Subchapter G. PROBATION

§ 89.291. Probation.

 (a)  Qualifications. A respondent-attorney may be placed on probation if the respondent-attorney has demonstrated that he or she:

   (1)  can perform legal services and the continued practice of law by the respondent-attorney will not cause the courts or profession to fall into disrepute;

   (2)  is unlikely to harm the public during the period of probation and the necessary conditions of probation can be adequately supervised; and

   (3)  is not guilty of acts warranting disbarment.

 (b)  Duration. Probation shall be ordered for a specified period of time or until further order of the Board or the Supreme Court. If probation is imposed in conjunction with a suspension, the suspension may be stayed in whole or in part.

   Official Note

   A period of actual suspension may or may not be appropriate. Where the Board contemplates recommending an actual suspension period it will examine evidence concerning the impact of suspension on the respondent-attorney with particular attention to its effect on his or her continued rehabilitation. After consideration of these factors, the Board anticipates that there may be situations where a period of suspension is justified and will be recommended.

 (c)  Conditions. The order placing a respondent-attorney on probation shall state the conditions of probation. The conditions shall take into consideration the nature and circumstances of the misconduct and the history, character and condition of the respondent-attorney. The following conditions and such others as the Board or the Supreme Court deems appropriate, may be imposed:

   (1)  periodic reports to the Board and Disciplinary Counsel;

   (2)  psychological counseling and treatment;

   (3)  supervision over trust accounts, if directed by the Supreme Court;

   (4)  satisfactory completion of a course of study;

   (5)  restitution;

   (6)  compliance with income tax laws and verification thereof;

   (7)  limitations on practice; and

   (8)  the payment of expenses taxed under §  89.205(b) (relating to informal admonition or private reprimand following formal hearing) and §  89.209 (relating to expenses of formal proceedings).

 Enforcement Rule 208(h) provides that:

   (1)  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.

   (2)  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:

     (i)   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.

     (ii)   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 chapter.

 (a)  General rule. Probation in cases of alcohol or drug abuse shall be governed by §  89.291 (relating to probation) and this section.

 (b)  Relevance of substance abuse. Alcohol or drug abuse may be considered as a mitigating factor in determining appropriate discipline, but shall not be a defense to a Petition for Discipline. For alcohol or drug abuse to be considered as a mitigating factor, the respondent-attorney must prove, by clear and convincing evidence, that alcohol or drug abuse by the respondent-attorney was a factor in causing his or her misconduct. The respondent-attorney may present expert testimony to satisfy that burden of proof.

   Official Note

   The requirement that a respondent-attorney establish that alcohol or drug abuse was a factor in causing his or her misconduct is derived from Office of Disciplinary Counsel v. Braun, 553 A.2d 894 (Pa. 1989).

 (c)  Sobriety monitor. In addition to the conditions required by §  89.291(c) (relating to conditions), an order placing a respondent-attorney on probation in cases of alcohol or drug abuse shall appoint a sobriety monitor. The sobriety monitor shall be an attorney admitted to practice law in this Commonwealth, in good standing, and designated by the Drug and Alcohol Committee of the Pennsylvania Bar Association. The sobriety monitor shall:

   (1)  monitor the compliance by the respondent-attorney with the terms and conditions of the order imposing probation;

   (2)  assist the respondent-attorney in arranging any necessary professional or substance abuse treatment;

   (3)  meet with the respondent-attorney at least twice a month, and maintain weekly telephone contact with the respondent-attorney;

   (4)  maintain direct contact with the Alcoholics Anonymous or Narcotics Anonymous sponsor of the respondent-attorney if the respondent-attorney participates in either of those programs;

   (5)  file with the Secretary of the Board quarterly written reports; and

   (6)  immediately report to the Secretary of the Board any violations by the respondent-attorney of the terms and conditions of the probation.

 (d)  Financial or practice monitor. The sobriety monitor shall not have the duty to act as a financial monitor or as a practice monitor. In the event that the trust accounts or practice of a respondent-attorney require supervision, the Board shall designate another attorney admitted to practice law in this Commonwealth, in good standing, to act as a financial or practice monitor.

   Official Note

   Subsection (d) is intended to make clear that the purpose of the sobriety monitor is only to assist a respondent-attorney to recover from the disease of alcoholism or drug addiction, and not to act as a financial or practice monitor.

 (e) Additional conditions. Where an order is entered placing a respondent-attorney on probation in cases of alcohol or drug abuse, the respondent-attorney shall:

   (1)  abstain from using alcohol, drugs, or any other mood-altering or mind-altering chemicals;

   (2)  regularly attend meetings of Alcoholics Anonymous or Narcotics Anonymous, or regularly participate in another acceptable type of treatment;

   (3)  obtain a sponsor in Alcoholics Anonymous or Narcotics Anonymous if the respondent-attorney participates in either of those programs, and furnish the sobriety monitor with the sponsor’s name, address and phone number;

   (4)  provide written verification to the sobriety monitor of regular attendance at Alcoholics Anonymous or Narcotics Anonymous meetings or regular participation in another acceptable type of treatment;

   (5)  undergo any counseling, out-patient or in-patient treatment prescribed by a physician or drug and alcohol counselor;

   (6)  meet with his or her sobriety monitor at least twice a month, unless the sobriety monitor requests more frequent meetings, and maintain weekly telephone contact with the sobriety monitor;

   (7)  provide his or her sobriety monitor with properly executed written authorizations as may be necessary for the sobriety monitor to verify the compliance by the respondent-attorney with any required professional or substance abuse treatment; and

   (8)  cooperate fully with the sobriety monitor.

 (f)  Violation of probation. The Secretary of the Board shall immediately forward any report by a sobriety monitor under subsection (c)(6) of a violation of the terms and conditions of probation by a respondent-attorney to the Office of Disciplinary Counsel who shall then proceed in accordance with §  89.292 (relating to violation of probation).

 (a)  Application for termination of probation. At the expiration of the period of probation ordered, the respondent-attorney may apply to the Board for termination of the probation. The application shall be verified by the respondent-attorney, and shall state:

   (1)  the date probation was ordered;

   (2)  that the respondent-attorney has complied with all of the terms and conditions of probation;

   (3)  whether or not formal proceedings for discipline are pending against the respondent-attorney; and

   (4)  that the respondent-attorney requests termination of probation.

 (b)  Conditions for granting termination of probation. The Board shall order the termination of probation if:

   (1)  all costs of the proceedings as previously ordered by the Supreme Court or the Board have been paid;

   (2)  the respondent-attorney has complied with the terms of probation; and

   (3)  no formal proceedings for discipline are pending against the respondent-attorney.

   The provisions of this §  89.294 adopted June 8, 1990, effective June 9, 1990, 20 Pa.B. 3054.