Disciplinary Board Rules and Procedures

Subject to additional definitions contained in subsequent provisions of this subpart which are applicable to specific chapters, subchapters or other provisions of this subpart, the following words and phrases, when used in the subpart shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:

Absent attorney -- An attorney or formerly admitted attorney for whom a conservator has been sought or appointed under the Enforcement Rules.

Administrative Office -- The Administrative Office of Pennsylvania Courts.

Administrative suspension -- Status of an attorney, after Court order, who: failed to pay the annual fee and/or file the form required by subdivisions (a) and (d) of Enforcement Rule 219; was reported to the Court by the Pennsylvania Continuing Legal Education Board under Rule 111(b), Pa.R.C.L.E., for having failed to satisfy the requirements of the Pennsylvania Rules for Continuing Legal Education; failed to pay any expenses taxed pursuant to Enforcement Rule 208(g); or failed to meet the requirements for maintaining a limited law license as a Limited In-House Corporate Counsel, a foreign legal consultant, an attorney participant in defender or legal services programs, a military attorney, or attorney spouse of an active-duty service member.

Attorney -- Includes any person subject to these rules.

Attorney Registration Office -- The administrative division of the Disciplinary Board which governs the annual registration of every attorney admitted to, or engaging in, the practice of law in this Commonwealth, with the exception of attorneys admitted to practice pro hac vice under Pa.B.A.R. 301.

Attorney participant in defender or legal services programs -- An attorney holding a limited admission to practice under Pennsylvania Bar Admission Rule 311 (relating to limited admission of participants in defender or legal services programs).

Attorney spouse of an active-duty service member -- An attorney holding a limited admission to practice under Pennsylvania Bar Admission Rule 304 (relating to limited admission of spouses of active-duty members of the United States Uniformed Services).

Board -- The Disciplinary Board of the Supreme Court of Pennsylvania.

Board Chair -- The Chair of the Disciplinary Board of the Supreme Court of Pennsylvania.

Board Prothonotary -- The Prothonotary of the Disciplinary Board.

Board Rule -- Any provision of this Subpart.

Censure -- Public censure by the Supreme Court.

Chief Disciplinary Counsel -- The Chief Disciplinary Counsel appointed by the Board or, in the absence of such Chief Disciplinary Counsel, the Disciplinary Counsel designated by the Chief Disciplinary Counsel to serve in his absence. In the case of vacancy in office, absence or inability of such Chief Disciplinary Counsel, the Disciplinary Counsel designated by the Board.

Complaint -- A grievance concerning an attorney communicated to the Office of Disciplinary Counsel or considered by the Office of Disciplinary Counsel on its own motion.

Conservator -- A conservator appointed under § 91.121 (relating to appointment of conservator to protect interests of clients of absent attorney).

Court -- The Supreme Court of Pennsylvania.

Court Prothonotary -- The Prothonotary of the Supreme Court of Pennsylvania.

Disciplinary Counsel -- The Chief Disciplinary Counsel and Disciplinary Counsel within the Office of Disciplinary Counsel.

Disciplinary District -- One of four districts into which this Commonwealth is divided for disciplinary purposes as set forth in § 93.1 (relating to disciplinary districts).

Disciplinary Rule -- The provisions of the Code of Professional Responsibility, as adopted by the Supreme Court of Pennsylvania on May 20, 1970, 438 Pa. xxv, as amended from time to time by special order of the Court and governing lawyer conduct occurring or beginning on or before March 31, 1988, as well as the provisions of the Rules of Professional Conduct, as adopted by the Supreme Court of Pennsylvania on October 16, 1987, Pa. , and effective on April 1, 1988, as amended from time to time by special order. See Chapter 81 (relating to Rules of Professional Conduct).

Enforcement Rule -- Any provision of Chapter 83 (relating to Rules of Disciplinary Enforcement).

Executive Office -- The Office of the Disciplinary Board established by § 93.51 (relating to Executive Office), referred herein as the "Executive Office."

Experienced hearing committee member -- An attorney who at the time is a member of the panel of hearing committee members in a disciplinary district and who has served on at lease one hearing committee that has conducted a hearing into formal charges of misconduct by a respondent-attorney.

Foreign legal consultant -- A person who holds a current license as a foreign legal consultant issued under Pennsylvania Bar Admission Rule 341 (relating to licensing of foreign legal consultants).

Formal Proceedings -- Proceedings that commence with the filing of a petition for discipline.  A formal proceeding does not include any of the submissions or documents generated during an informal proceeding unless they are made part of the record at the formal proceeding by motion, by stipulation, or by admission as an exhibit during a hearing.  Pursuant to Enforcement Rule 402(a), formal proceedings are open to the public, except as provided in Enforcement Rules 402(b) and 402(k).

Formerly admitted attorney -- A disbarred, suspended, administratively suspended, permanently resigned, retired or inactive attorney.

Grievance -- Alleged misconduct.

Hearing Committee -- A hearing committee designated under § 93.81 (relating to hearing committees).

Informal Admonition -- Private informal admonition by Disciplinary Counsel.

Informal Proceedings -- Proceedings that commence with the submission of a complaint to the Office of Disciplinary Counsel or an investigation initiated by the Office of Disciplinary Counsel.  An informal proceeding includes all proceedings up to the filing of a petition for discipline. Informal proceedings are not open to the public.

Inquiry -- Information concerning an attorney communicated to the Office of Disciplinary Counsel which does not amount to a complaint.

Investigation -- Fact finding under the direction of the Office of Disciplinary Counsel with respect to alleged misconduct or to reinstatement.

Investigator -- Any person designated by the Office of Disciplinary Counsel to assist it in investigation of alleged misconduct or of reinstatement.

IOLTA Account -- An IOLTA Account as defined in Rule 1.15(d)(3) of the Pennsylvania Rules of Professional Conduct.

Legal Counsel -- Counsel to the Board and Special Counsel.

Limited In-House Corporate Counsel License -- A license issued under Pennsylvania Bar Admission Rule 302 (relating to limited in-house corporate counsel license).

Military attorney -- An attorney holding a limited admission to practice under Pennsylvania Bar Admission Rule 303 (relating to limited admission of military attorneys).

Notarial officer -- An officer authorized under § 91.14 (relating to officer before whom deposition is taken) to take depositions for use before a hearing committee.

Office of Disciplinary Counsel -- The Office of Disciplinary Counsel established in § 93.61 (relating to Office of Disciplinary Counsel).

Participant -- The respondent-attorney, any other person admitted by the Board to limited participation in a proceeding, and staff counsel.

Petition -- A formal pleading filed by the Office of Disciplinary Counsel with the Board requesting action by the Board under the Disciplinary Rules, and Enforcement Rules or these rules.

Petitioner-attorney -- Includes any person subject to these rules who has filed a petition for reinstatement to the practice of law.

Practice of law -- Includes the provision of legal services as a foreign legal consultant, military attorney, attorney spouse of an active-duty service member, attorney participant in defender or legal services programs, or pursuant to a Limited In-House Corporate Counsel License.

Private reprimand -- Private reprimand by the Board.

Proof of service -- A certificate of service complying with § 89.26 (relating to form of certificate of service).

Public Reprimand -- Public reprimand by the Board.

Respondent-attorney -- Includes any person subject to the Enforcement Rules (See § 85.3(a) (relating to jurisdiction)).

Reviewing hearing committee member -- A hearing committee member designated under these rules to review the disposition of a complaint recommended by the Office of Disciplinary Counsel.

Rules -- The provisions of this subpart.

Senior hearing committee member -- An attorney who at the time is a member of the panel of hearing committee members in a disciplinary district and who has served either (i) as a member of the Board, or (ii) a full three-year term on a panel of hearing committee members and on at least two hearing committees that have conducted at least two hearings into formal charges of misconduct by respondent-attorneys.

Special Master -- Assigned under § 93.91 (relating to special masters) includes former Board members, former or retired justices or judges not on senior status, Special Counsel, and former senior hearing committee members.

Staff Counsel -- The attorneys constituting the Office of Disciplinary Counsel and, where appropriate, the attorney or attorneys of the Office of Disciplinary Counsel who are assigned to a particular investigation or proceeding.

Verified Statement -- A document with the Board or Court under the Enforcement Rules or these rules containing statements of fact and a statement by the signatory that is made subject to the penalties of Pa.C.S. § 4904 (relating to unsworn falsification to authorities).

Number; tense. -- In these rules the singular shall include the plural, and the plural, the singular; and words used in the past or present tense shall include the future.

General rule. Enforcement Rule 201(a) provides that the exclusive disciplinary jurisdiction of the Supreme Court and the Board under the Enforcement Rules extends to:

Exceptions. Enforcement Rule 201(b) provides that nothing contained in the Enforcement Rules shall be construed to deny to any other court such powers as are necessary for that court to maintain control over proceedings conducted before it, such as the power of contempt, nor to prohibit bar associations from censuring, suspending or expelling their members from membership in the association.

Chief Disciplinary Counsel. The location of the headquarters of the Office of Disciplinary Counsel and the office of the Chief Disciplinary Counsel is:

Office of Disciplinary Counsel

The Disciplinary Board of the Supreme Court of Pennsylvania

Pennsylvania Judicial Center

601 Commonwealth Avenue, Suite 2700

PO Box 62485

Harrisburg, PA 17106-2485

(717-783-0990)

(fax: 717-783-4963)

Disciplinary District Offices. The present locations of the district offices of the Office of Disciplinary Counsel for each such disciplinary district are:

Enforcement Rule 203(a) provides that acts or omissions by a person subject to the Enforcement Rules, individually or in concert with any other person or persons, which violate the Disciplinary Rules shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship.

Enforcement Rule 203(b) provides that the following shall also be grounds for discipline:

Enforcement Rule 203(c) provides that the Board, its hearing committees, special masters and (when administering informal admonitions) Disciplinary Counsel are "tribunals" within the meaning of the Disciplinary Rules.

General rule. Enforcement Rule 204(a) provides that misconduct shall be grounds for any of the following:

Conditions attached to discipline. Enforcement Rule 204(b) provides that conditions may be attached to an informal admonition, private reprimand, or public reprimand and that failure to comply with such conditions shall be grounds for reconsideration of the matter and prosecution of formal charges against the respondent-attorney.

Limited In-House Corporate Counsel License. Enforcement Rule 204(c) provides that a reference in the Enforcement Rules and these rules to disbarment, suspension, temporary suspension, administrative suspension, permanent resignation, or transfer to or assumption of retired or inactive status shall be deemed to mean, in the case of a respondent-attorney who holds a Limited In-House Corporate Counsel License, expiration of that license; and that a respondent-attorney whose Limited In-House Corporate Counsel License expires for any reason:

Board personnel. Enforcement Rule 209(b) provides that members of the Board, members of hearing committees, special masters, Disciplinary Counsel and staff shall be immune from civil suit for any conduct in the course of their official duties; and that, for purposes of this subsection, the staff of the Board shall be deemed to include conservators and sobriety, financial or practice monitors appointed pursuant to these rules.

Other persons. Enforcement Rule 209(b) further provides that all communications to the Board, a hearing committee, special master, or Disciplinary Counsel relating to misconduct by a respondent-attorney and all testimony given in a proceeding conducted pursuant to these rules shall be absolutely privileged and the person making the communication or giving the testimony shall be immune from civil suit based upon such communication or testimony.

Note: The Note to Enforcement Rule 209 provides that the provisions of this rule recognize that the submission and receipt of complaints against attorneys, and the investigation, hearing decision and disposition of such complaints, are all parts of a judicial proceeding conducted pursuant to the inherent power of the Supreme Court. The immunity from civil suit recognized to exist in this rule is that which exists for all participants in judicial proceedings under Pennsylvania law, so long as their statements and actions are pertinent, material and during the regular course of a proceeding.

General rule. The Office of Disciplinary Counsel or the Board shall not entertain any complaint arising out of acts or omissions occurring more than four years prior to the date of the complaint, except as provided in subsection (b).

Exceptions. 

Litigation “becomes final” within the meaning of subsection (b)(2)(ii) at the conclusion of direct or collateral review, including discretionary review in the Supreme Court of the United States and the highest state court, or at the expiration of time for seeking the review.

Note:  Litigation resulting in a finding of civil fraud, ineffective assistance of counsel or prosecutorial misconduct is not a prerequisite to Office of Disciplinary Counsel’s or the Board’s entertaining a complaint involving one of those three forms of misconduct, and subsection (b)(2) should not be read to impose such a requirement.

General rule. Enforcement Rule 220(a) provides that a member of the Board or a hearing committee member or a special master shall withdraw from participating in a matter or proceeding where there is a substantial showing that the member or special master cannot participate in a fair and reasonable manner, including but not limited to instances where the member or special master:

Procedure for recusal. Enforcement Rule 220(b) provides that a motion to disqualify a member of the Board or a hearing committee member or a special master shall be made in accordance with these rules, but the making of such a motion shall not stay the conduct of the proceedings or disqualify the challenged member or special master pending disposition of the motion. The procedures applicable to a motion for recusal shall be as follows:

General rule. Enforcement Rule 104(a) provides that Rules 121 through 124 of the Pennsylvania Rules of Appellate Procedure shall be applicable to all filings with the Supreme Court under this Subpart.

Exception. Enforcement Rule 104(b) provides that, notwithstanding subsection (a), any express procedural requirement in this Subpart shall be controlling over the applicable provision of the Rules of Appellate Procedure.

Centralized filing. Enforcement Rule 104(c) provides that all filings with the Supreme Court under this Subpart shall be made only with the Court Prothonotary, and the person making a filing shall not distribute copies to the members of the Court.

At direction of Board. Upon the order of the Board (with the concurrence of at least five members of the Board), the Office of Disciplinary Counsel shall promptly undertake and complete an investigation of such conduct of any attorney or attorneys as may be specified in the order.

By the Office of Disciplinary Counsel on its own motion. Except as otherwise provided by § 87.4 (relating to preliminary screening and docketing of complaints) the Office of Disciplinary Counsel shall promptly undertake and complete an investigation of all matters involving alleged violations of the Disciplinary Rules called to its attention by written complaint filed pursuant to § 87.2 (relating to contents of complaint) and may timely undertake and complete an investigation of any other matters otherwise coming to the attention of such Office.

A written complaint may be in the form of a letter or other appropriate writing, or submitted on an official complaint form (Form DB-2). Complaints in paper form may be filed by mail, facsimile transmission, or delivery in person to the location identified in § 85.5(a) (relating to location of the Office of the Chief Disciplinary Counsel) or one of the locations identified in § 85.5(b) (relating to the locations of the Disciplinary District Offices).

The filing of complaints electronically shall be conducted only through electronic means approved by the Board.  Instructions for electronic filing and protocols shall be available on the Disciplinary Board’s website.  

A complaint shall be signed by the complainant and shall contain a statement of the facts upon which the complaint is based. Submission of a complaint through electronic means signifies intent to sign. Verification of the complaint shall not be required. If necessary the Office of Disciplinary Counsel will assist the complainant in reducing the grievance to writing.

Condition precedent to recommendation for discipline. Disciplinary Counsel shall not recommend or undertake a disposition of discipline under Enforcement Rule 204 (relating to types of discipline) until the respondent-attorney has been notified of the allegations and the time for response under subdivision (b)(2) of this rule, if applicable, has expired.

Transmission of notice. Except as provided in subsection (a) of this section, the district office shall prepare and forward to the respondent-attorney Form DB-7 (Request for Statement of Respondent's Position), advising the respondent-attorney of:

Contents of statement of position. All statements of position shall be in writing and sufficiently detailed as to advise Disciplinary Counsel and any reviewing hearing committee member that the Executive Office may appoint under § 87.32 (relating to action by reviewing hearing committee member) of the nature of any defense. The respondent-attorney should include with the statement any corroborating documentation and may include in the statement mitigating factors and any relevant facts or circumstances that may assist Disciplinary Counsel in determining under § 87.8(b) the action to be taken or the disposition recommended.

Effect of failure to respond.  Enforcement Rule 203(b)(7) provides that failure by a respondent-attorney without good cause to respond to a request (Form DB-7) or supplemental request (Form DB-7A) by Disciplinary Counsel for a statement of the respondent-attorney’s position shall be grounds for discipline. Failure to respond may also be a violation of Rule of Professional Conduct 8.1(b). 

Note: Except as provided in subsection (e) of this section, if Disciplinary Counsel’s request or supplemental request for a statement of position contains a separate request for production of records or documents (other than required records under Pa.R.P.C. 1.15(c) and § 91.177 of Chapter 91 Subchapter H of these Rules), the respondent-attorney’s nonproduction shall not be a basis for discipline under Enforcement Rule 203(b)(7) but may constitute evidence of non-cooperation with Disciplinary Counsel’s inquiry. Disciplinary Counsel may obtain a subpoena to compel production of the records and documents requested in the Form DB-7 or DB-7A, and the respondent-attorney’s wilful failure to comply with the subpoena would serve as a basis for discipline under RPC 8.4(d) and various provisions of the Enforcement Rules.

Duty to produce Pa.R.P.C. 1.15’s required records and time for production. Notwithstanding any other provision in this section, if Disciplinary Counsel requests records required to be maintained under Pa.R.P.C. 1.15(c), Enforcement Rule 221(e), and § 91.177(a) (all of which relate to required records) in a Form DB-7 (Request for Statement of Respondent’s Position) or Form DB-7A (Supplemental Request for Statement of Respondent’s Position), the respondent-attorney shall provide the records to Disciplinary Counsel within ten business days of receipt of the Form DB-7 or Form DB-7A, as the case may be, whether or not the respondent-attorney files the statement of position required to be filed under subsection (b) of this section. The Form DB-7 or Form DB-7A will be considered received for purposes of this subsection if: 1) personal service of the Form DB-7 or Form DB-7A on the respondent-attorney is accomplished; 2) a copy of the Form DB-7 or Form DB-7A is delivered to an employee, agent or other responsible person at the office of the respondent-attorney as determined by the address furnished by the respondent-attorney in the last registration statement filed by the respondent-attorney pursuant to Enforcement Rule 219(d) (relating to annual registration of attorneys); or 3) mailed by certified mail with return receipt requested to one or more of the addresses furnished by the respondent-attorney in the last registration statement and delivery is accepted as shown by electronic or paper return receipt containing the name or signature of the respondent-attorney or other person who accepted delivery. The time in which to produce the required records (ten business days) is separate from the time fixed for the filing of the respondent-attorney’s statement of position under paragraph (b)(2).

Effect of failure to produce Pa.R.P.C. 1.15’s required records. Enforcement Rule 221(g)(3) and § 91.179 of Chapter 91 Subchapter H of these Rules provide that failure to produce Pa.R.P.C. 1.15 records in response to a request or demand for such records may result in the initiation of proceedings pursuant to Enforcement Rule 208(f)(1) or (f)(5) (relating to emergency temporary suspension orders and related relief), the latter of which specifically permits Disciplinary Counsel to commence a proceeding for the temporary suspension of a respondent-attorney who fails to maintain or produce Pa.R.P.C. 1.15(c) records after receipt of a request or demand authorized by subdivision (g) of Enforcement Rule 221 or any provision of these Rules.

General rule. Enforcement Rule 208(a)(2) provides that 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:

District office procedure. Following completion of any investigation of the complaint and after consideration of any statement of position filed by the respondent-attorney pursuant to § 87.7 (relating to notification to respondent of complaint), the Disciplinary Counsel assigned to the district office shall promptly complete the appropriate form specified in subsection (c). The action taken or disposition recommended shall be one of the following:

Selection of form. Action under paragraphs (b)(1), (2), (3), (4) or (5) of this section may be recommended by the assigned Disciplinary Counsel and taken with the written concurrence of the Disciplinary Counsel-in-Charge, any other Disciplinary Counsel designated to serve in his or her absence or unavailability, the Chief Disciplinary Counsel, or an Disciplinary Counsel designated by the Chief Disciplinary Counsel to review such recommendations. In such cases the district office shall prepare and attach to the file Form DB-4 (Final Disposition of Complaint). In other cases where disposition under subsection (b)(1), (2), (3), (4) or (5) may be appropriate, the assigned Disciplinary Counsel shall prepare a Form DB-5 (Recommendation on Final Disposition of Complaint) and forward such form and the related file to Chief Disciplinary Counsel or his or her designee for review and action. In all other cases, Disciplinary Counsel shall prepare and attach to the file Form DB-3 (Referral of Complaint to Reviewing Hearing Committee Member).

Dismissal of the complaint. If the district office or Chief Disciplinary Counsel or his or her designee, determines that the complaint should be dismissed under § 87.8(b)(1), (2), (3), (4) or (5) (relating to district office action or recommendation), the Office of Disciplinary Counsel shall notify the complainant of such disposition by letter and close the file on the matter. Wherever possible, the Office of Disciplinary Counsel shall advise the complainant that he or she may bring the matter to the attention of the authorities of the appropriate jurisdiction, to another agency or jurisdiction that has disciplinary authority over the respondent-attorney, to any fee disputes committee which may have been established for the county involved, to a criminal prosecution agency, or to any other duly constituted body which may be able to provide forum for the consideration of the grievance. Where the respondent-attorney has been previously notified of the pendency of the complaint by means of Form DB-7 (Request for Statement of Respondent's Position) or otherwise, the Office of Disciplinary Counsel shall notify the respondent-attorney of the dismissal and may transmit a copy of the dismissal letter to the respondent-attorney.

Other cases. In all other cases the Office of Disciplinary Counsel shall forward to the Executive Office a request for the assignment of a Reviewing Hearing Committee Member.

Review of dismissed complaints. The Office of Disciplinary Counsel will review complaints dismissed under subsection (a) of this section upon request of the complainant. The request shall be in writing and submitted to the Disciplinary Counsel-in-Charge of the district office that dismissed the complaint. The request should specify the reason or reasons why Office of Disciplinary Counsel should reopen the investigation under § 87.6 and include any evidence that was not previously brought to the attention of Disciplinary Counsel. The Disciplinary Counsel-in-Charge or designated Disciplinary Counsel who concurred in the recommendation to dismiss the complaint pursuant to § 87.8(c) shall conduct the review and notify the complainant in writing of the decision to grant or deny the request. Where the request is denied by the Disciplinary Counsel-in-Charge, the complainant may direct a written request for further review to the Chief Disciplinary Counsel or his or her designee. The decision of the Chief Disciplinary Counsel or the designee shall be final for purposes of this subsection.

No right to appeal. A complainant shall have no right to appeal the dismissal or any other disposition of a complaint under § 87.8 (relating to district office action or recommendation) or a final decision under paragraph (c) of this subsection to deny a request to reopen the investigation.

INQUIRIES

General rule. Enforcement Rule 208(a)(3) provides that, except where the complaint is dismissed because the complaint is frivolous or falls outside the jurisdiction of the Board, the reviewing hearing committee member may approve or modify the recommendation of the Office of Disciplinary Counsel concerning the disposition of a complaint.

Approval.

Modification. If the reviewing hearing committee member determines to modify the recommendation of the Office of Disciplinary Counsel, the member shall set forth the determination on Form DB-3 (Referral of Complaint to Reviewing Hearing Committee Member) together with a brief statement of the reasons therefor. Such determination shall be one of the following:

Return of file. Upon making a determination, but in no event later than 48 hours after the expiration of the period set forth in subsection (b) of this section, the reviewing hearing committee member shall return the file to the originating district office of the Office of Disciplinary Counsel.

General rule. Enforcement Rule 208(a)(4) provides that Disciplinary Counsel may appeal the recommended disposition directed by a reviewing hearing committee member to a reviewing panel composed of three members of the Board. The appeal shall be set forth on Form DB-8 (Appeal from Determination of Reviewing Member), shall state briefly the grounds relied upon by the Office of Disciplinary Counsel for recommending modification of the determination of the reviewing hearing committee member. The appeal shall be filed with the Executive Office within 30 days after the determination of the reviewing hearing committee member has become effective. The preceding sentence is not applicable to a motion made by the Office of Disciplinary Counsel to dismiss formal charges, which motion may be made at any time.

Appeal administrative. The appeal under subsection (a) of this section shall be administrative and not adversary in nature. Copies of the appeal shall be available only to the Board and neither the respondent-attorney nor the reviewing hearing committee member shall be deemed a party to the appeal or have any right to be heard with respect thereto. See also § 93.103 (relating to identity of reviewing hearing committee member).

Action by Board. The Executive Office shall transmit the Form DB-8 and related file to a panel of three members of the Board designated by the Chair, who shall consider the appeal and, as provided by Enforcement Rule 208(a)(4), order that the matter be concluded by dismissal, conditional or unconditional informal admonition or 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.

Notice of Board action. The Executive Office shall return the Form DB-8 and related file, showing the action of the reviewing panel of the Board on the appeal, to the Office of Disciplinary Counsel and shall notify the reviewing hearing committee member of the action taken by the Board.

General rule. Enforcement Rule 208(a)(5) provides that 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.

Procedure. Where a recommendation by a reviewing hearing committee member for a conditional or unconditional private or public reprimand is not appealed by Disciplinary Counsel, the Executive Office shall transmit the file to a panel of three members of the Board designated by the Chair, who shall consider the matter and, as provided by Enforcement Rule 208(a)(5), approve or modify the recommendation for private or public reprimand.

Notice of Board action. The Executive Office shall return the file, showing the action of the reviewing panel of the Board, to the Office of Disciplinary Counsel and shall notify the reviewing hearing committee member of the action taken by the Board.

General rule. Upon completion of the procedures prescribed by Subchapter 87B (relating to review of recommended disposition of complaint), the Executive Office or the Office of Disciplinary Counsel, as appropriate, shall:

Contents of notice.

General rule. A respondent-attorney who is given notice of informal admonition pursuant to § 87.51 (relating to notification of disposition of complaint) and who does not timely demand the institution of a formal proceeding pursuant to § 87.54 (relating to demand by respondent-attorney for formal proceedings) shall appear in person before Disciplinary Counsel, at the time and place fixed for the administration of the informal admonition. A record (Form DB-38) (Record of Informal Admonition) shall be made of the fact of and basis for the informal admonition, which record shall be available only as provided in § 93.102(b)(2) (relating to exceptions).

Failure to appear. The neglect or refusal of the respondent-attorney to appear for the purpose of informal admonition without good cause shall (as provided by Enforcement Rule 203(b)(2)) constitute an independent act of professional misconduct and shall automatically result in the institution of formal proceedings relating to such act of misconduct and to the grievance upon which such informal admonition was to relate.

General rule relating to private reprimand. A respondent-attorney who is given notice of private reprimand pursuant to § 87.51 (relating to notification of disposition of complaint) and who does not timely demand the institution of a formal proceeding pursuant to § 87.54 (relating to demand by respondent-attorney for formal proceedings) shall appear in person before the Board, at the time and place fixed for the administration of the private reprimand. A record shall be made of the fact of and basis for the private reprimand, which record shall be available only as provided in § 93.104(d) (relating to restrictions on available information).

General rule relating to public reprimand. A respondent-attorney who is given notice of public reprimand pursuant to § 87.51 (relating to notification of disposition of complaint) and who does not timely demand the institution of a formal proceeding pursuant to § 87.54 (relating to demand by respondent-attorney for formal proceedings) shall appear in person before the Board, at the time and place fixed for the administration of the public reprimand, which proceeding shall be open to the public as provided in § 93.102(a) (relating to access to disciplinary information and confidentiality). A record shall be made of the fact of and basis for the public reprimand, which record shall be public.

Failure to appear. The neglect or refusal of the respondent-attorney to appear for the purposes of private or public reprimand without good cause shall (as provided by Enforcement Rule 203(b)(2)) constitute an independent act of professional misconduct and shall automatically result in the institution of formal proceedings relating to such act of misconduct and to the grievance upon which such private or public reprimand was to relate.

General rule. Enforcement Rule 208(a)(6) provides that 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; and that 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 § 89.205(b) (relating to taxation of expenses).

Procedure. A demand under subsection (a) of this section shall be in writing, shall be filed with the Board Prothonotary within 20 days after the date of the notice of the disposition of the complaint required by § 87.51 (relating to notification of disposition of complaint), which time limit is jurisdictional, and shall be accompanied by proof of service of a copy thereof upon the Office of Disciplinary Counsel.

General rule. Enforcement Rule 211(a) provides that the processing of complaints involving material allegations which are substantially similar to the material allegations of pending criminal or civil litigation shall not be deferred unless the Board in its discretion, for good cause shown, authorizes such deferment; that in the event a deferment of disciplinary investigation or proceeding is authorized by the Board as the result of pending related litigation, the respondent-attorney shall make all reasonable efforts to obtain the prompt trial and disposition of such pending litigation; and that in the event the respondent-attorney fails to take reasonable steps to assure prompt disposition of the litigation, the investigation and subsequent disciplinary proceedings indicated shall be conducted promptly.

Procedure. An original and three conformed copies of an application for deferment of action under subsection (a) of this section shall be filed with the Board Prothonotary with proof of service on the Office of Disciplinary Counsel. The Office of Disciplinary Counsel may file and serve a written response thereto within 20 days thereafter.

Effect of acquittal. Enforcement Rule 211(b) provides that the acquittal of the respondent-attorney on criminal charges or a verdict or judgment in favor of the respondent-attorney in a civil litigation involving substantially similar material allegations shall not in and of itself justify abatement of a disciplinary investigation predicated upon the same material allegations.

Voluntary resignation. Enforcement Rule 215(a) provides that an attorney who is the subject of an investigation into allegations of misconduct by the attorney may submit a resignation, but only by delivering to Disciplinary Counsel or the Board Prothonotary a verified statement stating that the attorney desires to resign and that:

Representation by counsel. The verified statement under subsection (a) shall indicate whether or not the attorney has consulted or followed the advice of counsel (naming such counsel, if any) in connection with the decision to resign.

Order of disbarment. Enforcement Rule 215(b) provides that upon receipt of the required statement, the Board Prothonotary shall file it with the Supreme Court and the Court shall enter an order disbarring the attorney on consent.

Confidentiality of resignation statement. Enforcement Rule 215(c) provides that the fact that the attorney has submitted a resignation statement to Disciplinary Counsel or the Board Prothonotary for filing with the Supreme Court shall become a matter of public record immediately upon delivery of the resignation statement to Disciplinary Counsel or the Board Prothonotary; the order disbarring the attorney on consent shall be a matter of public record; and that, if the statement required by subsection (a) is submitted before the filing and service of a petition for discipline and the filing of an answer or the time to file an answer has expired, the statement shall not be publicly disclosed or made available for use in any proceeding other than a subsequent reinstatement proceeding except:

General rule. Enforcement Rule 215(d) provides that at any stage of a disciplinary investigation or proceeding, a respondent-attorney and Disciplinary Counsel may file a joint Petition in Support of Discipline on Consent; and that the Petition shall be accompanied by an affidavit stating that the attorney consents to the recommended discipline and that:

Contents of Petition. Enforcement Rule 215(d) provides that a Petition shall include the specific factual allegations that the respondent-attorney admits he or she committed, the specific Disciplinary Rules and Enforcement Rules allegedly violated and a specific recommendation for discipline. The Petition must also set forth:

Handling of Petition. Enforcement Rule 215(e) provides that the Petition shall be filed with the Board; that the filing of the Petition shall stay any pending proceeding before a hearing committee, special master or the Board; and that the Petition shall be reviewed by a panel composed of three members of the Board who may approve or deny.

Note: The fact that a Petition is being negotiated is not grounds for a continuance, and formal proceedings will continue unabated until the Petition is filed as provided in subsection (c).

Private discipline. Enforcement Rule 215(f) provides that if a panel approves a Petition consenting to an informal admonition or private reprimand, with or without probation, the Board shall enter an appropriate order, and the Board shall arrange to have the respondent-attorney appear before Disciplinary Counsel for the purpose of receiving an informal admonition or before a designated panel of three members selected by the Board Chair for the purpose of receiving a private reprimand.

Public discipline. Enforcement Rule 215(g) provides that: (1) if a panel approves a Petition consenting to a public reprimand, the Board shall enter an appropriate order, and the Board shall arrange to have the attorney appear before the Board or a designated panel of three members selected by the Board Chair for the purpose of receiving a public reprimand; and (2) if a panel approves a Petition consenting to public censure or suspension, the Board shall file the recommendation of the panel and the Petition with the Supreme Court; if the Court grants the Petition, the Court shall enter an appropriate order disciplining the respondent-attorney on consent.

Denial of Petition. Enforcement Rule 215(h) provides that, if either the panel of the Board or the Supreme Court denies a Petition, the members of the Board who participated on the reviewing panel shall not participate in further consideration of the same matter; and that any stayed proceedings shall resume as if the Petition had not been filed and neither the Petition nor the affidavit may be used against the respondent-attorney in any disciplinary proceeding or any other judicial proceeding.

Costs. Enforcement Rule 215(i) provides that all expenses taxed under this subdivision shall be paid by the attorney in accordance with Rule 208(g).

General rule. This Chapter is promulgated for the purpose of assisting the Office of Disciplinary Counsel, the respondent-attorney and the Board to develop the facts relating to, and to reach a just and proper determination of, grievances brought to the attention of the Board. The Board recognizes the temptation in disciplinary matters to raise procedural defenses where substantive defenses would be unavailing and, therefore, the Board will not hold action of a hearing committee, hearing committee member or special master invalid by reason of any nonprejudicial irregularity, or for any error not resulting in a miscarriage of justice.

Relationship to informal proceedings. The filing of a petition for discipline under this chapter shall be conclusive evidence that all conditions precedent thereto under Chapter 87 (relating to investigations and informal proceedings) have been satisfied. Failure to comply with any requirement of Chapter 87 shall not affect the validity of proceedings under this chapter and no proceeding or other matter under Chapter 87 shall be an issue in formal proceedings under this chapter.

Enforcement Rules 208(c) and (d) provide that the procedure in formal proceedings before hearing committees, special masters, and the Board shall be governed by these Rules, the Enforcement Rules, and the decisional law of the Court and the Board in attorney discipline and reinstatement matters.

Note: The Pennsylvania Rules of Civil Procedure relating to pleadings, answers to pleadings, motions, and responses to motions, are not applicable to formal proceedings before hearing committees, special masters and the Board.

Limitations on prehearing motions.  A motion for summary judgment or judgment on the pleadings, a motion to strike the petition for discipline or portions thereof, a motion to dismiss based on insufficient evidence to proceed with formal charges, any motion attacking the validity of the proceedings or pre-petition procedures, or any similarly-styled motion, shall not be accepted for filing, but if accepted for filing, shall not be entertained.

Limitations on hearing motions.  A motion for directed verdict or nonsuit, a motion to dismiss based on insufficient evidence, any motion attacking the validity of the proceedings, or any similarly-styled motion, shall not be accepted for filing, but if accepted for filing, shall not be entertained.

General rule. The filing of pleadings, briefs and other documents in connection with a formal proceeding under these rules shall be as follows:

Timely filing required. Pleadings, briefs or other documents in formal proceedings required or permitted to be filed under these rules must be received for filing at the Board Prothonotary within the time limits, if any, for such filing. The date of receipt by the Board Prothonotary and not the date of deposit in the mail is determinative.

Copies furnished to hearing committee members. Where copies of pleadings, briefs or other documents are furnished to members of a hearing committee, each member shall retain possession of one complete set of papers and, following conclusion of the work of the committee with respect to a particular proceeding, each such member shall independently permanently destroy the set of papers or coordinate with the Executive Office.

Papers of special masters. Following conclusion of his or her work with respect to a particular proceeding, a special master shall permanently destroy the set of papers or coordinate with the Executive Office.

Appearance in propria persona. When a respondent-attorney appears pro se in a formal proceeding such attorney shall file with the Board Prothonotary, with proof of service of a copy upon the Office of Disciplinary Counsel, an address at which any notice or other written communication required to be served upon such attorney may be sent.

Representation of respondent-attorney by counsel. When a respondent-attorney is represented by counsel in a formal proceeding counsel shall file with the Board Prothonotary, with proof of service of a copy upon the Office of Disciplinary Counsel, a written notice of such appearance, which shall state the name, address and telephone number of such counsel, the name and address of the respondent-attorney on whose behalf such counsel appears, and the caption and docket number of the subject proceeding. Any additional notice or other written communication required to be served on or furnished to a respondent-attorney may be sent to the counsel of record for such respondent-attorney at the stated address of the counsel in lieu of transmission to the respondent-attorney. In any proceeding where counsel has filed a notice of appearance pursuant to this subsection, any notice or other written communication required to be served upon or furnished to the respondent-attorney shall also be served upon or furnished to such counsel (or one of such counsel if the respondent-attorney is represented by more than one counsel) in the same manner as prescribed for the respondent-attorney, notwithstanding the fact that such communication may be furnished directly to the respondent-attorney.

Restrictions on representation. Members of the Board, partners or employees of any firm in which a member of the Board practices, hearing committee members and special masters shall not appear as counsel for a respondent-attorney.

In general. Pleadings and documents other than exhibits filed in formal proceedings shall be in a typeface not less than 10-points, on unglazed paper 8 ½ inches wide by 11 inches long and with margins of at least 1 inch. The text shall be double-spaced except for indented quotations. Pleadings and documents other than correspondence shall be bound in a manner that may be taken apart easily.

Incorporation by reference. Any document on file with the Board in a formal proceeding may, subject to the restrictions of Chapter 93 Subchapter F (relating to confidentiality), be incorporated by reference into a subsequently filed pleading or other document. A document may be so incorporated only by reference to the specific document and to the prior filing in which it was physically filed, not to another document which incorporates it by reference.

Identification. Pleadings or other documents filed in a formal proceeding shall set forth:

Signature. Except as may be otherwise ordered or requested by the Board, the original copy of each pleading or other document shall be signed in ink by the party in interest, or by counsel for such party, and shall show the office, post office address and telephone number of such party or counsel. All other copies filed shall be fully conformed thereto.

Effect. The signature of the person subscribing any documents filed in a formal proceeding constitutes a certificate by such individual that the subscriber has read the documents being subscribed and filed, and knows the contents thereof; that if executed in any representative capacity, the document has been subscribed and executed in the capacity specified upon the document with full power and authority so to do; that the contents are true as stated, except as to matters and things, if any, stated on information and belief, and that as to those matters and things, the subscriber believes them to be true.

Penalty. All statements of fact in pleadings or other documents filed in a formal proceeding are subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities), and it shall not be necessary to verify under oath any such document.

Cross reference. See § 85.13 (relating to verification by respondent-attorneys).

Avoidance of delay. All formal proceedings under these rules shall be as expeditious as possible, but the failure of the Board to comply with any of the procedural time periods in these rules shall not result in the dismissal of a petition for discipline or a lessening of the charges set forth therein. Only the Board Chair may extend the time for hearing or grant any other extension of time in a formal proceeding.

Notice to other tribunals. Upon receipt of notice fixing a date in connection with a formal proceeding (including a hearing date before a hearing committee or special master or oral argument before the Board) or the date of a meeting of the Board, any involved person within 48 hours thereafter shall deliver written notice (which shall not identify the respondent-attorney) of the fixing of such date to the clerk, prothonotary, court administrator, chairperson or other appropriate administrative officer of any court, administrative agency or other body with which a conflict might reasonably arise, and shall file a copy of such notice with the Board Prothonotary.

Application for continuance. An application for continuance of a hearing shall be made either in writing or on the record at the hearing and shall set forth the basis for the application and the facts supporting it. The application shall be addressed to the chair of the hearing committee or the special master conducting the hearing, who may deny it or recommend its approval to the Board Chair. A denial by the chair of a hearing committee or special master may be reviewed by the Board Chair. A continuance of a hearing other than adjournment to a day certain not more than 15 days hence shall not be granted by a hearing committee or special master without the concurrence of the Board Chair.

Grounds for continuances. Enforcement Rule 208(i) provides that all formal proceedings under this chapter shall be conducted as expeditiously as possible; that ordinarily the engagement of an involved person will be recognized as a basis for continuance of a formal proceeding or meeting of the Board only where the involved person is actually engaged before an appellate court of this Commonwealth or a court of the United States; and that engagement of an involved person 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.

Definition. As used in this section, the term "involved person" includes a member of the Board, a hearing committee member assigned to act on any aspect of the matter, a special master assigned to the matter and counsel for the respondent-attorney, as well as the respondent-attorney.

Notice to participants.  The Board shall give notice of orders, notices and other documents generated by the Board by mailing a copy to the participants.

Service of original process on the Board’s own motion.  A copy of original process in the form of a petition filed, or order issued, by the Board on its own motion shall be personally served upon the respondent-attorney by anyone duly authorized by the Executive Office unless another method of service shall be specifically required by these Rules or the Enforcement Rules; provided, however, that if personal service cannot be made after reasonable efforts to locate and serve the respondent-attorney, service may be made 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 in the manner provided in Enforcement Rule 212 (relating to substituted service). 

General rule. Chief Disciplinary Counsel may at any stage of the proceeding apply for leave to withdraw a petition for discipline when it shall appear that it was improvidently filed. The application shall be set forth on Form DB-44 (Application for Leave to Withdraw Petition for Discipline), shall set forth briefly the grounds relied upon by the Office of Disciplinary Counsel for recommending withdrawal, and shall be filed with the Board Prothonotary.

Action by Board. The Executive Office shall transmit the Form DB-44, any answer thereto, and related file to a member of the Board designated by the Chair, who shall consider and act upon the application on behalf of the Board. The Executive Office shall notify the parties of the action taken by the Board.

Except where the Office of Disciplinary Counsel and the respondent-attorney file a joint petition in support of public discipline on consent pursuant to § 87.74 (relating to discipline on consent) or the respondent-attorney submits a resignation statement under § 87.73 (relating to voluntary resignation by attorneys under disciplinary investigation and disbarment on consent), the Office of Disciplinary Counsel shall institute formal disciplinary proceedings by filing with the Board a petition under § 89.52 (relating to petition for discipline) in the following cases:

Except where the Office of Disciplinary Counsel shall institute formal disciplinary proceedings pursuant to the provisions of subsection (a), the Office of Disciplinary Counsel may, upon the filing of a certificate of conviction with the Supreme Court under § 91.33 (relating to notification by Office of Disciplinary Counsel of conviction of attorneys), institute formal disciplinary proceedings by filing with the Board a petition under § 89.52 (relating to petition for discipline). See § 91.35(a) (relating to authority of Office of Disciplinary Counsel to commence a formal proceeding following the conviction of a respondent-attorney for a crime).

Caption. A petition for discipline shall be captioned as follows:

BEFORE THE DISCIPLINARY BOARD

OF THE SUPREME COURT OF

PENNSYLVANIA

Contents. Enforcement Rule 208(b)(1) provides that a petition for discipline shall set forth with specificity the charges of misconduct against the respondent-attorney. The petition shall set forth the Disciplinary Rules or Enforcement Rules alleged to have been violated.

Prayer for relief. A petition for discipline may contain a specific prayer for relief or may contain a general prayer for such disciplinary action as may be just and proper in the circumstances.

General rule. Enforcement Rule 208(b)(3) provides that within 20 days after service of the petition, the respondent-attorney shall serve an answer upon Disciplinary Counsel and file the original thereof with the Board. (See also subsection (d) of this section.) Such answer shall be filed with the Board Prothonotary. The respondent-attorney and Disciplinary Counsel may stipulate to only one extension, not to exceed 20 days, of the 20 day period in which to file the answer, which stipulation shall be filed with the Board Prothonotary.

Contents of answer. All answers shall be in writing, and so drawn as fully and completely to advise the participants and the Board as to the nature of the defense. They shall admit or deny specifically and in detail each material allegation of the petition and state clearly and concisely the facts and matters of law relied upon.

Request to be heard in mitigation. The respondent-attorney may include in the answer a request that a hearing be held on the issue of mitigation.

Effect of failure to answer. Enforcement Rule 208(b)(3) provides any factual allegation that is not timely answered shall be deemed admitted.

General rule. Enforcement Rule 208(b)(4) provides that following 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. The Executive Office shall transmit copies of the file of the Board by means of Form DB-9 (Reference for Disciplinary Hearing) to the members of the hearing committee appointed to hear the matter or a special master in the appropriate disciplinary district not later than five days after the date on which the answer of the respondent-attorney is due under § 89.54(a) (relating to answer).

Composition of committee. The Board Prothonotary shall appoint the members of the hearing committee to which the matter is assigned as provided by § 93.81(c) (relating to hearing committees). As provided by § 93.86 (relating to disqualification of reviewing member to sit on hearing in same matter), the hearing committee shall not include the hearing committee member who passed upon Disciplinary Counsel’s recommended disposition of the matter. The Board Prothonotary shall also designate which member of the hearing committee will conduct the prehearing conference.

General rule. The hearing committee or special master, with or without motion, and after consideration of the probability of beneficial results to be derived therefrom, may direct that a conference be held, and direct the respondent-attorney and staff counsel to appear thereat to consider any or all of the matters enumerated in § 89.72 (relating to subjects which may be considered at conferences to expedite hearings). Due notice of the time and place of such conference shall be given to the respondent-attorney and staff counsel. Where a proceeding is in the hands of a hearing committee, the conference may be conducted by the chair of the hearing committee or by a single senior or experienced hearing committee member designated in writing by the chair.

Preparation for and action at conference. All participants shall attend the conference fully prepared for a useful discussion of all problems involved in the proceeding, both procedural and substantive, and fully authorized to make commitments with respect thereto. Such preparation should include, among other things, advance study of all relevant material, and advance informal communication between the participants, including requests for additional data and information, to the extent it appears feasible and desirable.

General rule. The senior or experienced hearing committee member presiding at any conference may dispose of by ruling, irrespective of the consent of the participants, any procedural matters which the chair of the committee is authorized to rule upon during the course of the proceeding, and which it appears may appropriately and usefully be disposed of at that stage. Where it appears that the proceeding would be substantially expedited by distribution of proposed exhibits and written prepared testimony reasonably in advance of the hearing session, such advance distribution by a prescribed date may be directed at the discretion of the presiding hearing committee member. The presiding hearing committee member may also order the exchange of the names and addresses of expert witnesses and copies of all expert reports. An order for the distribution of exhibits and written testimony or the identification of expert witnesses and exchange of expert reports shall be made with due regard for the convenience and necessity of the respondent-attorney and staff counsel, and may provide that failure to comply with it shall have the consequences described in § 89.93(c) (relating to exclusion of evidence). The rulings of the presiding hearing committee member made at a conference shall control the subsequent course of the hearing, unless modified for good cause shown.

Special masters. A special master may exercise at a conference all of the powers granted to a presiding hearing committee member by subsection (a).

Disciplinary proceedings. In proceedings upon a petition for discipline the Office of Disciplinary Counsel shall have the burden of proof, shall initiate the presentation of evidence, and may present rebuttal evidence.

Reinstatement proceedings. In proceedings upon a petition for reinstatement the respondent-attorney shall have the burden of proof, shall initiate the presentation of evidence, and may present rebuttal evidence.

General rule. The respondent-attorney and staff counsel shall have the right of presentation of evidence, crossexamination, objection, motion and argument. The taking of evidence and subsequent proceedings shall proceed with all reasonable diligence and with the least practicable delay.

Note:  See D.Bd. Rules § 89.2(c) for limitations on hearing motions.

Objections. When objections to the admission or exclusion of evidence or other procedural objections are made, the grounds relied upon shall be stated briefly, if so requested by the hearing committee or special master, and may be stated briefly if no such request is made. Formal exceptions are unnecessary and shall not be taken to procedural rulings.

Exclusion of expert evidence. The hearing committee or special master may exclude the introduction of expert testimony or reports as to which a party has failed to comply with an order under § 89.72(4) (relating to subjects which may be considered at conferences to expedite hearings) or § 89.74(a) (relating to authority of hearing committee member or special master at conferences).

Exclusion of factual evidence. Enforcement Rule 208(b)(4) provides that 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. See § 89.54(d) (relating to effect of failure to answer).

General rule. In any proceeding admissibility of evidence shall be governed by the rules of evidence observed by the courts of common pleas in this Commonwealth in nonjury civil matters at the time of the hearing.

Pleadings. The petition for discipline and answer thereto, and similar formal documents upon which a hearing is fixed shall, without further action, be considered as parts of the record, but in no event shall pleadings, or any part thereof, be considered as evidence of any fact other than that of the filing thereof unless offered and received in evidence in accordance with these rules.

General rule. The receipt of evidence which is relevant solely on the issue of the type of discipline to be imposed shall be deferred until after the hearing committee or special master has found that the evidence establishes a prima facie violation of at least one of the disciplinary rules or enforcement rules alleged in the petition for discipline to have been violated. However, the hearing committee or special master need not specify the rule or rules found to have been violated before proceeding with the receipt of evidence under this rule.

Type of evidence desired. While the participants may offer any evidence which is relevant and material on the issue of the type of discipline to be imposed, experience has shown that information concerning the respondent-attorney on the following subjects will be particularly helpful to the Board:

Responsibility of hearing committee or special master. Where the hearing committee or special master concludes that the presentation of the participants does not appear to have developed an adequate background picture of the respondent-attorney the hearing committee or special master should consider the desirability of augmenting the record through appropriate questioning. The hearing committee or special master shall, in appropriate cases, make a finding on whether restitution has been made.

Procedure. The hearing committee or special master may make appropriate provision for the timing of the receipt of evidence under this rule, e.g. by:

General rule. Unless waived by the participants at the close of the taking of testimony or pursuant to § 89.181 (relating to abbreviated procedure), briefs may be filed with the hearing committee or special master (and served pursuant to § 89.22 (relating to service by a participant)) as follows:

Reinstatement proceedings. In reinstatement proceedings the order of the filing of briefs shall be the reverse of the order set forth in subsection (a) of this section.

General rule. Briefs shall contain:

Exhibits. Exhibits should not be reproduced in the brief, but may, if desired, be reproduced in an appendix to the brief. Any analysis of exhibits relied on should be included in the part of the brief containing the abstract of evidence under the subjects to which they pertain.

Length. Briefs (exclusive of any cover, table of contents, table of citations or appendix) shall be limited to 6000 words in length and shall be in 14-point Arial typeface. For good cause shown, the limitation on length may be altered or waived with respect to a particular brief upon application to and order of the Chair of the hearing committee or the special master at least ten days before the time fixed for the filing of the brief.

General rule. The report of the hearing committee or special master shall be accompanied by Form DB-10 (Transmittal of Report of Hearing) and shall set forth:

Scope. At the conclusion of the hearing, it may be obvious to all participants that no showing of misconduct has been made or that there has been adequate proof of a violation of § 85.7 (relating to grounds for discipline) and that some form of private discipline or a public reprimand would be appropriate. In such circumstances the cost and delay of the preparation of a formal transcript is unnecessary and the preparation of a detailed report as provided by § 89.172 (relating to contents of report) is an unnecessary and time-consuming burden on the hearing committee and others. Where the participants can stipulate to an acceptable determination the procedures of this section minimize cost, effort and time for all participants. This section may be applicable to combined reinstatement and disciplinary hearings conducted before a hearing committee pursuant to § 89.273(b)(4) (relating to combined hearings in reinstatement matters where formal disciplinary proceedings are then pending or have been authorized against the formerly admitted attorney).

General rule. The respondent-attorney and staff counsel in the manner provided by subsection (c), may agree to waive the preparation of a transcript and the filing of formal findings and recommendations. In such situations, unless the Board directs otherwise, the committee may submit to the Board a summary determination of the committee and stipulation of discipline.

Procedures.

General rule. Upon receipt of a report and recommendation from a hearing committee or special master, the Board shall, except as otherwise provided in this rule, set the dates for submission of briefs and for oral argument before the Board or a panel of at least three of its members designated by the Chair.

Oral argument and briefs. Enforcement Rule 208(d)(1) provides that 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, unless such right has been waived in the manner provided by these rules.

Waiver. If neither the respondent-attorney nor the Office of Disciplinary Counsel objects to the findings and recommendations of the hearing committee or special master, oral argument and submission of briefs may be waived by stipulation, subject to approval by the Board. A participant will be conclusively deemed to have waived all objections to the findings and recommendations of the hearing committee or special master and to have stipulated to the waiver of oral argument and submission of briefs unless such participant files exceptions as provided in subsection (d).

Procedure to except to report of hearing committee or special master. Any participant desiring to object to the findings and recommendations of a hearing committee or special master shall, within 20 days after the service of a copy of a report or such other time as may be fixed by the Board Chair, file exceptions to the report or part thereof in a brief (designated "brief on exceptions"). "Briefs opposing exceptions" may be filed in response to briefs on exceptions within 20 days after the filing of briefs on exceptions or such other time as may be fixed by the Board Chair. No further response will be entertained unless the Board, with or without motion, so orders.

Oral argument. Unless otherwise ordered by the Board, oral argument shall be deemed waived unless expressly requested in a brief on exceptions or brief opposing exceptions.

Participation by reviewing members. Enforcement Rule 208(d)(1) provides that members of the Board who have participated on a review panel under § 87.33 (relating to appeal by Office of Disciplinary Counsel for modification of recommendation) or § 87.34 (relating to review of recommendation of private reprimand or public reprimand) shall not participate in further consideration of the same matter or decision thereof on the merits under this section. A Board member who pursuant to § 89.32(b) (relating to action by Board) denied an application for leave to withdraw a petition for discipline shall not participate in the consideration of or decision on the merits of that matter.

Briefs on exceptions.

Briefs opposing exceptions. Briefs opposing exceptions shall generally follow the same style prescribed for briefs on exceptions, but may omit a statement of the case if it was correctly stated in a brief on exceptions.

Length. Briefs on exceptions and briefs opposing exceptions shall be self-contained and limited to 6000 words in length in 14-point Arial typeface.  For good cause shown, the limitation on length may be altered or waived for either class of briefs upon application to and order of the Board Chair at least ten days before the time fixed for filing of the respective briefs.

Copies. One copy of each brief shall be filed with the Board Prothonotary in addition to the copies served on the participants in the proceedings.

General rule. Enforcement Rule 208(d)(2)(ii) provides that 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 in person 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 Enforcement Rule 205(c)(11) for the purpose of receiving private reprimand or public reprimand, in which case the designated member shall deliver the private reprimand or public reprimand. If the matter is concluded by private discipline, Disciplinary Counsel shall notify the complainant in writing of the disposition in conformance with the provisions of § 87.51(a)(1) of these Rules.

Taxation of expenses. Enforcement Rule 208(g)(2) provides that 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, and that all expenses so taxed shall be paid by the respondent-attorney within 30 days after the date of the entry of the order taxing the expenses against the respondent-attorney. The expenses taxable under this subsection shall be those prescribed by § 93.111 (relating to determination of reimbursable expenses).

Notice to appear.

Appearance. An attorney who is given notice to appear for informal admonition or private reprimand shall appear in person at the time and place fixed in such notice, for the purpose of receiving such informal admonition or private reprimand. A permanent record shall be made of the fact of and basis for such action as is taken. The fact of receipt of such informal admonition or private reprimand shall not affect the good standing of the respondent-attorney as an attorney and shall be kept confidential, but shall be subject to limited availability under § 93.102(b) (relating to exceptions). An attorney who is given notice to appear for public reprimand shall appear in person at the time and place fixed in such notice, for the purpose of receiving such public reprimand. The proceeding shall be open to the public as provided in § 93.102(a) (relating to access to disciplinary information and confidentiality), and a record shall be made of the fact of and basis for the public reprimand, which record shall be public.

Failure to appear. The neglect or refusal of the respondent-attorney to appear before Disciplinary Counsel for the purposes of informal admonition without good cause shall automatically convert the decision of the Board on informal admonition into one for private reprimand. The neglect or refusal of the respondent-attorney to appear before the Board for the purposes of private or public reprimand without good cause shall automatically convert the decision of the Board on private or public reprimand into a recommendation to the Supreme Court for censure, and the Executive Office shall notify the respondent-attorney and the Office of Disciplinary Counsel accordingly.

Demand for Supreme Court review.

General rule. Enforcement Rule 208(d)(2)(iii) provides that 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.

Procedure. The Board Prothonotary shall file the record, the briefs on exceptions and the briefs opposing exceptions, if any, and the finding and recommendations of the Board with the Supreme Court by means of Form DB-13 (Request for Supreme Court Action) and an appropriate letter of transmittal. Copies of such finding and recommendations and letter of transmittal shall be served by the Board Prothonotary upon the participants.

General rule. Enforcement Rule 208(e)(5) provides that the Supreme Court shall review the record, where appropriate consider oral argument, and enter an order. Enforcement Rule 208(d)(2)(iii) provides that 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.

Board recommendation of disbarment. Enforcement Rule 208(e)(2) provides that in the event the Board recommends that the matter should be concluded by disbarment, the respondent-attorney may, within 20 days after service of the findings and recommendations of the Board under subsection (e) of this section, submit to the Supreme Court a request to present oral argument.

Board recommendations other than disbarment. Enforcement Rule 208(e)(3) provides that in the event the Board recommends a sanction less than disbarment, and the Court, after consideration of the 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, such a rule shall be issued; that a copy of the rule shall be served on Disciplinary Counsel (see § 89.27 (relating to service upon Disciplinary Counsel)); that within 20 days after service of the rule either party may submit to the Supreme Court a response, thereto; that within 10 days after service of a response, the other party may submit to the Supreme Court a reply thereto; and that respondent-attorney in such case shall have the absolute right upon request for oral argument.

Oral argument. Enforcement Rule 208(e)(4) provides that, except as provided in subsections (b) and (c) of this section, the respondent-attorney will not be afforded the right of oral argument.

Service of papers. Enforcement Rule 208(e)(1) provides that service of the findings and recommendations of the Board upon the respondent-attorney shall be governed by Rules 121 and 122 of Title 210 (relating to Pennsylvania Rules of Appellate Procedure). See § 85.12 (relating to filings with the Supreme Court).

General rule. In cases where Disciplinary Counsel elects to urge in the Supreme Court pursuant to § 93.63(b)(2) (relating to party status of Disciplinary Counsel) a position inconsistent with any finding or recommendation of the Board, the Board may obtain counsel, independent of the Office of Disciplinary Counsel, who shall seek to support before the Court the findings and recommendations of the Board.

Procedure. Within 20 days after transmittal of the findings and recommendations of the Board to the Chief Justice of Pennsylvania pursuant to § 89.206(b) (relating to procedure) or § 89.273(a)(5) (relating to procedures for reinstatement), Chief Disciplinary Counsel shall submit to the Board a memorandum describing any position contrary to the findings and recommendations of the Board which the Office of Disciplinary Counsel has elected to urge in the Supreme Court.

Petition to reopen. At any time after the conclusion of a hearing in a proceeding or adjournment thereof sine die, any participant in the proceeding may file with the hearing committee or special master, if before issuance by the hearing committee or special master of the report to the Board required by § 89.171 (relating to filing of report), otherwise with the Board Prothonotary, a petition to reopen the proceeding for the purpose of taking additional evidence. Such petition shall set forth clearly the facts claimed to constitute grounds requiring reopening of the proceedings, including material changes of fact or of law alleged to have occurred since the conclusion of the hearing.

Responses. Within ten days following the service of such petition, any other participant may file with the hearing committee, special master or the Board Prothonotary, an answer thereto, and in default thereof shall be deemed to have waived any objection to the granting of such petition.

Action on petition. As soon as practicable after the filing of responses to such petitions or default thereof, as the case may be, the hearing committee, special master or the Board will grant or deny such petition.

General rule relating to disbarment. Enforcement Rule 218(b) provides that a person who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment, except that a person who has been disbarred pursuant to § 91.51 (relating to reciprocal discipline) may apply for reinstatement at any earlier date on which reinstatement may be sought in the jurisdiction of initial discipline. Enforcement Rule 217(e)(3) and its Note, and Enforcement Rule 218(b) provide that after the entry of an order of disbarment, which order has been entered on or after February 28, 2015, the waiting period for eligibility to apply for reinstatement to the practice of law shall not begin until the formerly admitted attorney files the verified statement required by § 91.96 (relating to proof of compliance); and that if the order of disbarment contains a provision that makes the disbarment retroactive to an earlier date, the waiting period will be deemed to have begun on that earlier date.

General rule relating to suspension for a period exceeding one year. Enforcement Rule 217(e)(3) and its Note provide that after the entry of an order of suspension for a period exceeding one year, which order has been entered on or after February 28, 2015, the waiting period for eligibility to apply for reinstatement to the practice of law shall not begin until the formerly admitted attorney files the verified statement required by § 91.96 (relating to proof of compliance); and that if the order of suspension contains a provision that makes the suspension retroactive to an earlier date, the waiting period will be deemed to have begun on that earlier date.

Premature petitions. Unless otherwise provided in an order of suspension or disbarment, the Board will not entertain a petition for reinstatement filed prior to the expiration of the period set forth in subsection (a), or more than nine months prior to the expiration of the term of suspension, as the case may be. The Board will also not entertain a petition for reinstatement filed before the formerly admitted attorney has paid in full any costs taxed under § 89.209 (relating to expenses of formal proceedings) or under § 89.278 (relating to expenses of reinstatement proceedings) with respect to any previous reinstatement proceeding and has made any required restitution to the Lawyers Fund for Client Security under Enforcement Rule 531 (relating to restitution a condition for reinstatement).

Second or subsequent petitions. Where a petition for reinstatement has been finally denied, the Board, unless otherwise ordered by the Supreme Court in a specific case, will not entertain a second or subsequent petition for reinstatement until after the expiration of at least one year after the immediately preceding petition has been finally denied.

Enforcement Rule 218(c) provides that the procedure for petitioning for reinstatement from suspension for a period exceeding one year or disbarment is as follows:

Enforcement Rule 218(d) provides that the procedure for petitioning for reinstatement from retired status for more than three years; inactive status for more than three years; administrative suspension for more than three years, retired status, inactive status or administrative suspension if the formerly admitted attorney has not been on active status at any time within the past three years; or after transfer to inactive status as a result of the sale of a law practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct, is as follows:

Enforcement Rule 218(e) provides that in all proceedings upon a petition for reinstatement, cross-examination of the petitioner-attorney’s witnesses and the submission of evidence, if any, in opposition to the petition shall be conducted by Disciplinary Counsel.

Attorneys suspended for less than one year. Enforcement Rule 218(g) provides that:

Attorneys on inactive status, retired status or administrative suspension for three years or less. Enforcement Rule 218(h) provides that attorneys who have been on inactive status, retired status or administrative suspension for three years or less may be reinstated to the roll of those classified as active pursuant to § 93.145 (relating to reinstatement of administratively suspended attorneys), § 93.146 (relating to resumption of active status by retired or inactive attorneys), and § 93.112(c) (relating to reinstatement upon payment of taxed costs), as appropriate. This subsection (e) does not apply to:

General rule. The Executive Office shall forward a copy of the petition for reinstatement and Form DB-30 (Reference for Reinstatement Hearing) to:

Publication of notice. The Executive Office shall cause a notice to be published in the legal journal and a newspaper of general circulation in the county in which the formerly admitted attorney practiced and in each county in Pennsylvania in which the formerly admitted attorney has resided since being disbarred or suspended for disciplinary reasons. The notice shall state and be confined to:

General rule. The petitioner-attorney shall attach to the petition for reinstatement a fully completed Form DB-36 (Reinstatement Questionnaire) or Form DB-36A (Special Reinstatement Questionnaire), as applicable.  The petitioner-attorney shall set forth fully and accurately on the questionnaire, information  requested therein.

Effect of questionnaire. The questionnaire shall bear a notice under 18 Pa. C. S. § 4904(b) (relating to statement "under penalty") to the effect that false statements made therein are punishable, and shall become a part of the record in the reinstatement proceeding.

Scope. This section is applicable to formal proceedings for reinstatement of formerly admitted attorneys who have been on administrative suspension, retired status or inactive status and who have never been suspended for disciplinary reasons or disbarred. See § 89.273(b)(4) (relating to hearing before a single senior or experienced hearing committee member). This section shall not be available at any hearing conducted after review by a designated Board Member pursuant to § 89.273(b)(6)(i) (relating to hearing scheduled at the direction of the designated Board Member).

General rule. The formerly admitted attorney and staff counsel in the manner provided by subsection (c) of this section, may agree to waive the preparation of a transcript and the filing of formal findings and recommendations. In such situations, unless the Board directs otherwise, the hearing committee member may submit to the Board a summary determination of the hearing committee member.

Procedures.

General rule. Except as provided in subsection (b), in order to permit the Board to determine under Enforcement Rule 218 (relating to reinstatement) whether a formerly admitted attorney who has been disbarred or suspended for more than one year or who has been on administrative suspension, retired status or inactive status for more than three years possesses the competency and learning in the law required for reinstatement to practice in this Commonwealth, such a formerly admitted attorney shall within one year preceding the filing of the petition for reinstatement take courses meeting the requirements of the current schedule published by the Executive Office under subsection (c).

Exceptions.

Publication of schedule. The Executive Office shall publish in the Pennsylvania Bulletin a schedule of the minimum amount, type and subjects of continuing legal education courses that will satisfy the requirements of subsection (a).

Effect of taking required courses. Evidence that a formerly admitted attorney has registered for and attended required courses and lectures or has viewed videotapes of them shall be considered in determining whether the formerly admitted attorney possesses the required competency and learning in law, but shall not be conclusive on the issue.

Publication of notice. Enforcement Rule 218(i) provides that the Board may cause a notice of a reinstatement to be published in one or more appropriate legal journals and newspapers of general circulation.

Transmission of notice to local president judge. Enforcement Rule 218(j) provides that the Board when appropriate shall promptly transmit to the president judge of the court of common pleas in the judicial district in which the formerly admitted attorney practiced a copy of:

General rule. Enforcement Rule 219(n) provides that a former or retired justice or judge who is not the subject of an outstanding order of discipline affecting his or her right to practice law and who wishes to resume the practice of law shall file with the Attorney Registration Office a notice in writing to that effect.

Notice. Enforcement Rule 219(n) further provides that the notice shall:

Qualifications. A respondent-attorney may be placed on probation if the respondent-attorney has demonstrated that he or she:

Duration. Probation shall be ordered for a specified period of time or until further order of the Board or the Supreme Court. If probation is imposed in conjunction with a suspension, the suspension may be stayed in whole or in part.

Note: A period of actual suspension may or may not be appropriate. Where the Board contemplates recommending an actual suspension period it will examine evidence concerning the impact of suspension on the respondent-attorney with particular attention to its effect on his or her continued rehabilitation. After consideration of these factors, the Board anticipates that there may be situations where a period of suspension is justified and will be recommended.

Conditions. The order placing a respondent-attorney on probation shall state the conditions of probation. The conditions shall take into consideration the nature and circumstances of the misconduct and the history, character and condition of the respondent-attorney. The following conditions and such others as the Board or the Supreme Court deems appropriate, may be imposed:

General rule. Probation in cases of alcohol or drug abuse shall be governed by 89.291 (relating to probation) and this section.

Relevance of substance abuse. Alcohol or drug abuse may be considered as a mitigating factor in determining appropriate discipline, but shall not be a defense to a Petition for Discipline. For alcohol or drug abuse to be considered as a mitigating factor, the respondent-attorney must prove, by clear and convincing evidence, that alcohol or drug abuse by the respondent-attorney was a factor in causing his or her misconduct. The respondent-attorney may present expert testimony to satisfy that burden of proof.

Note: The requirement that a respondent-attorney establish that alcohol or drug abuse was a factor in causing his or her misconduct is derived from Office of Disciplinary Counsel v. Braun, 553 A.2d 894 (Pa. 1989).

Sobriety monitor. In addition to the conditions required by 89.291(c) (relating to conditions), an order placing a respondent-attorney on probation in cases of alcohol or drug abuse shall appoint a sobriety monitor. The sobriety monitor shall be an attorney admitted to practice law in this Commonwealth, in good standing, and designated by the Drug and Alcohol Committee of the Pennsylvania Bar Association. The sobriety monitor shall:

Financial or practice monitor. The sobriety monitor shall not have the duty to act as a financial monitor or as a practice monitor. In the event that the trust accounts or practice of the respondent-attorney require supervision, the Board shall designate another attorney admitted to practice law in this Commonwealth, in good standing, to act as a financial or practice monitor.

Note: Subsection (d) is intended to make clear that the purpose of the sobriety monitor is only to assist a respondent-attorney to recover from the disease of alcoholism or drug addiction, and not to act as a financial or practice monitor.

Additional conditions. Where an order is entered placing a respondent-attorney on probation in cases of alcohol or drug abuse, the respondent-attorney shall:

Violation of probation. The Board Prothonotary shall immediately forward any report by a sobriety monitor under subsection (c)(6) of a violation of the terms and conditions of probation by a respondent-attorney to the Office of Disciplinary Counsel who shall then proceed in accordance with § 89.292 (relating to violation of probation).

the conditions of probation have been violated or have not been met;

all costs of the proceedings as previously ordered by the Supreme Court or the Board have not been paid; or

formal proceedings for discipline are pending against the respondent-attorney.

General rule. Enforcement Rule 213(a) provides that:

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.

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) of this section.

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 (b). 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.

Cross reference. See § 95.2 (relating to investigation of the conversion of funds).

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:

Procedure.

General rule. Enforcement Rule 213(c) provides that:

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).

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).

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.

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.

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.

Commencement of summary proceedings. Enforcement Rule 214(d)(1) provides that upon the filing with the Supreme Court of a certified copy of an order demonstrating that an attorney has been convicted of a crime, the Court 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.

Subject of summary proceeding. The Note to Enforcement Rule 214(d) provides that the subject of the summary proceedings authorized by this section will ordinarily be limited to whether the condition triggering the application of this section exists, i.e., proof that the respondent-attorney is the same person as the individual convicted of the offense charged although the Court has the discretion to consider such subjects as mitigating or aggravating circumstances.

Disposition. Enforcement Rule 214(d)(2) provides that if a rule to show cause has been issued under subsection (a), 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.

Effect of temporary suspension. Enforcement Rule 214(d)(3) provides that any order of temporary suspension issued under subsection (c) 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. The Note to Enforcement Rule 214(d) provides that permitting the respondent-attorney to continue representing existing clients for 30 days is intended to avoid undue hardship to clients and to permit a winding down of matters being handled by the respondent-attorney, and the permissible activities of the respondent-attorney are intended to be limited to only those necessary to accomplish those purposes.

Dissolution or modification of temporary suspension. Enforcement Rule 214(d)(4) provides that:

Joint petition for temporary suspension. Enforcement Rule 214(d)(5) provides that at any time before a plea or verdict or after a guilty plea or verdict of guilt in the criminal proceeding, Disciplinary Counsel and the respondent-attorney may file with the Court a joint petition for temporary suspension of the respondent-attorney on the ground that the respondent-attorney’s temporary suspension is in the best interest of the respondent and the legal system.

General rule. Enforcement Rule 214(f)(1) provides that upon the filing of a certificate of conviction of an attorney for a crime, Disciplinary Counsel may commence either an informal proceeding under Chapter 87 (relating to investigations and informal proceedings) or a formal proceeding under Subchapter 89B (relating to institution of formal proceedings), except that Disciplinary Counsel may institute a formal proceeding before a hearing committee or special master by filing a petition for discipline under § 89.52 (relating to petition for discipline) without seeking approval for the prosecution of formal charges under Subchapter 87B (relating to review of recommended disposition by reviewing hearing committee member). If a petition for discipline is filed, a hearing on the petition shall be deferred until sentencing and all direct appeals from the conviction have been concluded. The sole issue at the hearing shall be the extent of the discipline or, where the Court has temporarily suspended the attorney under § 91.34(c), the final discipline to be imposed.

Accelerated disposition. Enforcement Rule 214(f)(2) provides that:

Evidence of conviction. Enforcement Rule 214(e) provides that a certificate of conviction of an attorney for a crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against the attorney based upon the conviction.

General rule. Enforcement Rule 214(g) provides that an attorney suspended under the provisions of § 91.34 (relating to temporary suspension upon conviction of a crime) may be reinstated immediately upon the filing by the Board with the Supreme Court of a certificate demonstrating that the underlying conviction has been reversed, but that the reinstatement shall not terminate any formal proceeding then pending against the attorney.

Service on Board of the Pennsylvania Lawyers Fund for Client Security. A copy of the certificate filed by the Board with the Supreme Court under subdivision (a) shall be served on the Board of the Pennsylvania Lawyers Fund for Client Security.

Note: The purpose of service on the Board of the Pennsylvania Lawyers Fund for Client Security is to permit it to notify the Supreme Court if disbursements have been made from the Fund with respect to dishonest conduct by the attorney whose conviction has been reversed so that the Court may determine if restitution should be made a condition of reinstatement.

Definition. Enforcement Rule 301(k) provides that, as used in this subchapter, the term "disabled attorney" means an attorney transferred to inactive status under this subchapter.

Cross reference. See Enforcement Rule 601(a) which suspends the act of July 9, 1976 (P.L. 817, No. 143), known as the Mental Health Procedures Act, to the extent it is inconsistent with the Enforcement Rules.

Duty to report. Enforcement Rule 301(a) provides that the clerk of any court within this Commonwealth that declares that an attorney is incapacitated or that orders involuntary treatment of an attorney on the grounds that the attorney is severely mentally disabled or that denies a petition for review of a certification by a mental health review officer subjecting an attorney to involuntary treatment shall within 24 hours of such disposition transmit a certificate thereof to Disciplinary Counsel, who shall file such certificate with the Supreme Court by means of Form DB-20 (Certificate of Judicial Determination of Incompetency of Attorney).

Local procedures. The Official Note to Enforcement Rule 301(a) provides that it is the responsibility of each local court to adopt any necessary procedures so that mental health officers and individual judges notify the clerk of the court that the respondent in a matter is an attorney and that a certificate must accordingly be sent to Disciplinary Counsel under this section.

Transfer to inactive status. Enforcement Rule 301(c) provides that where an attorney has been judicially declared incapacitated or involuntarily committed on the grounds of incapacity or severe mental disability, the Supreme Court, upon proper proof of the fact, shall enter an order transferring such attorney to inactive status effective immediately and for an indefinite period until the further order of the Court; and that a copy of such order shall be served upon such formerly admitted attorney, the guardian of such person, and/or the director of the institution to which such person has been committed in such manner as the Court may direct.

Summary reinstatement. Where an attorney has been transferred to inactive status by an order in accordance with the provisions of subdivision (a) and, thereafter, in proceedings duly taken, the person is judicially declared to be competent, the Supreme Court upon application may dispense with further evidence that the disability has been removed and may direct reinstatement to active status upon such terms as are deemed proper and advisable.

General rule. Enforcement Rule 301(e) provides that if, during the course of a disciplinary proceeding, the respondent contends that the respondent is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which make it impossible for the respondent to prepare an adequate defense, the respondent shall complete and file with the Court a certificate of admission of disability. The certificate shall:

Procedure. Whenever a respondent makes a contention within the scope of subsection (a) of this section, the respondent shall complete and file a certificate thereof with the Court Prothonotary by means of Form DB-21 (Certificate of Admission of Disability by Attorney). The respondent shall serve a copy of the certificate on the Board and Disciplinary Counsel.

General rule. Enforcement Rule 217(a) provides that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, all clients being represented in pending matters, other than litigation or administrative proceedings, of the disbarment, suspension, administrative suspension or transfer to inactive status and the consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status and shall advise said clients to seek legal advice elsewhere. Such notices shall be in substantially the language of Form DB-23 (Nonlitigation Notice of Disbarment, Suspension, Administrative Suspension or Transfer to Inactive Status). The notice required by this subsection (a) may be delivered by the most efficient method possible as long as the chosen method is successful and provides proof of receipt.

Note: Notice may be accomplished, for example, by delivery in person with the lawyer securing a signed receipt, electronic mailing with some form of acknowledgement from the client other than a “read receipt,” and mailing by registered or certified mail return receipt requested.

Copies of notices and proofs of receipt. At the time of the filing of the verified statement of compliance required by § 91.96 of this Subchapter E, the formerly admitted attorney shall file copies of the notices required by this section and proofs of receipt with the Board Prothonotary and shall serve a conforming copy on Disciplinary Counsel.

General rule. Enforcement Rule 217(b) provides that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the disbarment, suspension, administrative suspension or transfer to inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status. Such rule further provides that the notice to be given to the client shall advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney; that in the event the client does not obtain substitute counsel before the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status, it shall be the responsibility of the formerly admitted attorney to move in the court or agency in which the proceeding is pending for leave to withdraw; and that the notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the formerly admitted attorney. Such notices shall be in substantially the language of Form DB-24 (Litigation Notice of Disbarment, Suspension, Administrative Suspension or Transfer to Inactive Status). The notice required by this subsection (b) may be delivered by the most efficient method possible as long as the chosen method is successful and provides proof of receipt. See Note after subsection (a) of § 91.91 (relating to notification of clients in nonlitigation matters).

Copies of notices and proofs of receipt. At the time of the filing of the verified statement of compliance required by § 91.96 of this Subchapter E, the formerly admitted attorney shall file copies of the notices required by this section and proofs of receipt with the Board Prothonotary and shall serve a conforming copy on Disciplinary Counsel.

General rule. Enforcement Rule 217(c) provides that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, of the disbarment, suspension, administrative suspension or transfer to inactive status:

Method of delivery. Enforcement Rule 217(c) further provides that the notices required by subsection (a) may be delivered by the most efficient method possible as long as the chosen method is successful and provides proof of receipt. See Note after § 91.91(a) of this Subchapter E.

Copies of notices and proofs of receipt. Enforcement Rule 217(c) further provides that at the time of the filing of the verified statement of compliance required by § 91.96 of this Subchapter E, the formerly admitted attorney shall file copies of the notices required by this section and proofs of receipt with the Board Prothonotary and shall serve a conforming copy on Disciplinary Counsel.

Responsibility to provide notice. Enforcement Rule 217(c) further provides that the responsibility of the formerly admitted attorney to provide the notice required by this section shall continue for as long as the formerly admitted attorney is disbarred, suspended, administratively suspended or on inactive status.

Effective date. Enforcement Rule 217(d)(1) provides that orders imposing suspension, disbarment, administrative suspension or transfer to inactive status shall be effective 30 days after entry; that the formerly admitted attorney, after entry of the disbarment, suspension, administrative suspension or transfer to inactive status order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature; but that, during the period from the entry date of the order to its effective date the formerly admitted attorney may wind up and complete, on behalf of any client, all matters which were pending on the entry date.

Effect of verified statement on waiting period for reinstatement. Enforcement Rule 217(e)(3) provides that after the entry of an order of disbarment or suspension for a period exceeding one year, the waiting period for eligibility to apply for reinstatement to the practice of law shall not begin until the formerly admitted attorney files the verified statement required by subsection (a) of this section; and that if the order of disbarment or suspension contains a provision that makes the discipline retroactive to an earlier date, the waiting period will be deemed to have begun on that earlier date.

Note: Subsection (b) of this section and the corresponding provisions in § 89.272(a) and (b) (relating to waiting period) apply only to orders entered on or after February 28, 2015.

Cease and desist from using all forms of communication that convey eligibility to practice. Enforcement Rule 217(d)(2) provides that in addition to the steps that a formerly admitted attorney must promptly take under other provisions of this section to disengage from the practice of law, a formerly admitted attorney shall promptly cease and desist from using all forms of communication that expressly or implicitly convey eligibility to practice law in the state courts of Pennsylvania, including but not limited to professional titles, letterhead, business cards, signage, websites, and references to admission to the Pennsylvania Bar.

Additional steps for certain types of discipline or disability. Enforcement Rule 217(d)(3) provides that in cases of disbarment, suspension for a period exceeding one year, temporary suspension under Enforcement Rule 208(f) or 213(g), or disability inactive status under Enforcement Rule 216 or 301, a formerly admitted attorney shall also promptly:

Compliance records and submission thereof. Enforcement Rule 217(d)(3) further provides that the formerly admitted attorney shall maintain records to demonstrate compliance with the provisions of subsections (a) and (b) of this section and shall provide proof of compliance at the time the formerly admitted attorney files the verified statement required by § 91.96 of this Subchapter E.

General rule. Enforcement Rule 217(e)(1) provides that within ten days after the effective date of the disbarment, suspension, administrative suspension or transfer to inactive status order, the formerly admitted attorney shall file with the Board Prothonotary a verified statement (Form DB-25) (Statement of Compliance) and serve a copy on Disciplinary Counsel. In the verified statement, the formerly admitted attorney shall:

Required certification. Enforcement Rule 217(e)(1) also provides that the statement shall contain an averment that all statements contained therein are true and correct to the best of the formerly admitted attorney’s knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).

Cooperation required. Enforcement Rule 217(e)(2) provides that a formerly admitted attorney shall cooperate with Disciplinary Counsel and respond completely to questions by Disciplinary Counsel regarding compliance with the provisions of this section.

Cross reference. See § 95.3 (relating to monitoring of notices to be sent by formerly admitted attorneys).

General rule. Enforcement Rule 217(i) provides that a formerly admitted attorney shall keep and maintain records of the various steps taken by such person under the Enforcement Rules so that, upon any subsequent proceeding instituted by or against such person, proof of compliance with the Enforcement Rules and with the disbarment, suspension, administrative suspension or transfer to inactive status order will be available; and that proof of compliance with the Enforcement Rules shall be a condition precedent to any petition for reinstatement.

Cross reference. See § 95.3 (relating to monitoring of notices to be sent by formerly admitted attorneys).

General rule. A formerly admitted attorney may not engage in any form of law-related activities in this Commonwealth except in accordance with the requirements of this section.

Supervision. Enforcement Rule 217(j)(1) provides that all law-related activities of the formerly admitted attorney shall be conducted under the supervision of a member in good standing of the Bar of this Commonwealth who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this section. If the formerly admitted attorney is engaged by a law firm or other organization providing legal services, whether by employment or other relationship, an attorney of the firm or organization shall be designated by the firm or organization as the supervising attorney for purposes of this subsection.

Permissible activities. Enforcement Rule 217(j)(2) provides that, for purposes of this section, the only law-related activities that may be conducted by a formerly admitted attorney are the following:

Communications with clients. Enforcement Rule 217(j)(3) provides that a formerly admitted attorney may have direct communication with a client or third party regarding a matter being handled by the attorney, organization or firm for which the formerly admitted attorney works only if the communication is limited to ministerial matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages. The formerly admitted attorney shall clearly indicate in any such communication that he or she is a legal assistant and identify the supervising attorney.

Prohibited activities. Enforcement Rule 217(j)(4) provides that, without limiting the other restrictions in this section, a formerly admitted attorney is specifically prohibited from engaging in any of the following activities:

Notice to Board. Enforcement Rule 217(j)(5) provides that the supervising attorney and the formerly admitted attorney shall file with the Board a notice of engagement, identifying the supervising attorney and certifying that the formerly admitted attorney’s activities will be monitored for compliance with this section. The supervising attorney and the formerly admitted attorney shall file a notice with the Board immediately upon the termination of the engagement between the formerly admitted attorney and the supervising attorney.

Jurisdiction over supervising attorney. Enforcement Rule 217(j)(6) provides that the supervising attorney shall be subject to disciplinary action for any failure by either the formerly admitted attorney or the supervising attorney to comply with the provisions of this section.

Note: This section limits and regulates the law-related activities performed by formerly admitted attorneys regardless of whether those formerly admitted attorneys are engaged as employees, independent contractors or in any other capacity. This section requires that a notice be filed with the Board when any law-related activities are performed by a formerly admitted attorney and when the engagement is terminated. This section is addressed only to the special circumstance of formerly admitted attorneys engaging in law-related activities and should not be read more broadly to define the permissible activities that may be conducted by a paralegal, law clerk, investigator, etc. who is not a formerly admitted attorney. This section is also not intended to establish a standard for what constitutes the unauthorized practice of law. Finally, this section is not intended to prohibit a formerly admitted attorney from performing services that are not unique to law offices, such as physical plant or equipment maintenance, courier or delivery services, catering, typing or transcription or other similar general office support activities.

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:

Service of application. Enforcement Rule 321(b) provides that a copy of the application for appointment of conservator under that rule shall be personally served upon the absent attorney or the personal representative or guardian of the estate of the 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 substitute service).

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.

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:

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:

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:

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).

General rule. Enforcement Rule 322(a)-(c) provides that:

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:

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 discharge.

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).

General rule. Enforcement Rule 208(f) provides that:

Order of temporary suspension. Enforcement Rule 208(f)(2) provides that if a rule to show cause has been issued under subsection (a) of this section, 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 the Enforcement Rules.

Effect of temporary suspension. Enforcement Rule 208(f)(3) provides that:

Dissolution or amendment. Enforcement Rule 208(f)(4) provides that:

Contempt of the Board. Enforcement Rule 208(f)(5) provides that:

Request for accelerated disposition. Enforcement Rule 208(f)(6) provides that:

Conclusion of formal proceedings. Enforcement Rule 208(f)(7) provides that a proceeding involving a respondent-attorney who has been temporarily suspended pursuant to this section at a time when a formal proceeding has already been commenced shall proceed and be concluded without appreciable delay.

Temporary suspension for more than two years without a formal proceeding. Enforcement Rule 208(f)(8) provides that where a respondent-attorney has been temporarily suspended under Enforcement Rule 208(f)(1) or (f)(5) and more than two years have passed without the commencement of a formal proceeding, and it appears by an affidavit demonstrating facts that: 

Procedural requirements. The Note to Enforcement Rule 208(f)(7) provides that the "without appreciable delay" standard of subsections (f)(3) and (g) is derived from Barry v. Barchi, 443 U.S. 55, 99, (1979). Appropriate steps will be taken to satisfy this requirement, such as continuous hearing sessions, procurement of daily transcript, fixing of truncated briefing schedules, conducting special sessions of the Board, etc.

General rule. Enforcement Rule 218(j) provides that if Disciplinary Counsel shall have probable cause to believe that any formerly admitted attorney:

Appeals. Appeals from orders entered in proceedings under subsection (a) of this section are governed by 42 Pa.C.S. § 722(8) (relating to direct appeals from courts of common pleas).

Approval. Enforcement Rule 221(h) provides that an Eligible Institution shall be approved as a depository for Trust Accounts if it shall file with the Board an agreement in a form approved by the Board in which the Eligible Institution agrees to comply with IOLTA Regulations governing approved Eligible Institutions and to make a prompt report to the Lawyers Fund for Client Security Board under the circumstances described in § 91.174 (relating to reports of overdrafts). Upon receiving a signed agreement from an Eligible Institution as required by this subsection, the Board shall report that fact to the Supreme Court with a recommendation that the Court enter an order approving the Eligible Institution as a depository for Trust Accounts.

Termination of approval. Enforcement Rule 221(k) provides that a failure on the part of an Eligible Institution to make a report to the Lawyers Fund for Client Security Board called for by this subchapter or to comply with IOLTA Regulations governing approved Eligible Institutions may be cause for termination of its approval by the Supreme Court, but such failure shall not, absent gross negligence, give rise to a cause of action by any person who is proximately caused harm thereby. Upon learning that a financial institution has failed to make a report called for by this subchapter, the Board shall report that fact to the Supreme Court with a recommendation that the Court enter an order terminating the approval of the financial institution as a depository for Trust Accounts.

List of approved Eligible Institutions. The Board will periodically publish in the Pennsylvania Bulletin a list of Eligible Institutions that are approved at the time as depositories for Trust Accounts under this subchapter. The current list shall also be published in the Pennsylvania Code as an appendix to this section.

General rule. Enforcement Rule 221(h) provides that an Eligible Institution shall report to the Lawyers Fund for Client Security Board whenever any check or similar instrument is presented against a Trust Account when such account contains insufficient funds to pay the instrument, regardless of:

Timing of report. Enforcement Rule 221() provides that the report required to be made under this subchapter shall be made by the Eligible Institution to the Lawyers Fund for Client Security Board within five business days of the presentation of the instrument.

Handling of report. Enforcement Rule 221(o) provides that a designated representative of the Lawyers Fund for Client Security Board shall conduct a preliminary inquiry regarding the report and shall, where appropriate, refer the matter to the Office of Disciplinary Counsel for further investigation.

Effect of report or referral. Enforcement Rule 221(o) also provides that neither a report filed with the Lawyers Fund for Client Security Board pursuant to this subchapter nor a referral of such report to the Office of Disciplinary Counsel shall, in and of itself, be considered a disciplinary complaint.

Immunity. Enforcement Rule 221(l) provides that Eligible Institutions shall be immune from suit for the filing of any reports required by this subchapter or believed in good faith to be required by this subchapter. See § 91.173(b) (relating to termination of approval).

Identification. Enforcement Rule 221(d) provides that the responsibility for identifying an account as a Trust Account shall be that of the attorney in whose name the account is held.

Service charge. Enforcement Rule 221(m) provides that an Eligible Institution shall be free to impose a reasonable service charge upon the attorney in whose name the account is held for the filing of the report required by this subchapter.

In general. Enforcement Rule 221(e) provides that an attorney shall maintain and preserve for a period of five years after termination of the client-lawyer or Fiduciary relationship or after distribution or disposition of the property, whichever is later, the following records:

Regular trial balance and monthly reconciliations. Enforcement Rule 221(e) also provides that: a regular trial balance of the individual client trust ledgers shall be maintained; the total of the trial balance must agree with the control figure computed by taking the beginning balance, adding the total of moneys received in trust for the client, and deducting the total of all moneys disbursed; on a monthly basis, a lawyer shall conduct a reconciliation for each fiduciary account; and the reconciliation is not complete if the reconciled total cash balance does not agree with the total of the client balance listing.

Preservation of records and computations. Enforcement Rule 221(e) provides that a lawyer shall preserve for a period of five years copies of all records and computations sufficient to prove compliance with the requirement of subsection (b).

Form. Enforcement Rule 221(f) provides that the records required by this section may be maintained in hard copy form or by electronic, photographic, or other media provided that the records otherwise comply with this section and that printed copies can be produced. Whatever method is used to maintain required records must have a backup so that the records are secure and always available. If records are kept only in electronic form, then such records shall be backed up, on a separate electronic storage device, at least at the end of any day on which entries have been entered into the records.

In general. Enforcement Rule 221(g) provides that the records required to be maintained by Pa.R.P.C. 1.15 shall be readily accessible to the lawyer and available for production to the Pennsylvania Lawyers Fund for Client Security and the Office of Disciplinary Counsel in a timely manner upon request or demand by either agency made pursuant to the Enforcement Rules, these Rules, the Pennsylvania Lawyers Fund for Client Security Board Rules and Regulations, agency practice, or subpoena.

Request for production by letter. Enforcement Rule 221(g)(1) provides that upon a request by Disciplinary Counsel under subdivision (g) of that Enforcement Rule, which request may take the form of a letter to the respondent-attorney briefly stating the basis for the request and identifying the type and scope of the records sought to be produced, a respondent-attorney must produce the records within ten business days after personal service of the letter on the respondent-attorney or after the delivery of a copy of the letter to an employee, agent or other responsible person at the office of the respondent-attorney as determined by the address furnished by the respondent-attorney in the last registration statement filed by the respondent-attorney pursuant to Enforcement Rule 219(d) (relating to annual registration of attorneys), but if the latter method of service is unavailable, within ten business days after the date of mailing a copy of the letter to the last registered address or addresses set forth on the statement.

Request for production pursuant to Board Rule. Enforcement Rule 221(g)(2) provides in part that when Disciplinary Counsel’s request or demand for Pa.R.P.C. 1.15 records is made under an applicable provision of these Rules, the respondent-attorney must produce the records and must do so within the time frame established by these Rules. See § 87.7(e) (relating to production of Pa.R.P.C. 1.15 records upon Disciplinary Counsel’s request in a Form DB-7 (Request for Statement of Respondent’s Position) or Form DB-7A (Supplemental Request for Statement of Respondent’s Position)).

Request for production by subpoena. Enforcement Rule 221(g)(2) provides in part that when Disciplinary Counsel’s request or demand for Pa.R.P.C. 1.15 records is made by subpoena under Enforcement Rule 213(a), the respondent-attorney must produce the records and must do so within the time frame established by Enforcement Rule 213 and these Rules. See Enforcement Rule 213(b) and § 91.2(b) (both of which relate to procedure for issuance of subpoenas).

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:

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.

General rule.  Enforcement Rule 205(c) provides that the Board shall have the power and duty:

Consultations with local bar associations.  Enforcement Rule 205(d) provides that the Board shall, to the extent it deems feasible, consult with officers of local bar associations in the counties affected concerning any appointment which it is authorized to make under the Enforcement Rules.

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.

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:

General rule. The Board Chair may designate panels of at least three Board members for the purpose of hearing oral argument in formal proceedings.

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.

Quorum. A majority of the members of a panel of the Board shall constitute a quorum of the panel.

General rule. Except as otherwise provided in this section, all pleadings shall be addressed to the Board Prothonotary.  All other communications and submittals should be addressed to the Board at the Executive Office unless otherwise specially directed. All communication and filings should clearly designate the docket number, or similar identifying symbols, if any, employed by the Board, and should set forth a short title. All communications shall include the address of the person communicating, the party such person represents, and how response should be sent to such person if not by first class mail.

Pleadings. All pleadings and other documents filed pursuant to any provision of Chapter 89 (relating to formal proceedings) shall comply with the applicable provisions of such Chapter. Electronic filing may be accomplished by accessing the electronic filing system available on the Disciplinary Board website.

Incomplete documents. In any proceeding when upon inspection the Board Prothonotary or Executive Office is of the opinion that a submittal or pleading tendered for filing does not comply with this Subpart such Office may decline to accept the document for filing and may return it unfiled, or such Office may accept it for filing and advise the person tendering it of the deficiency and require that the deficiency be corrected.

Disposition of complaints.

General rule. The Executive Office shall maintain such dockets of matters considered by the Board as may be directed by the Board.

Numbering. Except as otherwise ordered by the Board, matters submitted to the Board for action shall be assigned a docket number consisting of the letters "DB" and the calendar year in which the matter is docketed, which shall be preceded by the serial number of the matter in such calendar year, e.g.: 1 DB 2001.

Petitions for reinstatement. Petitions for reinstatement shall be docketed to the same number as assigned to the original disciplinary proceedings. If there is no such original docket number, a new number shall be assigned to the petition for reinstatement.

General rule. There shall be an Office of Disciplinary Counsel, which shall be the office of the Chief Disciplinary Counsel and the following staff of the Board:

Powers and duties. The Office of Disciplinary Counsel shall be supervised by the Chief Disciplinary Counsel who shall, either personally, by Disciplinary Counsel, or by other duly authorized staff of the Board, or by duly authorized agent, exercise the powers and perform the duties vested in and imposed upon the Office of Disciplinary Counsel by these rules.

Location. The principal office and district offices of the Office of Disciplinary Counsel shall be maintained at the locations specified in § 85.5 (relating to location of Office of Disciplinary Counsel).

General rule. The Office of Disciplinary Counsel shall have the power and duty (pursuant to Enforcement Rule 207(b)):

Party status of Disciplinary Counsel. Enforcement Rule 207(c) provides that Disciplinary Counsel:

General rule. Enforcement Rule 205(c)(3) provides that the Board shall appoint not less than 18 hearing committee members within each disciplinary district, and that each person appointed as a hearing committee member for a district shall be a member of the bar of this Commonwealth who maintains an office for the practice of law within the district.

(Rescinded)

Terms. Enforcement Rule 206(a) provides that when a hearing committee is required to handle a matter, the Board shall appoint a hearing committee consisting of three hearing committee members from the appropriate disciplinary district. Under exigent circumstances, the Board has the discretion to appoint a hearing committee member or members from outside the appropriate disciplinary district, or to require that a matter be transferred to another disciplinary district. At least one of the members of the hearing committee shall be a senior hearing committee member, and another member shall be either a senior hearing committee member or an experienced hearing committee member; the terms of hearing committee members shall be three years; no member shall serve for more than two consecutive three-year terms; a hearing committee member who has served two consecutive three-year terms may be reappointed after the expiration of one year; and the terms of members shall commence on July 1. A hearing committee member whose term has expired may continue to serve until the conclusion of any matter commenced before the member prior to the expiration of such term, if so requested in writing by the Executive Office.

General rule. Enforcement Rule 206(b) provides that each hearing committee shall have the power and duty:

Other duties. A hearing committee shall also conduct reinstatement hearings and perform such other duties as may be imposed by or pursuant to these rules.

Assignment. Enforcement Rule 206(d) provides that a special master instead of a hearing committee may be assigned by the Board to conduct an investigatory hearing or formal proceeding.

Powers and duties. Enforcement Rule 206(e) provides that a special master shall have the power and duty:

General rule. Enforcement Rule 402(a) provides that, except as provided in subsections (b) and (d) and § 93.104 (relating to access by judicial system agencies to confidential information) and § 93.108 (relating to restoration of confidentiality), all proceedings under these rules shall be open to the public after:

Certain informal proceedings. Enforcement Rule 402(b) provides that, notwithstanding subsection (a), an informal proceeding under these rules in which it is determined that private discipline should be imposed but that subsequently results in the filing of formal charges shall not be open to the public until or unless the Supreme Court enters its order for the imposition of public discipline.

Exceptions to initial confidentiality. Enforcement Rule 402(c) provides that, until the proceedings are open under subsection (a) or (b), all proceedings involving allegations of misconduct by or disability of an attorney shall be kept confidential unless:

Permitted uses of otherwise confidential information. Enforcement Rules 402(d)(2), (3), (4), (5) and (6) provide that the provisions of subsections (a) and (b) of this section shall not be construed to:

Waiver. Any respondent-attorney may in writing waive the benefits, in whole or in part, of this Subchapter.

National Lawyer Regulatory Data Bank. Enforcement Rule 402(i) provides that the Board shall transmit notice of all public discipline imposed by the Supreme Court, transfers to or from inactive status for disability, and reinstatements to the National Lawyer Regulatory Data Bank maintained by the American Bar Association.

Requests for documents. Requests for copies of documents relating to disciplinary proceedings that are available to the public under this subchapter must be in writing and directed to the Executive Office. A copying fee, which shall be the same as the copying fee charged to respondent-attorneys, must be prepaid at the time a request is made.

Transcripts and exhibits. The Board will not make available to the public copies of transcripts or exhibits introduced as evidence in a proceeding.

Note: Nothing in this Rule shall preclude any individual from obtaining copies of transcripts or exhibits through the official reporter designated by the Executive Office.

General rule. Enforcement Rule 402(d)(1) provides that the provisions of § 93.102(a) and (b) (relating to access to disciplinary information and confidentiality) shall not be construed to deny access to relevant information at any point during a proceeding under these rules to:

Notice to respondent-attorney. Enforcement Rule 402(g) provides that, except as provided in subsection (c), if nonpublic information is requested pursuant to subsection (a) and the respondent-attorney has not signed an applicable waiver of confidentiality, the respondent-attorney shall be notified in writing at the last known address of the respondent-attorney of what information has been requested and by whom, together with a copy of the information proposed to be released to the requesting agency or board. The notice shall advise the respondent-attorney that the information will be released 20 days after mailing of the notice unless the respondent-attorney objects to the disclosure. If the respondent-attorney timely objects to the disclosure, the information shall remain confidential unless the requesting agency or board obtains an order of the Supreme Court requiring its release or the respondent-attorney withdraws the objection.

Exception to required notice to respondent-attorney. Enforcement Rule 402(h) provides that, if an agency or board requesting the release of information under subsection (a) other than the Judicial Conduct Board and the Pennsylvania Lawyers Fund for Client Security Board has not obtained an applicable waiver of confidentiality from the respondent-attorney, and the agency or board requests that the information be released without giving notice to the respondent-attorney, the requesting agency or board shall certify that:

Restrictions on available information. The fact that:

General rule. Enforcement Rule 402(f) provides that the Board may, upon application of any person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential, and the Board may direct that proceedings be conducted so as to implement the order, including requiring that a hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of a protective order.

Applications at conferences and hearings. Upon application of any person during a conference or hearing under Chapter 89 Subchapter C (relating to hearing procedures) and for good cause shown, the senior or experienced hearing committee member conducting the conference or the hearing committee or special master conducting the hearing may issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential, and may direct that a hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of the protective order. Upon the submission of an application for a protective order, the conference or hearing shall be recessed for the conduct of an in camera meeting of the parties with the hearing committee member, hearing committee or special master for consideration of the application. The ruling on the application for a protective order may be appealed to the Board. An appeal to the Board may stay the conduct of hearings in the matter at the discretion of the hearing committee.

Note: A party seeking a protective order is encouraged to apply for the order at the prehearing conference to allow time for a potential appeal to the Board.

Enforcement Rule 402(j)(1) provides that this subchapter does not permit broadcasting, televising, recording or taking photographs during a proceeding under these rules, except that a hearing committee, a special master, the Board or the Supreme Court when conducting a proceeding may authorize the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record or for other purposes of judicial administration.

Enforcement Rule 402(j)(2) provides that public access to a public proceeding before a hearing committee, special master or the Board shall consist of or be supplemented by livestream technology, which access shall cease upon the conclusion of the proceeding. The official record of the proceeding shall be the record generated by the court reporter, as applicable. 

Enforcement Rule 402(j)(3) provides that a request for in-person access to a public proceeding other than by the parties, their attorneys and reasonably necessary staff shall be made to the Board at least 30 days in advance of the scheduled proceeding.

Enforcement Rule 402(k) provides that if a formal proceeding results in the imposition of private discipline or dismissal of all the charges, the proceeding shall cease to be open to the public when the decision to impose private discipline or dismiss the charges becomes final, unless the respondent-attorney requests that the record of the proceeding remain open to the public.

Notwithstanding the restoration of confidentiality under subsection (a), Disciplinary Counsel shall notify the complainant in writing of the disposition in conformance with the provisions of § 87.51(a)(1) of these Rules.  

Note: A Note to Enforcement Rule 402(k) explains that, although a formal proceeding that becomes open to the public under § 93.102 (access to disciplinary information and confidentiality) will subsequently be closed if it results in the imposition of private discipline or dismissal of all the charges, the closing of the proceeding cannot change the fact that the proceeding was open to the public for a period of time. Thus, this section makes clear that the respondent-attorney may request that the record of the proceeding remain open to demonstrate that the charges were dismissed or only private discipline was imposed.

General rule. Enforcement Rule 208(g)(2) provides that expenses taxable by the Board pursuant to § 89.205(b) (relating to taxation of expenses) shall be prescribed by these rules. See also § 89.209 (relating to expenses of formal proceedings) and § 89.278 (relating to expenses of reinstatement proceedings).

Enumeration of expenses. Taxable expenses under these rules shall include, but not be limited to, the following:

Administrative fee. Enforcement Rule 208(g)(4) provides that in addition to the payment of any expenses under Enforcement Rule 208(g)(1) or (g)(2), a respondent-attorney shall pay upon the final order of discipline an administrative fee, pursuant to the schedule set forth in the rule.

Assessed Penalties on Unpaid Taxed Expenses and Administrative Fees.

Action by Board. Enforcement Rule 219(g) and (l) provide that the Board shall:

Action by Supreme Court. Enforcement Rule 219(g) provides that upon certification to the Supreme Court of the name of any attorney pursuant to paragraph (a)(2) of this section, the Court shall enter an order administratively suspending the attorney; and that the Chief Justice may delegate the processing and entry of orders under this subsection to the Court Prothonotary.

Reinstatement upon payment of taxed costs. Enforcement Rule 219(m) provides that upon payment of all expenses taxed pursuant to § 89.205(b) and § 89.209 by a formerly admitted attorney on administrative suspension solely for failure to comply with paragraph (a)(1) of this section, the Board shall so certify to the Supreme Court; and that unless such person is subject to another outstanding order of suspension or disbarment or the order has been in effect for more than three years, the filing of the certification from the Board with the Court Prothonotary shall operate as an order reinstating the person to active status.

General rule. Enforcement Rule 219(a) provides that every attorney admitted to practice law in this Commonwealth shall pay an annual fee of $195.00 and electronically file the annual fee form provided for under such rule by July 1; that the fee shall be collected under the supervision of the Attorney Registration Office, which shall make, the annual fee form available for filing through a link on the Board’s website (http://www.padisciplinaryboard.org) or directly at https://ujsportal.pacourts.us. The fee shall be used to defray the costs of disciplinary administration and enforcement under the Enforcement Rules, and for such other purposes as the Board shall, with the approval of the Supreme Court, from time to time determine. Upon an attorney’s written request submitted to the Attorney Registration Office and for good cause shown, the Attorney Registration Office shall grant an exemption from the electronic filing requirement and permit the attorney to file the annual fee form in paper form. An attorney may apply to the Board for a waiver of the annual fee on the basis of financial hardship by submitting a waiver application and required documentation to the Attorney Registration Office by July 1. Financial hardship shall be determined by reference to the federal poverty guidelines.

Note: Pa.R.P.C. 1.15(u) imposes an additional annual fee for use by the IOLTA Board, and Enforcement Rule 502(b) imposes an additional annual fee for use by the Pennsylvania Lawyers Fund for Client Security. The grant of a waiver under this subdivision (a) shall include waiver of the additional annual fees.

Exemptions. Enforcement Rule 219(b) provides that the following shall be exempt from the annual fee:

Transmission of form. Enforcement Rule 219(c) provides that on or before May 15 of each year the Attorney Registration Office shall transmit to all attorneys required by the rule to pay an annual fee a notice by e-mail to register electronically by July 1. Failure to receive notice shall not excuse the filing of the annual fee form or payment of the annual fee.

Filing of annual fee form. Enforcement Rule 219(d) provides that on or before July 1 of each year all attorneys required by the rule to pay an annual fee shall file electronically with the Attorney Registration Office an electronically endorsed form prescribed by the Attorney Registration Office in accordance with the following procedures:

Action by Attorney Registration Office. Enforcement Rule 219(f) provides that when any attorney fails to complete the registration required by § 93.141 and § 93.142 by July 16, the Attorney Registration Office shall:

Action by the Supreme Court. Enforcement Rule 219(g) provides that upon receipt of certification of the name of any attorney pursuant to paragraph (a)(3) of this section, the Supreme Court shall enter an order administratively suspending the attorney; and that the Chief Justice may delegate the processing and entry of orders under this subsection to the Court Prothonotary.

General rule. An attorney who has been administratively suspended pursuant to § 93.144(b) of these rules for three years or less is not eligible to file the annual fee form electronically. Enforcement Rule 219(h) provides that the procedure for reinstatement is as follows:

Late payment penalties. Enforcement Rule 219(h)(3) provides that a formerly admitted attorney who is administratively suspended must pay the late payment penalties incurred in the year in which the formerly admitted attorney is transferred to administrative suspension. The amount of the late payment penalties shall be established by the Board annually after giving due regard to such factors as it considers relevant, including the direct and indirect costs incurred by the Board during the preceding year in processing the records of attorneys who fail to timely file the form required by § 93.142(b). On or before July 1 of each year the Executive Office shall publish in the Pennsylvania Bulletin a notice of the late payment penalty established by the Board for the coming registration year.

Retired Status. Enforcement Rule 219(i) provides that:

Inactive Status. Enforcement Rule 219(j) provides that:

Enforcement Rule 219(k) provides that an inactive attorney who has been administratively suspended for failure to file the annual form and pay the annual fee required by § 93.146(b)(2) of these rules, may request an administrative change in status form from the Attorney Registration Office. The form must be filed by mail or delivered in person to the Attorney Registration Office and said Office shall change the status of an attorney eligible for inactive status under this subsection (a) upon receipt of:

Enforcement Rule 219(k) provides that an active attorney who has been administratively suspended for failure to file the annual form required by § 93.142 and pay the annual fee required by § 93.141 must comply with § 93.145 (relating to reinstatement of administratively suspended attorneys) before becoming eligible to register as inactive or retired.

Where the Office of Disciplinary Counsel has some factual basis to support a suspicion or concern that there has been improper commingling or mishandling of entrusted funds or a failure to promptly account for or distribute such funds by a respondent-attorney, it is the policy of the Board that Disciplinary Counsel shall make a request or demand to the respondent-attorney for all relevant records, including the records required to be maintained under Pa.R.P.C. 1.15(c), Enforcement Rule 221(e), and § 91.177(a) (all of which relate to required records), unless such a request or demand would jeopardize an ongoing investigation. Disciplinary Counsel shall utilize one or more of the procedures authorized by Enforcement Rule 221(g) and § 91.178 (relating to availability of required records and requirement to produce), and Enforcement Rule 213 and § 91.2 (relating to subpoenas).

Note: An administrative agency’s request or demand for production of required records has been upheld if the agency has some factual basis to support a suspicion or concern that the law has been violated even if the evidence does not establish a violation, or the circumstances justify the agency’s seeking assurances that the law has not been violated; 2) the records sought are reasonably relevant to the inquiry; and 3) the demand is not too indefinite or overbroad. United States v. Morton Salt Co., 338 U.S. 632, 642-643, 652 (1950), cited in State Real Estate Com. v. Roberts, 441 Pa. 159, 164-165, 271 A.2d 246, 248 (1970), cert. denied, 402 U.S. 905 (1971); Unnamed Attorney v. Attorney Grievance Comm’n, 313 Md. 357, 364-365, 545 A.2d 685, 689 (1988).

Where the Office of Disciplinary Counsel receives evidence of the misappropriation or conversion of entrusted funds by a respondent-attorney, it is the policy of the Board that Office of Disciplinary Counsel shall seek to obtain relevant records under the procedures in subsection (a), and, where deemed appropriate or necessary, seek the issuance of a subpoena duces tecum to the respondent-attorney and any relevant financial institution for some or all of the following records:

No limitation intended. This section does not prohibit Disciplinary Counsel, at any stage of an investigation, from: 1) verbally requesting that a respondent-attorney voluntarily produce records; 2) seeking records from a financial institution or a person other than the respondent-attorney; or 3) seeking relevant records, by any authorized manner, of any type or nature and in relation to a suspected violation of a type other than one identified in this section.