720 Amendments to rules of organization and procedure of the Disciplinary Board of the Supreme Court of Pennsylvania

Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

[ 204 PA. CODE CHS. 85, 87, 91 AND 93 ]

Amendments to Rules of Organization and Procedure of The Disciplinary Board of The Supreme Court of Pennsylvania

[38 Pa.B. 1812]
[Saturday, April 19, 2008]

Order No. 67

   The Rules of Organization and Procedure of The Disciplinary Board of The Supreme Court (Board) have been drafted to restate in full the substance of the Pennsylvania Rules of Disciplinary Enforcement. By Orders dated December 23, 2006, April 28, 2007, June 9, 2007 and July 14, 2007, the Supreme Court of Pennsylvania amended Pa.R.D.E. 102, 217(j), 219 and 402. By this Order, the Board is making conforming changes to its Rules to reflect the adoption of those amendments.

   The Board is also taking this opportunity to update the address of the District IV office of the Office of Disciplinary Counsel in 204 Pa. Code § 85.5(b) and to make an editorial correction to 204 Pa. Code § 87.4.

   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)(10), 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.

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 85. GENERAL PROVISIONS

§ 85.2. Definitions.

   (a)  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 this subpart shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:

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   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 [previously] served [either: (i) as a member of the Board, or (ii)] as a member of a panel of hearing committee members for at least one year and on a hearing committee that has conducted at least one hearing into formal charges of misconduct by a respondent-attorney.

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   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 previously 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 hearing committees that have conducted at least [three] two hearings into formal charges of misconduct by respondent-attorneys [for which formal transcripts have been prepared].

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§ 85.5. Location of Office of Disciplinary Counsel.

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   (b)  Disciplinary District Offices. The present locations of the district offices of the Office of Disciplinary Counsel and the office of the Assistant Disciplinary Counsel for each such disciplinary district are:

*      *      *      *      *

   (4)  District IV Office

Office of Disciplinary Counsel
The Disciplinary Board of the Supreme Court of
   Pennsylvania
[Suite 400 Union Trust Building] Suite 1300, Frick    Building
[501] 437 Grant Street
Pittsburgh, Pennsylvania 15219
[phone]
(fax: [phone])

CHAPTER 87. INVESTIGATIONS AND INFORMAL PROCEEDINGS

Subchapter A. PRELIMINARY PROVISIONS

COMPLAINTS

§ 87.4. Preliminary screening and docketing of complaints.

   Complaints received by the Office of Disciplinary Counsel against [members of the Board or] Disciplinary Counsel involving alleged violations of the Disciplinary Rules shall be transmitted forthwith to the Office of the Secretary for disposition pursuant to § 93.52(d)(2) [or (3)] (relating to communications and filings generally). All other complaints shall be assigned a docket number consisting of the letter ''C,'' the number of the disciplinary district to which the matter will be assigned, the last two digits of the calendar year in which the matter is docketed, and the serial number of the matter in such disciplinary district in such calendar year, e.g.: ''C4-73-1,'' etc.

CHAPTER 91. MISCELLANEOUS MATTERS

Subchapter E. FORMERLY ADMITTED ATTORNEYS

§ 91.100. Law-related activities of formerly admitted attorneys.

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   (b)  Supervision. Enforcement Rule 217(j)(1) provides that all law-related activities of the formerly admitted attorney shall be conducted under the [direct] 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 [employed] 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.

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   (d)  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.

   (e)  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:

   (1)  performing any law-related activity for a law firm, organization or lawyer if the formerly admitted attorney was associated with that law firm, organization or lawyer on or after the date on which the acts which resulted in the disbarment or suspension occurred, through and including the effective date of disbarment or suspension;

   (2)  performing any law-related services from an office that is not staffed[, on a full time basis,] by a supervising attorney on a full time basis;

   (3)  performing any law-related services for any client who in the past was represented by the formerly admitted attorney;

   (4)  representing himself or herself as a lawyer or person of similar status;

   (5)  having any contact with clients either in person, by telephone, or in writing, except as provided in subsection (d);

   (6)  rendering legal consultation or advice to a client;

   (7)  appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body;

   (8)  appearing as a representative of the client at a deposition or other discovery matter;

   (9)  negotiating or transacting any matter for or on behalf of a client with third parties or having any contact with third parties regarding such a negotiation or transaction;

   (10)  receiving, disbursing or otherwise handling client funds.

   (f)  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 [employment] engagement, identifying the supervising attorney[,] and certifying that the [formerly admitted attorney has been employed and 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 [Disciplinary] Board immediately upon the termination of the [employment of] engagement between the formerly admitted attorney and the supervising attorney.

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   Official 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.

CHAPTER 93. ORGANIZATION AND ADMINISTRATION

Subchapter F. CONFIDENTIALITY

§ 93.102. Access to disciplinary information and confidentiality.

   (a)  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:

   (1)  the filing of an answer to a petition for discipline;

   (2)  the time to file an answer to a petition for discipline has expired without an answer being filed; [or]

   (3)  the filing and service of a petition for reinstatement[.]; or

   (4)  after the expiration of any order restricting access to disciplinary information.

*      *      *      *      *

   (c)  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:

   (1)  the respondent-attorney requests that the matter be public, or waives confidentiality for a particular purpose specified in writing,

   (2)  the investigation is predicated upon a conviction of the respondent-attorney for a crime or reciprocal discipline,

   (3)  in matters involving alleged disability, the Supreme Court enters its order transferring the respondent-attorney to inactive status pursuant to Chapter 91 Subchapter D (relating to disability),

   (4)  [the proceeding is based upon allegations that have become generally known to the public, or

   (5)] there is a need to notify another person or organization, including the Lawyers' Fund for Client Security, in order to protect the public, the administration of justice, or the legal profession.

*      *      *      *      *

§ 93.108. Restoration of confidentiality.

   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.

   Official Note: The 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 or 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.

Subchapter G. FINANCIAL MATTERS

ANNUAL ASSESSMENT OF ATTORNEYS

§ 93.142. Filing of annual statement by attorneys.

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   (b)  Filing of annual statement. Enforcement Rule 219(d) provides that:

   (1)  On or before July 1 of each year all persons required by the rule to pay an annual fee shall file with the Administrative Office a signed statement on the form prescribed by the Administrative Office setting forth:

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   (ii)  The current residence and office addresses of the attorney [. Each address], each of which shall be an actual street address or rural route box number, and the Administrative Office shall refuse to accept a statement 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 statement and may be a post office box number. The attorney shall indicate which of the addresses, the residence, office or mailing address, will be accessible through the website of the Board (http://www.padisciplinaryboard.org/) and by written or oral request to the Board.

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   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.

[Pa.B. Doc. No. 08-720. Filed for public inspection April 18, 2008, 9:00 a.m.]