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THE COURTS

[204 PA. CODE CH. 83]

Amendments to the Pennsylvania Rules of Disciplinary Enforcement Relating to Organization of Hearing Committees

[34 Pa.B. 3245]

   Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Pennsylvania Supreme Court that it amend the Pennsylvania Rules of Disciplinary Enforcement as set forth in Annex A to modify the way hearing committees are organized.

   The Rules of Disciplinary Enforcement currently provide that a member of a hearing committee will be appointed to a particular hearing committee on which the member will serve for his or her full term. The Board is considering recommending a change to that system so that members would be appointed to a panel of hearing committee members within a disciplinary district and not assigned to a particular hearing committee until there was a matter to be handled by a hearing committee. Such a system would provide greater flexibility to the Secretary of the Board in hearings. The Board is also considering recommending that hearing committee members be classified based on their experience and that only members with specified experience be authorized to take certain actions.

   Interested persons are invited to submit written comments regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, First Floor, Two Lemoyne Drive, Lemoyne, PA 17043, on or before July 12, 2004.

By The Disciplinary Board of the Supreme Court of
   Pennsylvania

ELAINE M. BIXLER,   
Executive Director and Secretary

Annex A

TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

Subpart B. DISCIPLINARY ENFORCEMENT

CHAPTER 83. PENNSYLVANIA RULES OF DISCIPLINARY ENFORCEMENT

Subchapter A. PRELIMINARY PROVISIONS

Rule 102. Definitions.

   (a)  General rule. Subject to additional definitions contained in subsequent provisions of these rules which are applicable to specific provisions of these rules, the following words and phrases when used in these rules shall have, unless the context clearly indicates otherwise, the meanings given to them in this rule:

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   ''Experienced hearing committee member.'' An attorney who at the time is a member of the panel of hearing committee members in a disciplinary district and who has previously served either (i) as a member of the Board, or (ii) as a member of a panel of hearing committee members for at least one year and on a hearing committee that has conducted at least one hearing into formal charges of misconduct by a respondent-attorney.

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   ''Senior hearing committee member.'' An attorney who at the time is a member of the panel of hearing committee members in a disciplinary district and who has previously served either (i) as a member of the Board, or (ii) a full three-year term on a panel of hearing committee members and on hearing committees that have conducted at least three hearings into formal charges of misconduct by respondent-attorneys for which formal transcripts have been prepared.

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Subchapter B. MISCONDUCT

Rule 205. The Disciplinary Board of the Supreme Court of Pennsylvania.

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   (c)  The Board shall have the power and duty:

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   (3) To appoint [three or more hearing committees] not less than 18 hearing committee members within each disciplinary district. [The Board may also appoint up to six persons in each disciplinary district to serve as alternate members of hearing committees within that district.] Each [member of a hearing committee or alternate appointed] person appointed as a hearing committee member for a district shall be a member of the bar of this Commonwealth who maintains an office for the practice of law within that district. [Only persons who have previously served as a member of a hearing committee or of the Board shall be eligible for appointment as an alternate. An alternate shall have the status of a member of a hearing committee, but shall not be eligible to serve under paragraph (7) of this subdivision (c) or in the capacities reserved to regular members of a hearing committee by Rule 206(a) (relating to hearing committees and special masters).

   Official Note:  The last sentence of paragraph (3) of subdivision (c) is intended to make clear that an alternate hearing committee member will be subject, among other things, to the provisions of Rules 209 (relating to immunity) and 220 (relating to recusal of members of the Board or a hearing committee or a special master).]

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   (5)  To assign formal charges or the conduct of an investigatory hearing to a hearing committee or special master. The assignment to a hearing committee of formal charges or the conduct of an investigatory hearing may be delegated by the Board to its Secretary. [The reviewing member of a] A hearing committee member who has passed upon Disciplinary Counsel's recommended disposition of the matter shall be ineligible to serve on the hearing [panel] committee that considers the matter.

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   (7)  To assign periodically, through its Secretary, [the] senior or experienced hearing committee members [of hearing committees] within each disciplinary district to:

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   (ii) hear and determine attacks on the validity of subpoenas issued pursuant to Rule 213(a)(2) (relating to subpoena power, depositions and related matters), as provided in Rule 213(d)(2); or

   (iii)  consider a petition for reinstatement to active status from inactive status under Enforcement Rule 218(c)(3)(ii) (relating to reinstatement) of a formerly admitted attorney who has not been suspended or disbarred.

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Rule 206. Hearing committees and special masters.

   (a)  When a hearing committee is [first selected, one of its members shall be appointed for a term of one year, another member for a term of two years and the third member for a term of three years] required to handle a matter, the Board shall appoint a hearing committee consisting of three hearing committee members from the appropriate disciplinary district. At least one of the members of the hearing committee shall be a senior hearing committee member, and another member shall be either a senior hearing committee member or an experienced hearing committee member. The Board shall designate [the chairman] one of the members so appointed as the chair for the committee, who shall be a senior hearing committee member. [Thereafter all regular terms] The terms of hearing committee members shall be three years and no member shall serve for more than two consecutive three-year terms. [An alternate hearing committee member shall serve for a term of three years, and may serve for a second consecutive three-year term.] Board rules may authorize a [regular or alternate] hearing committee member whose term has expired to continue to serve until the conclusion of any matter commenced before the member prior to the expiration of such term. A [regular or alternate] hearing committee member who has served two consecutive three-year terms may be reappointed after the expiration of one year. [The] A hearing committee shall act only with the concurrence of a majority of its members and two members shall constitute a quorum, except that a single [regular, but not an alternate] senior or experienced hearing committee member may act for the committee when the committee is sitting as an investigatory hearing committee under Enforcement Rule 213(a)(1) (relating to subpoena power, depositions and related matters), [hearing and determining a challenge to a subpoena under Enforcement Rule 213(d)(2),] or when conducting a prehearing conference [or when considering a petition for reinstatement to active status from inactive status under Enforcement Rule 218 (c)(3)(ii) (relating to reinstatement) of a formerly admitted attorney who has not been suspended or disbarred]. The terms of hearing committee members shall commence on July 1.

   (b)  Hearing committees shall have the power and duty:

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   [(3)  To review, by the member assigned, and approve or modify recommendations by Disciplinary Counsel for dismissals, informal admonitions, private reprimands and institution of formal charges.

   (4)  To hear and determine, by the member assigned, attacks on the validity of subpoenas issued pursuant to Rule 213(a)(2) (relating to subpoena power, depositions and related matters).]

   (c)  [Where a regular hearing committee member is disqualified or otherwise unavailable to serve with respect to any particular formal proceeding, the Secretary shall assign an alternate hearing committee member to serve in place of the unavailable member with respect to that proceeding. Particular formal charges may not be referred to a hearing committee unless at least one regular member of the committee serves on the committee during its handling of those charges.] If [the chairman] a member of a hearing committee [is] becomes disqualified or otherwise unavailable to serve with respect to any particular [formal proceeding] matter, the Secretary shall designate [the chairman of the hearing committee for that proceeding who shall be a regular member of the committee] a replacement. [Where it is impracticable to refer particular formal charges to any established hearing committee within a disciplinary district, the Board in the manner provided by Board rule shall select a special hearing committee from all available regular hearing committee members within an adjacent district.]

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Rule 213. Subpoena power, depositions and related matters.

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   (d)  Challenges. Any attack on the validity of a subpoena issued under this rule shall be heard and determined by:

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   (2)  a [member of a] hearing committee member in the disciplinary district in which the subpoena is returnable in the case of a subpoena authorized by subdivision (a)(2).

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Rule 218. Reinstatement.

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   (c)(1)  Petitions for reinstatement by formerly admitted attorneys shall be filed with the Board.

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   (7)  A petition for reinstatement to active status from inactive status by a formerly admitted attorney who has not been suspended or disbarred shall be considered by a single senior or experienced hearing committee member who shall perform the functions of a hearing committee under this subdivision (c), and the rules of the Board may provide for abbreviated procedures to be followed by that hearing committee member.

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[Pa.B. Doc. No. 04-1117. Filed for public inspection June 25, 2004, 9:00 a.m.]



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