Subchapter A. SERVICE, SUBPOENAS, DEPOSITIONS
AND RELATED MATTERS

§ 91.1. Substituted service.

 Enforcement Rule 212 provides that in the event a respondent-attorney cannot be located and personally served with notices required under the Enforcement Rules and these rules, such notices may be served upon the respondent-attorney by addressing them to the address furnished in the last registration statement filed by the respondent-attorney in accordance with §  93.142(b) (relating to filing of annual statement by attorneys) or, in the case of foreign legal consultant, by serving them pursuant to the designation filed by the foreign legal consultant under Pennsylvania Bar Admission Rule 341(b)(8) (relating to licensing of foreign legal consultants).

 (a)  General rule. Enforcement Rule 213(a) provides that:

   (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; and that the respondent-attorney shall have the right, upon request and payment of appropriate duplicating costs, to receive copies of the records produced.

 (b)  Procedure. Enforcement Rule 213(b) provides that subpoenas 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 (Form DB-14) (Request for Issuance of Subpoena); that on the same day that such statement is filed with the Prothonotary, the party seeking the subpoena shall send by certified mail a copy of such statement to either Disciplinary Counsel or the respondent-attorney, as the case may be; that upon the filing of Form DB-14, the Prothonotary shall forthwith issue the subpoena (Form DB-15) (Subpoena/Subpoena Duces Tecum) and it shall be served in the regular way; and that a subpoena issued pursuant to subsection (a)(2) shall not be returnable until at least ten days after the date of its issuance.

 (c)  Investigatory hearing committee. On application by the Office of Disciplinary Counsel or of a respondent-attorney, where no petition for discipline has yet been filed under these rules, the Office of the Secretary shall appoint an investigatory hearing committee for the purpose of conducting an investigatory hearing under subsection (a)(1).

 (d)  Notice and scheduling of investigatory hearings. An investigatory hearing committee shall schedule an initial hearing on the matter to be held not later than 20 days after the committee is appointed pursuant to subsection (c). The committee shall give all persons affected at least four days written notice of each hearing held by the committee. Such a hearing may be held on less than four days notice if the chair of the committee determines that the shorter period is reasonably necessary under the circumstances.

 (e)  Cross reference. See §  95.2 (relating to investigation of the conversion of funds).

 (a)  In General. Enforcement Rule 213(d) provides that any attack on the validity of a subpoena issued under these rules shall be handled as follows:

   (1)  A challenge to a subpoena authorized by §  91.2(a)(1) (relating to subpoenas and investigations); 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 §  91.2(a)(2) shall be heard and determined by a member of a hearing committee in the disciplinary district in which 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 §  91.4 (relating to appeal of challenges to subpoenas) within ten days after service of the determination on the party bringing the appeal.

 (b)  Procedure.

   (1)  A motion attacking a subpoena must be filed with the Office of the Secretary within ten days after service of the subpoena. A copy of the motion must be served on the other party to the investigation or proceeding.

   (2)  Any answer to the motion must be filed with the Office of the Secretary within five days after service of the motion on the other party under paragraph (1).

   (3)  The Office of the Secretary must transmit the motion and any answer to the person designated in subsection (a)(1) or (2) to hear the motion, who must schedule a hearing on the motion within ten days after the date by which an answer must be filed. A report with findings of fact and conclusions of law must be filed with the Office of the Secretary within ten days after the conclusion of the hearing.

 Enforcement Rule 213(g) provides that:

   (1)  Either Disciplinary Counsel or a respondent-attorney may petition the Supreme Court to enforce a subpoena or to review a determination under §  91.3 (relating to determination of validity of subpoena) on the validity of a subpoena, and no attack on the validity of a subpoena will be considered by the Court unless previously raised as provided in §  91.3. See also §  91.151(e) (relating to contempt of the Board).

   Official Note

   The reference to §  91.151(e) 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 §  91.151(e).

   (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 §  91.3 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.

 (a)  General rule. Enforcement Rule 213(c) provides that:

   (1)  A subpoena issued under these rules shall clearly indicate on its face that the subpoena is issued in connection with a confidential investigation under the Enforcement Rules, and that it is regarded as contempt of the Supreme Court or grounds for discipline under the Enforcement Rules for a person subpoenaed to in any way breach the confidentiality of the investigation.

   (2)  It shall not be regarded as a breach of confidentiality for a person subpoenaed to consult with an attorney.

   (3)  The subpoena and deposition procedures under these rules shall be subject to the confidentiality requirements of Chapter 93 Subchapter F (relating to confidentiality).

 (b)  Exception. Subsection (a)(1) shall not apply to a subpoena issued in connection with a proceeding that is open to the public under §  93.102(a) (relating to access to disciplinary information and confidentiality).

 Enforcement Rule 213(h) provides that any rule of the Supreme Court or any statute providing for discovery shall not be applicable in disciplinary proceedings, which proceedings shall be governed by the Enforcement Rules alone.

 Enforcement Rule 213(i) provides that:

   (1)  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.

   (2)  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 this subpart. 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.

   (3)  Any order to testify or to produce documents or other things issued as prescribed in this section 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 §  91.7 adopted March 10, 1989, effective March 11, 1989, 19 Pa.B. 952; amended June 11, 1993, effective immediately, 23 Pa.B. 2729. Immediately preceding text appears at serial pages (147055) to (147056).

DEPOSITIONS

§ 91.11. Depositions.

 Enforcement Rule 213(f) provides that 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, and that a complete record of the testimony so taken shall be made and preserved.

 Unless notice is waived, no deposition shall be taken except after at least ten days’ notice to the participants if the deposition is to be taken within this Commonwealth, and 15 days’ notice when a deposition is to be taken elsewhere. Such notice shall be given in writing (Form DB-16) (Notice of Deposition) by the participant proposing to take such deposition to the other participants and to the hearing committee or special master. In such notice and application to take evidence by deposition, the participant desiring to take the deposition shall state the name and post office address of the witness, the subject matter concerning which the witness is expected to testify, the time and place of taking the deposition, the name and post office address of the notarial officer before whom it is desired that the deposition be taken, and the reason why such deposition should be taken. The other participants may, within the time stated in this section, make any appropriate response to such notice and application.

 If an application for the taking of a deposition so warrants, the hearing committee or special master will issue and serve, within a reasonable time in advance of the time fixed for taking testimony, upon the participants an authorization on Form DB-17 (Authorization to Take Deposition) naming the witness whose deposition is to be taken, and the time, place and notarial officer before whom the witness is to testify, but such time, place and notarial officer so specified may or may not be the same as those named in the Form DB-16. (Notice of Deposition).

 (a)  Within the United States. Depositions may be taken before the hearing committee or special master, any notary public or any other person authorized to administer oaths not being counsel for any of the participants, or interested in the proceeding or investigation, according to such designation as may be made in the Form DB-17 (Authorization to take Deposition).

 (b)  In foreign countries. Where such deposition is taken in a foreign country, it may be taken before a secretary of an embassy or legation, consul general, consul, vice consul or consular agent of the United States, or before such person or officer as may be designated in the Form DB-17 or agreed upon by the participants by stipulation in writing filed with and approved by the hearing committee or special master.

 (a)  General rule. Every person whose testimony is taken by deposition shall be sworn, or shall affirm concerning the matter about which such person shall testify, before any questions are put or testimony given. The testimony shall be reduced to writing by, or under the direction of, the notarial officer. When the testimony is fully transcribed the deposition shall be submitted to the witness for inspection and signing and shall be read to or by the witness and shall be signed by the witness, unless the inspection, reading and signing are waived by the witness and by all participants who attended the taking of the deposition, or the witness is ill or cannot be found or refuses to sign. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the notarial officer with a statement of the reasons given by the witness for making the changes. If the deposition is not signed by the witness, the notarial officer shall certify it in the usual form and state on the record the fact of the waiver or of the illness or absence of the witness or the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless the hearing committee, special master or the Board holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

 (b)  Transmission. Unless otherwise directed in the Form DB-17 (Authorization to take Deposition), after the deposition has been certified, it shall, together with the number of copies specified in the authorization, the copies being made by, or under the direction of, such notarial officer, be forwarded by such notarial officer in a sealed envelope addressed to the Office of the Secretary at the address set forth in §  85.6 (relating to location of Office of Secretary), with sufficient stamps for postage affixed. Upon receipt thereof, the Office of the Secretary shall file the original in the proceeding and shall forward a copy to each participant and to each member of the hearing committee or the special master conducting the proceeding.

 No part of a deposition shall constitute a part of the record in the proceeding, unless offered in evidence before the hearing committee or special master. At the hearing, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any participant who was present or represented at the taking of the deposition or who had notice thereof. If only part of a deposition is offered in evidence by a participant, a participant with an adverse interest may require the offering participant to introduce any other part which ought in fairness to be considered with the part introduced, and any participant may introduce any other parts. The introduction in evidence of the deposition or any part thereof for any purpose other than contradicting or impeaching the deponent, makes the deponent the witness of the party introducing the deposition.

 Deponents whose depositions are taken and the notarial officers taking such depositions shall be entitled to the same fees as are paid for like services in the courts of common pleas, which fees shall be paid by the participant at whose instance the depositions are taken.