporary
suspension which restricts the respondent-attorney from maintaining an attorney
or other trust account shall, when served on any bank or other financial
institution maintaining an account against which the respondent-attorney may
make withdrawals, serve as an injunction to prevent the financial institution
from making further payment from the account on any obligation except in
accordance with restrictions imposed by the Court. Any order of temporary
suspension issued under this rule shall preclude the respondent-attorney from
accepting any new cases or other client matters, but shall not preclude the
respondent-attorney from continuing to represent existing clients on existing
matters during the 30 days following entry of the order of temporary
suspension. Such order may also provide that any fees or portion thereof
tendered to the respondent-attorney during such 30-day period shall be
deposited into a trust fund from which withdrawals may be made only in
accordance with restrictions imposed by the Court.
(4) The respondent-attorney may at any time
petition the Court for dissolution or amendment of an order of temporary
suspension. A copy of the petition shall be served upon Disciplinary Counsel
and the Board. A hearing on the petition before a member of the Board
designated by the Chair of the Board shall be held within ten business days
after service of the petition on the Board. The designated Board member shall
hear the petition and submit a transcript of the hearing and a recommendation
to the Court within five business days after the conclusion of the hearing.
Upon receipt of the recommendation of the designated Board member and the
record relating thereto, the Court shall dissolve or modify its order, if
appropriate.
(5) The Board on its
own motion, or upon the petition of Disciplinary Counsel, may issue a rule to
show cause why the respondent-attorney should not be placed on temporary
suspension whenever it appears that the respondent-attorney has disregarded an
applicable provision of the Enforcement Rules, failed to maintain or produce
the records required to be maintained and produced under Pa.R.P.C. 1.15(c) and
subdivisions (e) and (g) of Enforcement Rule 221 in response to a request or
demand authorized by Enforcement Rule 221(g) or any provision of the
Disciplinary Board Rules, failed to comply with a valid subpoena, or engaged in
other conduct that in any such instance materially delays or obstructs the
conduct of a proceeding under these rules. The rule to show cause shall be
returnable within ten days. If the response to the rule to show cause raises
issues of fact, the Board Chair may direct that a hearing be held before a
member of the Board who shall submit a report to the Board upon the conclusion
of the hearing. If the period for response to the rule to show cause has passed
without a response having been filed, or after consideration of any response
and any report of a Board member following a hearing under this paragraph, the
Board may recommend to the Supreme Court that the respondent-attorney be placed
on temporary suspension. The recommendation of the Board shall be reviewed by
the Supreme Court as provided in subdivision (e) of this rule, although the
time for either party to file with the Court a petition for review of the
recommendation or determination of the Board shall be fourteen days after the
entry of the Board's recommendation or determination, and any answer or
responsive pleading shall be filed within ten days after service of the
petition for review.
(6) A
respondent-attorney who has been temporarily suspended pursuant to this rule
for conduct described in paragraph (1), or pursuant to the procedures of
paragraph (5) where a formal proceeding has not yet been commenced shall have
the right to request an accelerated disposition of the charges which form the
basis for the temporary suspension by filing a notice with the Board and
Disciplinary Counsel requesting accelerated disposition. Within 30 days after
filing of such a notice, Disciplinary Counsel shall file a petition for
discipline under subdivision (b) of this rule and the matter shall be assigned
to a hearing committee for accelerated disposition. Thereafter the matter shall
proceed and be concluded by the hearing committee, the Board and the Court
without appreciable delay. If a petition for discipline is not timely filed
under this paragraph, the order of temporary suspension shall be automatically
dissolved, but without prejudice to any pending or further proceedings under
this rule.
(7) A proceeding
involving a respondent-attorney who has been temporarily suspended pursuant to
this rule at a time when a formal proceeding has already been commenced shall
proceed and be concluded without appreciable delay.
(8) Where a respondent-attorney has been
temporarily suspended pursuant to paragraph (1) or paragraph (5) and more than
two years have passed without the commencement of a formal proceeding, and it
appears by an affidavit demonstrating facts that:
(i) the respondent-attorney has not complied
with conditions imposed in the order of temporary suspension or with the
requirements of Enforcement Rule 217;
(ii) the order of temporary suspension was
based, in whole or in part, on the respondent-attorney's failure to provide
information or records, and the respondent-attorney has not provided the
information or records, or otherwise cured the deficiency;
(iii) the respondent-attorney has engaged in
postsuspension conduct, by act or omission, that materially delays or obstructs
Disciplinary Counsel's ability to fully investigate allegations of misconduct
against the respondent-attorney;
(iv) the respondent-attorney's whereabouts
are unknown, in that despite reasonably diligent efforts, Disciplinary Counsel
has not been able to contact or locate the respondent-attorney for information
or to serve notices or other process at the address provided by the
respondent-attorney in the verified statement required by Enforcement Rule
217(e)(1) or at any other known addresses that might be current;
(v) a conservatorship of the affairs of the
respondent-attorney has been appointed pursuant to Enforcement Rule 321;
or
(vi) the respondent-attorney has
not participated in proceedings before the Pennsylvania Lawyers Fund for Client
Security in which an adjudicated claim has resulted in an award, Disciplinary
Counsel may petition the Court for the issuance of a rule to show cause why an
order of disbarment should not be entered. The provisions of paragraph (1)
apply to service of the petition upon the respondent-attorney by Disciplinary
Counsel. Upon the filing by Disciplinary Counsel of an affidavit establishing
compliance with the service requirements of paragraph (1), the Court may enter
a rule directing the respondent-attorney to show cause why the
respondent-attorney should not be disbarred, which rule shall be returnable
within thirty days. The respondent-attorney shall serve a copy of any response
on Disciplinary Counsel, who shall have fourteen days after receipt to file a
reply.
(9) If a rule to
show cause has been issued under paragraph (8), and the period for response has
passed without a response having been filed, or after consideration of any
responses, the Court may enter an order disbarring the respondent-attorney from
the practice of law, discharging the rule to show cause, or directing such
other action as the Court deems appropriate.
(g)
Costs and fees.-
(1) 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 taxed
under this paragraph 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 this paragraph shall be paid by the
respondent-attorney within 30 days of entry of the order taxing the expenses
against the respondent-attorney.
(2) 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. All
expenses taxed by the Board under this paragraph shall be paid by the
respondent-attorney within 30 days of entry of the order taxing the expenses
against the respondent-attorney. The expenses which shall be taxable under this
paragraph shall be prescribed by Board rules.
(3) In addition to the payment of any
expenses under paragraph (1) or (2), the respondent-attorney shall pay upon
assessment an administrative fee pursuant to the following schedule:
Informal Admonition: $250
Private Reprimand: $400
Public Reprimand: $500
Public Censure: $750
Suspension (1 year or less): $1,000
Suspension (more than 1 year): $1,500
Disbarment: $2,000
Disbarment on Consent: $1,000
Disability Inactive under Rule 301(e): $500
(i) Where a disciplinary proceeding concludes
by Joint Petition for Discipline on Consent other than disbarment prior to the
commencement of the hearing, the fee imposed shall be reduced by 50%.
(ii) Where a disciplinary proceeding
concludes by Joint Petition for Discipline on Consent other than disbarment
subsequent to the commencement of the hearing, the Board in its discretion may
reduce the fee by no more than 50%.
(4) Failure to pay taxed expenses and
administrative fees within 30 days after the date of the entry of the order
taxing such expenses in cases other than a suspension that is not stayed in its
entirety or disbarment will be deemed a request to be administratively
suspended pursuant to Enforcement Rule 219(g)(3).
(5)
Assessed Penalties on Unpaid
Taxed Expenses and Administrative Fees.
(i) Failure to pay taxed expenses within
thirty days of the assessment becoming final in accordance with subdivisions
(g)(1) or (g)(2), or failure to pay administrative fees assessed in accordance
with subdivision (g)(3) within thirty days of notice transmitted to the
respondent-attorney, shall result in the assessment of a penalty, levied
monthly at the rate of 0.8% of the unpaid principal balance, or such other rate
as established by the Supreme Court of Pennsylvania, from time to
time.
(ii) Monthly penalties shall
not be retroactively assessed against unpaid balances existing prior to the
enactment of the rule; monthly penalties shall be assessed against these unpaid
balances prospectively, starting 30 days after the effective date of the
rule.
(iii) The Disciplinary Board
for good cause shown, may reduce the penalty or waive it in its entirety.
Note: The Board shall charge a collection fee for any payment that has been returned to the Board unpaid.
(h)
Violation of probation.
Where it appears that a respondent-attorney who has been placed on probation
has violated the terms of the probation, Disciplinary Counsel may file a
petition with the Board detailing the violation and suggesting appropriate
modification of the order imposing the probation, including without limitation
immediate suspension of the respondent-attorney. A hearing on the petition
shall be held within ten business days before a member of the Board designated
by the Board Chair. If the designated Board member finds that the order
imposing probation should be modified, the following procedures shall apply:
(1) If the order imposing probation was
entered by the Supreme Court, the designated Board member shall submit a
transcript of the hearing and a recommendation to the Supreme Court within five
business days after the conclusion of the hearing. A copy of the transcript and
recommendation shall be personally served upon the respondent-attorney. The
Court, or any justice thereof, may enter a rule directing the
respondent-attorney to show cause why the order imposing probation should not
be modified as set forth in the petition, which rule shall be returnable within
ten business days. If the period for response has passed without a response
having been filed, or after consideration of any response, the Court may enter
an order modifying as appropriate the order imposing probation.
(2) If the order imposing probation was
entered by the Board, the designated Board member shall submit a transcript of
the hearing and a recommendation to the Board within five business days after
the conclusion of the hearing. A copy of the transcript and recommendation
shall be personally served upon the respondent-attorney along with a notice
that the respondent-attorney may file a response to the recommendation with the
Board within ten business days. If the period for response has passed without a
response having been filed, or after consideration of any response, the Board
may enter an order modifying as appropriate the probation previously ordered or
directing the commencement of a formal proceeding under this Rule.
(i)
Continuances.
All formal proceedings under this rule shall be conducted as expeditiously as
possible. Ordinarily the engagement of a member of the Board or the assigned
hearing committee, a special master or counsel for a respondent-attorney will
be recognized as a basis for continuance of a formal proceeding or meeting of
the board only where such member or counsel is actually engaged before an
appellate court of this Commonwealth or a court of the United States.
Engagement of a member of the Board or the assigned hearing committee, a
special master or counsel for a respondent-attorney 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.
Notes
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