204 Pa. Code r. 83.213 - Subpoena power, depositions and related matters
(a)
General rule.
(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. The respondent-attorney shall have the right, upon request and
payment of appropriate duplicating costs, to receive copies of the records
produced.
(b)
Procedure. Subpoenas authorized by subdivision (a) 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. On the same day that the statement is filed with the
Court Prothonotary, the party seeking the subpoena shall send by certified mail
a copy of the statement to either Disciplinary Counsel or the
respondent-attorney as the case may be. Upon the filing of the statement, the
Court Prothonotary shall forthwith issue the subpoena and it shall be served in
the regular way. A subpoena issued pursuant to subdivision (a)(2) shall not be
returnable until at least ten days after the date of its issuance.
(c)
Confidentiality. A
subpoena issued under this rule shall clearly indicate on its face that the
subpoena is issued in connection with a confidential investigation under these
rules, and that it is regarded as contempt of the Supreme Court or grounds for
discipline under these rules for a person subpoenaed to in any way breach the
confidentiality of the investigation. It shall not be regarded as a breach of
confidentiality for a person subpoenaed to consult with an attorney. The
subpoena and deposition procedures of these rules shall be subject to the
protective requirements of confidentiality provided in Rule 402 (relating to
access to disciplinary information and confidentiality).
(d)
Challenges; appeal of challenges
to subpoena. Any attack on the validity of a subpoena issued under
this rule shall be handled as follows:
(1) A
challenge to a subpoena authorized by subdivision (a)(1) 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.
See D.Bd. Rules §
91.3(b)
(relating to procedure).
(2) A
challenge to a subpoena authorized by subdivision (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. See D.Bd. Rules §
91.3(b)
(relating to procedure).
(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 D.Bd. Rules §§
89.21 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.
(e)
Examination under oath. Witnesses before hearing committees or
special masters shall be examined under oath or affirmation.
(f)
Depositions. 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. A complete record of the testimony so taken
shall be made and preserved.
(g)
Enforcement of subpoenas.
(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
subdivision (d)(1) or (2), 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
Pa.R.P.C. 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 Enforcement Rule 208(f)(5) (relating to emergency temporary
suspension orders and related relief).
(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.
(h)
Exclusivity. Any rule of the Supreme Court or any statute
providing for discovery shall not be applicable in a proceeding under these
rules, which proceeding shall be governed by these rules alone.
(i)
Foreign proceedings. 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. 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 these rules. 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. Any order to testify or to produce
documents or other things issued as prescribed in this subdivision 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.
Notes
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