2136 Amendments to Rules of Organization and Procedure of the Disciplinary Board of the Supreme Court of Pennsylvania; order no. 74?

Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

[ 204 PA. CODE CHS. 87, 89, 91 AND 93 ]

Amendments to Rules of Organization and Procedure of the Disciplinary Board of the Supreme Court of Pennsylvania; Order No. 74

[42 Pa.B. 6864]
[Saturday, November 3, 2012]

 The Rules of Organization and Procedure of the Board have been drafted to restate in full the substance of the Pennsylvania Rules of Disciplinary Enforcement. By Order dated June 4, 2012, the Supreme Court of Pennsylvania amended Pa.R.D.E. 204, 205, 212, 216, 217, 218 and 219, respectively. By this Order, the Board is making conforming changes to its Rules to reflect the adoption of those amendments. This order also makes some minor corrections, such as changing the term Chairman to Chair or chairperson in some cases.

 The Disciplinary Board of the Supreme Court of Pennsylvania finds that:

 (1) To the extent that 42 Pa.C.S. § 1702 (relating to rule making procedures) and Article II of the act of July 31, 1968 (P. L. 769, No. 240), known as the Commonwealth Documents Law, would otherwise require notice of proposed rulemaking with respect to the amendments adopted hereby, those proposed rulemaking procedures are inapplicable because the amendments adopted hereby relate to agency procedure and are perfunctory in nature.

 (2) The amendments to the Rules of Organization and Procedure of the Board adopted hereby are not inconsistent with the Pennsylvania Rules of Disciplinary Enforcement and are necessary and appropriate for the administration of the affairs of the Board.

 The Board, acting pursuant to Pa.R.D.E. 205(c)(12), orders:

 (1) Title 204 of the Pennsylvania Code is hereby amended as set forth in Annex A hereto.

 (2) The Secretary of the Board shall duly certify this Order, and deposit the same with the Administrative Office of Pennsylvania Courts as required by Pa.R.J.A. 103(c).

 (3) The amendments adopted hereby shall take effect upon publication in the Pennsylvania Bulletin.

 (4) This Order shall take effect immediately.

By The Disciplinary Board of the
Supreme Court of Pennsylvania

ELAINE M. BIXLER, 
Secretary

Annex A

TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

Subpart C. DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

CHAPTER 87. INVESTIGATIONS AND INFORMAL PROCEEDINGS

Subchapter B.  REVIEW OF RECOMMENDED DISPOSITION OF COMPLAINT

§  87.33. Appeal by Office of Disciplinary Counsel from modification of recommendation.

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 (c) Action by Board. The Office of the Secretary shall transmit the Form DB-8 and related file to a panel of three members of the Board designated by the [Chairman] 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, 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.

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§  87.34. Review of recommendation of private reprimand or public reprimand.

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 (b) 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 Office of the Secretary shall transmit the file to a panel of three members of the Board designated by the [Chairman] 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.

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CHAPTER 89. FORMAL PROCEEDINGS

Subchapter A. PRELIMINARY PROVISIONS

GENERAL MATTERS

§  89.7. Continuances.

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 (b) 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, [chairman] chairperson or other appropriate administrative officer of any court, administrative agency or other body with which a conflict mightreasonably arise, and shall file a copy of such notice with the Office of the Secretary.

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AMENDMENT OR WITHDRAWAL OF PLEADINGS

§  89.31. Amendments of pleadings.

 No amendment of any petition for discipline or other pleading may be made except on leave granted by the Board [Chairman] Chair or the hearing committee or special master before which the matter is then pending.

§  89.32. Withdrawal of petition for discipline.

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

Subchapter D. ACTION BY BOARD AND SUPREME COURT

§  89.201. Review by Board.

 (a) 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 [Chairman] Chair.

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 (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 [Chairman] 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 [Chairman] Chair. No further response will be entertained unless the Board, with or without motion, so orders.

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§  89.202. Content and form of briefs on exceptions.

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 (c) Length. Briefs on exceptions and briefs opposing exceptions shall be [self contained] self-contained and limited to 30 pages in length, except that for good cause the limitation on length may be altered or waived for either class of briefs upon application to and order of the Board [Chairman] Chair at least ten days before the time fixed for filing of the respective briefs.

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§  89.206. Transmission of record to Supreme Court.

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 (b) Procedure. The Board [Chairman] Chair shall file the record, the briefs on exceptions and the briefs opposing exceptions, if any, the finding and recommendations of the Board, and a statement of the Secretary of any expenses taxable under § 93.111 (relating to determination of reimbursable expenses) 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, statement of taxable expenses, and letter of transmittal shall be served by the Office of the Secretary upon the participants.

Subchapter F. REINSTATEMENT AND RESUMPTION OF PRACTICE

REINSTATEMENT OF FORMERLY ADMITTED ATTORNEYS

§  89.271. Reinstatement only by Court order.

 Enforcement Rule 218(a) provides that an attorney may not resume practice until reinstated by order of the Supreme Court after petition pursuant to Rule 218 if the attorney was:

 (1) suspended for a period exceeding one year;

 (2) retired, on inactive status or on administrative suspension [for more than] if the formerly admitted attorney has not been on active status at any time within the past three years;

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§  89.273. Procedures for reinstatement.

 (a) 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:

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 (3) The hearing committee shall promptly schedule a hearing at which a disbarred or suspended attorney shall have the burden of demonstrating by clear and convincing evidence that such person has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth and that the resumption of the practice of law within the Commonwealth by such person will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest. When the petitioner-attorney is seeking reinstatement from disbarment, the threshold inquiry articulated in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 579, 506 A.2d 872, 875 (1986) and its progeny applies.

 Official Note:   The requirement that a hearing be scheduled ''promptly'' means that a hearing should ordinarily be held within 60 days after the petition for reinstatement has been filed with the Board and the response from Disciplinary Counsel has been received, unless the [chairman] chair of the hearing committee extends that time for good cause shown.

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 (b) 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 [or]; 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:

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

 (1) Upon the expiration of any term of suspension not exceeding one year and upon the filing thereafter by the formerly admitted attorney with the Board of a verified statement showing compliance with all the terms and conditions of the order of suspension and of Chapter 91 Subchapter E (relating to formerly admitted attorneys), the Board shall certify such fact to the Supreme Court, which shall immediately enter an order reinstating the formerly admitted attorney to active status, unless such person is subject to another outstanding order of suspension or disbarment.

 (2) Paragraph (1) of this subsection shall not be applicable and a formerly admitted attorney shall be subject instead to the other provisions of this rule requiring the filing of a petition for reinstatement, if:

 (i) other formal [diciplinary] disciplinary proceedings are then pending or have been authorized against the formerly admitted attorney;

 (ii) the formerly admitted attorney has been on retired status, inactive status or administrative suspension for more than three years; [or]

 (iii) the formerly admitted attorney has not been on active status for more than three years due to a combination of retired status, inactive status, administrative suspension and/or a term of suspension not exceeding one year and had not been on active status at any time within the three-year period preceding the entry of the order; or

 (iv) the order of suspension has been in effect for more than three years.

 (3) A verified statement may not be filed under paragraph (1) until the formerly admitted attorney has paid in full any costs taxed under § 89.209 (relating to expenses of formal proceedings) and has made any required restitution to the Lawyers Fund for Client Security under Enforcement Rule 531 (relating to restitution a condition for reinstatement).

 (e) 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 [voluntarily] resumption of active status by retired or inactive attorneys), and § 93.112(c) (relating to reinstatement upon payment of taxed costs), as [applicable] appropriate. This subsection (e) does not apply to [any]:

 (1) a formerly admitted attorney who, on the date of the filing of the request for reinstatement, had not been on active status at any time within the preceding three years; or

 (2) an attorney who has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct.

RESUMPTION OF PRACTICE

§  89.285. Resumption of practice by justices and judges.

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

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 (iii) be accompanied by payment of the full annual fee for the [assessment] registration year in which the notice is filed.

CHAPTER 91. MISCELLANEOUS MATTERS

Subchapter A. SERVICE, SUBPOENAS, DEPOSITIONS AND RELATED MATTERS

IN GENERAL

§  91.1. Substituted service.

 Enforcement Rule 212 provides that in the event a respondent-attorney cannot be located and personally served with notices required under the Enforcement Rules and these rules, such notices may be served upon the respondent-attorney by addressing them to the address furnished in the last registration statement filed by the respondent-attorney in accordance with § 93.142(b) (relating to filing of annual [statement] fee form by attorneys) or, in the case of foreign legal consultant, by serving them pursuant to the designation filed by the foreign legal consultant under Pennsylvania Bar Admission Rule 341(b)(8) (relating to licensing of foreign legal consultants).

Subchapter B. ATTORNEYS CONVICTED OF CRIMES

§  91.37. Definition of ''crime.''

 As Enforcement Rule 214(h) provides and as used in this Subchapter 91B, the term ''crime'' means [a crime] an offense that is punishable by imprisonment in the jurisdiction of conviction, whether or not a sentence of imprisonment is actually imposed. It does not include parking violations or summary offenses, both traffic and non-traffic, unless a term of imprisonment is actually imposed.

Subchapter C. RECIPROCAL DISCIPLINE AND DISABILITY

§  91.51. Reciprocal discipline and disability.

 Enforcement Rule 216 provides as follows:

 (1) Upon receipt of a certified copy of a final adjudication of any court or any body authorized by law or by rule of court to conduct disciplinary proceedings against attorneys by any state or territory of the United States or of the District of Columbia, a United States court, or [government] a federal administrative agency or a military tribunal demonstrating that an attorney admitted to practice in this Commonwealth has been disciplined by suspension, disbarment, revocation of license or pro hac vice admission, or has resigned from the bar or otherwise [relinguished] relinquished his or her license to practice while under disciplinary investigation in another jurisdiction or has been transferred to disability inactive status, the Supreme Court shall forthwith issue a notice (Form DB-19) (Notice of Reciprocal Discipline) directed to the respondent-attorney containing:

 (i) A copy of the final adjudication described in [paragraph (a)] subdivision (1).

 (ii) An order directing that the respondent-attorney inform the Court within 30 days from service of the notice, of any claim by the respondent-attorney that the imposition of the identical or comparable discipline or disability inactive status in the Commonwealth would be unwarranted, and the reasons therefor. The Office of the Secretary shall cause this notice to be served upon the respondent-attorney by mailing it to the address furnished by the respondent-attorney in the last registration statement filed by such person in accordance with § 93.142(b) (relating to filing of annual fee form by attorneys) or, in the case of a foreign legal consultant, by serving it pursuant to the designation filed by the foreign legal consultant under Pennsylvania Bar Admission Rule 341(b)(8) (relating to licensing of foreign legal consultants).

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Subchapter G. EMERGENCY PROCEEDINGS

§  91.151. Emergency temporary suspension orders and related relief.

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

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 (3) if the response to the rule to show cause raises issues of fact, the [Chairman] Chair of the Board may direct that a hearing be held before a member of the Board who shall submit a report to the Board upon the conclusion of the hearing;

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CHAPTER 93. ORGANIZATION AND ADMINISTRATION

Subchapter G. FINANCIAL MATTERS

EXPENSES GENERALLY

§  93.121. Expenses.

 (a) General. Enforcement Rule 401 provides that the salaries of the staff of the Office of the Secretary and of the Office of Disciplinary Counsel, their expenses, administrative costs, and the expenses of the members of the Board and of hearing committees shall be paid by the Board out of the funds collected under the provisions of §§ [93.141—93.147] 93.141—93.148 (relating to annual [assessment] registration of attorneys).

 (b) Special masters. Enforcement Rule 205(c)(4) provides that the expenses and compensation of special masters shall be paid as a cost of disciplinary administration and enforcement. See § 93.141(a) (relating to annual [assessment] registration).

ANNUAL [ASSESSMENT] REGISTRATION OF ATTORNEYS

§  93.141. Annual [assessment] registration.

 (a) General rule. Enforcement Rule 219(a) provides that every attorney admitted to practice law in this Commonwealth shall pay an annual fee [under such rule of $135.00] of $130.00 and file the annual fee form provided for under such rule; that the [annual] fee shall be collected under the supervision of the Attorney Registration Office, which shall send [and receive,] or cause to be sent [and received, the notices and forms provided for in this Subchapter,] to every attorney, except an attorney who has elected to file the form electronically, the annual fee form; that the Attorney Registration Office shall transmit to those attorneys who have elected to file the form electronically a notice by e-mail to register by July 1; that failure to receive the annual fee form by mail or electronically shall not excuse payment of the fee; and that 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.

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§  93.142. Filing of annual fee form by attorneys.

 (a) Transmission of form. Enforcement Rule 219(c) provides that on or before May 15 of each year the Attorney Registration Office shall transmit [by ordinary mail to all persons] to all attorneys required by the rule to pay an annual fee, except those attorneys who have elected electronic filing, a form required by subsection (b) of this section; and that on or before May 15 of each year subsequent to the year in which an attorney elects electronic filing, the Attorney Registration Office shall transmit to such attorney a notice by e-mail to register by July 1.

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

 (1) The form shall set forth:

 (i) The date on which the attorney was admitted to practice, licensed as foreign legal consultant, granted limited admission as an attorney participant in defender and legal services programs pursuant to Pa.B.A.R. 311, or issued a Limited In-House Corporate Counsel License, and a list of all courts (except courts of this Commonwealth) and jurisdictions in which the person has ever been license` to practice law, with the current status thereof.

 (ii) The current residence and office addresses of the attorney, each of which shall be an actual street address or rural route box number, and the Attorney Registration Office shall refuse to accept a form that sets forth only a post office box number for either required address. A preferred mailing address different from those addresses may also be provided on the form and may be a post office box number. The attorney shall indicate which of the addresses, the residence, office or mailing address, as well as telephone and fax number will be accessible through the website of the Board (http://www. padisciplinaryboard.org/) and by written or oral request to the Board. Upon an attorney's written request submitted to the Attorney Registration Office and for good cause shown, the contact information provided by the attorney will be nonpublic information and will not be published on the Board's website or otherwise disclosed.

 Official Note:   The Note to Enforcement Rule 219(d)(1)(ii) explains that public web docket sheets will show the attorney's address as entered on the court docket.

 (iii) The name of each financial institution in Pennsylvania in which the attorney on May 1 of the current year or at any time during the preceding 12 months held funds of a client or a third person subject to Rule 1.15 of the Pennsylvania Rules of Professional Conduct. The form shall include the name and account number for each account in which the lawyer holds such funds, and each IOLTA Account shall be identified as such. The form provided to a person holding a Limited In-House Corporate Counsel License or a Foreign Legal Consultant License need not request the information required by this subparagraph.

 (iv) A certification reading as follows: ''I certify that all Trust Accounts that I maintain are in financial institutions approved by the Supreme Court of Pennsylvania for the maintenance of such accounts pursuant to Pennsylvania Rule of Disciplinary Enforcement 221 (relating to mandatory overdraft notification) and that each Trust Account has been identified as such to the financial institution in which it is maintained.''

 (v) A statement that any action brought against the attorney by the Pennsylvania Lawyers Fund for Client Security for the recovery of monies paid by the Fund as a result of claims against the attorney may be brought in the Court of Common Pleas of Allegheny, Dauphin or Philadelphia County.

 (vi) Whether the attorney is covered by professional liability insurance on the date of registration in the minimum amounts required by Rule of Professional Conduct 1.4(c). Rule 1.4(c) does not apply to attorneys who do not have any private clients, such as attorneys in full-time government practice or employed as in-house corporate counsel.

 Official Note:   The Disciplinary Board will make the information regarding insurance available to the public upon written or oral request and on its website. The requirement of Rule 219(d)(3) that every attorney who has filed an annual [registration form] fee form or elects to file the form electronically must notify the Attorney Registration Office [in writing] of any change in the information previously submitted within 30 days after such change will apply to the information regarding insurance.

 (vii) Such other information as the Attorney Registration Office may from time to time direct.

 (2) Payment of the annual fee shall accompany the form. [Where] IOLTA, trust, escrow and other fiduciary account checks tendered in payment of the annual fee will not be accepted. If the form and payment are incomplete or if a check in payment of the annual fee has been returned to the Board unpaid, the annual fee shall not be deemed to have been paid until a collection fee, and one or both of the late payment penalties prescribed in § 93.144(a)(1) and (2) of these rules if assessed, shall also have been paid. The amount of the collection fee shall be established by the Board annually after giving due regard to the direct and indirect costs incurred by the Board during the preceding year for checks returned to the Board unpaid. On or before July 1 of each year the Office of the Secretary shall publish in the Pennsylvania Bulletin a notice of the collection fee established by the Board for the coming [assessment] registration year.

 (3) Every [person] attorney who has filed [such a form] the form or elects to file the form electronically shall notify the Attorney Registration Office [in writing] of any change in the information previously submitted, including e-mail address, within 30 days after such change.

 (4) Upon original admission to the bar of this Commonwealth, licensure as a Foreign Legal Consultant, issuance of a Limited In-House Corporate Counsel License, or limited admission as an attorney participant in defender and legal services programs pursuant to Pa.B.A.R. 311, a person shall concurrently file a form under this [subsection] section for the current [assessment] registration year, but no annual fee shall be payable for the [assessment] registration year in which originally admitted or licensed.

§  93.144. Administrative suspension for failure to comply.

 (a) Action by Attorney Registration Office. Enforcement Rule 219(f) [and (g) provide that] provides that when any attorney fails to complete the registration required by §§ 93.141 and 93.142 by July 31, the Attorney Registration Office shall:

 [(1) Transmit by ordinary mail to every attorney who fails to timely file the form and pay the annual fee required by this subchapter, addressed to the last known mailing address of the attorney, a notice stating:

 (i) That unless the attorney shall comply with the requirements of § 93.142 (relating to filing of annual form by attorneys) within 30 days after the date of the notice, such failure to comply will be deemed a request to be administratively suspended, and at the end of such period the name of the attorney will be certified to the Supreme Court, which will enter an order administratively suspending the attorney.

 (ii) That upon the entry of the order of administrative suspension, the attorney shall comply with Chapter 91 Subchapter E (relating to formerly admitted attorneys), and that a copy of Enforcement Rule 217 (relating to formerly admitted attorneys) shall be enclosed with the notice.

 (2) Certify to the Supreme Court the name of every attorney who has failed to respond to a notice issued pursuant to paragraph (a)(1) within the 30 day period provided therein, and supply a copy of such certification to the Board.]

 (1) automatically assess against the attorney a non-waivable late payment penalty established by the Board;

 (2) automatically add to the delinquent account of any attorney who has failed to complete registration by August 31, a second, non-waivable late payment penalty established by the Board;

 (3) after August 31, certify to the Supreme Court the name of every attorney who has failed to comply with the registration and payment requirements of §§ 93.141 and 93.142 of these rules; and

 (4) upon the Supreme Court's entry of an order of administrative suspension as provided in subsection (b) of this rule, transmit by certified mail, addressed to the last known mailing address of the attorney, or by electronic means, the order of administrative suspension and a notice that the attorney shall comply with Enforcement Rule 217 (relating to formerly admitted attorneys), a copy of which shall be included with the notice.

 For purposes of assessing the late payment penalties prescribed by this section, registration shall not be deemed to be complete until the Attorney Registration Office receives a completed annual fee form and satisfactory payment of the annual fee and of all outstanding collection fees and late payment penalties. If a check in payment of the delinquency has been returned to the Board unpaid, a collection fee, as established by the Board under § 93.142(b)(2) of these rules, shall be added to the attorney's delinquent account and registration shall not be deemed to be complete until the delinquent account has been paid in full.

 The amount of the late payment penalties shall be established by the Board annually pursuant to the provisions of § 93.145(b) of these rules.

 (b) Action by the Supreme Court. Enforcement Rule [219(g)] 219(f) provides that upon receipt of certification [to the Supreme Court] of the name of any attorney pursuant to paragraph [(a)(2)] (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 Prothonotary.

§  93.145. Reinstatement of administratively suspended attorneys.

 (a) General rule. Enforcement Rule 219(h) provides that the procedure for reinstatement of an attorney who has been administratively suspended pursuant to § 93.144(b) of these rules for three years or less [pursuant to the provisions of § 93.144(b)] is as follows:

 (1) The formerly admitted attorney shall submit to the Attorney Registration Office the form required by § 93.142(b) along with payment of:

 (i) the current annual fee;

 (ii) the annual fee that was due in the year in which the attorney was administratively suspended;

 (iii) the late payment [penalty] penalties required by [paragraph] subsection (b) of this section;

 (iv) any unpaid collection fee; and

 (v) a reinstatement fee of $300.00.

 (2) Upon receipt of the annual fee form, a verified statement showing compliance with Enforcement Rule 217 (relating to formerly admitted attorneys), and the payments required by paragraph (a)(1) of this section, the Attorney Registration Office shall so certify to the Board Secretary and to the Supreme Court; and that unless the formerly admitted attorney 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 Attorney Registration Office with the Prothonotary of the Supreme Court shall operate as an order reinstating the person to active status.

 (3) Where a check in payment of the fees and late payment penalties has been returned to the Board unpaid, the Attorney Registration Office shall immediately return the attorney to administrative suspension, and the arrears shall not be deemed to have been paid until a collection fee, as established by the Board under § 93.142(b)(2) of these rules, shall also have been paid.

 (b) Late payment [penalty] penalties. Enforcement Rule 219(h)(3) provides that a formerly admitted attorney who is administratively suspended [pursuant to § 93.142(b) must pay a] must pay the late payment [penalty with respect to that year] penalties incurred in the year in which the formerly admitted attorney is transferred to administrative suspension. The amount of the late payment [penalty] 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 Office of the Secretary shall publish in the Pennsylvania Bulletin a notice of the late payment penalty established by the Board for the coming [assessment] registration year.

§  93.146. [Voluntarily] Selection of retired or inactive [attorneys] status and resumption of active status.

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

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 (3) The retired attorney will be relieved from the payment of the fee specified in § 93.141 (relating to annual [assessment] registration).

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

 (1) An attorney who is not engaged in practice in Pennsylvania, has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct, or is not required by virtue of his or her practice elsewhere to maintain active licensure in the Commonwealth may request [voluntary] inactive status or continue that status once assumed. The attorney shall file either the annual form required by § 93.142(b) and request [voluntary] inactive status or file Form DB-28 (Notice of Voluntary Assumption of Inactive Status). The attorney shall be removed from the roll of those classified as active until and unless such [person files Form DB-29 (Application for Resumption of Active Status) and is granted reinstatement to the active rolls] inactive attorney makes a request under paragraph (3) of this section for an administrative return to active status and satisfies all conditions precedent to the grant of such request; or files a petition for reinstatement under § 89.273(b) (relating to procedure for reinstatement of an attorney who has been on inactive status for more than three years, or who is on inactive status and had not been on active status at any time within the prior three years) and is granted reinstatement pursuant to the provisions of § 89.273(b) of these rules.

 (2) An inactive attorney under this subsection (b) shall continue to file the annual form required by § 93.142(b) and shall pay an annual fee of $70.00. Noncompliance with this provision will result in the inactive attorney incurring late payment penalties, incurring a collection fee for any check in payment that has been returned to the Board unpaid, and being placed on administrative suspension [after the Attorney Registration Office provides notice] in accordance with the provisions of § 93.144. [An attorney who voluntarily assumed inactive status under former subsection (a) of this rule shall continue to file the annual form and pay an annual fee of $70.00 commencing with the next regular assessment year. Noncompliance with this paragraph will result in the inactive attorney being placed on administrative suspension after notice in accordance with the provisions of § 93.144(a)(1).

 (3) Reinstatement shall be granted, unless the inactive attorney is subject to an outstanding order of suspension or disbarment or unless the inactive status has been in effect for more than three years, upon the payment of the active fee for the assessment year in which the Form DB-29 (Application for Resumption of Active Status) is filed or the difference between the active fee and the inactive fee that has been paid for that year, and any arrears accumulated prior to the assumption of inactive status. See § 93.145(b) (relating to late payment penalty).

 (4) In transmitting the annual fee form under subsection (a) of § 93.142, the Attorney Registration Office shall include a notice of subdivision (j) of Enforcement Rule 219 (relating to request for voluntary inactive status).

 Official Note: Under prior practice, an attorney who was neither retiring nor selling his or her law practice was given the option of assuming or continuing inactive status and ceasing the practice of law in Pennsylvania, and no annual fee was required. Under new paragraph (b)(2) of this section, payment of an annual fee is required to assume and continue inactive status, and failure to pay the annual fee required by § 93.146(b)(2) and file the form required by § 93.142(b) (relating to filing of annual form by attorneys) will result in an order administratively suspending the attorney.]

 (3) Administrative Change in Status from Inactive Status to Active Status: An attorney on inactive status may request resumption of active status by filing Form DB-29 (Application for Resumption of Active Status) with the Attorney Registration Office. Resumption of active status shall be granted unless the inactive attorney is subject to an outstanding order of suspension or disbarment, unless the inactive attorney has sold his or her practice pursuant to Rule 1.17 of the Pennsylvania Rules of Professional Conduct (see § 89.273(b)), unless the inactive status has been in effect for more than three years, or unless the inactive attorney had not been on active status at any time within the preceding three years (see § 89.273(b)), upon the payment of:

 (i) the active fee for the registration year in which the application for resumption of active status is made or the difference between the active fee and the inactive fee that has been paid for that year; and

 (ii) any collection fee or late payment penalty that may have been assessed pursuant to § 93.144 of these rules, prior to the inactive attorney's request for resumption of active status.

 Where a check in payment of the fees and penalties has been returned to the Board unpaid, the Attorney Registration Office shall immediately return the attorney to inactive status, and the arrears shall not be deemed to have been paid until a collection fee, as established by the Board under § 93.142(b)(2), shall also have been paid.

 Official Note:  The Note to Enforcement Rule 219(j) explains that § 93.145 (relating to reinstatement of administratively suspended attorneys) and § 93.146 (relating to resumption of active status by retired or inactive attorneys) do not apply if, on the date of the filing of the request for reinstatement, the formerly admitted attorney has not been on active status at any time within the preceding three years. See § 89.273(e)(1).

§ 93.147. Notification of suspension or inactivation.

 Where administrative suspension is ordered under this Subchapter, the attorney shall comply with the requirements of Chapter 91 [of] Subchapter E (relating to formerly admitted attorneys). Public notice of such administrative suspension shall clearly state that suspension was ordered for failure to file the required annual form and pay the required annual [assessment] fee, or for failure to comply with § 93.112 (relating to failure to pay taxed expenses).

§ 93.148. [(Reserved)] Administrative Change in Status from Administrative Suspension to Inactive Status.

 (a) 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 to inactive status. The Attorney Registration Office shall change the status of an attorney eligible for inactive status under this subsection (a) upon receipt of:

 (1) the annual form required by § 93.142 of these rules;

 (2) payment of the annual fee required by § 93.141 of these rules;

 (3) payment of all collection fees and late payment penalties assessed under § 93.142(b)(2) and § 93.144 of these rules; and

 (4) payment of an administrative processing fee of $100.00.

 Where a check in payment of the fees and penalties has been returned to the Board unpaid, the Attorney Registration Office shall immediately return the attorney to administrative suspension, and the arrears shall not be deemed to have been paid until a collection fee, as established by the Board under § 93.142(b)(2), shall also have been paid.

 (b) 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.

 (Editor's Note: The following is numbered in the Pennsylvania Code as § 93.148. The Disciplinary Board of the Supreme Court of Pennsylvania intended this rule to be § 93.149. It is being renumbered as follows.)

[§ 93.148. Grace period] § 93.149. (Reserved).

 [Enforcement Rule 219(k) provides that on the effective date of that Rule, any attorney who is on inactive status:

 (a) by order after having failed to pay the annual fee or file the form required by subdivisions (a) and (d) of Rule 219,

 (b) by order pursuant to Rule 111(b), Pa.R.C.L.E., after having failed to satisfy the requirements of the Pennsylvania Rules for Continuing Legal Education,

 (c) by order after having failed to pay any expenses taxed pursuant to Enforcement Rule 208(g), or

 (d) by order after having 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 legal services programs pursuant to Pa.B.A.R. 311, or a military attorney,

shall have a grace period of one year, commencing on July 1 of the year in which the next annual form under § 93.142(b) is due, in which to request reinstatement to active status under an applicable provision of Rule 219, or to be reinstated to active status under Rule 218(a), as the case may be. Failure to achieve active status before the expiration of the grace period shall be deemed a request to be administratively suspended. An attorney who is on inactive status by court order will not be eligible to transfer to voluntary inactive status under § 93.146(b) until the attorney first achieves active status. During the grace period, the inactive attorney shall remain ineligible to practice law. In transmitting the annual form under § 93.142(a), the Attorney Registration Office shall include a notice of Enforcement Rule 219(k).

 Official Note:  Attorneys who voluntarily assumed inactive status under former § 93.146(a) are governed by the provisions of § 93.146(b). Attorneys who were transferred to inactive status by order after having failed to pay any expenses taxed pursuant to § 93.112 are governed by the provisions of that section.]

[Pa.B. Doc. No. 12-2136. Filed for public inspection November 2, 2012, 9:00 a.m.]