Subchapter D. ACTION BY BOARD AND SUPREME COURT

§ 89.201. Review by Board.

 (a)  General rule. Upon receipt of a report and recommendation from a hearing committee or special master, the Board shall, except as otherwise provided in this rule, set the dates for submission of briefs and for oral argument before the Board or a panel of at least three of its members designated by the Chairman.

 (b)  Oral argument and briefs. Enforcement Rule 208(d)(1) provides that 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, unless such right has been waived in the manner provided by these rules.

 (c)  Waiver. If neither the respondent-attorney nor the Office of Disciplinary Counsel objects to the findings and recommendations of the hearing committee or special master, oral argument and submission of briefs may be waived by stipulation, subject to approval by the Board. A participant will be conclusively deemed to have waived all objections to the findings and recommendations of the hearing committee or special master and to have stipulated to the waiver of oral argument and submission of briefs unless such participant files exceptions as provided in subsection (d).

 (d)  Procedure to except to report of hearing committee or special master. Any participant desiring to object to the findings and recommendations of a hearing committee or special master shall, within 20 days after the service of a copy of a report or such other time as may be fixed by the Board Chairman, file exceptions to the report or part thereof in a brief (designated ‘‘brief on exceptions’’). ‘‘Briefs opposing exceptions’’ may be filed in response to briefs on exceptions within 20 days after the filing of briefs on exceptions or such other time as may be fixed by the Board Chairman. No further response will be entertained unless the Board, with or without motion, so orders.

 (e)  Oral argument. Unless otherwise ordered by the Board, oral argument shall be deemed waived unless expressly requested in a brief on exception or brief opposing exceptions.

 (f)  Participation by reviewing members. Enforcement Rule 208(d)(1) provides that members of the Board who have participated on a reviewing panel under §  87.33 (relating to appeal by Office of Disciplinary Counsel for modification of recommendation) or §  87.34 (relating to review of recommendation of private reprimand) shall not participate in further consideration of the same matter or decision thereof on the merits under this section. A Board member who pursuant to §  89.32(b) (relating to withdrawal of petition for discipline) denied an application for leave to withdraw a petition for discipline shall not participate in the consideration of or decision on the merits of that matter.

 (a)  Briefs on exceptions.

   (1)  Briefs on exceptions shall contain:

     (i)   A short statement of the case.

     (ii)   A summary of the basic position of the party filing.

     (iii)   The grounds upon which the exceptions rest.

     (iv)   The argument in support of the exceptions with appropriate references to the record and legal authorities.

   (2)  There may also be included specific findings and conclusions proposed in lieu of those to which exception is taken and any proposed additional findings and conclusions.

   (3)  Exceptions to the form of recommended order shall specify the portions thereof to which exception is taken, and may set forth a form of order suggested in lieu of that recommended by the hearing committee or special master.

 (b)  Briefs opposing exceptions. Briefs opposing exceptions shall generally follow the same style prescribed for briefs on exceptions, but may omit a statement of the case if it was correctly stated in a brief on exceptions.

 (c)  Length. Briefs on exceptions and briefs opposing exceptions shall be self contained and limited to 30 pages in length, except that for good cause the limitation on length may be altered or waived for either class of briefs upon application to and order of the Board Chairman at least ten days before the time fixed for filing of the respective briefs.

 (d)  Copies. Eighteen copies of each brief shall be filed with the Office of the Secretary in addition to the copies served on the participants in the proceedings.

 Enforcement Rule 208(d)(2) provides that the Board shall either affirm or change in writing the recommendation of the hearing committee or special master within 60 days after the adjudication of the matter at a meeting of the Board.

 (a)  General rule. Enforcement Rule 208(d)(2)(ii) provides that in the event that the Board determines that the proceeding should be concluded by informal admonition or private reprimand, it shall arrange to have the respondent-attorney appear in person before Disciplinary Counsel for the purpose of receiving informal admonition or before the Board for the purpose of receiving private reprimand, in which case the Chairman shall deliver the private reprimand. In such event the Office of the Secretary shall notify the respondent-attorney and staff counsel by means of Form DB-12 (Notice to Appear for Admonition or Reprimand). The notice shall state that Enforcement Rule 203(b)(2) and (c) expressly provides that wilful failure to appear before the Board or Disciplinary Counsel for private reprimand or informal admonition shall be an independent ground for discipline and that the Board and (when administering informal admonitions) Disciplinary Counsel are ‘‘tribunals’’ within the meaning of the Disciplinary Rules (see, e.g. DR 7-106(C)).

 (b)  Taxation of expenses. Enforcement Rule 208(g)(2) provides that in the event a proceeding is concluded by informal admonition or private 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, and that all expenses so taxed shall be paid by the respondent-attorney on or before the date fixed for the appearance of the respondent-attorney before Disciplinary Counsel or the Board for informal admonition or private reprimand. The expenses taxable under this subsection shall be those prescribed by §  93.111 (relating to determination of reimbursable expenses).

 (c)  Notice to appear.

   (1)  In the event that the Board determines that the proceeding should be concluded by private reprimand, the Office of the Secretary shall notify the respondent-attorney and staff counsel by means of Form DB-12(FP) (Notice to Appear for Private Reprimand Following Formal Proceedings) which shall state that Enforcement Rule 203(b)(2) and (c) expressly provides that willful failure to appear before the Board for private reprimand shall be an independent ground for discipline and that the Board is a ‘‘tribunal’’ within the meaning of the Disciplinary Rules (see, e.g. §  81.4 (relating to rules of professional conduct), Rules 3.3, 3.4(c) and 3.5).

   (2)  In the event that the Board determines that the proceeding should be concluded by informal admonition, the Office of Disciplinary Counsel shall notify the respondent-attorney and staff counsel by means of Form DB-12.1(FP) (Notice to Appear for Informal Admonition Following Formal Proceedings), which shall state that Enforcement Rule 203(b)(2) and (c) expressly provides that willful failure to appear before Disciplinary Counsel for informal admonition shall be an independent ground for discipline and that Disciplinary Counsel, when administering informal admonitions, constitutes a ‘‘tribunal’’ within the meaning of the Disciplinary Rules (see, e.g. §  81.4, Rules 3.3, 3.4(c) and 3.5).

   (3)  The Office of the Secretary shall notify the respondent-attorney of the expenses of the proceeding which have been taxed under subsection (b) by means of Form DB-41 (Notice of Taxation of Expenses), which shall state that if the respondent-attorney fails to pay the taxed expenses on or before the date fixed for the appearance of the respondent-attorney before the Board or Disciplinary Counsel for private reprimand or informal admonition, action will be taken by the Board under §  93.112 (relating to failure to pay taxed expenses) which will result in the entry of an order transferring respondent-attorney to inactive status.

 (d)  Appearance. An attorney who is given notice to appear for informal admonition or private reprimand shall appear in person at the time and place fixed in such notice, for the purpose of receiving such informal admonition or private reprimand. A permanent record shall be made of the fact of and basis for such action as is taken. The fact of receipt of such admonition or reprimand shall not affect the good standing of the respondent attorney as an attorney and shall be kept confidential to the extent provided in Chapter 93 Subchapter F (relating to confidentiality).

 (e)  Failure to appear. The neglect or refusal of the respondent-attorney to appear before Disciplinary Counsel for the purposes of informal admonition without good cause shall automatically convert the decision of the Board on informal admonition into one for private reprimand. The neglect or refusal of the respondent-attorney to appear before the Board for the purposes of private reprimand without good cause shall automatically convert the decision of the Board on private reprimand into a recommendation to the Supreme Court for censure, and the Office of the Secretary shall notify the respondent-attorney and the Office of Disciplinary Counsel accordingly. The intention of a respondent-attorney to proceed further under subsection (d) shall not excuse the neglect or failure of the respondent-attorney to appear before the Board under this section.

 (f)  Demand for Supreme Court review.

   (1)  Enforcement Rule 208(d)(2)(iii) provides that a respondent-attorney who is unwilling to have the matter concluded by an informal admonition or private reprimand must file, within 30 days after notice of the determination of the Board, a notice of appeal in the Supreme Court.

   (2)  A respondent-attorney who objects to an order taxing expenses in connection with a matter concluded by informal admonition or private reprimand may file a petition for review of such order in the Supreme Court under 42 Pa.C.S. § §  725(5) and 5105(a)(2) (relating to direct appeals from constitutional and judicial agencies and right to appellate review). See 210 Pa. Code Chapter 15 (relating to judicial review of governmental determinations) with respect to the time limits for seeking review and other applicable procedures.

 (a)  General rule. Enforcement Rule 208(d)(2)(iii) provides that in the event that the Board shall determine that the matter should be concluded by probation, censure, suspension, disbarment or by informal admonition or private reprimand in cases where the respondent-attorney is unwilling to have the matter concluded by informal admonition or private reprimand, it shall file its findings and recommendations, together with the briefs, if any, before the Board and the entire record, with the Supreme Court.

 (b)  Procedure. The Board Chairman shall file the record, the briefs on exceptions and the briefs opposing exceptions, if any, the finding and recommendations of the Board, and a statement of the Secretary of any expenses taxable under §  93.111 (relating to determination of reimbursable expenses) with the Supreme Court by means of Form DB-13 (Request for Supreme Court Action) and an appropriate letter of transmittal. Copies of such finding and recommendations, statement of taxable expenses, and letter of transmittal shall be served by the Office of the Secretary upon the participants.

 (a)  General rule. Enforcement Rule 208(e)(5) provides that the Supreme Court shall review the record, where appropriate consider oral argument, and enter an order. Enforcement Rule 208(a)(2)(iii) provides that 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.

 (b)  Board recommendation of disbarment. Enforcement Rule 208(e)(2) provides that in the event the Board recommends that the matter should be concluded by disbarment, the respondent-attorney may, within 20 days after service of the findings and recommendations of the Board under subsection (e), submit to the Supreme Court a request to present oral argument.

 (c)  Board recommendations other than disbarment. Enforcement Rule 208(e)(3) provides that in the event the Board recommends a sanction less than disbarment, and the Court, after consideration of the 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, such a rule shall be issued; that a copy of the rule shall be served on Disciplinary Counsel (see §  89.27 (relating to service upon Disciplinary Counsel)); that within 20 days after service of the rule either party may submit to the Supreme Court a response thereto; that within 10 days after service of a response, the other party may submit to the Supreme Court a reply thereto; and that respondent-attorney in such case shall have the absolute right upon request for oral argument.

 (d)  Oral argument. Enforcement Rule 208(e)(4) provides that, except as provided in subsections (b) and (c), the respondent-attorney will not be afforded the right of oral argument.

 (e)  Service of papers. Enforcement Rule 208(e)(1) provides that service of the findings and recommendations of the Board upon the respondent-attorney shall be governed by 210 Pa. Code Rules 121 and 122 (relating to filing and service and content and form of proof of service). See §  85.12 (relating to filings with the Supreme Court).

 (a)  General rule. In cases where Disciplinary Counsel elects to urge in the Supreme Court pursuant to §  93.63(b)(2) (relating to powers and duties of Office of Disciplinary Counsel) a position inconsistent with any finding or recommendation of the Board, the Board may obtain counsel, independent of the Office of Disciplinary Counsel, who shall seek to support before the Court the findings and recommendations of the Board.

 (b)  Procedure. Within 20 days after transmittal of the findings and recommendations of the Board to the Chief Justice of Pennsylvania pursuant to §  89.206(b) (relating to transmission of record to Supreme Court; confidentiality) or §  89.273(a)(5) (relating to procedures for reinstatement), Chief Disciplinary Counsel shall submit to the Board a memorandum describing any position contrary to the findings and recommendations of the Board which the Office of Disciplinary Counsel has elected to urge in the Supreme Court.

 Enforcement Rule 208(g)(1) provides that 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, and that all expenses so taxed shall be paid by the respondent-attorney within 30 days of entry of the order taxing the expenses against the respondent-attorney.

   The provisions of this §  89.209 adopted April 8, 1983, effective April 9, 1983, 13 Pa.B. 1244; amended October 12, 1984, effective October 13, 1984, 14 Pa.B. 3749. Immediately preceding text appears at serial pages (81645) to (81646).