CHAPTER 91. MISCELLANEOUS MATTERS
Subchap. Sec.
A. SERVICE, SUBPOENAS, DEPOSITIONS AND RELATED MATTERS … 91.1
B. ATTORNEYS CONVICTED OF CRIMES … 91.31
C. RECIPROCAL DISCIPLINE AND DISABILITY … 91.51
D. DISABILITY … 91.71
E. FORMERLY ADMITTED ATTORNEYS … 91.91
F. PROTECTION OF THE INTERESTS OF CLIENTS … 91.121
G. EMERGENCY PROCEEDINGS … 91.151
H. FUNDS OF CLIENTS AND THIRD PERSONS; MANDATORY OVERDRAFT NOTIFICATION … 91.171
Subchapter A. SERVICE, SUBPOENAS, DEPOSITIONS
AND RELATED MATTERS
IN GENERAL Sec.
91.1. Substituted service.
91.2. Subpoenas and investigations.
91.3. Determination of validity of subpoena.
91.4. Enforcement.
91.5. Confidentiality.
91.6. Discovery procedures inapplicable.
91.7. Production of testimony and documents for use in disciplinary proceedings in other jurisdictions.
DEPOSITIONS
91.11. Depositions.
91.12. Notice and application.
91.13. Authorization of taking deposition.
91.14. Officer before whom deposition is taken.
91.15. Oath and reduction to writing.
91.16. Scope and conduct of examination.
91.17. Status of deposition as part of record.
91.18. Fees of officers and deponents.
IN GENERAL
§ 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 form filed by the respondent-attorney in accordance with § 93.142 (relating to filing of annual registration form 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 (relating to licensing of foreign legal consultants).
Source The provisions of this § 91.1 amended August 5, 2005, effective September 1, 2005, 35 Pa.B. 4301; amended November 2, 2012, effective November 3, 2012, 42 Pa.B. 6864; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397867) to (397868).
§ 91.2. Subpoenas and investigations.
(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 Court 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 Court 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 Court Prothonotary shall forthwith issue a 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 Executive Office 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).
Source The provisions of this § 91.2 amended March 29, 1979, effective May 26, 1979, 9 Pa.B. 1665; amended November 4, 1988, effective November 5, 1988, 18 Pa.B. 4938; amended January 26, 1990, effective January 27, 1990, 20 Pa.B. 343; amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009; amended June 11, 1993, effective immediately, 23 Pa.B. 2729; amended March 11, 2005, effective immediately, 35 Pa.B. 1656; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552. Immediately preceding text appears at serial pages (376260) to (376261).
§ 91.3. Determination of validity of subpoena.
(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 in accordance with the procedure established by the Board in subsection (b).
(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 in accordance with the procedure established by the Board in subsection (b).
(3) A determination under paragraph (1) or (2) may be appealed to a lawyer-Member of the Board within ten days after service pursuant to § § 89.21(a) and 89.24 of the determination on the party bringing the appeal by filing a petition with the Board setting forth in detail the grounds for challenging the determination. The appealing party shall serve a copy of the petition on the non-appealing party by mail on the date that the appealing party files the appeal, and the non-appealing party shall have five business days after delivery to file a response. No attack on the validity of a subpoena will be considered by the Designated lawyer-Member of the Board unless previously raised before the hearing committee or special master. The Board Member shall decide the appeal within five business days of the filing of the non-appealing party’s response, if any. There shall be no right of appeal to the Supreme Court. Any request for review shall not serve to stay any hearing or proceeding before the hearing committee, special master or the Board unless the Court enters an order staying the proceedings.
(b) Procedure.
(1) A motion attacking a subpoena must be filed with the Board Prothonotary 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. If a motion attacking a subpoena is filed by a third party to the investigation or proceeding who has been served with a subpoena, a copy of the motion must be served on Disciplinary Counsel and the respondent-attorney.
(2) Any answer to the motion must be filed with the Board Prothonotary within five business days after receipt of the motion served by the other party under paragraph (1).
(3) The Board Prothonotary must transmit the motion and any answer to the person designated in paragraphs (a)(1) or (2) to hear the motion, who must schedule a hearing on the motion within ten business 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 Board Prothonotary within ten business days after the conclusion of the hearing.
Source The provisions of this § 91.3 amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009; amended June 11, 1993, effective immediately, 23 Pa.B. 2729; amended March 11, 2005, effective immediately, 35 Pa.B. 1656; amended March 31, 2006, effective immediately, 36 Pa.B. 1490; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552; amended August 7, 2020, effective in 30 days, 50 Pa.B. 4014. Immediately preceding text appears at serial pages (397869) to (397870).
§ 91.4. Enforcement.
Enforcement Rule 213(g) provides that:
(1) Either Disciplinary Counsel or a respondent-attorney may petition the Supreme Court to enforce a subpoena that was not the subject of a challenge pursuant to paragraphs (a)(1) and (2) of § 91.3 (relating to validity of subpoena) or that was the subject of a challenge and has not been finally quashed by either the hearing committee or the Board Member designated to hear the appeal, provided that the party filing the petition to enforce attaches a certification in good faith that: a) the party exhausted reasonable efforts to secure the presence of the witness or the evidence within the witness’s custody or control, b) the testimony, records or other physical evidence of the witness will not be cumulative of other evidence available to the party, and c) the absence of the witness will substantially handicap the party from prosecuting or defending the charges, or from establishing a weighty aggravating or mitigating factor. If the object of a petition to enforce is a subpoena directed to the respondent-attorney for, in whole or in part, production pursuant to Enforcement Rule 221(g)(2) of required records under RPC 1.15(c) and Enforcement Rule 221(e), no certification will be required for the subpoena or portion thereof that pertains to the required records. 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 subpoena is directed to a respondent-attorney for production of required records and the respondent-attorney has not produced the records, the Court shall issue upon the respondent-attorney a rule to show cause why the respondent-attorney should not be placed on temporary suspension for failing to produce the records. 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.
Source The provisions of this § 91.4 amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009; amended June 11, 1993, effective immediately, 23 Pa.B. 2729; amended March 11, 2005, effective immediately, 35 Pa.B. 1656; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544. Immediately preceding text appears at serial pages (363169) to (363170).
§ 91.5. Confidentiality.
(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).
Source The provisions of this § 91.5 amended June 11, 1993, effective immediately, 23 Pa.B. 2729; amended February 24, 2006, effective immediately, 36 Pa.B. 929. Immediately preceding text appears at serial page (309928).
§ 91.6. Discovery procedures inapplicable.
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.
Source The provisions of this § 91.6 amended June 11, 1993, effective immediately, 23 Pa.B. 2729. Immediately preceding text appears at serial page (147055).
§ 91.7. Production of testimony and documents for use in disciplinary proceedings in other jurisdictions.
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.
Source 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.
Source The provisions of this § 91.11 amended March 6, 1981, effective March 7, 1981, 11 Pa.B. 782; amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009. Immediately preceding text appears at serial page (144020).
§ 91.12. Notice and application.
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.
Source The provisions of this § 91.12 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial pages (144020) and (136811).
§ 91.13. Authorization of taking deposition.
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).
Source The provisions of this § 91.13 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (136811).
§ 91.14. Officer before whom deposition is taken.
(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.
Source The provisions of this § 91.14 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (136811).
§ 91.15. Oath and reduction to writing.
(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 Executive Office at the address set forth in § 85.6 (relating to location of Executive Office), with sufficient stamps for postage affixed. Upon receipt thereof, the Board Prothonotary 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.
Source The provisions of this § 91.15 amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009; amended June 11, 1993, effective immediately, 23 Pa.B. 2729; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552. Immediately preceding text appears at serial page (363173).
§ 91.16. Scope and conduct of examination.
Unless otherwise directed in the Form DB-17 (Authorization to take Deposition), the deponent may be examined regarding any matter not privileged which is relevant to the subject matter of the proceedings. Participants shall have the right of cross-examination, objection and exception. In making objections to questions or evidence, the grounds relied upon shall be stated briefly, but no transcript filed by the notarial officer shall include argument or debate. Objections to questions or evidence shall be noted by the notarial officer upon the deposition, but the notarial officer shall not have the power to decide on the competency of a witness or the relevancy or materiality of evidence. Objections to the competency of a witness or to the relevancy, or materiality of the testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which was known to the objecting party and which might have been obviated or removed if made at that time.
§ 91.17. Status of deposition as part of record.
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.
Source The provisions of this § 91.17 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial pages (136812) to (136813).
§ 91.18. Fees of officers and deponents.
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.
Subchapter B. ATTORNEYS CONVICTED OF CRIMES
Sec.
91.31. Notification by attorneys convicted of crimes.
91.32. Notification by clerks of conviction of attorneys.
91.33. Notification by Office of Disciplinary Counsel of conviction of attorneys.
91.34. Temporary suspension upon conviction of a crime.
91.35. Institution of formal proceedings upon conviction of a crime.
91.36. (Reserved).
91.36. Effect of reversal of conviction.
91.37. Definition of ‘‘crime.’’
91.38. Definition of ‘‘conviction.’’§ 91.31. Notification by attorneys convicted of crimes.
Enforcement Rule 214(a) provides that an attorney convicted of a crime shall report the fact of such conviction within 20 days to the Office of Disciplinary Counsel; and that the responsibility of the attorney to make such report shall not be abated because the conviction is under appeal or the clerk of the court has transmitted a certificate to Disciplinary Counsel pursuant to § 91.32 (relating to notification by clerks of conviction of attorneys).
Source The provisions of this § 91.31 amended through July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended August 6, 2011, effective immediately, 41 Pa.B. 4202; amended August 11, 2012, effective immediately, 42 Pa.B. 5156. Immediately preceding text appears at serial page (358069).
§ 91.32. Notification by clerks of conviction of attorneys.
Enforcement Rule 214(b) provides that the clerk of any court within the Commonwealth in which an attorney is convicted of any crime, or in which any such conviction is reversed, shall within 20 days after such disposition transmit a certificate thereof to Disciplinary Counsel, who shall file such certificate with the Supreme Court.
Source The provisions of this § 91.32 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009; amended August 11, 2012, effective immediately, 42 Pa.B. 5156. Immediately preceding text appears at serial page (358069).
§ 91.33. Notification by Office of Disciplinary Counsel of conviction of attorneys.
Enforcement Rule 214(c) provides that upon being advised that an attorney has been convicted of a crime, Disciplinary Counsel shall secure and file a certificate of such conviction with the Supreme Court.
Source The provisions of this § 91.33 amended through July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended August 11, 2012, effective immediately, 42 Pa.B. 5156. Immediately preceding text appears at serial page (358069).
§ 91.34. Temporary suspension upon conviction of a crime.
(a) Commencement of summary proceedings. Enforcement Rule 214(d)(1) provides that upon the filing with the Supreme Court of a certified copy of an order demonstrating that an attorney has been convicted of a crime, the Court may enter a rule directing the respondent-attorney to show cause why the respondent-attorney should not be placed on temporary suspension, which rule shall be returnable within ten days.
(b) Subject of summary proceeding. The Note to Enforcement Rule 214(d) provides that the subject of the summary proceedings authorized by this section will ordinarily be limited to whether the condition triggering the application of this section exists, i.e., proof that the respondent-attorney is the same person as the individual convicted of the offense charged, although the Court has the discretion to consider such subjects as mitigating or aggravating circumstances.
(c) Disposition. Enforcement Rule 214(d)(2) provides that if a rule to show cause has been issued under subsection (a), and the period for response has passed without a response having been filed, or after consideration of any response, the Court may enter an order requiring temporary suspension of the practice of law by the respondent-attorney pending further definitive action under these rules.
(d) Effect of temporary suspension. Enforcement rule 214(d)(3) provides that any order of temporary suspension issued under subsection (c) shall preclude the respondent-attorney from accepting any new cases or other client matters, but shall not preclude the respondent-attorney from continuing to represent existing clients on existing matters during the 30 days following entry of the order of temporary suspension. The Note to Enforcement Rule 214(d) provides that permitting the respondent-attorney to continue representing existing clients for 30 days is intended to avoid undue hardship to clients and to permit a winding down of matters being handled by the respondent-attorney, and the permissible activities of the respondent-attorney are intended to be limited to only those necessary to accomplish those purposes.
(e) Dissolution or modification of temporary suspension. Enforcement Rule 214(d)(4) provides that:
(1) the respondent-attorney may at any time petition the Court for dissolution or amendment of an order of temporary suspension;
(2) a copy of the petition shall be served upon Disciplinary Counsel and the Board Prothonotary (see § 89.27 (relating to service upon Disciplinary Counsel));
(3) a hearing on the petition before a member of the Board designated by the Chair of the Board shall be held within ten business days after service of the petition on the Board Prothonotary;
(4) the designated Board member shall hear the petition and submit a transcript of the hearing and a recommendation to the Court within five business days after the conclusion of the hearing; and
(5) upon receipt of the recommendation of the designated Board member and the record relating thereto, the Court shall dissolve or modify its order, if appropriate.
(f) Joint petiton for temporary suspension. Enforcement Rule 214(d)(5) provides that at any time before a plea or verdict or after a guilty plea or verdict of guilt in the criminal proceeding, Disciplinary Counsel and the respondent-attorney may file with the Court a joint petition for temporary suspension of the respondent-attorney on the ground that the respondent-attorney’s temporary suspension is in the best interest of the respondent and the legal system.
Source The provisions of this § 91.34 amended through July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended April 21, 1989, effective April 22, 1989, 19 Pa.B. 1719; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended February 4, 1994, effective February 5, 1994, 24 Pa.B. 730; amended September 10, 2004, effective September 11, 2004, 34 Pa.B. 5013; amended August 5, 2011, effective August 6, 2011, 41 Pa.B. 4202; amended August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552. Immediately preceding text appears at serial pages (363175) to (363177).
§ 91.35. Institution of formal proceedings upon conviction of a crime.
(a) General rule. Enforcement Rule 214(f)(1) provides that upon the filing of a certificate of conviction of an attorney for a crime, Disciplinary Counsel may commence either an informal proceeding under Chapter 87 (relating to investigations and informal proceedings) or a formal proceeding under Chapter 89 Subchapter B (relating to institution of formal proceedings), except that Disciplinary Counsel may institute a formal proceeding before a hearing committee or special master by filing a petition for discipline under § 89.52 (relating to petition for discipline) without seeking approval for the prosecution of formal charges under Chapter 87 Subchapter B (relating to review of recommended disposition by reviewing hearing committee member). If a petition for discipline is filed, a hearing on the petition shall be deferred until sentencing and all direct appeals from the conviction have been concluded. The sole issue at the hearing shall be the extent of the discipline or, where the Court has temporarily suspended the attorney under § 91.34(c), the final discipline to be imposed.
(b) Accelerated disposition. Enforcement Rule 214(f)(2) provides that:
(1) notwithstanding the provision of subsection (a) that a hearing shall not be held until sentencing and all appeals from a conviction have been concluded, a respondent-attorney who has been temporarily suspended pursuant to § 91.34 shall have the right to request an accelerated disposition of the charges which form the basis for the temporary suspension by filing a notice with the Board Prothonotary and Disciplinary Counsel requesting accelerated disposition;
(2) within 30 days after filing of such a notice, Disciplinary Counsel shall file a petition for discipline, if such a petition has not already been filed, and the matter shall be assigned to a hearing committee for accelerated disposition;
(3) the assignment to a hearing committee shall take place within seven days after the filing of such a notice or the filing of a petition for discipline, whichever occurs later;
(4) thereafter the matter shall proceed and be concluded by the hearing committee, the Board and the Court without appreciable delay; and
(5) if a petition for discipline is not timely filed or assigned to a hearing committee for accelerated disposition under this subsection (b), the order of temporary suspension shall be automatically dissolved, but without prejudice to any pending or further proceedings under this Subchapter B.
Official Note
The Note to Enforcement Rule 214(f) provides that the ‘‘without appreciable delay’’ standard of subsection (b)(4) is derived from Barry v. Barchi, 443 U. S. 55, 99 (1979), and that appropriate steps should be taken to satisfy that requirement, such as continuous hearing sessions, procurement of daily transcript, fixing of truncated briefing schedules, conducting special sessions of the Board, etc.
(c) Evidence of conviction. Enforcement Rule 214(e) provides that a certificate of conviction of an attorney for a crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against the attorney based upon the conviction.
Source The provisions of this § 91.35 amended through July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended April 21, 1989, effective April 22, 1989, 19 Pa.B. 1719; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended August 5, 2011, effective August 6, 2011, 41 Pa.B. 4202; amended August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397875) to (397876).
§ 91.36. [Reserved].
Source The provisions of this § 91.36 amended through July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended December 1, 2006, effective December 2, 2006, 36 Pa.B. 7233; reserved August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156. Immediately preceding text appears at serial page (358072).
§ 91.36. Effect of reversal of conviction.
(a) General rule. Enforcement Rule 214(g) provides that an attorney suspended under the provisions of § 91.34 (relating to temporary suspension upon conviction of a crime) may be reinstated immediately upon the filing by the Board with the Supreme Court of a certificate demonstrating that the underlying conviction has been reversed, but that the reinstatement shall not terminate any formal proceeding then pending against the attorney.
(b) Service on Board of the Pennsylvania Lawyers Fund for Client Security. A copy of the certificate filed by the Board with the Supreme Court under subdivision (a) shall be served on the Board of the Pennsylvania Lawyers Fund for Client Security.
Official Note
The purpose of service on the Board of the Pennsylvania Lawyers Fund for Client Security is to permit it to notify the Supreme Court if disbursements have been made from the Fund with respect to dishonest conduct by the attorney whose conviction has been reversed so that the Court may determine if restitution should be made a condition of reinstatement.
Source The provisions of this § 91.37 adopted through July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended February 4, 1994, effective February 5, 1994, 24 Pa.B. 731; amended and renumbered as § 91.36 August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156. Immediately preceding text appears at serial pages (358072) to (358073).
§ 91.37. Definition of ‘‘crime.’’
As Enforcement Rule 214(h) provides and as used in this Subchapter B, the term ‘‘crime’’ means an offense that is punishable by imprisonment in the jurisdiction of conviction, whether or not a sentence of imprisonment is actually imposed; and, notwithstanding any other provision of subdivision (h) of Enforcement Rule 214 or this rule, the term ‘‘crime’’ shall include criminal contempt, whether direct or indirect, and without regard to the sentence that may be imposed or that is actually imposed. It does not include parking violations or summary offenses, both traffic and non-traffic, unless a term of imprisonment is actually imposed.
Source The provisions of this § 91.38 adopted April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended and renumbered as § 91.37 August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended November 2, 2012, effective November 3, 2012, 42 Pa.B. 6864; amended June 27, 2014, effective June 28, 2014, 44 Pa.B 3927; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (397877).
§ 91.38. Definition of ‘‘conviction.’’
As Enforcement Rule 214(i) provides and as used in this Subchapter B, the term ‘‘conviction’’ means any guilty verdict, whether after trial by judge or jury, or finding of guilt, and any plea of guilty or nolo contendere that has been accepted by the court, whether or not sentence has been imposed.
Source The provisions of this § 91.39 adopted August 5, 2011, effective August 6, 2011, 41 Pa.B. 4202; amended and renumbered as § 91.38 August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (397877).
Subchapter C. RECIPROCAL DISCIPLINE AND DISABILITY
Sec.
91.51. Reciprocal discipline.§ 91.51. Reciprocal discipline.
Enforcement Rule 216 provides as follows:
(1) Upon receipt of a certified copy of a final adjudication of any court or any body authorized by law or by rule of court to conduct disciplinary proceedings against attorneys by any state or territory of the United States or of the District of Columbia, a United States court, or a federal administrative agency or a military tribunal demonstrating that an attorney admitted to practice in this Commonwealth has been disciplined by suspension, disbarment, revocation of license or pro hac vice admission, or has resigned from the bar or otherwise relinquished his or her license to practice while under disciplinary investigation in another jurisdiction or has been transferred to disability inactive status, the Supreme Court shall forthwith issue a notice (Form DB-19) (Notice of Reciprocal Discipline) directed to the respondent-attorney containing:
(i) A copy of the final adjudication described in subdivision (1).
(ii) An order directing that the respondent-attorney inform the Court within 30 days from service of the notice, of any claim by the respondent-attorney that the imposition of the identical or comparable discipline or disability inactive status in the Commonwealth would be unwarranted, and the reasons therefore. The Executive Office shall cause this notice to be served upon the respondent-attorney by mailing it to the address furnished by the respondent-attorney in the last registration form filed by such person in accordance with § 93.142 (relating to filing of annual registration form by attorneys) or, in the case of a foreign legal consultant, by serving it pursuant to the designation filed by the foreign legal consultant under Pennsylvania Bar Admission Rule 341 (relating to licensing of foreign legal consultants).
(2) In the event the discipline imposed in the original jurisdiction has been stayed there, any reciprocal discipline imposed in the Commonwealth shall be deferred until such stay expires.
(3) Upon the expiration of 30 days from service of the notice issued pursuant to the provisions of subdivision (1), the Supreme Court may impose the identical or comparable discipline or transfer to disability inactive status unless Disciplinary Counsel or the respondent-attorney demonstrates, or the Court finds that upon the fact of the record upon which the discipline is predicated it clearly appears:
(i) that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;
(ii) that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not consistently with its duty accept as final the conclusion on that subject or
(iii) that the imposition of the same or comparable discipline would result in grave injustice, or be offensive to the public policy of this Commonwealth.
Where the Court determines that any of said elements exist, the Court shall enter such other order as it deems appropriate.
(4) In all other respects, a final adjudication in another jurisdiction that an attorney, whether or not admitted in that jurisdiction, has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in the Commonwealth.
(5) An attorney who has been transferred to disability inactive status or disciplined in another court or by any body authorized by law or by rule of court to conduct disciplinary proceedings against attorneys by any state or territory of the United States or of the District of Columbia, a United States court, or by a federal administrative agency or a military tribunal, by suspension, disbarment, or revocation of license or pro hac vice admission, or who has resigned from the bar or otherwise relinquished his or her license to practice while under disciplinary investigation in another jurisdiction, shall report the fact of such transfer, suspension, disbarment, revocation or resignation to the Executive Office within 20 days after the date of the order, judgment or directive imposing or confirming the discipline or transfer to disability inactive status.
Source The provisions of this § 91.51 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended September 22, 1995, effective September 23, 1995, 25 Pa.B. 3967; amended September 10, 2004, effective September 11, 2004, 34 Pa.B. 5013; amended August 5, 2005, effective September 1, 2005, 35 Pa.B. 4301; amended August 5, 2011, effective August 6, 2011, 41 Pa.B. 4202; amended August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended November 2, 2012, effective November 3, 2012, 42 Pa.B. 6864; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397877) to (397878).
Subchapter D. DISABILITY
Sec.
91.70. Preliminary provisions.
91.71. Notification by clerks of declaration of incapacity.
91.72. Notification by Office of Disciplinary Counsel of declaration of incapacity.
91.73. Attorney subject to judicial determination of incapacity.
91.74. Petition by Board for determination of professional competency.
91.75. Effect of raising defense of disability in formal and informal proceedings.
91.76. Publication of notice of transfer to disability inactive status.
91.77. Action to protect clients of disabled attorney.
91.78. Procedure for reinstatement.
91.79. Burden of proof.
91.80. Waiver of privilege.§ 91.70. Preliminary provisions.
(a) Definition. Enforcement Rule 301(k) provides that, as used in this subchapter, the term ‘‘disabled attorney’’ means an attorney transferred to disability inactive status under this subchapter.
(b) Cross reference. See Enforcement Rule 601(a) which suspends the act of July 9, 1976 (P. L. 817, No. 143), known as the Mental Health Procedures Act, to the extent it is inconsistent with the Enforcement Rules.
Source The provisions of this § 91.70 adopted July 30, 1999, effective July 31, 1999, 29 Pa.B. 4053; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (397879).
§ 91.71. Notification by clerks of declaration of incapacity.
(a) Duty to report. Enforcement Rule 301(a) provides that the clerk of any court within this Commonwealth that declares that an attorney is incapacitated or that orders involuntary treatment of an attorney on the grounds that the attorney is severely mentally disabled or that denies a petition for review of a certification by a mental health review officer subjecting an attorney to involuntary treatment shall within 24 hours of such disposition transmit a certificate thereof to Disciplinary Counsel, who shall file such certificate with the Supreme Court by means of Form DB-20 (Certificate of Judicial Determination of Incompetency of Attorneys).
(b) Local procedures. The Official Note to Enforcement Rule 301(a) provides that it is the responsibility of each local court to adopt any necessary procedures so that mental health officers and individual judges notify the clerk of the court that the respondent in a matter is an attorney and that a certificate must accordingly be sent to Disciplinary Counsel under this section.
Source The provisions of this § 91.71 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended July 30, 1999, effective July 31, 1999, 29 Pa.B. 4053. Immediately preceding text appears at serial page (198430).
§ 91.72. Notification by Office of Disciplinary Counsel of declaration of incapacity.
Enforcement Rule 301(b) provides that upon being advised that an attorney has been declared incapacitated or involuntarily committed to an institution on the grounds of incapacity or severe mental disability, Disciplinary Counsel shall secure and file a Form DB-20 (Certificate of Judicial Determination of Incompetency of Attorney) in accordance with the provisions of § 91.71 (relating to notification by clerks of declaration of incapacity); and that if the declaration of incapacity or commitment occurred in another jurisdiction, it shall be the responsibility of Disciplinary Counsel to secure and file a certificate of such declaration or commitment.
Source The provisions of this § 91.72 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended July 30, 1999, effective July 31, 1999, 29 Pa.B. 4053. Immediately preceding text appears at serial pages (198430) to (198431).
§ 91.73. Attorney subject to judicial determination of incapacity.
(a) Transfer to inactive status. Enforcement Rule 301(c) provides that where an attorney has been judicially declared incapacitated or involuntarily committed on the grounds of incapacity or severe mental disability, the Supreme Court, upon proper proof of the fact, shall enter an order transferring such attorney to disability inactive status effective immediately and for an indefinite period until the further order of the Court; and that a copy of such order shall be served upon such formerly admitted attorney, the guardian of such person, and/or the director of the institution to which such person has been committed in such manner as the Court may direct.
(b) Summary reinstatement. Where an attorney has been transferred to disability inactive status by an order in accordance with the provisions of subdivision (a) and, thereafter, in proceedings duly taken, the person is judicially declared to be competent, the Supreme Court upon application may dispense with further evidence that the disability has been removed and may direct reinstatement to active status upon such terms as are deemed proper and advisable.
Source The provisions of this § 91.73 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended July 30, 1999, effective July 31, 1999, 29 Pa.B. 4053; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (397880).
§ 91.74. Petition by Board for determination of professional competency.
Enforcement Rule 301(d) provides that whenever the Board shall petition the Supreme Court to determine whether an attorney is incapacitated from continuing the practice of law by reason of mental infirmity or illness or because of addiction to drugs or intoxicants, the Court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including the examination of the attorney by such qualified medical experts as the Court shall designate; that if, upon due consideration of the matter, the Court concludes that the attorney is incapacitated from continuing to practice law, it shall enter an order transferring the attorney to disability inactive status on the ground of such disability for an indefinite period and until the further order of the Court; that if examination of a respondent-attorney by a qualified medical expert reveals that the respondent lacks the capacity to aid effectively in the preparation of a defense, the Court may order that any pending disciplinary proceeding against the respondent shall be held in abeyance except for the perpetuation of testimony and the preservation of documentary evidence; that the order of abatement may provide for reexaminations of the respondent-attorney at specified intervals or upon motion by Disciplinary Counsel; and that the Court shall provide for such notice to the respondent-attorney of proceedings in the matter as it deems proper and advisable and may appoint counsel to represent the respondent if the respondent is without adequate representation.
Source The provisions of this § 91.74 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended March 10, 1989, effective March 11, 1989, 19 Pa.B. 952; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397880) to (397881).
§ 91.75. Effect of raising defense of disability in formal and informal proceedings.
(a) General rule. Enforcement Rule 301(e) provides that if, during the course of a disciplinary proceeding, the respondent contends that the respondent is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which make it impossible for the respondent to prepare an adequate defense, the respondent shall complete and file with the Court a certificate of admission of disability. The certificate shall:
(1) identify the precise nature of the disability and the specific or approximate date of the onset or initial diagnosis of the disabling condition;
(2) contain an explanation of the manner in which the disabling condition makes it impossible for the respondent to prepare an adequate defense;
(3) have appended thereto the opinion of at least one medical expert that the respondent is unable to prepare an adequate defense and a statement containing the basis for the medical expert’s opinion; and
(4) contain a statement, signed by the respondent, that all averments of material fact contained in the certificate and attachments are true upon the respondent’s knowledge or information and belief and made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
The respondent may attach to the certificate affidavits, medical records, additional medical expert reports, official records, or other documents in support of the existence of the disabling condition or the respondent’s contention of lack of physical or mental capacity to prepare an adequate defense.
Upon receipt of the certificate, the Supreme Court thereupon shall enter an order immediately transferring the respondent to disability inactive status until a determination is made of the capacity of the respondent to aid effectively in the preparation of a defense or to continue to practice law in a proceeding instituted in accordance with the provisions of § 91.74 (relating to petition by Board for determination of professional competency), unless the Court finds that the certificate does not comply with the requirements of Enforcement Rule 301(e), in which case the Court may deny the request for transfer to disability inactive status or enter any other appropriate order. Before or after the entry of the order transferring the respondent to disability inactive status under Enforcement Rule 301(e), the Court may, upon application by Disciplinary Counsel and for good cause shown, take or direct such action as the Court deems necessary or proper to a determination of whether it is impossible for the respondent to prepare an adequate defense, including a direction for an examination of the respondent by such qualified medical experts as the Court shall designate. In its discretion, the Court may direct that the expense of such an examination shall be paid by the respondent.
The order transferring the attorney to disability inactive status under Enforcement Rule 301(e) shall be a matter of public record. The certificate of admission of disability and attachments to the certificate shall not be publicly disclosed or made available for use in any proceeding other than a subsequent reinstatement or disciplinary proceeding except:
(i) upon order of the Supreme Court;
(ii) pursuant to an express written waiver by the attorney; or
(iii) upon a request by the Pennsylvania Lawyers Fund for Client Security Board pursuant to Enforcement Rule 521(a) (relating to cooperation with Disciplinary Board).
If the Court shall determine at any time that the respondent is able to aid effectively in the preparation of a defense or is not incapacitated from practicing law, it shall take such action as it deems proper and advisable including a direction for the resumption of the disciplinary proceeding against the respondent.
(b) Procedure. Whenever a respondent makes a contention within the scope of subsection (a) of this section, the respondent shall complete and file a certificate thereof with the Court Prothonotary by means of Form DB-21 (Certificate of Admission of Disability by Attorney). The respondent shall serve a copy of the certificate on the Board and Disciplinary Counsel.
Source The provisions of this § 91.75 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended March 10, 1989, effective March 11, 1989, 19 Pa.B. 952; amended August 5, 2011, effective August 6, 2011, 41 Pa.B. 4202; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397881) to (397882).
§ 91.76. Publication of notice of transfer to disability inactive status.
Enforcement Rule 301(f) provides that the Board shall cause a notice of transfer to disability inactive status (Form DB-22) (Notice of Transfer to Inactive Status upon Disability) to be published in the legal journal and a newspaper of general circulation in the county in which the disabled attorney practiced. If there is no such legal journal, the notice shall be published in the legal journal of an adjoining county. Such notice shall be published by the Executive Office within 20 days after the transfer to disability inactive status becomes effective and shall be furnished to such courts as may be appropriate.
Source The provisions of this § 91.76 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397882) to (397883).
§ 91.77. Action to protect clients of disabled attorney.
Enforcement Rule 301(g) provides that the Board shall promptly transmit a certified copy of the order of transfer to disability inactive status to the president judge of the court of common pleas of the judicial district in which the disabled attorney practiced and shall request such action under the provisions of Subchapter F (relating to protection of the interests of clients) as may be indicated in order to protect the interests of the disabled attorney and the clients of the disabled attorney.
Source The provisions of this § 91.77 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (397883).
§ 91.78. Procedure for reinstatement.
Enforcement Rule 301(h) provides as follows:
(1) Except as provided in § 91.73(b) (relating to summary reinstatement), a disabled attorney may not resume active status until reinstated by order of the Supreme Court upon petition for reinstatement pursuant to Chapter 89 Subchapter F (relating to reinstatement).
(2) A disabled attorney shall be entitled to apply for reinstatement to active status once a year or at such shorter intervals as the Court may direct in the order transferring the respondent to disability inactive status or any modification thereof.
(3) Such application shall be granted by the Court upon a showing by clear and convincing evidence that the disability of the formerly admitted attorney has been removed and such person is fit to resume the practice of law. Upon such application, the Court may take or direct such action as it deems necessary or proper to a determination of whether the formerly admitted attorney’s disability has been removed including a direction for an examination of the formerly admitted attorney by such qualified medical experts as the Court shall designate. In its discretion, the Court may direct that the expense of such an examination shall be paid by the formerly admitted attorney.
Source The provisions of this § 91.78 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended July 30, 1999, effective July 31, 1999, 29 Pa.B. 4053; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (397883).
§ 91.79. Burden of proof.
Enforcement Rule 301(i) provides that in a proceeding seeking a transfer to disability inactive status under this subchapter, the burden of proof shall rest with the Board; and that in a proceeding seeking an order of reinstatement to active status under this subchapter, the burden of proof shall rest with the respondent-attorney.
Source The provisions of this § 91.79 reserved March 6, 1981, effective March 7, 1981, 11 Pa.B. 782; amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (397884).
§ 91.80. Waiver of privilege.
Enforcement Rule 301(j) provides that the filing of an application for reinstatement to active status by a formerly admitted attorney transferred to disability inactive status shall be deemed to constitute a waiver of any doctor-patient privilege with respect to any treatment of the formerly admitted attorney during the period of disability; that the formerly admitted attorney shall be required to disclose the name of every psychiatrist, psychologist, physician and hospital or other institution by whom or in which the formerly admitted attorney has been examined or treated since transfer to disability inactive status; and that the formerly admitted attorney shall furnish to the Court written consent to each to divulge such information and records as requested by court-appointed medical experts.
Source The provisions of this § 91.80 adopted July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (397884).
Subchapter E. FORMERLY ADMITTED ATTORNEYS
Sec.
91.91. Notification of clients in nonlitigation matters.
91.92. Notification of clients in litigation matters.
91.93. Notification of other persons.
91.94. Effective date of suspension, disbarment, temporary suspension, administrative suspension or transfer to disability inactive status.
91.95. Additional steps to be taken to disengage from the practice of law.
91.96. Proof of compliance.
91.97. Publication of notice of suspension, disbarment, temporary suspension, administrative suspension or transfer to disability inactive status.
91.98. Action to protect clients of formerly admitted attorney.
91.99. Maintenance of records.
91.100. Indicia of licensure.
91.101. Law-related activities of formerly admitted attorneys.§ 91.91. Notification of clients in nonlitigation matters.
(a) General rule. Enforcement Rule 217(a) provides that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, all clients being represented in pending matters, other than litigation or administrative proceedings, of the disbarment, suspension, temporary suspension, administrative suspension or transfer to disability inactive status and the consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension, temporary suspension, administrative suspension or transfer to disability inactive status and shall advise said clients to seek legal advice elsewhere. Such notices shall be in substantially the language of Form DB-23 (Nonlitigation Notice of Disbarment, Suspension, Temporary Suspension or Transfer to Disability Inactive Status) or Form DB-23(a) (Non-Litigation Notice of Administrative Suspension). The notice required by this subsection (a) may be delivered by the most efficient method possible as long as the chosen method is successful and provides proof of receipt.
Official Note
Notice may be accomplished, for example, by delivery in person with the lawyer securing a signed receipt, electronic mailing with some form of acknowledgement from the client other than a ‘‘read receipt,’’ and mailing by registered or certified mail return receipt requested.
(b) Copies of notices and proofs of receipt. At the time of the filing of the verified statement of compliance required by § 91.96 of this Subchapter E, the formerly admitted attorney shall file copies of the notices required by this section and proofs of receipt with the Board Prothonotary and shall serve a conforming copy on Disciplinary Counsel.
Source The provisions of this § 91.91 amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397884) to (397885).
§ 91.92. Notification of clients in litigation matters.
(a) General rule. Enforcement Rule 217(b) provides that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the disbarment, suspension, temporary suspension, administrative suspension or transfer to disability inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension, temporary suspension, administrative suspension or transfer to disability inactive status. Such rule further provides that the notice to be given to the client shall advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney; that in the event the client does not obtain substitute counsel before the effective date of the disbarment, suspension, temporary suspension, administrative suspension or transfer to disability inactive status, it shall be the responsibility of the formerly admitted attorney to move in the court or agency in which the proceeding is pending for leave to withdraw; and that the notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the formerly admitted attorney. Such notices shall be in substantially the language of Form DB-24 (Litigation Notice of Disbarment, Suspension, Temporary Suspension or Transfer to Disability Inactive Status) or Form DB-24(a) (Litigation Notice of Administrative Suspension). The notice required by this subsection (b) may be delivered by the most efficient method possible as long as the chosen method is successful and provides proof of receipt. See Note after subsection (a) of § 91.91 (relating to notification of clients in nonlitigation matters).
(b) Copies of notices and proofs of receipt. At the time of the filing of the verified statement of compliance required by § 91.96 of this Subchapter E, the formerly admitted attorney shall file copies of the notices required by this section and proofs of receipt with the Board Prothonotary and shall serve a conforming copy on Disciplinary Counsel.
Source The provisions of this § 91.92 amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397885) to (397886).
§ 91.93. Notification of other persons.
(a) General rule. Enforcement Rule 217(c) provides that a formerly admitted attorney shall promptly notify, or cause to be promptly notified, of the disbarment, suspension, temporary suspension, administrative suspension or transfer to disability inactive status:
(1) all persons or their agents or guardians, including but not limited to wards, heirs and beneficiaries, to whom a fiduciary duty is or may be owed at any time after the disbarment, suspension, temporary suspension, administrative suspension or transfer to disability inactive status;
(2) all other persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that he or she continues as an attorney in good standing; and
(3) any other tribunal, court, agency or jurisdiction in which the attorney is admitted to practice.
(b) Method of delivery. Enforcement Rule 217(c) further provides that the notices required by subsection (a) may be delivered by the most efficient method possible as long as the chosen method is successful and provides proof of receipt. See Note after § 91.91(a) of this Subchapter E.
(c) Copies of notices and proofs of receipt. Enforcement Rule 217(c) further provides that at the time of the filing of the verified statement of compliance required by § 91.96 of this Subchapter E, the formerly admitted attorney shall file copies of the notices required by this section and proofs of receipt with the Board Prothonotary and shall serve a conforming copy on Disciplinary Counsel.
(d) Responsibility to provide notice. Enforcement Rule 217(c) further provides that the responsibility of the formerly admitted attorney to provide the notice required by this section shall continue for as long as the formerly admitted attorney is disbarred, suspended, temporarily suspended, administratively suspended or on disability inactive status.
Source The provisions of this § 91.93 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; amended January 30, 2015, effective March 2, 2015, with respect to persons who are formerly admitted attorneys on March 2, 2015, and persons becoming formerly admitted attorneys on or after March 2, 2025, 45 Pa.B. 544; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397886) and (404231).
§ 91.94. Effective date of suspension, disbarment, temporary suspension, administrative suspension or transfer to disability inactive status.
(a) Effective date. Enforcement Rule 217(d)(1) provides that orders imposing suspension, disbarment, temporary suspension, administrative suspension or transfer to disability inactive status shall be effective 30 days after entry; that the formerly admitted attorney, after entry of the disbarment, suspension, temporary suspension, administrative suspension or transfer to disability inactive status order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature; but that, during the period from the entry date of the order to its effective date the formerly admitted attorney may wind up and complete, on behalf of any client, all matters which were pending on the entry date.
(b) Effect of verified statement on waiting period for reinstatement. Enforcement Rule 217(e)(3) provides that after the entry of an order of disbarment or suspension for a period exceeding one year, the waiting period for eligibility to apply for reinstatement to the practice of law shall not begin until the formerly admitted attorney files the verified statement required by subsection (a) of this section; and that if the order of disbarment or suspension contains a provision that makes the discipline retroactive to an earlier date, the waiting period will be deemed to have begun on that earlier date.
Official Note
Subsection (b) of this section and the corresponding provisions in § 89.272(a) and (b) (relating to waiting period) apply only to orders entered on or after February 28, 2015.
Source The provisions of this § 91.94 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (404231).
§ 91.95. Additional steps to be taken to disengage from the practice of law.
(a) Cease and desist from using all forms of communication that convey eligibility to practice. Enforcement Rule 217(d)(2) provides that in addition to the steps that a formerly admitted attorney must promptly take under other provisions of this section to disengage from the practice of law, a formerly admitted attorney shall promptly cease and desist from using all forms of communication that expressly or implicitly convey eligibility to practice law in the state courts of Pennsylvania, including but not limited to professional titles, letterhead, business cards, signage, websites, and references to admission to the Pennsylvania Bar.
(b) Additional steps for certain types of discipline or disability. Enforcement Rule 217(d)(3) provides that in cases of disbarment, suspension for a period exceeding one year, temporary suspension under Enforcement Rule 208(f) or 213(g), or disability inactive status under Enforcement Rule 216 or 301, a formerly admitted attorney shall also promptly:
(1) resign all appointments as personal representative, executor, administrator, guardian, conservator, receiver, trustee, agent under a power of attorney, or other fiduciary position;
(2) close every IOLTA, Trust, client and fiduciary account;
(3) properly disburse or otherwise transfer all client and fiduciary funds in his or her possession, custody or control; and
(4) take all necessary steps to cancel or discontinue the next regular publication of all advertisements and telecommunication listings that expressly or implicitly convey eligibility to practice law in the state courts of Pennsylvania.
Official Note
Paragraph (b) of this section does not preclude a respondent-attorney who voluntarily assumes inactive or retired status, permanently resigns, is placed on administrative suspension, is temporarily suspended under Enforcement Rule 214, or is suspended for one year or less, from completing existing appointments and accepting new appointments of the nature identified in paragraph (b)(1). Nonetheless, in order to comply with § § 91.91 (relating to notification of clients in nonlitigation matters), 91.92 (relating to notification of clients in litigation matters), and 91.93 (relating to notification of other persons) of this Subchapter E, the formerly admitted attorney who desires to complete existing appointments or accept future appointments must give written notice of the formerly admitted attorney’s registration status or change in that status to appointing and supervising judges and courts, wards, heirs, beneficiaries, interested third parties, and other recipients of the formerly admitted attorney’s fiduciary services, as notice of the formerly admitted attorney’s other-than-active status gives all interested parties an opportunity to consider replacing the formerly admitted attorney or enlisting a person other than the formerly admitted attorney to serve as the fiduciary in the first instance. Although the formerly admitted attorney would not be precluded by paragraph (b)(2) of this section from continuing to use a fiduciary account registered with the bank as an IOLTA or Trust Account, subsection (a) of this section and § 91.101(e)(4) (relating to prohibited activities of a formerly admitted attorney) prohibit the formerly admitted attorney from using or continuing to use account checks and deposit slips that contain the word ‘‘IOLTA,’’ ‘‘attorney,’’ ‘‘lawyer,’’ ‘‘esquire,’’ or similar appellation that could convey eligibility to practice in the state courts of Pennsylvania. Notwithstanding the specific prohibitions of § 91.101 (relating to law-related activities of formerly admitted attorneys), the formerly admitted attorney is authorized to perform those services necessary to carry out the appointment with the exception of any service that would constitute the unauthorized practice of law if engaged in by a nonlawyer. In relation to formerly admitted attorneys who are disbarred, suspended for a period exceeding one year, temporarily suspended under Enforcement Rule 208(f) or 213(g), or transferred to disability inactive status, the requirements of paragraph (b)(1) of this section continue throughout the term of the disbarment, suspension, temporary suspension, or disability inactive status, thereby precluding any new appointment or engagement.
(c) Compliance records and submission thereof. Enforcement Rule 217(d)(3) further provides that the formerly admitted attorney shall maintain records to demonstrate compliance with the provisions of subsections (a) and (b) of this section and shall provide proof of compliance at the time the formerly admitted attorney files the verified statement required by § 91.96 of this Subchapter E.
Source The provisions of this § 91.95 adopted January 30, 2015, effective March 2, 2015, with respect to persons who are formerly admitted attorneys on March 2, 2015, and persons becoming formerly admitted attorneys on or after March 2, 2015, 45 Pa.B. 544; amended February 12, 2021, effective 30 days after publication, 51 Pa.B. 781. Immediately preceding text appears at serial pages (397887) to (397888).
§ 91.96. Proof of compliance.
(a) General rule. Enforcement Rule 217(e)(1) provides that within ten days after the effective date of the disbarment, suspension, temporary suspension, administrative suspension or transfer to disability inactive status order, the formerly admitted attorney shall file with the Board Prothonotary a verified statement (Form DB-25) (Statement of Compliance) and serve a copy on Disciplinary Counsel. In the verified statement, the formerly admitted attorney shall:
(1) aver that the provisions of the order and the Enforcement Rules have been fully complied with;
(2) list all other state, federal and administrative jurisdictions to which the formerly admitted attorney is admitted to practice;
(3) aver that he or she has attached copies of the notices required by subdivisions (a), (b), and (c)(1) and (c)(2) of Enforcement Rule 217 and proofs of receipt, or, in the alternative, aver that he or she has no clients, third persons to whom a fiduciary duty is owed, or persons with whom the formerly admitted attorney has professional contacts, to so notify;
(4) in cases of disbarment or suspension for a period exceeding one year, aver that he or she has attached his or her attorney registration license card or certificate for the current year, certificate of admission, any certificate of good standing issued by the Court Prothonotary, and any other certificate required by subdivision (h) of Enforcement Rule 217 to be surrendered; or, in the alternative, aver that he or she has attached all such documents within his or her possession, or that he or she is not in possession of any of the certificates required to be surrendered;
(5) aver that he or she has complied with the requirements of paragraph (2) of subdivision (d) of Enforcement Rule 217, and aver that he or she has, to the extent practicable, attached proof of compliance, including evidence of the destruction, removal, or abandonment of indicia of Pennsylvania practice; or, in the alternative, aver that he or she neither had nor employed any indicia of Pennsylvania practice;
(6) in cases of disbarment, suspension for a period exceeding one year, temporary suspension under Enforcement Rule 208(f) or 213(g), or disability inactive status under Enforcement Rule 216 or 301, aver that he or she has complied with the requirements of paragraph (3) of subdivision (d) of Enforcement Rule 217, and aver that he or she has attached proof of compliance, including resignation notices, evidence of the closing of accounts, copies of cancelled checks and other instruments demonstrating the proper distribution of client and fiduciary funds, and requests to cancel advertisements and telecommunication listings; or, in the alternative, aver that he or she has no applicable appointments, accounts, funds, advertisements, or telecommunication listings;
(7) aver that he or she has served a copy of the verified statement and its attachments on Disciplinary Counsel;
(8) set forth the residence or other address where communications to such person may thereafter be directed; and
(9) sign the statement.
Official Note
A respondent-attorney who is placed on temporary suspension is required to comply with subsection (a) and file a verified statement. Upon the entry of a final order of suspension or disbarment, the respondent-attorney must file a supplemental verified statement containing the information and documentation not applicable at the time of the filing of the initial statement, or all of the information and documentation required by subsection (a) if the respondent-attorney has failed to file the initial statement. Although the grant of retroactivity is always discretionary, a respondent-attorney who fails to file a verified statement at the time of temporary suspension should not expect a final order to include a reference to retroactivity.
(b) Required certification. Enforcement Rule 217(e)(1) also provides that the statement shall contain an averment that all statements contained therein are true and correct to the best of the formerly admitted attorney’s knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
(c) Cooperation required. Enforcement Rule 217(e)(2) provides that a formerly admitted attorney shall cooperate with Disciplinary Counsel and respond completely to questions by Disciplinary Counsel regarding compliance with the provisions of this section.
(d) Cross reference. See § 95.3 (relating to monitoring of notices to be sent by formerly admitted attorneys).
Source The provisions of this § 91.95 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended September 1, 1989, effective September 2, 1989, 19 Pa.B. 3758; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; renumbered as § 91.96 and amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (404232) and (397889) to (397890).
§ 91.97. Publication of notice of suspension, disbarment, temporary suspension, administrative suspension or transfer to disability inactive status.
Enforcement Rule 217(f) provides that the Board shall cause a notice of the suspension, disbarment, temporary suspension, administrative suspension or transfer to disability inactive status to be published in the legal journal and a newspaper of general circulation in the county in which the formerly admitted attorney practiced. If there is no such legal journal, the notice shall be published in the legal journal of an adjoining county. Upon entry of an order imposing suspension, disbarment, temporary suspension, administrative suspension or transfer to disability inactive status, such notice shall be published forthwith and shall be transmitted to such courts as may be appropriate. The cost of publication shall be assessed against the formerly admitted attorney.
Source The provisions of this § 91.96 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; renumbered as § 91.97 and amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (397890).
§ 91.98. Action to protect clients of formerly admitted attorney.
Enforcement Rule 217(g) provides that the Board shall promptly transmit a certified copy of the order of suspension, disbarment, temporary suspension, administrative suspension or transfer to disability inactive status to the president judge of the court of common pleas in the judicial district in which the formerly admitted attorney practiced; and that the president judge shall make such further order as may be necessary to fully protect the rights of the clients of the formerly admitted attorney.
Source The provisions of this § 91.97 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; renumbered as § 91.98 January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397890) and (400487).
§ 91.99. Maintenance of records.
(a) General rule. Enforcement Rule 217(i) provides that a formerly admitted attorney shall keep and maintain records of the various steps taken by such person under the Enforcement Rules so that, upon any subsequent proceeding instituted by or against such person, proof of compliance with the Enforcement Rules and with the disbarment, suspension, temporary suspension, administrative suspension or transfer to disability inactive status order will be available; and that proof of compliance with the Enforcement Rules shall be a condition precedent to any petition for reinstatement.
(b) Cross reference. See § 95.3 (relating to monitoring of notices to be sent by formerly admitted attorneys).
Source The provisions of this § 91.98 adopted July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended September 1, 1989, effective September 2, 1989, 19 Pa.B. 3758; amended November 15, 1991, effective November 16, 1991, 21 Pa.B. 5325; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; renumbered as § 91.99 January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (400487).
§ 91.100. Indicia of licensure.
Enforcement Rule 217(h) provides that within ten days after the effective date of an order of disbarment or suspension for a period longer than one year, the formerly admitted attorney shall surrender to the Board the license card or certificate issued by the Attorney Registration Office under § 93.143 (relating to issue of certificate as evidence of compliance) for the current year, along with any certificate of good standing issued under Pennsylvania Bar Admission Rule 201(c) (relating to certification of good standing), certificate of admission issued under Pennsylvania Bar Admission Rule 231(d)(3) (relating to action by Court Prothonotary), certificate of licensure issued under Pennsylvania Bar Admission Rule 341(e)(3) (relating to motion for licensure), Limited In-House Corporate Counsel License issued under Pennsylvania Bar Admission Rule 302 (relating to limited in-house corporate counsel license), limited certificate of admission issued under Pennsylvania Bar Admission Rule 303 (relating to limited admission of military attorneys), limited certificate of admission issued under Pennsylvania Bar Admission Rule 304 (relating to limited admission of attorney spouses of active-duty service members), or limited certificate of admission issued under Pennsylvania Bar Admission Rule 311 (relating to attorney participants in defender or legal services programs). The Board may destroy the annual license card or certificate issued under § 93.143, but shall retain any other documents surrendered under this subdivision and shall return those documents to the formerly admitted attorney in the event that he or she is subsequently reinstated.
Source The provisions of this § 91.99 adopted November 15, 1991, effective November 16, 1991, 21 Pa.B. 5325; amended August 5, 2005, effective August 6, 2005, 35 Pa.B. 4301; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; renumbered as § 91.100 January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended January 31, 2020, effective 30 days after publication, 50 Pa.B. 647; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (400487) to (400488).
§ 91.101. Law-related activities of formerly admitted attorneys.
(a) General rule. A formerly admitted attorney may not engage in any form of law-related activities in this Commonwealth except in accordance with the requirements of this section.
(b) Supervision. Enforcement Rule 217(j)(1) provides that all law-related activities of the formerly admitted attorney shall be conducted under the supervision of a member in good standing of the Bar of this Commonwealth who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this section. If the formerly admitted attorney is engaged by a law firm or other organization providing legal services, whether by employment or other relationship, an attorney of the firm or organization shall be designated by the firm or organization as the supervising attorney for purposes of this subsection.
(c) Permissible activities. Enforcement Rule 217(j)(2) provides that, for purposes of this section, the only law-related activities that may be conducted by a formerly admitted attorney are the following:
(1) legal work of a preparatory nature, such as legal research, assembly of data and other necessary information, and drafting of transactional documents, pleadings, briefs, and other similar documents;
(2) direct communication with the client or third parties to the extent permitted by subsection (d); and
(3) accompanying a member in good standing of the Bar of this Commonwealth to a deposition or other discovery matter or to a meeting regarding a matter that is not currently in litigation, for the limited purpose of providing clerical assistance to the member in good standing who appears as the representative of the client.
(d) Communications with clients. Enforcement Rule 217(j)(3) provides that a formerly admitted attorney may have direct communication with a client or third party regarding a matter being handled by the attorney, organization or firm for which the formerly admitted attorney works only if the communication is limited to ministerial matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages. The formerly admitted attorney shall clearly indicate in any such communication that he or she is a legal assistant and identify the supervising attorney.
(e) Prohibited activities. Enforcement Rule 217(j)(4) provides that, without limiting the other restrictions in this section, a formerly admitted attorney is specifically prohibited from engaging in any of the following activities:
(1) performing any law-related activity for a law firm, organization or lawyer if the formerly admitted attorney was associated with that law firm, organization or lawyer on or after the date on which the acts which resulted in the disbarment, suspension or temporary suspension occurred, through and including the effective date of disbarment, suspension or temporary suspension;
(2) performing any law-related services from an office that is not staffed by a supervising attorney on a full-time basis;
(3) performing any law-related services for any client who in the past was represented by the formerly admitted attorney;
(4) representing himself or herself as a lawyer or person of similar status;
(5) having any contact with clients either in person, by telephone, or in writing, except as provided in subsection (d);
(6) rendering legal consultation or advice to a client;
(7) appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body;
(8) appearing as a representative of the client at a deposition or other discovery matter;
(9) negotiating or transacting any matter for or on behalf of a client with third parties or having any contact with third parties regarding such a negotiation or transaction; and
(10) receiving, disbursing or otherwise handling client funds.
(f) Notice to Board. Enforcement Rule 217(j)(5) provides that the supervising attorney and the formerly admitted attorney shall file with the Board a notice of engagement, identifying the supervising attorney and certifying that the formerly admitted attorney’s activities will be monitored for compliance with this section. The supervising attorney and the formerly admitted attorney shall file a notice with the Board immediately upon the termination of the engagement between the formerly admitted attorney and the supervising attorney.
(g) Jurisdiction over supervising attorney. Enforcement Rule 217(j)(6) provides that the supervising attorney shall be subject to disciplinary action for any failure by either the formerly admitted attorney or the supervising attorney to comply with the provisions of this section.
Official Note
This section limits and regulates the law-related activities performed by formerly admitted attorneys regardless of whether those formerly admitted attorneys are engaged as employees, independent contractors or in any other capacity. This section requires that a notice be filed with the Board when any law-related activities are performed by a formerly admitted attorney and when the engagement is terminated. This section is addressed only to the special circumstance of formerly admitted attorneys engaging in law-related activities and should not be read more broadly to define the permissible activities that may be conducted by a paralegal, law clerk, investigator, etc. who is not a formerly admitted attorney. This section is also not intended to establish a standard for what constitutes the unauthorized practice of law. Finally, this section is not intended to prohibit a formerly admitted attorney from performing services that are not unique to law offices, such as physical plant or equipment maintenance, courier or delivery services, catering, typing or transcription or other similar general office support activities.
Source The provisions of this § 91.100 adopted July 13, 2001, effective July 14, 2001, 31 Pa.B. 3731; renumbered as § 91.101 January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (400488) to (400489) and (376275) to (376276).
Subchapter F. PROTECTION OF THE INTERESTS OF CLIENTS
Sec.
91.121. Appointment of conservator to protect interests of clients of absent attorney.
91.122. Duties of conservator.
91.123. Cooperation with conservator.
91.124. Bank and other accounts.
91.125. Duration of conservatorship.
91.126. Discharge of conservator.
91.127. Liability of conservator.
91.128. Compensation and expenses of conservator.
91.129. Review by Supreme Court.
Source The provisions of this Subchapter F amended March 6, 1981, effective March 7, 1981, 11 Pa.B. 782, unless otherwise noted. Immediately preceding text appears at serial page (31759).
§ 91.121. Appointment of conservator to protect interests of clients of absent attorney.
(a) General rule. Enforcement Rule 321(a) provides that upon application of Disciplinary Counsel or any other interested person with the written concurrence of Disciplinary Counsel, the president judge of a court of common pleas shall have the power to appoint one or more eligible persons to act as conservators of the affairs of an attorney or formerly admitted attorney if:
(1) the attorney maintains or has maintained an office for the practice of law within the judicial district; and
(2) any of the following applies:
(i) the attorney is made the subject of an order under § 91.151 (relating to emergency temporary suspension orders and related relief); or
(ii) the president judge of the court of common pleas pursuant to § 91.98 (relating to action to protect clients of formerly admitted attorney) by order directs Disciplinary Counsel to file an application under Enforcement Rule 321; or
(iii) the attorney abandons his or her practice, disappears, dies or is transferred to disability inactive status; and
(3) no partner or other responsible successor to the practice of the attorney is known to exist.
(b) Service of application. Enforcement Rule 321(b) provides that a copy of the application for appointment of a conservator under that rule shall be personally served upon the absent attorney or the personal representative or guardian of the estate of a deceased or incompetent absent attorney; and that if personal service cannot be obtained, then a copy of the application shall be served in the manner prescribed by § 91.1 (relating to substituted service).
(c) Hearing. Enforcement Rule 321(c) and (d) provide that the president judge of the court of common pleas shall conduct a hearing on the application no later than seven days after the filing of the application; that at the hearing the applicant shall have both the burden of production and the burden of persuading the court by the preponderance of the credible evidence that grounds exist for appointment of a conservator; that within three days after the conclusion of the hearing on the application, the president judge shall enter an order either granting or denying the application; that the order shall contain findings of fact and a statement of the grounds upon which the order is based; and that if no appearance has been entered on behalf of the absent attorney, a copy of the order shall be served upon the absent attorney in the manner prescribed by subsection (b) of this section.
(d) Qualifications of conservator. Enforcement Rule 321(e) provides that the conservator or conservators shall be appointed by the president judge, from among members of the bar of this Commonwealth, subject to the following:
(1) non-disciplinary counsel conservators:
(i) shall not represent any party who is adverse to any known client of the absent attorney; and
(ii) shall have no adverse interest or relationship with the absent attorney or his or her estate.
(e) Tolling of limitation times. Enforcement Rule 321(f) provides that the filing by Disciplinary Counsel or any other interested person of an application for the appointment of a conservator under the Enforcement Rules shall be deemed for the purposes of any statute of limitations or limitation on time for appeal as the filing in the court of common pleas or other proper court or magisterial district court of this Commonwealth on behalf of every client of the absent attorney of a complaint or other proper process commencing any action, proceeding, appeal or other matter arguably suggested by any information appearing in the files of the absent attorney if:
(1) the application for appointment of a conservator is granted; and
(2) substitute counsel actually files an appropriate document in a court or magisterial district court within 30 days after executing a receipt for the file relating to the matter.
(f) Enforcement Rule 321(g) provides that the filing by Disciplinary Counsel or any other interested person of an application for the appointment of a conservator under these rules shall operate as an automatic stay of all pending legal or administrative proceedings in this Commonwealth where the absent attorney is counsel of record until the earliest of such time as:
(1) the application for appointment of a conservator is denied;
(2) the conservator is discharged;
(3) the court, tribunal, magisterial district court or other government unit in which a matter is pending orders that the stay be lifted; or
(4) 30 days after the court, tribunal, magisterial district court or other government unit in which a matter is pending is notified that substitute counsel has been retained.
(g) Enforcement Rule 321(h) provides that as used in this section, the term ‘‘government unit’’ has the meaning set forth in 42 Pa.C.S. § 102 (relating to definitions).
Source The provisions of this § 91.121 amended through July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (376276) to (376278).
§ 91.122. Duties of conservator.
(a) General rule. Enforcement Rule 322(a)—(c) provides that:
(1) The conservator shall take immediate possession of all files of the absent attorney; that if such possession cannot be obtained peaceably, the conservator shall apply to the appointing court for issuance of a warrant authorizing seizure of the files; and that probable cause for issuance of such a warrant shall be an affidavit executed by the conservator reciting the existence of the conservatorship and the fact that the persons in control of the premises where the files are or may be located will not consent to a search for them or their removal or other facts showing that the files cannot be obtained without the use of the process of the court.
(2) The conservator shall make a written inventory of all files taken into his or her possession.
(3) The conservator shall make a reasonable effort to identify all clients of the absent attorney whose files were opened within five (5) years of the appointment of the conservator, regardless of whether the case is active or not, and a reasonable effort to identify all clients whose cases are active, regardless of the age of the file. The conservator shall send all such clients, and former clients, written notice of the appointment of a conservator, the grounds which required such appointment, and the possible need of the clients to obtain substitute counsel. All such notices shall include the name, address and telephone number of any lawyer referral service or similar agency available to assist in the location of substitute counsel. The conservator shall, if necessary, send a second written notice to all clients of the absent attorney whose files appear to be active.
(4) All clients whose files are identified by the conservator as both inactive and older than five (5) years shall be given notice by publication of the appointment of a conservator, the grounds which required such appointment, and the possible need of the clients to obtain substitute counsel. All such notices shall include the name, address and telephone number of any lawyer referral service or similar agency available to assist in the location of substitute counsel. The specific method of publication shall be approved by the appointing court, as to both the method, and duration, of publication. The conservator shall deliver proofs of publication to the appointing court at the time of filing the application for discharge.
(5) A file may be returned to a client upon the execution of a written receipt, or released to substitute counsel upon the request of the client and execution of a written receipt by such counsel. The conservator shall deliver all such receipts to the appointing court at the time of filing the application for discharge. On approval by the appointing court of the application for discharge, all files remaining in the possession of the conservator shall be destroyed by the conservator in a secure manner which protects the confidentiality of the files.
(b) Prohibited conduct. Enforcement Rule 322(d) provides that neither the conservator nor any partner, associate or other lawyer practicing in association with the conservator shall:
(1) Make any recommendation of counsel to any client identified as a result of the conservatorship in connection with any matter identified during the conservatorship.
(2) Represent such a client in connection with:
(i) any matter identified during the conservatorship; or
(ii) any other matter during or for a period of three years after the conclusion of the conservatorship.
(c) Written report. Enforcement Rule 322(e) provides that the conservator shall file a written report with the appointing court and the Board no later than 30 days after the date of appointment covering the matters specified in subsection (a) of this section; that if those duties have not been accomplished, then the conservator shall state what progress has been made in that regard; and that thereafter, the conservator shall file a similar written report every 60 days until discharged.
(d) Enforcement Rule 322(f) provides that in the case of a deceased attorney, the conservator shall notify the executor of the estate of the Disciplinary Board’s need to be reimbursed by the estate for the costs and expenses incurred in accordance with § 91.128(3) (relating to compensation and expenses of conservator).
Source The provisions of this § 91.122 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended August 7, 2009, effective immediately, 39 Pa.B. 4725. Immediately preceding text appears at serial pages (198440) to (198441).
§ 91.123. Cooperation with conservator.
Enforcement Rule 323 provides that any absent attorney who is capable of cooperating with the conservator and any partner, associate, personal representative or guardian of an absent attorney shall cooperate to the best of his or her ability with the conservator in identifying the clients and client files (including records with respect to funds of clients) of the absent attorney and any unexpended funds of such clients; and that wilful failure to so cooperate shall constitute a separate violation of the Enforcement Rules for the purposes of Enforcement Rule 203(b)(3) (relating to grounds for discipline).
§ 91.124. Bank and other accounts.
Enforcement Rule 324 provides that:
(1) A conservator shall notify all banks and financial institutions in which the absent attorney maintained either professional or trustee accounts of the appointment of a conservator under these rules; that service on a bank or financial institution of a certified copy of the order of appointment of the conservator shall operate as a modification of any agreement or deposit among such bank or financial institution, the absent attorney and any other party to the account so as to make the conservator a necessary signatory on any professional or trustee account maintained by the absent attorney with such bank or financial institution; and that the appointing court on application may by order direct that the conservator shall be sole signatory on any such account to the extent necessary for the purposes of these rules and may direct the disposition and distribution of client and other funds.
(2) The conservator shall cause all funds of clients in the custody of the absent attorney to be returned to the clients as soon as possible, allowing for deduction of expenses or other proper charges owed by the clients to the absent attorney.
(3) The conservator may engage the services of a certified public accountant when considered necessary to assist in the bookkeeping and auditing of the financial accounts and records of the absent attorney.
(i) If the state of the financial accounts and records of the absent attorney, or other relevant circumstances, render a determination as to ownership of purported client funds unreasonable and impractical, the conservator shall petition the appointing court for permission to pay all funds held by the absent attorney in any trust, escrow, or IOLTA account, to the Pennsylvania Lawyers Fund For Client Security. Any petition filed under this subsection shall be served by publication, the specific method and duration of which shall be approved by the appointing court.
(4) Whenever it appears that sufficient funds are in the possession of the conservatorship to permit the return of all client funds in the custody of the absent attorney, and otherwise to complete the conservatorship and pay its expenses authorized under § 91.128 (relating to compensation and expenses of conservator), the conservator shall permit the absent attorney or his or her estate to take full possession of any remaining funds.
Source The provisions of this § 91.124 amended May 4, 1984, effective May 5, 1984, 14 Pa.B. 1547; amended August 7, 2009, effective immediately, 39 Pa.B. 4725. Immediately preceding text appears at serial pages (198441) to (198442).
§ 91.125. Duration of conservatorship.
Enforcement Rule 325 provides that appointment of a conservator pursuant to the Enforcement Rules shall be for a period of no longer than six months; that the appointing court shall have the power, upon application of the conservator and for good cause, to extend the appointment for an additional three months; that any order granting such an extension shall include findings of fact in support of the extension; and that no additional extensions shall be granted absent a showing of extraordinary circumstances.
Source The provisions of this § 91.125 amended August 7, 2009, effective immediately, 39 Pa.B. 4725. Immediately preceding text appears at serial page (198442).
§ 91.126. Discharge of conservator.
Enforcement Rule 326 provides that:
(1) The conservator shall apply to the appointing court for discharge when in the opinion of the conservator, nothing more remains to be done to protect the funds and other interests of the clients of the absent attorney.
(2) An application for discharge shall set forth a full accounting of all funds disbursed to clients of the absent attorney, expended in the conservatorship or released to the full control of the absent attorney, and a summary of all other actions taken by the conservator.
§ 91.127. Liability of conservator.
Enforcement Rule 327 provides that a conservator appointed under the Enforcement Rules shall:
(1) Not be regarded as having an attorney-client relationship with clients of the absent attorney, except that the conservator shall be bound by the obligation of confidentiality imposed by the Rules of Professional Conduct with respect to information acquired as conservator.
(2) Have no liability to the clients of the absent attorney except for injury to such clients caused by intentional, wilful, or grossly negligent breach of duties as a conservator.
(3) Be immune to separate suit brought by or on behalf of the absent attorney; and that any objections by or on behalf of the absent attorney or any other person to the conduct of the conservator shall be raised in the appointing court during the pendency of the conservatorship.
Source The provisions of this § 91.127 amended January 15, 1988, effective April 1, 1988, 18 Pa.B. 242; amended August 7, 2009, effective immediately, 39 Pa.B. 4725. Immediately preceding text appears at serial page (198443).
§ 91.128. Compensation and expenses of conservator.
Enforcement Rule 328 provides that:
(1) A conservator not associated with the Office of Disciplinary Counsel shall be compensated at an hourly rate identical to that received by court-appointed counsel at the non-court appearance rate in the judicial district where the conservator was appointed. When the conservator believes that extraordinary circumstances justify an enhanced hourly rate, the conservator may apply to the Board Chair for enhanced compensation. Such an application shall be granted only in those situations in which extraordinary circumstances are shown to justify enhanced compensation.
(2) The necessary expenses (including, but not limited to, expenses of a certified public accountant engaged under § 91.124(3) (relating to bank and other accounts)) and any compensation of a conservator or any attendant staff shall, if possible, be paid by the absent attorney or his or her estate; and any expenses and any compensation of the conservator that are not reimbursed to the Board shall be paid as a cost of disciplinary administration and enforcement. Payment of any costs incurred by the Board pursuant to Enforcement Rule 328 that have not been reimbursed to the Board may be made a condition of reinstatement of a formerly admitted attorney or may be ordered in a disciplinary proceeding brought against the absent attorney.
Source The provisions of this § 91.128 amended through May 4, 1984, effective May 5, 1984, 14 Pa.B. 1547; amended September 23, 1995, effective September 23, 1995, 25 Pa.B. 3967; amended August 7, 2009, effective immediately, 39 Pa.B. 4725; amended April 29, 2022, effective in 30 days from date of publication, 52 Pa.B. 2581. Immediately preceding text appears at serial page (376282).
§ 91.129. Review by Supreme Court.
Enforcement Rule 329 and 42 Pa.C.S. § 722(1) (relating to direct appeals from courts of common pleas) provide that:
(1) Any order entered by a court of common pleas upon an application for the appointment of a conservator, or arising out of the supervision, administration, operation or discharge of any conservatorship under these rules, shall be reviewable by the Supreme Court within the time and in the manner prescribed by 210 Pa. Code (relating to Appellate Procedure) for review of orders relating to the supervision of investigating grand juries (see 210 Pa. Code Rule 3331 (relating to review of special prosecutions or investigations)).
(2) Review in the Supreme Court under this section shall not stay proceedings below unless the court of common pleas or the Supreme Court or a justice thereof shall so order.
Subchapter G. EMERGENCY PROCEEDINGS
Sec.
91.151. Emergency temporary suspension orders and related relief.
91.152. Injunctive or other relief.§ 91.151. Emergency temporary suspension orders and related relief.
(a) General rule. Enforcement Rule 208(f) provides that:
(1) Disciplinary Counsel, with the concurrence of a reviewing member of the Board, whenever it appears by an affidavit demonstrating facts that the continued practice of law by a person subject to the Enforcement Rules is causing immediate and substantial public or private harm because of the misappropriation of funds by such person to his or her own use, or because of other egregious conduct, in manifest violation of the Disciplinary Rules or the Enforcement Rules, may petition the Supreme Court for injunctive or other appropriate relief;
(2) a copy of the petition shall be personally served upon the respondent-attorney by Disciplinary Counsel. If Disciplinary Counsel cannot make personal service after reasonable efforts to locate and serve the respondent-attorney, Disciplinary Counsel may serve the petition by delivering a copy to a clerk or other responsible person at the office of the respondent-attorney, and if that method of service is unavailable, then by mailing a copy of the petition by regular and certified mail addressed to the addresses furnished by the respondent-attorney in the last registration form filed by the respondent-attorney pursuant to Enforcement Rule 219(c). Service is complete upon delivery or mailing, as the case may be;
(3) the Court, or any justice thereof, may enter a rule directing the respondent-attorney to show cause why the respondent-attorney should not be placed on temporary suspension, which rule shall be returnable within ten days; and
(4) the Court, or any justice thereof, may, before or after issuance of the rule, issue such orders to the respondent-attorney, and to such financial institutions or other persons, as may be necessary to preserve funds, securities or other valuable property of clients or others which appear to have been misappropriated or mishandled in manifest violation of the Disciplinary Rules;
(5) an order directing the president judge of the court of common pleas in the judicial district where the respondent-attorney maintains his or her principal office for the practice of law or conducts his or her primary practice, to take such further action and to issue such further orders as may appear necessary to fully protect the rights and interests of the clients of the respondent-attorney when:
(i) the respondent-attorney does not respond to a rule to show cause issued after service of the petition pursuant to Enforcement Rule 208(f)(1); or
(ii) Disciplinary Council’s petition demonstrates cause to believe that the respondent-attorney is unavailable to protect the interests of his or her clients for any reason, including the respondent-attorney’s disappearance, abandonment of practice, incarceration, or incapacitation from continuing the practice of law by reason of mental infirmity or illness or because of addiction to drugs or intoxicants.
(b) Order of temporary suspension. Enforcement Rule 208(f)(2) provides that if a rule to show cause has been issued under subsection (a) of this section, and the period for response has passed without a response having been filed, or after consideration of any response, the Court may enter an order requiring temporary suspension of the practice of law by the respondent-attorney pending further definitive action under the Enforcement Rules.
(1) Where the Court enters an order under Enforcement Rule 208(f)(1)(ii), the Board shall promptly transmit a certified copy of the order to the president judge, whose jurisdiction and authority under this rule shall extend to all client matters of the respondent-attorney.
(2) Where the Court enters an order under Enforcement Rule 208(f)(1)(i) or (ii) before the issuance of a rule or before the entry of an order of temporary suspension under paragraph (f)(2), the Court Prothonotary shall serve a certified copy of the Court’s order on the respondent-attorney by regular mail addressed to the address furnished by the respondent-attorney in the last registration form filed by the respondent-attorney and to an address where the respondent-attorney is located if that address is known.
(c) Effect of temporary suspension. Enforcement Rule 208(f)(3) provides that:
(1) any order of temporary suspension which restricts the respondent-attorney from maintaining an attorney or other trust account shall, when served on any bank or other financial institution maintaining an account against which the respondent-attorney may make withdrawals, serve as an injunction to prevent the financial institution from making further payment from the account on any obligation except in accordance with restrictions imposed by the Court;
(2) any order of temporary suspension issued under Enforcement Rule 208(f) shall preclude the respondent-attorney from accepting any new cases or other client matters, but shall not preclude the respondent-attorney from continuing to represent existing clients on existing matters during the 30 days following entry of the order of temporary suspension; and
(3) such order may also provide that any fees or portion thereof tendered to the respondent-attorney during such 30-day period shall be deposited into a trust fund from which withdrawals may be made only in accordance with restrictions imposed by the Court.
(d) Dissolution or amendment. Enforcement Rule 208(f)(4) provides that:
(1) the respondent-attorney may at any time petition the Court for dissolution or amendment of an order of temporary suspension;
(2) a copy of the petition shall be served upon Disciplinary Counsel and the Board Prothonotary (see § 89.27 (relating to service upon Disciplinary Counsel));
(3) a hearing on the petition before a member of the Board designated by the Chair of the Board shall be held within ten business days after service of the petition on the Board Prothonotary;
(4) the designated Board member shall hear the petition and submit a transcript of the hearing and a recommendation to the Court within five business days after the conclusion of the hearing; and
(5) upon receipt of the recommendation of the designated Board member and the record relating thereto, the Court shall dissolve or modify its order, if appropriate.
(e) Contempt of the Board. Enforcement Rule 208(f)(5) provides that:
(1) the Board on its own motion, or upon the petition of Disciplinary Counsel, may issue a rule to show cause why the respondent-attorney should not be placed on temporary suspension whenever it appears that the respondent-attorney has disregarded an applicable provision of the Enforcement Rules, failed to maintain or produce the records required to be maintained and produced under Pa.R.P.C. 1.15(c) and subdivisions (e) and (g) of Enforcement Rule 221 in response to a request or demand authorized by Enforcement Rule 221(g) or any provision of these Rules, failed to comply with a valid subpoena, or engaged in other conduct that in any such instance materially delays or obstructs the conduct of a proceeding under this Subpart;
(2) the rule to show cause shall be returnable within ten days;
(3) if the response to the rule to show cause raises issues of fact, the Board Chair may direct that a hearing be held before a member of the Board who shall submit a report to the Board upon the conclusion of the hearing;
(4) if the period for response to the rule to show cause has passed without a response having been filed, or after consideration of any response and any report of a Board member following a hearing under paragraph (3), the Board may recommend to the Supreme Court that the respondent-attorney be placed on temporary suspension; and
(5) the recommendation of the Board shall be reviewed by the Supreme Court as provided in § 89.207 (relating to review and action in the Supreme Court), although the time for either party to file with the Court a petition for review of the recommendation or determination of the Board shall be fourteen days after the entry of the Board’s recommendation or determination, and any answer or responsive pleading shall be filed within ten days after service of the petition for review.
(f) Request for accelerated disposition. Enforcement Rule 208(f)(6) provides that:
(1) a respondent-attorney who has been temporarily suspended pursuant to this section for conduct described in subsection (a), or pursuant to the procedures of subsection (e) where a formal proceeding has not yet been commenced, shall have the right to request an accelerated disposition of the charges which form the basis for the temporary suspension by filing a notice with the Board Prothonotary and Disciplinary Counsel requesting accelerated disposition;
(2) within 30 days after filing of such a notice, Disciplinary Counsel shall file a petition for discipline under § 89.52 (relating to petition for discipline) and the matter shall be assigned to a hearing committee for accelerated disposition;
(3) thereafter the matter shall proceed and be concluded by the hearing committee, the Board and the Court without appreciable delay; and
(4) if a petition for discipline is not timely filed under paragraph (2), the order of temporary suspension shall be automatically dissolved, but without prejudice to any pending or further proceedings under Enforcement Rule 208.
(g) Conclusion of formal proceedings. Enforcement Rule 208(f)(7) provides that a proceeding involving a respondent-attorney who has been temporarily suspended pursuant to this section at a time when a formal proceeding has already been commenced shall proceed and be concluded without appreciable delay.
(h) Temporary suspension for more than two years without a formal proceeding. Enforcement Rule 208(f)(8) provides that where a respondent-attorney has been temporarily suspended under Enforcement Rule 208(f)(1) or (f)(5) and more than two years have passed without the commencement of a formal proceeding, and it appears by an affidavit demonstrating facts that:
(1) the respondent-attorney has not complied with conditions imposed in the order of temporary suspension or with the requirements of Enforcement Rule 217;
(2) the order of temporary suspension was based, in whole or in part, on the respondent-attorney’s failure to provide information or records, and the respondent-attorney has not provided the information or records, or otherwise cured the deficiency;
(3) the respondent-attorney has engaged in post-suspension conduct, by act or omission, that materially delays or obstructs Disciplinary Counsel’s ability to fully investigate allegations of misconduct against the respondent-attorney;
(4) the respondent-attorney’s whereabouts are unknown, in that despite reasonably diligent efforts, Disciplinary Counsel has not been able to contact or locate the respondent-attorney for information or to serve notices or other process at the address provided by the respondent-attorney in the verified statement required by Enforcement Rule 217(e)(1) or at any other known addresses that might be current;
(5) a conservatorship of the affairs of the respondent-attorney has been appointed pursuant to Enforcement Rule 321; or
(6) the respondent-attorney has not participated in proceedings before the Pennsylvania Lawyers Fund for Client Security in which an adjudicated claim has resulted in an award,
Disciplinary Counsel may petition the Court for the issuance of a rule to show cause why an order of disbarment should not be entered. The procedure set forth in Enforcement Rule 208(f)(1) as to service shall apply. Upon the filing by Disciplinary Counsel of an affidavit establishing service compliance, the Court may enter a rule directing the respondent-attorney to show cause why the respondent-attorney should not be disbarred, which rule is returnable in 30 days. The respondent-attorney shall serve a copy of any response on Disciplinary Counsel, who shall have fourteen days after receipt to file a reply.
Enforcement Rule 208(f)(9) provides that if a rule to show cause has been issued, and the period for response has passed without a response having been filed, or after consideration of any responses, the Court may enter an order disbarring the respondent-attorney from the practice of law, discharging the rule to show cause, or directing such other action as the Court deems appropriate.
(i) Procedural requirements. The Note to Enforcement Rule 208(f)(7) provides that the ‘‘without appreciable delay’’ standard of subsections (f)(3) and (g) is derived from Barry v. Barchi, 443 U.S. 55, 99, (1979). Appropriate steps will be taken to satisfy this requirement, such as continuous hearing sessions, procurement of daily transcript, fixing of truncated briefing schedules, conducting special sessions of the Board, etc.
Source The provisions of this § 91.151 amended April 22, 1988, effective April 23, 1988, 18 Pa.B. 1915; amended December 7, 1990, effective December 8, 1990, 20 Pa.B. 6041; amended February 4, 1994, effective February 5, 1994, 24 Pa.B. 730; amended September 10, 2004, effective September 11, 2004, 34 Pa.B. 5013; amended August 5, 2011, effective August 6, 2011, 41 Pa.B. 4202; amended November 2, 2012, effective November 3, 2012, 42 Pa.B. 6864; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended November 4, 2022, effective 30 days after publication, 52 Pa.B. 6841; amended December 15, 2023, effective in 30 days from the date of publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (410141) to (410142), (411861) to (411862) and (415425).
§ 91.152. Injunctive or other relief.
(a) General rule. Enforcement Rule 218(j) provides that if Disciplinary Counsel shall have probable cause to believe that any formerly admitted attorney:
(1) Has failed to comply with such rule or Chapter 91 Subchapter E (relating to formerly admitted attorneys), or,
(2) Is otherwise continuing to practice law; Disciplinary Counsel may bring an action in any court of competent jurisdiction for such injunctive and other relief as may be appropriate.
(b) Appeals. Appeals from orders entered in proceedings under subsection (a) are governed by 42 Pa.C.S. § 722(8) (relating to direct appeals from courts of common pleas).
Source The provisions of this § 91.152 amended May 18, 1979, effective May 19, 1979, 9 Pa.B. 1607; amended through October 12, 1984, effective October 13, 1984, 14 Pa.B. 3749; amended November 15, 1991, effective November 16, 1991, 21 Pa.B. 5325; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (415426).
Subchapter H. FUNDS OF CLIENTS AND THIRD PERSONS; MANDATORY OVERDRAFT NOTIFICATION
Sec.
91.171. Definitions.
91.172. Maintenance of fiduciary accounts.
91.173. Approval and termination of Eligible Institutions.
Appendix A. Financial Institutions Approved as Depositories of Trust Accounts of Attorneys
91.174. Reports of overdrafts.
91.175. Responsibility for Identificaton of Trust Accounts.
91.176. Rules for determining reporting obligation.
91.177. Required records.
91.178. Availability of required records and requirement to produce.
91.179. Effect of failure to produce required records.
91.180. Reporting of Fiduciary and Operating Accounts on Annual Registration Form.
Source The provisions of this Subchapter H adopted November 3, 1995, effective November 4, 1995, 25 Pa.B. 4696, unless otherwise noted.
§ 91.171. Definitions.
The following terms when used in this subchapter shall have the meanings given to them in this section:
Eligible Institution. An Eligible Institution is a Financial Institution which has been approved as a depository of Trust Accounts pursuant to § 91.173(a) (relating to approval and termination of Eligible Institutions).
Financial Institution. A Financial Institution is an entity which is authorized by federal or state law and licensed to do business in the Commonwealth of Pennsylvania as one of the following: a bank, bank and trust company, trust company, credit union, savings bank, savings and loan association or foreign banking corporation, the deposits of which are insured by an agency of the Federal government, or as an investment adviser registered under the Investment Advisers Act of 1940 or with the Pennsylvania Securities Commission, an investment company registered under the Investment Company Act of 1940, or a broker dealer registered under the Securities Exchange Act of 1934.
Fiduciary Funds. Fiduciary Funds are Rule 1.15 Funds which an attorney holds as a Fiduciary, as defined in Rule 1.15(a)(2) of the Pennsylvania Rules of Professional Conduct. Fiduciary Funds may be either Qualified Funds or Non-Qualified Funds.
Rule 1.15 Funds. Rule 1.15 Funds are funds which an attorney receives from a client or third person in connection with a client-lawyer relationship, or as an escrow agent, settlement agent or representative payee, or as a Fiduciary, or receives as an agent, having been designated as such by a client or having been so selected as a result of a client-lawyer relationship or the attorney’s status as such. When the term ‘‘property’’ appears with ‘‘Rule 1.15 Funds,’’ it means property of a client or third person which the attorney receives in any of the foregoing capacities.
Trust Account. A Trust Account is an account in an Eligible Institution in which an attorney holds Rule 1.15 Funds. A Trust Account must be maintained either as an IOLTA Account or as a Non-IOLTA Account, as defined in Rule 1.15(a)(5) and (7) of the Pennsylvania Rules of Professional Conduct.
Source The provisions of this § 91.171 amended August 5, 2005, effective August 6, 2005, 35 Pa.B. 4301; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (415426) and (411865).
§ 91.172. Maintenance of fiduciary accounts.
Enforcement Rule 221(b) provides that a Trust Account may be maintained only in an Eligible Institution approved by the Supreme Court of Pennsylvania for the maintenance of such accounts.
Source The provisions of this § 91.172 amended August 5, 2005, effective August 6, 2005, 35 Pa.B. 4301; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687. Immediately preceding text appears at serial page (312774).
§ 91.173. Approval and termination of Eligible Institutions.
(a) Approval. Enforcement Rule 221(h) provides that an Eligible Institution shall be approved as a depository for Trust Accounts if it shall file with the Board an agreement in a form approved by the Board in which the Eligible Institution agrees to comply with IOLTA Regulations governing approved Eligible Institutions and to make a prompt report to the Lawyers Fund for Client Security Board under the circumstances described in § 91.174 (relating to reports of overdrafts). Upon receiving a signed agreement from an Eligible Institution as required by this subsection, the Board shall report that fact to the Supreme Court with a recommendation that the Court enter an order approving the Eligible Institution as a depository for Trust Accounts.
(b) Termination of approval. Enforcement Rule 221(k) provides that a failure on the part of an Eligible Institution to make a report to the Lawyers Fund for Client Security Board called for by this subchapter or to comply with IOLTARegulations governing approved Eligible Institutions may be cause for termination of its approval by the Supreme Court, but such failure shall not, absent gross negligence, give rise to a cause of action by any person who is proximately caused harm thereby. Upon learning that a financial institution has failed to make a report called for by this subchapter, the Board shall report that fact to the Supreme Court with a recommendation that the Court enter an order terminating the approval of the financial institution as a depository for Trust Accounts.
(c) List of approved Eligible Institutions. The Board will periodically publish in the Pennsylvania Bulletin a list of Eligible Institutions that are approved at the time as depositories for Trust Accounts under this subchapter. The current list shall also be published in the Pennsylvania Code as an appendix to this section.
Source The provisions of this § 91.173 amended August 5, 2005, effective August 6, 2005, 35 Pa.B. 4301; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687; amended February 2, 2018, effective 30 days after publication, 48 Pa.B. 727. Immediately preceding text appears at serial page (389091).
APPENDIX A
FINANCIAL INSTITUTIONS APPROVED AS DEPOSITORIES OF TRUST ACCOUNTS OF ATTORNEYS
Bank Code A. 595 Abacus Federal Savings Bank 2 ACNB Bank 613 Allegent Community Federal Credit Union 375 Altoona First Savings Bank 376 Ambler Savings Bank 532 AMERICAN BANK (PA) 615 Americhoice Federal Credit Union 116 AMERISERV FINANCIAL 648 Andover Bank (The) 377 Apollo Trust Company
Bank Code B. 558 Bancorp Bank (The) 485 Bank of America, NA 662 BANK OF BIRD-IN-HAND 415 Bank of Landisburg (The) 596 BANK OF PRINCETON (THE) 664 BankUnited, NA 501 BELCO Community Credit Union 673 BENCHMARK FEDERAL CREDIT UNION 652 Berkshire Bank 663 BHCU 5 BNY Mellon, NA 392 Brentwood Bank 495 Brown Brothers Harriman Trust Co., NA
Bank Code C. 654 CACL Federal Credit Union 618 Capital Bank, NA 675 CENTRE 1ST BANK, A DIVISION OF OLD DOMINION NATIONAL BANK 394 CFS BANK 623 Chemung Canal Trust Company 599 Citibank, NA 238 Citizens & Northern Bank 561 Citizens Bank, NA 206 Citizens Savings Bank 576 Clarion County Community Bank 591 Clearview Federal Credit Union 23 CNB Bank 223 Commercial Bank & Trust of PA 21 Community Bank (PA) 371 Community Bank, NA (NY) 132 Community State Bank of Orbisonia 380 County Savings Bank 536 Customers Bank
Bank Code D. 339 Dime Bank (The) 27 Dollar Bank, FSB
Bank Code E. 500 Elderton State Bank 567 Embassy Bank for the Lehigh Valley 541 Enterprise Bank 28 Ephrata National Bank 601 Esquire Bank, NA 340 ESSA Bank & Trust
Bank Code F. 629 1st Colonial Community Bank 158 1st Summit Bank 31 F & M Trust Company—Chambersburg 658 Farmers National Bank of Canfield 34 Fidelity Deposit & Discount Bank (The) 583 Fifth Third Bank 661 First American Trust, FSB 643 First Bank 174 First Citizens Community Bank 191 First Columbia Bank & Trust Company 539 First Commonwealth Bank 674 First Commonwealth Federal Credit Union 504 First Federal S & L Association of Greene County 525 First Heritage Federal Credit Union 42 First Keystone Community Bank 51 First National Bank & Trust Company of Newtown (The) 48 First National Bank of Pennsylvania 426 First Northern Bank & Trust Company 604 First Priority Bank, a division of Mid Penn Bank 592 FIRST RESOURCE BANK 657 First United Bank & Trust 408 First United National Bank 151 Firstrust Savings Bank 416 Fleetwood Bank 175 FNCB Bank 647 FORBRIGHT BANK 291 Fox Chase Bank 241 Franklin Mint Federal Credit Union 639 Freedom Credit Union 58 Fulton Bank, NA
Bank Code G. 499 Gratz Bank (The) 498 Greenville Savings Bank
Bank Code H. 244 Hamlin Bank & Trust Company 362 Harleysville Savings Bank 363 Hatboro Federal Savings 463 Haverford Trust Company (The) 606 Hometown Bank of Pennsylvania 68 Honesdale National Bank (The) 605 Huntington National Bank (The) 608 Hyperion Bank
Bank Code I. 669 Industrial Bank 365 InFirst Bank 668 Inspire FCU 557 Investment Savings Bank 526 Iron Workers Savings Bank
Bank Code J. 70 Jersey Shore State Bank 127 Jim Thorpe Neighborhood Bank 488 Jonestown Bank & Trust Company 659 JPMorgan Chase Bank, NA 72 JUNIATA VALLEY BANK (THE)
Bank Code K. 651 KeyBank NA 414 Kish Bank
Bank Code L. 78 Luzerne Bank
Bank Code M. 361 M & T Bank 510 Marion Center Bank 387 Marquette Savings Bank 81 Mars Bank 367 Mauch Chunk Trust Company 511 MCS (Mifflin County Savings) Bank 641 Members 1st Federal Credit Union 555 Mercer County State Bank 192 Merchants Bank of Bangor 671 Merchants Bank of Indiana 610 Meridian Bank 294 Mid Penn Bank 276 MIFFLINBURG BANK & TRUST COMPANY 457 Milton Savings Bank
Bank Code N. 433 National Bank of Malvern 168 NBT Bank, NA 347 Neffs National Bank (The) 434 NEW TRIPOLI BANK 15 NexTier Bank, NA 666 Northern Trust Co. 439 Northumberland National Bank (The) 93 Northwest Bank
Bank Code O. 653 OceanFirst Bank 489 OMEGA Federal Credit Union 94 Orrstown Bank
Bank Code P. 598 PARKE BANK 584 Parkview Community Federal Credit Union 40 Penn Community Bank 540 PennCrest Bank 419 Pennian Bank 447 Peoples Security Bank & Trust Company 99 PeoplesBank, a Codorus Valley Company 556 Philadelphia Federal Credit Union 448 Phoenixville Federal Bank & Trust 665 Pinnacle Bank 79 PNC Bank, NA 449 Port Richmond Savings 667 Premier Bank 354 Presence Bank 451 Progressive-Home Federal Savings & Loan Association 637 Provident Bank 491 PS Bank
Bank Code Q. 107 QNB Bank 560 Quaint Oak Bank
Bank Code R. 452 Reliance Savings Bank 220 Republic First Bank d/b/a Republic Bank
Bank Code S. 153 S & T Bank 316 Santander Bank, NA 460 Second Federal S & L Association of Philadelphia 646 Service 1st Federal Credit Union 458 Sharon Bank 462 Slovenian Savings & Loan Association of Franklin-Conemaugh 486 SOMERSET TRUST COMPANY 633 SSB Bank 122 Susquehanna Community Bank
Bank Code T. 638 3Hill Credit Union 143 TD Bank, NA 656 TIOGA FRANKLIN SAVINGS BANK 182 Tompkins Vist Bank 660 Top Tier FCU 577 Traditions Bank 609 Tristate Capital Bank 672 Truist Bank 640 TruMark Financial Credit Union 467 Turbotville National Bank (The)
Bank Code U. 483 UNB Bank 481 Union Building and Loan Savings Bank 634 United Bank, Inc. 472 United Bank of Philadelphia 475 United Savings Bank 600 Unity Bank 232 Univest Bank & Trust Co.
Bank Code V. 611 Victory Bank (The)
Bank Code W. 119 Washington Financial Bank 121 Wayne Bank 631 WELLS FARGO BANK, NA 553 WesBanco Bank, Inc. 494 West View Savings Bank 473 Westmoreland Federal S & L Association 476 William Penn Bank 272 Woodlands Bank 573 Woori America Bank 630 WSFS (Wilmington Savings Fund Society), FSB Bank Code X.
Bank Code Y.
Bank Code Z.
PLATINUM LEADER BANKS
The HIGHLIGHTED ELIGIBLE INSTITUTIONS are Platinum Leader Banks—Institutions that go above and beyond eligibility requirements to foster the IOLTA Program. These Institutions pay a net yield at the higher of 1% or 75 percent of the Federal Funds Target Rate on all PA IOLTA accounts. They are committed to ensuring the success of the IOLTA Program and increased funding for legal aid.
IOLTA EXEMPTION Exemptions are not automatic. If you believe you qualify, you must apply by sending a written request to the IOLTA Board’s executive director: 601 Commonwealth Avenue, Suite 2400, P.O. Box 62445, Harrisburg, PA 17106-2445. If you have questions concerning IOLTA or exemptions from IOLTA, please visit their website at www.paiolta.org or call the IOLTA Board at (717) 238-2001 or (888) PAIOLTA.
FINANCIAL INSTITUTIONS WHO HAVE FILED AGREEMENTS TO BE APPROVED AS A DEPOSITORY OF TRUST ACCOUNTS AND TO PROVIDE DISHONORED CHECK REPORTS IN ACCORDANCE WITH RULE 221, Pa.R.D.E.
New
Name Change 484 Muncy Bank & Trust Company (The)—Change to 191 First Columbia Bank & Trust Company Platinum Leader Change
Correction
Removal
(Editor’s Note: Appendix A (relating to financial institutions approved as depositories of trust accounts of attorneys) is codified by the Board under 204 Pa. Code § 91.173(c) (relating to approval and termination of eligible institutions).)
Source The provisions of this Appendix A adopted December 22, 1995, effective December 23, 1995, 25 Pa.B. 5916; amended April 25, 1997, effective April 26, 1997, 27 Pa.B. 2038; amended April 24, 1998, effective April 25, 1998, 28 Pa.B. 1933; amended April 16, 1999, effective April 17, 1999, 29 Pa.B. 2021; amended May 5, 2000, effective May 6, 2000, 30 Pa.B. 2224; amended May 3, 2002, effective May 4, 2002, 32 Pa.B. 2212; amended April 25, 2003, effective April 26, 2003, 33 Pa.B. 2060; amended April 23, 2004, effective April 24, 2004, 34 Pa.B. 2168; amended April 28, 2005, effective April 29, 2005, 35 Pa.B. 2625; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 1986; amended April 27, 2007, effective April 28, 2007, 37 Pa.B. 1963; amended April 25, 2008, effective April 26, 2008, 38 Pa.B. 1933; amended May 1, 2009, effective May 2, 2009, 39 Pa.B. 2201; amended April 30, 2010, effective May 1, 2010, 40 Pa.B. 2258; amended April 22, 2011, effective April 23, 2011, 41 Pa.B. 2119; amended April 20, 2012, effective April 21, 2012, 42 Pa.B. 2189; amended April 5, 2013, effective April 6, 2013, 43 Pa.B. 1843; amended April 11, 2014, effective April 12, 2014, 44 Pa.B. 2216; amended March 27, 2015, effective March 28, 2015, 45 Pa.B. 1497; amended April 15, 2016, effective April 16, 2016, 46 Pa.B. 1899; amended January 30, 2018, 48 Pa.B. 978; amended May 1, 2018, 48 Pa.B. 2941; amended August 8, 2018, 48 Pa.B. 5352; amended November 6, 2018, 48 Pa.B. 7307; amended February 8, 2019, 49 Pa.B. 838; amended June 15, 2019, 49 Pa.B. 3074; amended August 8, 2019, 49 Pa.B. 4812; amended November 7, 2019, 49 Pa.B. 6951; amended February 10, 2020, 50 Pa.B. 1240; amended May 14, 2020, 50 Pa.B. 2737; amended August 10, 2020, 50 Pa.B. 4236; amended November 6, 2020, 50 Pa.B. 6662; amended February 8, 2021, 51 Pa.B. 910; amended May 6, 2021, 51 Pa.B. 2795; amended September 4, 2021, 51 Pa.B. 5600; amended November 17, 2021, 51 Pa.B. 7460; amended February 9, 2022, 52 Pa.B. 1239; amended May 5, 2022, 52 Pa.B. 2955; amended August 5, 2022, 52 Pa.B. 5127; amended November 16, 2022, 52 Pa.B. 7376; amended February 7, 2023, 53 Pa.B. 936; amended May 19, 2023, 53 Pa.B. 2730; amended August 11, 2023, 53 Pa.B. 4971; amended November 24, 2023, 53 Pa.B. 7287. Immediately preceding text appears at serial pages (415427) to (415434).
§ 91.174. Reports of overdrafts.
(a) General rule. Enforcement Rule 221(h) provides that an Eligible Institution shall report to the Lawyers Fund for Client Security Board whenever any check or similar instrument is presented against a Trust Account when such account contains insufficient funds to pay the instrument, regardless of:
(1) whether the instrument is honored; or
(2) whether funds are subsequently deposited that cover the overdraft or the dishonored instrument is made good.
(b) Timing of report. Enforcement Rule 221(p) provides that the report required to be made under this subchapter shall be made by the Eligible Institution to the Lawyers Fund for Client Security Board within five business days of the presentation of the instrument.
(c) Handling of report. Enforcement Rule 221(o) provides that a designated representative of the Lawyers Fund for Client Security Board shall conduct a preliminary inquiry regarding the report and shall, where appropriate, refer the matter to the Office of Disciplinary Counsel for further investigation.
(d) Effect of report or referral. Enforcement Rule 221(o) also provides that neither a report filed with the Lawyers Fund for Client Security Board pursuant to this subchapter nor a referral of such report to the Office of Disciplinary Counsel shall, in and of itself, be considered a disciplinary complaint.
(e) Immunity. Enforcement Rule 221(l) provides that Eligible Institutions shall be immune from suit for the filing of any reports required by this subchapter or believed in good faith to be required by this subchapter. See § 91.173(b) (relating to termination of approval).
(f) Service charge. Enforcement Rule 221(m) provides that an Eligible Institution shall be free to impose a reasonable service charge upon the attorney in whose name the account is held for the filing of the report required by this section.
Source The provisions of this Rule 91.174 amended August 5, 2005, effective August 6, 2005, 35 Pa.B. 4301; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (394659).
§ 91.175. Responsibility for Identification of Trust Accounts.
Enforcement Rule 221(d) provides that the responsibility for identifying an account as a Trust Account shall be that of the attorney in whose name the account is held.
Source The provisions of this § 91.175 amended August 5, 2005, effective August 6, 2005, 35 Pa.B. 4301; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial page (394659).
§ 91.176. Rules for determining reporting obligation.
For purposes of this subchapter:
(1) Enforcement Rule 221(i)(1) provides that a Trust Account shall not be deemed to contain insufficient funds to pay a check or similar instrument solely because it contains insufficient collected funds to pay the instrument, and no report shall be required in the case of an instrument presented against uncol-lected or partially uncollected funds. This provision shall not be deemed an endorsement of the practice of drawing checks against uncollected funds.
(2) Enforcement Rule 221(i)(2) provides that funds deposited in an account prior to the close of business on the calendar date of presentation of an instrument shall be considered to be in the account at the close of business on that date notwithstanding the Eligible Institution’s treatment of such funds, for other purposes, as being received at the opening of the next banking day pursuant to 13 Pa.C.S. § 4108(b) (relating to items or deposits received after cutoff hour).
(3) Enforcement Rule 221(i)(3) provides that a check or draft against a Trust Account shall be deemed to be presented at the close of business on the date of presentation.
(4) Enforcement Rule 221(j) provides that no report need be made when the Eligible Institution determines that an instrument presented against insufficient funds had been issued in reliance on a deposited instrument that was ultimately dishonored. This provision shall not be deemed an endorsement of the practice of drawing checks against uncollected funds.
Source The provisions of this Rule 91.176 amended August 5, 2005, effective August 6, 2005, 35 Pa.B. 4301; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687. Immediately preceding text appears at serial pages (326995) to (326996).
§ 91.177. Required records.
(a) In general. Enforcement Rule 221(e) provides that an attorney shall maintain and preserve for a period of five years after termination of the client-lawyer or Fiduciary relationship or after distribution or disposition of the property, whichever is later, the following records:
(1) the writing required by Pa.R.P.C. 1.5 (relating to the requirement of a writing communicating the basis or rate of the fee);
(2) the records identified in Pa.R.P.C. 1.5(c) (relating to the requirement of a written fee agreement and distribution statement in a contingent fee matter); and
(3) the following books and records for each Trust Account and for any other account in which Rule 1.15 Funds are held:
(i) all transaction records provided to the attorney by the Financial Institution, such as periodic statements, canceled checks in whatever form, deposited items and records of electronic transactions; and
(ii) check register or separately maintained ledger, which shall include the payee, date, purpose and amount of each check, withdrawal and transfer, the payor, date, and amount of each deposit, and the matter involved for each transaction; provided, however, that where an account is used to hold funds of more than one client, a lawyer shall also maintain an individual ledger for each trust client, showing the source, amount and nature of all funds received from or on behalf of the client, the description and amounts of charges or withdrawals, the names of all persons or entities to whom such funds were disbursed, and the dates of all deposits, transfers, withdrawals and disbursements.
(b) Regular trial balance and monthly reconciliations. Enforcement Rule 221(e) also provides that: a regular trial balance of the individual client trust ledgers shall be maintained; the total of the trial balance must agree with the control figure computed by taking the beginning balance, adding the total of moneys received in trust for the client, and deducting the total of all moneys disbursed; on a monthly basis, a lawyer shall conduct a reconciliation for each fiduciary account; and the reconciliation is not complete if the reconciled total cash balance does not agree with the total of the client balance listing.
(c) Preservation of records and computations. Enforcement Rule 221(e) provides that a lawyer shall preserve for a period of five years copies of all records and computations sufficient to prove compliance with the requirement of subsection (b).
(d) Form. Enforcement Rule 221(f) provides that the records required by this section may be maintained in hard copy form or by electronic, photographic, or other media provided that the records otherwise comply with this section and that printed copies can be produced. Whatever method is used to maintain required records must have a backup so that the records are secure and always available. If records are kept only in electronic form, then such records shall be backed up, on a separate electronic storage device, at least at the end of any day on which entries have been entered into the records.
Source The provisions of this Rule 91.177 adopted August 5, 2005, effective August 6, 2005, 35 Pa.B. 4301; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544. Immediately preceding text appears at serial page (344963).
§ 91.178. Availability of required records and requirement to produce.
(a) In general. Enforcement Rule 221(g) provides that the records required to be maintained by Pa.R.P.C. 1.15 shall be readily accessible to the lawyer and available for production to the Pennsylvania Lawyers Fund for Client Security and the Office of Disciplinary Counsel in a timely manner upon request or demand by either agency made pursuant to the Enforcement Rules, these Rules, the Pennsylvania Lawyers Fund for Client Security Board Rules and Regulations, agency practice, or subpoena.
(b) Request for production by letter. Enforcement Rule 221(g)(1) provides that upon a request by Disciplinary Counsel under subdivision (g) of that Enforcement Rule, which request may take the form of a letter to the respondent-attorney briefly stating the basis for the request and identifying the type and scope of the records sought to be produced, a respondent-attorney must produce the records within ten business days after personal service of the letter on the respondent-attorney or after the delivery of a copy of the letter to an employee, agent or other responsible person at the office of the respondent-attorney as determined by the address furnished by the respondent-attorney in the last registration form filed by the respondent-attorney pursuant to Enforcement Rule 219(c) (relating to annual registration of attorneys), but if the latter method of service is unavailable, within ten business days after the date of mailing a copy of the letter to the last registered address or addresses set forth on the form.
(c) Request for production pursuant to Board Rule. Enforcement Rule 221(g)(2) provides in part that when Disciplinary Counsel’s request or demand for Pa.R.P.C. 1.15 records is made under an applicable provision of these Rules, the respondent-attorney must produce the records and must do so within the time frame established by these Rules. See § 87.7(e) (relating to production of Pa.R.P.C. 1.15 records upon Disciplinary Counsel’s request in a Form DB-7 (Request for Statement of Respondent’s Position) or Form DB-7A (Supplemental Request for Statement of Respondent’s Position)).
(d) Request for production by subpoena. Enforcement Rule 221(g)(2) provides in part that when Disciplinary Counsel’s request or demand for Pa.R.P.C. 1.15 records is made by subpoena under Enforcement Rule 213(a), the respondent-attorney must produce the records and must do so within the time frame established by Enforcement Rule 213 and these Rules. See Enforcement Rule 213(b) and § 91.2(b) (both of which relate to procedure for issuance of subpoenas).
Source The provisions of this § 91.178 adopted January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (394661) to (394662).
§ 91.179. Effect of failure to produce required records.
Enforcement Rule 221(g)(3) provides that failure to produce Pa.R.P.C. 1.15 records in response to a request or demand for such records may result in the initiation of proceedings pursuant to Enforcement Rule 208(f)(1) or (f)(5) (relating to emergency temporary suspension orders and related relief), the latter of which specifically permits Disciplinary Counsel to commence a proceeding for the temporary suspension of a respondent-attorney who fails to maintain or produce Pa.R.P.C. 1.15 records after receipt of a request or demand authorized by subdivision (g) of Enforcement Rule 221 or any provision of these Rules; and that if at any time a hearing is held before the Board pursuant to Enforcement Rule 208(f) (or § 91.151 relating to emergency temporary suspension orders and related relief) as a result of a respondent-attorney’s alleged failure to maintain or produce Pa.R.P.C. 1.15 records, a lawyer-Member of the Board shall be designated to preside over the hearing.
Official Note
If Disciplinary Counsel files a petition for temporary suspension, the respondent-attorney will have an opportunity to raise at that time any claim of impropriety pertaining to the request or demand for records.
Source The provisions of this § 91.179 adopted January 30, 2015, effective March 2, 2015, 45 Pa.B. 544.
§ 91.180. Reporting of Fiduciary and Operating Accounts on Annual Registration Form.
(a) Terminology. Enforcement Rule 221(r) provides that for purposes of paragraph (b) of this section, the phrase:
(1) ‘‘funds of a client or a third person subject to Pa.R.P.C. 1.15’’ means funds that belong to a client or third person and that an attorney receives:
(i) in connection with a client-attorney relationship;
(ii) as an escrow agent, settlement agent, representative payee, personal representative, guardian, conservator, receiver, trustee, agent under a durable power of attorney, or other similar fiduciary position;
(iii) as an agent, having been designated as such by a client or having been so selected as a result of a client-attorney relationship or the attorney’s status as such;
(iv) in connection with nonlegal services that are not distinct from legal services;
(v) in connection with nonlegal services that are distinct from legal services, and the attorney knows or reasonably should know that the recipient of the service might believe that the recipient is receiving the protection of a client-attorney relationship; or
(vi) as an owner, controlling party, employee, agent, or as one who is otherwise affiliated with an entity providing nonlegal services and the attorney knows or reasonably should know that the recipient of the service might believe that the recipient is receiving the protection of a client-attorney relationship;
(2) ‘‘funds of a third person’’ shall not include funds held in:
(i) an attorney’s personal account held jointly; or
(ii) a custodial account for a minor or dependent relative unless the source of any account funds is other than the attorney and his or her spouse or spousal equivalent.
(b) Accounts to be identified. Enforcement Rule 221(q) provides that an attorney who is required to file the registration form under Enforcement Rule 219(a) (relating to attorneys required to register), with the exception of a person holding a Limited In-House Corporate Counsel License under Pennsylvania Bar Admission Rule 302 or a Foreign Legal Consultant License under Pennsylvania Bar Admission Rule 341, shall identify the financial accounts enumerated in subparagraphs (1)—(3) of this paragraph (b) during the period from May 1 of the previous year to the date of the filing of the registration form. For each account, the attorney shall provide the name of the Financial Institution, as defined in Pa.R.P.C. 1.15(a)(4) or other bank or investment fund as allowed by Pa.R.P.C. 1.15(k) and (l), its location within or outside the Commonwealth, account number, type of account, and whether the account held funds subject to Pa.R.P.C. 1.15. The attorney shall identify:
(1) all accounts in which the attorney held funds of a client or a third person subject to Pa.R.P.C. 1.15;
Note
If an attorney employed by a law firm receives fiduciary funds from or on behalf of a client and deposits or causes the funds to be deposited into a law firm account, the attorney must report the account of deposit pursuant to this subparagraph (1).
(2) every account not reported under subparagraph (1) that held funds of a client or a third person (whether or not subject to Pa.R.P.C. 1.15) over which the attorney had sole or shared signature authority or authorization to transfer funds to or from the account; and
(3) every business operating account maintained or utilized by the attorney in the practice of law.
Note
The type of account shall be identified as an IOLTA Trust Account, see Pa.R.P.C. 1.15(a)(5); Non-IOLTA Trust Account (Interest for Clients), see Pa.R.P.C. 1.15(a)(7), (k), (l); IOLTA-exempt Trust Account (non-interest bearing), see Pa.R.P.C. 1.15(n); other authorized investments or accounts, see Pa.R.P.C. 1.15(k) and (l); or Business/Operating Account, see Pa.R.P.C. 1.15(j).
Source The provisions of this § 91.180 added December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704.
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