311 Proposed amendments to the Pennsylvania Rules of Disciplinary Enforcement regarding mandatory electronic filing of annual attorney registration fee forms
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS PART V. PROFESSIONAL ETHICS AND CONDUCT [ 204 PA. CODE CH. 83 ] Proposed Amendments to the Pennsylvania Rules of Disciplinary Enforcement Regarding Mandatory Electronic Filing of Annual Attorney Registration Fee Forms [46 Pa.B. 978]
[Saturday, February 27, 2016]Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Pennsylvania Supreme Court that the Court amend Pennsylvania Rule of Disciplinary Enforcement 219 to provide for mandatory electronic filing of the annual attorney registration fee form.
Electronic filing of the annual fee form has been available since 2011 but is not mandatory. Each subsequent year has seen an increase in the number of attorneys utilizing online filing. For the 2015-2016 registration period, 57% of attorneys filed online. Important benefits will be realized through the use of mandatory electronic filing. These benefits are found in the alleviation of the cost burden to the Disciplinary Board of the mailing and processing of paper forms; the reduction of human error by removing human interaction from the reception of data, which under the proposed changes will be provided directly and instantaneously from the attorney; and, maintaining the Disciplinary Board's currency with broad-based technological changes and updates to how the court system does business. Pennsylvania attorneys will realize benefits in the form of a modern and efficient attorney registration system prepared to promptly and securely process data.
In considering the proposed amendments, the Disciplinary Board reviewed other states' attorney registration procedures, which revealed that New Jersey, Rhode Island, Connecticut, Illinois and Nebraska mandate electronic registration. All of the jurisdictions except Nebraska provide exemptions from the online filing requirements, either by specifically listing exceptions or by providing a procedure for requesting an exemption. This ensures that attorneys who are unable to fulfill the electronic requirement will still have the ability to register in another format.
Changes to comport with electronic filing are found in subdivisions (a), (c), (d), (h), (i), (j), (k) and (n).
Proposed language to subdivision (a) provides that all attorneys admitted to practice law in the Commonwealth shall be required to electronically file the annual fee form provided for in Rule 219. The fee form will be available for filing through a link on the Disciplinary Board's website or at the Unified Judicial System portal. A new Note explains that additional annual fees are imposed for use by the IOLTA Board and the Pennsylvania Lawyers Fund for Client Security. Importantly, subdivision (a) adds language to the effect that 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. This language is proposed in recognition that there are valid circumstances under which an attorney may not be able to file the annual fee form by the electronic method. The new language provides flexibility to the Attorney Registration Office in handling requests for exemption, thus ensuring that an attorney who is unable to comply with the electronic mandate will be able to register using a paper form.
Subdivision (c) provides that the Attorney Registration Office shall transmit a notice by email to register electronically by July 1. New language to this subdivision states that failure by the attorney to receive notice shall not excuse the filing of the annual fee form or payment of the annual fee.
Subdivision (d) contains several important changes. In addition to the currently required residence and office addresses, an attorney will now be required to provide his or her current email, pursuant to subparagraph (d)(1)(ii). Subsection (d)(2) provides the new method for payment of the annual fee, which shall be made in one of two ways: electronically by credit or debit card at the time of electronic transmission of the form; or, by check or money order drawn on a U. S. bank, in U. S. dollars using a printable, mail in voucher. Payment by credit or debit card includes a nominal processing fee. This US Bank transaction fee has been in place since electronic filing was made available in 2011 and cannot be waived or eliminated.
Subsection (d)(3) requires an attorney who has filed the form to notify the Attorney Registration Office in writing of any change in information previously submitted. The notice may be sent by mail or facsimile transmission only, not by email. The Note after subparagraph (d)(1)(viii) reminds attorneys of their obligation to give written notice of any change in professional liability insurance. An exception to the notice requirement is that any change in information related to the financial account information that occurs after the filing of the fee form need not be reported until the next registration year. Requiring attorneys to report every change in account information throughout the year would be unduly burdensome to attorneys and to the Attorney Registration Office; therefore, it is proposed that annual reporting of such information is sufficient for purposes of Rule 219. Finally, new subsection (d)(5) provides that submission of the annual fee form through electronic means signifies the attorney's intent to sign the form. By submitting the form electronically, the attorney certifies that the electronic filing is true and correct.
Although electronic filing will now be mandatory, certain classes of attorneys will not be eligible to do so. The Board notes that these classes of attorneys have never been permitted to file electronically, as the Attorney Registration Office procedures pertaining to these attorneys are not compatible with electronic filing. These specific instances are found in subdivisions (h), (i), (j), (k), and (n).
Pursuant to subdivision (h), an attorney who has been administratively suspended for three years or less due to failure to complete registration is not eligible for electronic filing and must follow the procedure set forth in subsections (h)(1), (2), and (3). Pursuant to subdivision (i), an attorney who has retired must mail or deliver in person to the Attorney Registration Office an application for retirement, accompanied by any applicable late fees and penalties. Pursuant to subsection (j)(2), an attorney on inactive status may request a resumption of active status form which must be mailed or delivered in person to the Attorney Registration Office. Pursuant to subdivision (k), an inactive attorney who has been administratively suspended for failure to file the annual fee form and pay the annual fee may request an administrative change in status form from the Attorney Registration Office, which must be filed by mail or delivered in person to said Office.
Subdivision (n) applies to former or retired justices or judges who wish to resume the practice of law. These individuals must file a notice with the Attorney Registration Office in writing, and include a waiver available through the Office and signed by the justice or judge. New language therein provides that an annual fee form will be provided to the retired or former justice or judge by the Attorney Registration Office and the form must be filed by mail or delivered in person to said Office, accompanied by the appropriate annual fee.
Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3382), Email address Dboard.comments@pacourts.us on or before March 18, 2016.
By the Disciplinary Board of the
Supreme Court of PennsylvaniaELAINE M. BIXLER,
SecretaryAnnex A TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS PART V. PROFESSIONAL ETHICS AND CONDUCT Subpart B. DISCIPLINARY ENFORCEMENT CHAPTER 83. PENNSYLVANIA RULES OF DISCIPLINARY ENFORCEMENT Subchapter B. MISCONDUCT Rule 219. Annual registration of attorneys.
(a) Every attorney admitted to practice law in this Commonwealth shall pay an annual fee of $125.00 and electronically file the annual fee form provided for in this rule by July 1. The fee shall be collected under the supervision of the Attorney Registration Office, which shall [send or cause to be sent to every attorney, except an attorney who has elected to file the form electronically, the annual fee form] 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 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. Failure to receive the annual fee form by mail or electronically shall not excuse payment of the fee.] The said fee shall be used to defray the costs of disciplinary administration and enforcement under these 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.
Official Note: Pa.R.P.C. 1.15(u) imposes an additional annual fee for use by the IOLTA Board, and Pa.R.D.E. 502(b) imposes an additional annual fee for use by the Pennsylvania Lawyers Fund for Client Security.
(b) The following shall be exempt from paying the annual fee required by subdivision (a):
* * * * * (c) On or before May 15 of each year, the Attorney Registration Office shall transmit to all attorneys required by this rule to pay an annual fee[, except those attorneys who have elected electronic filing, a form required by subdivision (d) of this rule. 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 electronically by July 1. Failure to receive notice shall not excuse the filing of the annual fee form or payment of the annual fee.
(d) On or before July 1 of each year, all attorneys required by this rule to pay an annual fee shall electronically file with the Attorney Registration Office [a signed or] an 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 a 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 licensed to practice law, with the current status thereof.
(ii) The current e-mail, residence and office addresses of the attorney, [each] the latter two of which shall be an actual street address or rural route box number[, and the]. The Attorney Registration Office shall refuse to accept a form that sets forth only a post office box number for either [required] the residence or office 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.
* * * * * (viii) 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 web site. The requirement of Rule 219(d)(3) that every attorney who has filed an annual fee form [or elects to file the form electronically must notify] must give written notice to the Attorney Registration Office of any change in the information previously submitted within 30 days after such change will apply to the information regarding insurance.
(ix) Such other information as the Attorney Registration Office may from time to time direct.
(2) Payment of the annual fee shall [accompany the form] be made in one of two ways: a) electronically by credit or debit card at the time of electronic transmission of the form through the online system of the Attorney Registration Office, which payment shall include a nominal fee to process the electronic payment; or b) by check or money order drawn on a U. S. bank, in U. S. dollars using a printable, mail-in voucher. 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] annual fee form, voucher or payment is 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 subdivision (f) of this rule 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.
(3) Every attorney who has filed 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, which notice shall be sent by mail or facsimile transmission, provided, however, that any change in the information required by subsections (d)(1)(iii), (iv) and (v) (collectively relating to financial account information) that occurs after the filing of the form required by subdivisions (a) and (d)(1) of this Rule need only be reported on the next regular annual fee form due July 1. Failure to timely register and file the next regular annual fee form shall not excuse this subsection's requirement of reporting changes in financial account information on an annual basis on or before July 1, and failure to make such a report shall constitute a violation of this rule.
(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 subdivision for the current assessment year, but no annual fee shall be payable for the assessment year in which originally admitted or licensed.
(5) Submission of the annual fee form through electronic means signifies the attorney's intent to sign the form. By submitting the form electronically, the attorney certifies that the electronic filing is true and correct.
Official Note: Subsection (5) of subdivision (d) incorporates the language of In Re: Provisions for Electronic Filing of Attorney Registration Statements, No. 99 Disciplinary Rules Docket (Pa. Supreme Court, April 13, 2011).
(e) Upon receipt of a form, or notice of change of information contained therein, filed by an attorney in accordance with the provisions of subdivision (d) of this rule, and of payment of the required annual fee to practice law in this Commonwealth, receipt thereof shall be acknowledged on a certificate or license.
* * * * * (g) The Attorney Registration Office shall provide to the [Board secretary] Office of the Secretary a copy of any certification filed by the Attorney Registration Office with the Supreme Court pursuant to the provisions of this rule.
(h) An attorney who has been administratively suspended pursuant to subdivision (f) for three years or less is not eligible to file the annual fee form electronically. The procedure for reinstatement [of an attorney who has been administratively suspended pursuant to subdivision (f) for three years or less] is as follows:
(1) The formerly admitted attorney shall submit to the Attorney Registration Office the form required by subdivision (d)(1) 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 penalties required by paragraph (3);
(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 (1), the Attorney Registration Office shall so certify to the [Board] Office of the Secretary and to the Supreme Court. 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.
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 subdivision (d)(2) of this rule, shall also have been paid.
(3) A formerly admitted attorney who is administratively suspended must pay the late payment penalties incurred in the year in which the formerly [admittted] 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 subdivision (d) of this rule.
(i) Retired Status: An attorney who has retired [shall file with] must file by mail or deliver in person to the Attorney Registration Office an application for retirement and payment of any applicable late fees or penalties pursuant to subdivision (f). Upon the transmission of such application from the Attorney Registration Office to the Supreme Court, the Court shall enter an order transferring the attorney to retired status, and the attorney shall no longer be eligible to practice law. The retired attorney will be relieved from [the] payment of the annual fee imposed by this rule upon active practitioners and Enforcement Rule 217 (relating to formerly admitted attorneys) shall not be applicable to the formerly admitted attorney unless ordered by the Court in connection with the entry of an order of suspension or disbarment under another provision of these rules. An attorney on retired status for three years or less may be reinstated in the same manner as an inactive attorney, except that the retired attorney shall pay the annual active fee for the three most recent years or such shorter period in which the attorney was on retired status instead of the amounts required to be paid by an inactive attorney seeking reinstatement. The Chief Justice may delegate the processing and entry of orders under this subdivision to the Prothonotary.
(j) Inactive Status: 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 inactive status or continue that status once assumed. The attorney shall be removed from the roll of those classified as active until and unless such inactive attorney makes a request under paragraph (2) of this subdivision (j) 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 subdivision (d) of Enforcement Rule 218 (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 that Enforcement Rule.
(1) An inactive attorney under this subdivision (j) shall continue to file the annual form required by subdivision (d), shall file the form through the online system identified in subdivision (a), and shall pay an annual fee of $70.00 in the manner provided in subdivision (d)(2). 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[,] pursuant to and in accordance with the provisions of subdivision (f) of this rule.
(2) Administrative Change in Status from Inactive Status to Active Status: An attorney on inactive status may request a resumption of active status [on a form provided by] form from the Attorney Registration Office. The form must be filed by mail or delivered in person to 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 Enforcement Rule 218(h)), 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 Enforcement Rule 218(h)), upon the payment of:
* * * * * (k) Administrative Change in Status From Administrative Suspension to Inactive Status: An inactive attorney who has been administratively suspended for failure to file the annual form and pay the annual fee required by subdivision (j)(1) of this rule, may request an administrative change in status [to inactive status] form from the Attorney Registration Office. [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 subdivision upon receipt of:
* * * * * (l) The Board shall transmit by certified mail[, return receipt requested,] to every attorney who fails to pay any expenses taxed pursuant to Enforcement Rule 208(g) (relating to costs), addressed to the last known address of the attorney, a notice stating:
* * * * * (n) 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]. The notice shall:
[(i)] (1) describe:
[(A)] (i) any discipline imposed within six years before the date of the notice upon the justice or judge by the Court of Judicial Discipline;
[(B)] (ii) any proceeding before the Judicial Conduct Board or the Court of Judicial Discipline settled within six years before the date of the notice on the condition that the justice or judge resign from judicial office or enter a rehabilitation program; and
[(ii)] (2) include a waiver available through the Attorney Registration Office and signed by the justice or judge, if the notice discloses a proceeding described in [paragraph (i)] subsection (1), of the confidentiality of the record in that proceeding for the limited purpose of making the record available to the Board in any subsequent proceeding under these rules[;].
[(iii) be accompanied by payment of the full annual fee for the assessment year in which the notice is filed.]
An annual fee form will be provided by the Attorney Registration Office. The form must be filed by mail or delivered in person to said Office and be accompanied by payment of the full annual fee for the assessment year in which the notice is filed.
[Pa.B. Doc. No. 16-311. Filed for public inspection February 26, 2016, 9:00 a.m.]
