Rule 213. Subpoena power, depositions and related matters.

 (a)  General rule.

   (1)  At any stage of an investigation, both Disciplinary Counsel and a respondent-attorney shall have the right to summon witnesses before a hearing committee or special master and require production of records before the same by issuance of subpoenas.

   (2)  Before assignment of a matter to a hearing committee or special master, Disciplinary Counsel shall have the right to require production of records by issuance of subpoenas which shall be returnable to the office of Disciplinary Counsel in which the investigation is being conducted. The respondent-attorney shall have the right, upon request and payment of appropriate duplicating costs, to receive copies of the records produced.

 (b)  Procedure. Subpoenas authorized by subdivision (a) shall be obtained by filing with the Prothonotary in the district of the Supreme Court where the subpoena is to be returnable a statement calling for the issuance of the subpoena. On the same day that the statement is filed with the Prothonotary, the party seeking the subpoena shall send by certified mail a copy of said statement to either Disciplinary Counsel or the respondent-attorney as the case may be. Upon the filing of the statement, the Prothonotary shall forthwith issue the subpoena and it shall be served in the regular way. A subpoena issued pursuant to subdivision (a)(2) shall not be returnable until at least ten days after the date of its issuance.

 (c)  Confidentiality. A subpoena issued under this rule shall clearly indicate on its face that the subpoena is issued in connection with a confidential investigation under these rules, and that it is regarded as contempt of the Supreme Court or grounds for discipline under these rules for a person subpoenaed to in any way breach the confidentiality of the investigation. It shall not be regarded as a breach of confidentiality for a person subpoenaed to consult with an attorney. The subpoena and deposition procedures of these rules shall be subject to the protective requirements of confidentiality provided in Rule 402 (relating to access to disciplinary information and confidentiality).

 (d)  Challenges. Any attack on the validity of a subpoena issued under this rule handled as follows:

   (1)  A challenge to a subpoena authorized by subdivision (a)(1) shall be heard and determined by the hearing committee or special master before whom the subpoena is returnable.

   (2)  A challenge to a subpoena authorized by subdivision (a)(2) shall be heard and determined by the hearing committee or special master before whom the subpoena is returnable.

   (3)  A determination under paragraph (1) or (2) may not be appealed to the Board, but may be appealed to the Supreme Court under subdivision (g) within ten days after service of the determination on the party bringing the appeal.

 (e)  Examination under oath. Witnesses before hearing committees or special masters shall be examined under oath or affirmation.

 (f)  Depositions. With the approval of the hearing committee or special master, testimony may be taken by deposition or by commission if the witness is not subject to service of subpoena or is unable to attend or testify at the hearing because of age, illness or other compelling reason. A complete record of the testimony so taken shall be made and preserved.

 (g)  Enforcement of subpoenas; appeal of challenges to subpoena.

   (1)  Either Disciplinary Counsel or a respondent-attorney may petition the Supreme Court to enforce a subpoena or to review a determination under subdivision (d)(1) or (2) on the validity of a subpoena. No attack on the validity of such a subpoena will be considered by the Court unless previously raised as provided in subdivision (d). See also Enforcement Rule 208(f)(5) (relating to emergency temporary suspension orders and related relief).

   Official Note

   The reference to Enforcement Rule 208(f)(5) is intended to make clear that, where the person who is resisting complying with a subpoena is the respondent-attorney, the provisions of this rule are cumulative of those in Enforcement Rule 208(f)(5).

   (2)  Upon receipt of a petition for enforcement of a subpoena, the Court shall issue a rule to show cause upon the person to whom the subpoena is directed, returnable within ten days, why the person should not be held in contempt. If the period for response has passed without a response having been filed, or after consideration of any response, the Court shall issue an appropriate order.

   (3)  A petition for review of a determination made under subdivision (d)(1) or (2) must set forth in detail the grounds for challenging the determination. Upon timely receipt of a petition for review, the Court shall issue a rule to show cause upon the party to the proceeding who is not challenging the determination, returnable within ten days, why the determination should not be reversed. If the period for response has passed without a response having been filed, or after consideration of any response, the Court shall issue an appropriate order.

 (h)  Exclusivity. Any rule of the Supreme Court or any statute providing for discovery shall not be applicable in a proceeding under these rules, which proceeding shall be governed by these rules alone.

 (i)  Foreign proceedings. The Supreme Court may order a person domiciled or found within this Commonwealth to give testimony or a statement or to produce documents or other things for use in a lawyer discipline or disability proceeding in another state, territory or province or in a court of the United States or any other jurisdiction. The order may be made upon the application of any interested person or in response to a letter rogatory, and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of a tribunal outside this Commonwealth, for the taking of the testimony or statement or producing the documents or other things. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with the applicable provisions of these rules. The order may direct that the testimony or statement be given, or document or other thing be produced, before a person appointed by the Court or before a commissioner appointed by a court or by an authorized disciplinary agency of another jurisdiction, any of whom shall have the power to administer any necessary oath. Any order to testify or to produce documents or other things issued as prescribed in this subdivision may be enforced as any subpoena of the Supreme Court is enforced, upon petition of any party interested in the subject attorney discipline or disability proceeding.

   The provisions of this Rule 213 amended October 10, 1980, effective February 8, 1981, 10 Pa.B. 4029; 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 January 13, 1993, effective January 30, 1993, 23 Pa.B. 538; amended September 9, 2004, effective September 25, 2004, 34 Pa.B. 5244; amended November 22, 2004, effective upon publication, 34 Pa.B. 6505; amended October 26, 2005, effective 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. Immediately preceding text appears at serial pages (310460) and (308207) to (308208).