Section 208. Procedure

(a) Informal proceedings.

(1) All investigations, whether upon complaint or otherwise, shall be initiated and conducted by Disciplinary Counsel.

(2) 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:

(i) Dismissal of the complaint.

(ii) A conditional or unconditional informal admonition of the attorney concerned.

(iii) A conditional or unconditional private reprimand by the Board of the attorney concerned.

(iv) A conditional or unconditional public reprimand by the Board of the attorney concerned.

(v) The prosecution of formal charges before a hearing committee or special master.

(3) Except where Disciplinary Counsel dismisses the complaint as frivolous, as falling outside the jurisdiction of the Board, or on the basis of Board policy or prosecutorial discretion, the recommended disposition shall be reviewed by a member of a hearing committee in the appropriate disciplinary district who may approve or modify.

(4) Disciplinary Counsel may appeal the recommended disposition directed by a hearing committee member to a reviewing panel composed of three members of the Board which shall 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.

(5) 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.

(6) 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. 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 paragraph (g)(2) of this rule.

(b) Formal hearing. Formal disciplinary proceedings before a hearing committee or special master shall be as follows:

(1) Proceedings shall be instituted by filing with the Board a petition setting forth with specificity the charges of misconduct.

(2) A copy of the petition containing a notice to plead shall be personally served upon the respondent-attorney.

(3) Within 20 days after such service, the respondent-attorney shall serve an answer upon Disciplinary Counsel and file the original thereof with the Board. In the event the respondent-attorney fails to file an answer, the charges shall be deemed at issue. Any factual allegation that is not timely answered shall be deemed admitted.

(4) Following the 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. 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.

(5) The Board shall serve a notice of hearing upon the respondent-attorney, or upon counsel for such attorney, indicating the date and place of the hearing at least 15 days in advance thereof. The notice of hearing shall state that the respondent-attorney is entitled to be represented by counsel, to cross-examine witnesses and to present evidence in the attorney’s own behalf.

(c) Hearing procedures. Proceedings before hearing committees and special masters shall be governed by Board rules, except that, unless waived in the manner provided by such rules, at the conclusion of the hearing the hearing committee or special master shall submit a report to the Board containing the findings and recommendations of the hearing committee or special master.

(d) Review and action by Board.

(1) Proceedings before the Board shall be governed by Board rules, except that, unless waived in the manner provided by such rules, the respondent-attorney shall have the right to submit briefs and to present oral argument to a panel of at least three members of the Board. Members of the Board who have participated on a reviewing panel under paragraph (a)(4) or (5) of this rule shall not participate in further consideration of the same matter or decision thereof on the merits under this subdivision (d).

(2) The Board shall either affirm or change in writing the recommendation of the hearing committee or special master by taking the following action, as appropriate, within 60 days after the adjudication of the matter at a meeting of the Board;

(i) Dismissal. In the event that the Board determines that a proceeding should be dismissed, it shall so notify the respondent-attorney.

(ii) Informal admonition, private reprimand, or public reprimand. 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 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 Pa.R.D.E. 205(c)(9), for the purpose of receiving private reprimand or public reprimand.

(iii) Other discipline. 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. A respondent-attorney who is unwilling to have the matter concluded by an informal admonition, private reprimand, or public reprimand must file within thirty (30) days after notice of the determination of the Board, a notice of appeal. 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.

(3) [Rescinded].

(e) Review and action in the Supreme Court.

(1) Service of the findings and recommendations of the Board upon the respondent-attorney shall be governed by Rules 121 and 122 of the Pennsylvania Rules of Appellate Procedure. See Rule 104 (relating to filings with the Supreme Court).

(2) In the event the Board recommends that the matter should be concluded by disbarment, the respondent-attorney may, within twenty (20) days after service of the findings and recommendations of the Board under paragraph (1) of this subdivision, submit to the Supreme Court a request to present oral argument.

(3) In the event the Board recommends a sanction less than disbarment, and the Court, after consideration of said 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, the same shall be issued. A copy of said rule is to be served on Disciplinary Counsel. Within twenty (20) days after service of the rule either party may submit to the Supreme Court a response thereto. Within ten (10) days after service of a response, the other party may submit to the Supreme Court a reply thereto. Respondent-attorney in such case shall have the absolute right upon request for oral argument.

(4) Except as provided in (e)(2) and (e)(3), respondent-attorney will not be afforded the right of oral argument.

(5) The Supreme Court shall review the record, where appropriate consider oral argument, and enter an order.

(f) Emergency temporary suspension orders and related relief.

(1) Disciplinary Counsel, with the concurrence of a reviewing member of the Board, whenever it appears by an affidavit demonstrating facts that the continued practice of law by a person subject to these rules is causing immediate and substantial public or private harm because of the misappropriation of funds by such person to his or her own use, or because of other egregious conduct, in manifest violation of the Disciplinary Rules or the Enforcement Rules, may petition the Supreme Court for injunctive or other appropriate relief. A copy of the petition shall be personally served upon the respondent-attorney by Disciplinary Counsel. If Disciplinary Counsel cannot make personal service after reasonable efforts to locate and serve the respondent-attorney, Disciplinary Counsel may serve the petition 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 of the petition by regular and certified mail addressed to the addresses furnished by the respondent-attorney in the last registration statement filed by the respondent-attorney pursuant to Rule 219(d). Service is complete upon delivery or mailing, as the case may be. The Court, or any justice thereof, 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. The Court, or any justice thereof, may, before or after issuance of the rule, issue:

(i) such orders to the respondent-attorney, and to such financial institutions or other persons as may be necessary to preserve funds, securities or other valuable property of clients or others which appear to have been misappropriated or mishandled in manifest violation of the Disciplinary Rules; and

(ii) an order directing the president judge of the court of common pleas in the judicial district where the respondent-attorney maintains his or her principal office for the practice of law or conducts his or her primary practice, to take such further action and to issue such further orders as may appear necessary to fully protect the rights and interests of the clients of the respondent-attorney when:

(A) the respondent-attorney does not respond to a rule to show cause issued after service of the petition pursuant to subdivision (f)(1); or

(B) Disciplinary Counsel’s petition demonstrates cause to believe that the respondent-attorney is unavailable to protect the interests of his or her clients for any reason, including the respondent-attorney’s disappearance, abandonment of practice, incarceration, or incapacitation from continuing the practice of law by reason of mental infirmity or illness or because of addiction to drugs or intoxicants.

Where the Court enters an order under (f)(1)(ii), the Board shall promptly transmit a certified copy of the order to the president judge, whose jurisdiction and authority under this rule shall extend to all client matters of the respondent-attorney.

Where the Court enters an order under (f)(1)(i) or (ii) before the issuance of a rule or before the entry of an order of temporary suspension under paragraph (f)(2), the Prothonotary shall serve a certified copy of the Court’s order on the respondent-attorney by regular mail addressed to the address furnished by the respondent-attorney in the last registration statement filed by the respondent-attorney and to an address where the respondent-attorney is located if that address is known.

(2) If a rule to show cause has been issued under paragraph (1), 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.

(3) Any order of temporary suspension which restricts the respondent-attorney from maintaining an attorney or other trust account shall, when served on any bank or other financial institution maintaining an account against which the respondent-attorney may make withdrawals, serve as an injunction to prevent the financial institution from making further payment from the account on any obligation except in accordance with restrictions imposed by the Court. Any order of temporary suspension issued under this rule 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. Such order may also provide that any fees or portion thereof tendered to the respondent-attorney during such 30-day period shall be deposited into a trust fund from which withdrawals may be made only in accordance with restrictions imposed by the Court.

(4) The respondent-attorney may at any time petition the Court for dissolution or amendment of an order of temporary suspension. A copy of the petition shall be served upon Disciplinary Counsel and the Secretary of the Board. A hearing on the petition before a member of the Board designated by the Chair of the Board shall be held within ten business days after service of the petition on the Secretary of the Board. The designated Board member shall hear the petition and submit a transcript of the hearing and a recommendation to the Court within five business days after the conclusion of the hearing. Upon receipt of the recommendation of the designated Board member and the record relating thereto, the Court shall dissolve or modify its order, if appropriate.

(5) The Board on its own motion, or upon the petition of Disciplinary Counsel, may issue a rule to show cause why the respondent-attorney should not be placed on temporary suspension whenever it appears that the respondent-attorney has disregarded an applicable provision of the Enforcement Rules, failed to maintain or produce the records required to be maintained and produced under Pa.R.P.C. 1.15(c) and subdivisions (e) and (g) of Enforcement Rule 221 in response to a request or demand authorized by Enforcement Rule 221(g) or any provision of the Disciplinary Board Rules, failed to comply with a valid subpoena, or engaged in other conduct that in any such instance materially delays or obstructs the conduct of a proceeding under these rules. The rule to show cause shall be returnable within ten days. If the response to the rule to show cause raises issues of fact, the Board Chair 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. If the period for response to the rule to show cause has passed without a response having been filed, or after consideration of any response and any report of a Board member following a hearing under this paragraph, the Board may recommend to the Supreme Court that the respondent-attorney be placed on temporary suspension. The recommendation of the Board shall be reviewed by the Supreme Court as provided in subdivision (e) of this rule, although the time for either party to file with the Court a petition for review of the recommendation or determination of the Board shall be fourteen days after the entry of the Board’s recommendation or determination, and any answer or responsive pleading shall be filed within ten days after service of the petition for review.

(6) A respondent-attorney who has been temporarily suspended pursuant to this rule for conduct described in paragraph (1), or pursuant to the procedures of paragraph (5) where a formal proceeding has not yet been commenced shall have the right to request an accelerated disposition of the charges which form the basis for the temporary suspension by filing a notice with the Secretary of the Board and Disciplinary Counsel requesting accelerated disposition. Within 30 days after filing of such a notice, Disciplinary Counsel shall file a petition for discipline under subdivision (b) of this rule and the matter shall be assigned to a hearing committee for accelerated disposition. Thereafter the matter shall proceed and be concluded by the hearing committee, the Board and the Court without appreciable delay. If a petition for discipline is not timely filed under this paragraph, the order of temporary suspension shall be automatically dissolved, but without prejudice to any pending or further proceedings under this rule.

(7) A proceeding involving a respondent-attorney who has been temporarily suspended pursuant to this rule at a time when a formal proceeding has already been commenced shall proceed and be concluded without appreciable delay.

Official Note

The ‘‘without appreciable delay’’ standard of subdivisions (f)(6) and (7) of the rule is derived from Barry v. Barchi, 443 U. S. 55, 56 (1979). Appropriate steps should 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.

(g) Costs.

(1) The Supreme Court in its discretion may direct that the necessary expenses incurred in the investigation and prosecution of a proceeding which results in the imposition of discipline shall be paid by the respondent-attorney. All expenses taxed under this paragraph shall be paid by the respondent-attorney within 30 days of entry of the order taxing the expenses against the respondent-attorney.

(2) 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. All expenses taxed by the Board under this paragraph shall be paid by the respondent-attorney on or before the date fixed for the appearance of the respondent-attorney before Disciplinary Counsel for informal admonition or the Board for private or public reprimand. The expenses which shall be taxable under this paragraph shall be prescribed by Board rules.

(3) The expenses taxable under paragraph (1) or (2) may include an administrative fee except that an administrative fee shall not be included where the discipline imposed is an informal admonition. The administrative fee shall be $250.

(h) Violation of probation. Where it appears that a respondent-attorney who has been placed on probation has violated the terms of the probation, the Office of Disciplinary Counsel may file a petition with the Board detailing the violation and suggesting appropriate modification of the order imposing the probation, including without limitation immediate suspension of the respondent-attorney. A hearing on the petition shall be held within ten business days before a member of the Board designated by the Board Chair. If the designated Board member finds that the order imposing probation should be modified, the following procedures shall apply:

(1) If the order imposing probation was entered by the Supreme Court, the designated Board member shall submit a transcript of the hearing and a recommendation to the Supreme Court within five business days after the conclusion of the hearing. A copy of the transcript and recommendation shall be personally served upon the respondent-attorney. The Court, or any justice thereof, may enter a rule directing the respondent-attorney to show cause why the order imposing probation should not be modified as set forth in the petition, which rule shall be returnable within ten business days. If the period for response has passed without a response having been filed, or after consideration of any response, the Court may enter an order modifying as appropriate the order imposing probation.

(2) If the order imposing probation was entered by the Board, the designated Board member shall submit a transcript of the hearing and a recommendation to the Board within five business days after the conclusion of the hearing. A copy of the transcript and recommendation shall be personally served upon the respondent-attorney along with a notice that the respondent-attorney may file a response to the recommendation with the Board within ten business days. If the period for response has passed without a response having been filed, or after consideration of any response, the Board may enter an order modifying as appropriate the probation previously ordered or directing the commencement of a formal proceeding under this Rule.

(i) Continuances. All formal proceedings under this rule shall be conducted as expeditiously as possible. Ordinarily the engagement of a member of the Board or the assigned hearing committee, a special master or counsel for a respondent-attorney will be recognized as a basis for continuance of a formal proceeding or meeting of the board only where such member or counsel is actually engaged before an appellate court of this Commonwealth or a court of the United States. Engagement of a member of the Board or the assigned hearing committee, a special master or counsel for a respondent-attorney 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.

The provisions of this Rule 208 amended through September 25, 1986, effective September 25, 1986, 16 Pa.B. 3823; amended October 21, 1988, 18 Pa.B. 5070; amended November 7, 1988, effective November 25, 1988, effective upon publication and governs all matters thereafter commended and, insofar as just and practicable, matters then pending, 18 Pa.B. 5246; amended November 7, 1988, effective November 25, 1988, 18 Pa.B. 5247; amended December 6, 1989, effective December 23, 1989, 19 Pa.B. 5421; amended December 20, 1979, effective immediately, 20 Pa.B. 7; amended October 3, 1990, effective October 27, 1990, 20 Pa.B. 5364; amended October 3, 1990, effective October 27, 1990, and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending, 20 Pa.B. 5365; amended March 15, 1994, effective upon publication, 24 Pa.B. 1671; amended April 4, 1995, effective immediately, 25 Pa.B. 1513; amended September 19, 2003, effective October 4, 2003, 33 Pa.B. 4891; amended October 17, 2003, effective immediately, 33 Pa.B. 5412; amended March 5, 2004, effective March 20, 2004, 34 Pa.B. 1547; amended October 26, 2005, effective immediately upon publication of this Order in the Pennsylvania Bulletin and shall apply to all matters thereafter commenced and to those matters pending at the time in which a petition for discipline or a petition for reinstatement has not been filed, 35 Pa.B. 6226; amended November 9, 2005, effective upon publication in the Pennsylvania Bulletin and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending, 35 Pa.B. 6431; amended June 28, 2006, effective July 15, 2006, 36 Pa.B. 3646; amended December 12, 2008, effective immediately, 38 Pa.B. 7079; amended July 24, 2009, effective in 30 days, 39 Pa.B. 4737; amended May 17, 2012, effective in 30 days, 42 Pa.B. 3127; amended December 30, 2014, effective in 60 days, 45 Pa.B. 279. Immediately preceding text appears at serial pages (361496) to (361504).