Subchapter A. PRELIMINARY PROVISIONS

§ 89.1. Construction of chapter.

 (a)  General rule. This chapter is promulgated for the purpose of assisting the Office of Disciplinary Counsel, the respondent-attorney and the Board to develop the facts relating to, and to reach a just and proper determination of, grievances brought to the attention of the Board. The Board recognizes the temptation in disciplinary matters to raise procedural defenses where substantive defenses would be unavailing and, therefore, the Board will not hold action of a hearing committee, hearing committee member or special master invalid by reason of any nonprejudicial irregularity, or for any error not resulting in a miscarriage of justice.

 (b)  Relationship to informal proceedings. The filing of a petition for discipline under this chapter shall be conclusive evidence that all conditions precedent thereto under Chapter 87 (relating to investigations and informal proceedings) have been satisfied. Failure to comply with any requirement of Chapter 87 shall not affect the validity of proceedings under this chapter and no proceeding or other matter under Chapter 87 shall be an issue in formal proceedings under this chapter.

 Except where inconsistent with these rules, formal proceedings before hearing committees, special masters and the Board shall conform generally to the practice in actions in equity under the Pennsylvania Rules of Civil Procedure.

 (a)  General rule. The filing of pleadings, briefs and other documents in connection with a formal proceeding under these rules shall be as follows:

   (1)  Except as otherwise requested by the Office of the Secretary, at the time any pleading or other document is filed in a formal proceeding that is not at the time in the hands of a hearing committee, there shall be furnished to the Office of the Secretary an original and three conformed copies thereof, including all exhibits, if any.

   (2)  Except as otherwise provided by these rules in the case of briefs, at the time any document is filed in a formal proceeding that is at the time in the hands of a hearing committee, there shall be furnished to the hearing committee an original and three conformed copies thereof, including all exhibits, if any, and one conformed copy with exhibits, if any, shall be filed with the Office of the Secretary.

   (3)  Except as otherwise provided by these rules in the case of briefs, at the time any document is filed in a formal proceeding that is at the time in the hands of a special master, there shall be furnished to the special master an original and one conformed copy thereof, including all exhibits, if any, and one conformed copy with exhibits, if any, shall be filed with the Office of the Secretary.

   (4)  Notwithstanding paragraphs (2) and 3, it shall not be necessary to file with the Office of the Secretary a copy of any prepared testimony or documentary exhibits submitted in connection with a hearing.

   (5)  Briefs shall be filed in accordance with §  89.164 (relating to filing and service of briefs).

 (b)  Timely filing required. Pleadings, briefs or other documents in formal proceedings required or permitted to be filed under these rules must be received for filing at the Office of the Secretary within the time limits, if any, for such filing. The date of receipt by the Office of the Secretary and not the date of deposit in the mails is determinative.

 (c)  Copies furnished to hearing committee members. Where copies of pleadings, briefs or other documents are furnished to members of a hearing committee, each member shall retain possession of one complete set of papers and, following conclusion of the work of the committee with respect to a particular proceeding, each such member shall independently transmit his or her set of papers to the Office of the Secretary.

 (d)  Papers of special masters. Following conclusion of his or her work with respect to a particular proceeding, a special master shall transmit his or her papers regarding the proceeding to the Office of the Secretary.

 (a)  Appearance in propria persona. When a respondent-attorney appears pro se in a formal proceeding such attorney shall file with the Office of the Secretary, with proof of service of a copy upon the Office of Disciplinary Counsel, an address at which any notice or other written communication required to be served upon such attorney may be sent.

 (b)  Representation of respondent by counsel. When a respondent-attorney is represented by counsel in a formal proceeding counsel shall file with the Office of the Secretary, with proof of service of a copy upon the Office of Disciplinary Counsel, a written notice of such appearance, which shall state the name, address and telephone number of such counsel, the name and address of the respondent-attorney on whose behalf such counsel appears, and the caption and docket number of the subject proceeding. Any additional notice or other written communication required to be served on or furnished to a respondent-attorney may be sent to the counsel of record for such respondent-attorney at the stated address of the counsel in lieu of transmission to the respondent-attorney. In any proceeding where counsel has filed a notice of appearance pursuant to this subsection, any notice or other written communication required to be served upon or furnished to the respondent-attorney shall also be served upon or furnished to such counsel (or one of such counsel if the respondent-attorney is represented by more than one counsel) in the same manner as prescribed for the respondent-attorney, notwithstanding the fact that such communication may be furnished directly to the respondent-attorney.

 (c)  Restrictions on representation. Members of the Board, partners or employes of any firm in which a member of the Board practices, hearing committee members and special masters shall not appear as counsel for a respondent-attorney.

 (a)  In general. Pleadings and documents other than exhibits filed in formal proceedings shall be in a typeface not less than 10-points, on unglazed paper 8 1/2 inches wide by 11 inches long and with margins of at least 1 inch. The text shall be double-spaced except for indented quotations. Pleadings and documents other than correspondence shall be bound in a manner that may be taken apart easily.

 (b)  Incorporation by reference. Any document on file with the Board in a formal proceeding may, subject to the restrictions of Chapter 93 Subchapter F (relating to confidentiality), be incorporated by reference into a subsequently filed pleading or other document. A document may be so incorporated only by reference to the specific document and to the prior filing in which it was physically filed, not to another document which incorporates it by reference.

 (c)  Identification. Pleadings or other documents filed in a formal proceeding shall set forth:

   (1)  The caption and docket number of the proceeding.

   (2)  A brief description title of the pleading or document.

   (3)  The name of the agency or person in whose behalf the filing is made.

 (a)  Signature. Except as may be otherwise ordered or requested by the Board, the original copy of each pleading or other document shall be signed in ink by the party in interest, or by counsel for such party, and shall show the office, post office address and telephone number of such party or counsel. All other copies filed shall be fully conformed thereto.

 (b)  Effect. The signature of the person subscribing any document filed in a formal proceeding constitutes a certificate by such individual that the subscriber has read the document being subscribed and filed, and knows the contents thereof; that if executed in any representative capacity, the document has been subscribed and executed in the capacity specified upon the document with full power and authority so to do; that the contents are true as stated, except as to matters and things, if any, stated on information and belief, and that as to those matters and things, the subscriber believes them to be true.

 (c)  Penalty. All statements of fact in pleadings or other documents filed in a formal proceeding are subject to the penalties of 18 Pa.C.S. §  4904 (relating to unsworn falsification to authorities), and it shall not be necessary to verify under oath any such document.

 (d)  Cross reference. See §  85.13 (relating to verification by respondent-attorneys).

 (a)  Avoidance of delay. All formal proceedings under these rules shall be as expeditious as possible, but the failure of the Office of the Secretary or the Board to comply with any of the procedural time periods in these rules shall not result in the dismissal of a petition for discipline or a lessening of the charges set forth therein. Only the Board Chair may extend the time for hearing or grant any other extension of time in a formal proceeding.

 (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 or other appropriate administrative officer of any court, administrative agency or other body with which a conflict might reasonably arise, and shall file a copy of such notice with the Office of the Secretary.

 (c)  Application for continuance. An application for continuance of a hearing shall be made either in writing or on the record at the hearing and shall set forth the basis for the application and the facts supporting it. The application shall be addressed to the chair of the hearing committee or the special master conducting the hearing, who may deny it or recommend its approval to the Board Chair. A denial by the chair of a hearing committee or special master may be reviewed by the Board Chair. A continuance of a hearing other than adjournment to a day certain not more than 15 days hence shall not be granted by a hearing committee or special master without the concurrence of the Board Chair.

 (d)  Grounds for continuances. Enforcement Rule 208(i) provides that all formal proceedings under this chapter be conducted as expeditiously as possible; that ordinarily the engagement of an involved person will be recognized as a basis for continuance of a formal proceeding or meeting of the Board only where the involved person is actually engaged before an appellate court of this Commonwealth or a court of the United States; and that engagement of an involved person 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.

 (e)  Definition. As used in this section, the term ‘‘involved person’’ includes a member of the Board, a hearing committee member assigned to act on any aspect of the matter, a special master assigned to the matter and counsel for the respondent-attorney, as well as the respondent-attorney.

   The provisions of this §  89.7 amended through May 18, 1979, effective May 26, 1979, 9 Pa.B. 1665; amended January 26, 1990, effective January 27, 1990, 20 Pa.B. 343; amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended July 29, 1994, effective July 30, 1994, 24 Pa.B. 3706; amended March 11, 2005, effective immediately, 35 Pa.B. 1656. Immediately preceding text appears at serial pages (281369) to (281370).

SERVICE OF DOCUMENTS

§ 89.21. Service by the Board.

 All pleadings, briefs and other documents, filed in formal proceedings, when filed or tendered to the Board for filing, shall be served upon all participants in the proceeding. Such service shall be made by delivering in person or by mailing, properly addressed with postage prepaid, one copy to each participant.

 I hereby certify that I have this day served by

 Dated this

§ 89.27. Service upon Disciplinary Counsel.

 Whenever any provision of these rules refers to service of any pleading, petition or other document upon Disciplinary Counsel, such service shall be made by, and these rules shall be deemed to require, service of the pleading, petition or other document in accordance with this subchapter separately upon both the Office of the Secretary and Disciplinary Counsel.

   The provisions of this §  89.27 reserved May 17, 1991, effective May 18, 1991, 21 Pa.B. 2335; amended February 4, 1994, effective February 5, 1994, 24 Pa.B. 730. Immediately preceding text appears at serial page (157310).

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 or the hearing committee or special master before which the matter is then pending.

 (a)  General rule. Chief Disciplinary Counsel may at any stage of the proceedings apply for leave to withdraw a petition for discipline when it shall appear that it was improvidently filed. The application shall be set forth on Form DB-44 (Application for Leave to Withdraw Petition for Discipline), shall set forth briefly the grounds relied upon by the Office of Disciplinary Counsel for recommending withdrawal, and shall be filed with the Office of the Secretary.

 (b)  Action by Board. The 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, 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.