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Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS

PART V.  PROFESSIONAL ETHICS AND CONDUCT

[204 PA. CODE CHS. 85, 87, 91 AND 93]

Amendments to the Rules of Organization and Procedure of The Disciplinary Board of the Supreme Court of Pennsylvania; Order No. 63; Doc. No. R-141

[36 Pa.B. 929]

   The Rules of Organization and Procedure of the Board have been drafted to restate in full the substance of the Pennsylvania Rules of Disciplinary Enforcement. By an Order dated October 26, 2005, the Supreme Court of Pennsylvania amended Pa.R.D.E. 104, 208, 209, 213, 215, and 402 with respect to public access to disciplinary proceedings. By this Order, the Board is making conforming changes to its Rules to reflect the adoption of those amendments. The Board is also taking this opportunity to amend the requirements in 204 Pa. Code § 89.5 regarding the format of filings with the Board.

   The Disciplinary Board of the Supreme Court of Pennsylvania finds that:

   (1)  To the extent that 42 Pa.C.S. § 1702 (relating to rule making procedures) and Article II of the act of July 31, 1968 (P. L. 769, No. 240), known as the Commonwealth Documents Law, would otherwise require notice of proposed rulemaking with respect to the amendments adopted hereby, those proposed rulemaking procedures are inapplicable because the amendments adopted hereby relate to agency procedure and are perfunctory in nature.

   (2)  The amendments to the Rules of Organization and Procedure of the Board adopted hereby are not inconsistent with the Pennsylvania Rules of Disciplinary Enforcement and are necessary and appropriate for the administration of the affairs of the Board.

   The Board, acting pursuant to Pa.R.D.E. 205(c)(10), orders:

   (1)  Title 204 of the Pennsylvania Code is hereby amended as set forth in Annex A hereto.

   (2)  The Secretary of the Board shall duly certify this Order, and deposit the same with the Administrative Office of Pennsylvania Courts as required by Pa.R.J.A. 103(c).

   (3)  The amendments adopted hereby shall take effect upon publication in the Pennsylvania Bulletin.

   (4)  This Order shall take effect immediately.

By The Disciplinary Board of the
Supreme Court of Pennsylvania

ELAINE M. BIXLER,   
Secretary

Annex A

TITLE 204.  JUDICIAL SYSTEM GENERAL PROVISIONS

PART V.  PROFESSIONAL ETHICS AND CONDUCT

Subpart C.  DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

CHAPTER 85.  GENERAL PROVISIONS

§ 85.2.  Definitions.

   (a)  Subject to additional definitions contained in subsequent provisions of this subpart which are applicable to specific chapters, subchapters or other provisions of this subpart, the following words and phrases, when used in this subpart shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:

*      *      *      *      *

   Participant--The respondent-attorney, any other person admitted by the Board to limited participation in a proceeding, and staff counsel. [For the purposes of § 93.102(e) (relating to proceedings confidential) the term shall include complainants, witnesses, counsel for the respondent-attorney and all others who in any manner participate in a proceeding subject to such provision.]

*      *      *      *      *

§ 85.9.  Immunity.

*      *      *      *      *

   (b)  Other persons. Enforcement Rule 209(a) further provides that all communications to the Board, a hearing committee, special master, or Disciplinary Counsel relating to misconduct by a respondent-attorney and all testimony given in a proceeding conducted pursuant to these rules shall be absolutely privileged and the person making the communication or giving the testimony shall be immune from civil suit based upon such communication or testimony, except that such immunity shall not extend to any action that violates [§ 93.102] Chapter 93 Subchapter F (relating to [proceedings confidential] confidentiality).

   Official Note:  The Note to Enforcement Rule 209 provides that the provisions of this rule recognize that the submission and receipt of complaints against attorneys, and the investigation, hearing decision and disposition of such complaints, are all parts of a judicial proceeding conducted pursuant to the inherent power of the Supreme Court. The immunity from civil suit recognized to exist in this rule is that which exists for all participants in judicial proceedings under Pennsylvania law, so long as their statements and actions are pertinent, material and during the regular course of a proceeding. Communications made or revealed in violation of the confidentiality requirement of [§ 93.102] Chapter 93 Subchapter F are not pertinent to the proceeding and, thus, do not entitle the person who publishes them to absolute immunity.

§ 85.12.  Filings with the Supreme Court.

*      *      *      *      *

   (c)  Centralized filing. Enforcement Rule 104(c) provides that all filings with the Supreme Court under this Subpart shall be made only with the prothonotary, and the person making a filing shall not distribute copies to the members of the Court. [That rule further provides that it shall be the responsibility of the prothonotary to preserve the confidentiality of filings to the extent and as provided in § 93.102 (relating to proceedings confidential) and elsewhere in this Subpart.]

CHAPTER 87.  INVESTIGATIONS AND INFORMAL PROCEEDINGS

Subchapter C.  FINAL DISPOSITION WITHOUT FORMAL PROCEEDINGS

§ 87.51.  Notification of disposition of complaint.

*      *      *      *      *

   (b)  Contents of notice.

*      *      *      *      *

   (3)  The notice to appear for informal admonition or private reprimand shall advise the respondent-attorney of:

*      *      *      *      *

   (ii)  The limited availability of the record of informal admonition or private reprimand under [§ 93.102(b)(2) (relating to proceedings confidential)] § 93.104(d) (relating to restrictions on available information).

§ 87.52.  Informal admonition.

   (a)  General rule. A respondent-attorney who is given notice of informal admonition pursuant to § 87.51 (relating to notification of disposition of complaint) and who does not timely demand the institution of a formal proceeding pursuant to § 87.54 (relating to demand by respondent-attorney for formal proceedings) shall appear in person before Disciplinary Counsel, at the time and place fixed for the administration of the informal admonition. A record (Form DB-38) (Record of Informal Admonition) shall be made of the fact of and basis for the informal admonition, which record shall be available only as provided in [§ 93.102(b)(2) (relating to proceedings confidential)] § 93.104(d) (relating to restrictions on available information).

*      *      *      *      *

§ 87.53.  Private reprimand without formal hearing.

   (a)  General rule. A respondent-attorney who is given notice of private reprimand pursuant to § 87.51 (relating to notification of disposition of complaint) and who does not timely demand the institution of a formal proceeding pursuant to § 87.54 (relating to demand by respondent-attorney for formal proceedings) shall appear in person before the Board, at the time and place fixed for the administration of the private reprimand. A record shall be made of the fact of and basis for the private reprimand, which record shall be available only as provided in [§ 93.102(b)(2) (relating to proceedings confidential)] § 93.104(d) (relating to restrictions on available information).

*      *      *      *      *

Subchapter D.  ABATEMENT OF INVESTIGATION

§ 87.73.  Resignations by attorneys under disciplinary investigation.

*      *      *      *      *

   (d)  Confidentiality of resignation statement. Enforcement Rule 215(c) provides that the order disbarring the attorney on consent shall be a matter of public record[, but for the purposes of § 93.102(a)(1) (relating to proceedings confidential) the order shall not be an order for the imposition of public discipline. The statement required under the provisions of paragraph (1)]; and that, if the statement required by subsection (a) is submitted before the filing and service of a petition for discipline and the filing of an answer or the time to file an answer has expired, the statement shall not be publicly disclosed or made available for use in any proceeding other than a subsequent reinstatement proceeding except:

*      *      *      *      *

§ 87.74.  Discipline on consent.

*      *      *      *      *

   (e)  Public discipline. Enforcement Rule 215(g) provides that, if a panel approves a Petition consenting to public censure or suspension, the Board shall file the recommendation of the panel and the Petition with the Supreme Court; and that, if the Court grants the Petition, the Court shall enter an appropriate order disciplining the respondent-attorney on consent[; and that the order and the Petition shall be a matter of public record in accordance with § 93.102 (relating to proceedings confidential)].

*      *      *      *      *

CHAPTER 89.  FORMAL PROCEEDINGS

Subchapter A.  PRELIMINARY PROVISIONS

GENERAL MATTERS

§ 89.5.  Format of pleadings and documents.

   (a)  [Typewritten. Pleadings or other documents filed in formal proceedings, if not printed, shall be typewritten on paper cut or folded to letter size, 8 to 8 1/2 inches wide by not more than 11 inches long, with left-hand margin not less than 1 1/2 inches wide and other margins not less than 1 inch. The impression shall be on only one side of the paper, unless there are more than four pages, and shall be double spaced, except that quotations in excess of a few lines shall be single spaced and indented. Mimeographed, multigraphed, hecto- graphed, planographed or otherwise reproduced copies will be accepted as typewritten, provided all copies are clearly legible.] In general. Pleadings and documents other than exhibits filed in formal proceedings shall be in a typeface not less than 10-points, on unglazed paper 8 1/2 inches wide by 11 inches long and with margins of at least 1 inch. The text shall be double-spaced except for indented quotations. Pleadings and documents other than correspondence shall be bound in a manner that may be taken apart easily.

   [(b)  Printed. Printed documents shall not be less than 10-point type on unglazed paper, cut or folded so as not to exceed 8 1/2 inches wide by 11 inches long, with inside margin not less than 1 inch wide, and with double-leaded text and single-leaded, indented quotations.

   (c)  Binding. Pleadings and other documents, other than correspondence, shall be bound by staples or otherwise. Any metal fasteners or staples shall be covered.

   (d)] (b)  *  *  *

   [(e)] (c)  *  *  *

*      *      *      *      *

Subchapter C.  HEARING PROCEDURES

PREHEARING CONFERENCES

§ 89.72.  Subjects which may be considered at conferences to expedite hearings.

   At the prehearing conference required by § 89.57 (relating to scheduling of hearing and prehearing conference) and any other conferences which may be held to expedite the orderly conduct and disposition of any hearing, there may be considered, in addition to any offers of settlement permitted under § 89.71 (relating to conferences to expedite proceedings) and any applications for protective orders under § 93.104 (relating to protective orders), the possibility of the following:

*      *      *      *      *

EVIDENCE GENERALLY

§ 89.143.  Form and size of documentary evidence.

   Wherever practicable, all exhibits of a documentary character received in evidence shall be on paper of good quality and so prepared as to be plainly legible and durable, [whether printed, photostated or otherwise reproduced or typewritten,] and shall conform to the requirements of § 89.5(a)[(c)] (relating to format of pleadings and documents) whenever practicable.

EVIDENCE ON TYPE OF DISCIPLINE

§ 89.151.  Separate consideration of evidence relevant to type or discipline.

*      *      *      *      *

   (b)  Type of evidence desired. While the participants may offer any evidence which is relevant and material on the issue of the type of discipline to be imposed, experience has shown that information concerning the respondent-attorney on the following subjects will be particularly helpful to the Board:

*      *      *      *      *

   (9)  A statement of every disciplinary proceeding or procedure of inquiry concerning the standing of the respondent-attorney as a member of any profession or organization, or holder of any license or office, which involved the censure, removal, suspension, revocation of license or discipline of the respondent-attorney; and as to each, the dates, facts and disposition thereof, except that no evidence shall be received of proceedings and dispositions under these rules where the official records thereof are under [§ 93.102(b)(2) (relating to proceedings confidential)] § 93.104(d) (relating to restrictions on available information) not available for use against the respondent-attorney.

*      *      *      *      *

Subchapter D.  ACTION BY BOARD AND SUPREME COURT

§ 89.205.  Informal admonition or private reprimand following formal hearing.

*      *      *      *      *

   (d)  Appearance. An attorney who is given notice to appear for informal admonition or private reprimand shall appear in person at the time and place fixed in such notice, for the purpose of receiving such informal admonition or private reprimand. A permanent record shall be made of the fact of and basis for such action as is taken. The fact of receipt of such admonition or reprimand shall not affect the good standing of the respondent attorney as an attorney and shall be kept confidential[, but shall be subject to limited availability under § 93.102(b) (relating to proceedings confidential)] to the extent provided in Chapter 93 Subchapter F (relating to confidentiality).

*      *      *      *      *

   (f)  Demand for Supreme Court review.

   (1)  [A respondent-attorney who is unwilling to have the matter concluded by private reprimand may demand Supreme Court consideration of the matter. See § 89.206(c) (relating to nonconfidentiality of appeal of informal admonition or private reprimand).] Enforcement Rule 208(d)(2)(iii) provides that a respondent-attorney who is unwilling to have the matter concluded by an informal admonition or private reprimand must file, within 30 days after notice of the determination of the Board, a notice of appeal in the Supreme Court.

*      *      *      *      *

§ 89.206.  Transmission of record to Supreme Court[; confidentiality].

*      *      *      *      *

   [(c)  Nonconfidentiality of appeal of informal admonition or private reprimand. Enforcement Rule 208(d)(2)(iii) provides that a respondent-attorney who is unwilling to have the matter concluded by an informal admonition or private reprimand shall evidence such unwillingness by filing, within 30 days after notice of the determination of the Board, a notice of appeal including a statement that the respondent-attorney understands that the effect of the appeal will be to terminate the confidential status of the matter. See § 93.102(a)(5) (relating to proceedings confidential).]

CHAPTER 91.  MISCELLANEOUS MATTERS

Subchapter A.  SERVICE, SUBPOENAS, DEPOSITIONS AND RELATED MATTERS

IN GENERAL

§ 91.5.  Confidentiality.

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

*      *      *      *      *

   (3)  The subpoena and deposition procedures under these rules shall be subject to the [protective] confidentiality requirements of [confidentiality provided in § 93.102] Chapter 93 Subchapter F (relating to [proceedings confidential] 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).

CHAPTER 93.  ORGANIZATION AND ADMINISTRATION

Subchapter F.  CONFIDENTIALITY

§ 93.101.  Complaints confidential.

   Enforcement Rule 209(a) provides that complaints submitted to the Office of the Secretary or to the Office of Disciplinary Counsel shall be confidential unless the matter results in the filing of formal charges.

§ 93.102.  [Proceedings confidential] Access to disciplinary information and confidentiality.

   (a)  General rule. Enforcement Rule 402(a) provides that, except as provided in subsections (b) and (d) and § 93.104 (relating to access by judicial system agencies to confidential information), all proceedings under these rules shall be open to the public after:

   (1)  the filing of an answer to a petition for discipline;

   (2)  the time to file an answer to a petition for discipline has expired without an answer being filed; or

   (3)  the filing and service of a petition for reinstatement.

   (b)  Certain informal proceedings. Enforcement Rule 402(b) provides that, notwithstanding subsection (a), an informal proceeding under these rules in which it is determined that private discipline should be imposed but that subsequently results in the filing of formal charges shall not be open to the public until or unless the Supreme Court enters its order for the imposition of public discipline.

   (c)  Exceptions to initial confidentiality. Enforcement Rule 402(c) provides that, until the proceedings are open under subsection (a) or (b), all proceedings involving allegations of misconduct by or disability of an attorney shall be kept confidential [until or] unless:

   (1)  [the Supreme Court enters its order for the imposition of public discipline,

   (2)] the respondent-attorney requests that the matter be public, or waives confidentiality for a particular purpose specified in writing,

   [(3)] (2)  the investigation is predicated upon a conviction of the respondent-attorney for a crime or reciprocal discipline,

   [(4)] (3)  in matters involving alleged disability, the Supreme Court enters its order transferring the respondent-attorney to inactive status pursuant to Chapter 91 Subchapter D (relating to disability), [or

   (5)  the respondent-attorney appeals under § 89.206(c) (relating to transmission of record to Supreme Court; confidentiality) a determination by the Board imposing an informal admonition or private reprimand.]

   (4)  the proceeding is based upon allegations that have become generally known to the public, or

   (5)  there is a need to notify another person or organization, including the Lawyers' Fund for Client Security, in order to protect the public, the administration of justice, or the legal profession.

   [(b)  Exceptions.] (d)  Permitted uses of otherwise confidential information. [(1)] Enforcement Rule 402[(b)](d)(2) and (3) provides that the provisions of [subsection (a)] subsections (a) and (b) of this section shall not be construed to:

   [(i)  Deny access to relevant information to:

   (A)  Authorized agencies investigating the qualifications of judicial candidates.

   (B)  The Judicial Inquiry and Review Board.

   (C)  Other jurisdictions investigating qualifications for admission to practice.

   (D)  Law enforcement agencies investigating qualifications for government employment.

   (ii)] (1)  *  *  *

   [(2)  The fact that a complaint has been filed or that an informal admonition or private reprimand has been administered shall not be deemed relevant for the purposes of this subsection if:

   (i)  the complaint was dismissed; or

   (ii)  the informal admonition or private reprimand was administered more than six years before the request for access is made, if no other grievances or complaints resulting in the imposition of discipline were filed against the respondent-attorney during such six year period. See the last sentence of this subsection for certain restrictions on access applicable during such six-year period.

   (3)  See § 87.73(3) (relating to resignations by attorneys under disciplinary investigation). No verified statement or other document relating to the investigation or proceeding, other than the order disbarring the attorney on consent, shall be available to the public.

   The fact that a complaint is pending but undisposed of shall not be deemed relevant for the purposes of this subsection unless otherwise determined in a specific case by the Office of Disciplinary Counsel with the concurrence of the Chairman or Vice Chairman of the Board. The fact that an informal admonition has been administered to a respondent-attorney shall not be disclosed at any time to an agency specified in paragraphs (1)(i)(C) and (1)(i)(D) of this subsection.]

   Official Note:  The Note to Enforcement Rule 402 provides that subsection (d)(1) is based on 18 Pa.C.S. § 5108 (relating to compounding) and that otherwise Disciplinary Counsel may be in the anomalous position of violating Rule 8.4 of the Pennsylvania Rules of Professional Conduct.

   (2)  Prevent the Pennsylvania Lawyers' Fund for Client Security from utilizing information obtained during an investigation to pursue subrogated claims.

   [(c)] (e)  *  *  *

   [(d)] (f)  National [Discipline] Lawyer Regulatory Data Bank. Enforcement Rule 402[(b)](i) provides that the Board shall transmit notice of all public discipline imposed by the Supreme Court, [or transfer] transfers to or from inactive status for disability, and reinstatements to the National [Discipline] Lawyer Regulatory Data Bank maintained by the American Bar Association.

   [(e)  Participants to observe confidentiality. Enforcement Rule 213(d) provides that all participants in both investigatory and formal proceedings shall conduct themselves so as to maintain the confidentiality of the proceeding. (See § 85.2 (relating to definitions) for the definition of ''participants'').]

   (g)  Requests for documents. Requests for copies of documents relating to disciplinary proceedings that are available to the public under this subchapter must be in writing and directed to the Office of the Secretary. A copying fee, which shall be the same as the copying fee charged to respondent-attorneys, must be prepaid at the time a request is made.

   (h)  Transcripts and exhibits. The Board will not make available to the public copies of transcripts or exhibits introduced as evidence in a proceeding.

   Official Note:  Nothing in this Rule shall preclude any individual from obtaining copies of transcripts or exhibits through the official reporter designated by the Office of the Secretary.

§ 93.103.  Identity of reviewing hearing committee member.

   The identity of the hearing committee member acting under § 87.32 (relating to action by reviewing hearing committee) shall not be a part of the record in a formal proceeding under these rules and shall not be available to the respondent-attorney or the public.

§ 93.104.  [Reinstatement proceedings] Access by judicial system agencies to confidential information.

   [(a)  General rule. Except as provided by § 89.274 (relating to notice of reinstatement proceedings), all reinstatement proceedings shall be kept confidential until or unless the respondent-attorney request that the matter be public.

   (b)  Records. The record of a reinstatement proceeding, other than one involving an unsuccessful application for transfer from inactive status to active status, shall become public when the Supreme Court enters its order granting or denying reinstatement.]

   (a)  General rule. Enforcement Rule 402(d)(1) provides that the provisions of § 93.102(a) and (b) (relating to access to disciplinary information and confidentiality) shall not be construed to deny access to relevant information at any point during a proceeding under these rules to:

   (1)  authorized agencies investigating the qualifications of judicial candidates;

   (2)  the Judicial Conduct Board with respect to an investigation it is conducting;

   (3)  other jurisdictions investigating qualifications for admission to practice;

   (4)  law enforcement agencies investigating qualifications for government employment;

   (5)  lawyer disciplinary enforcement agencies in other jurisdictions investigating misconduct by the respondent-attorney; or

   (6)  the Pennsylvania Lawyers' Fund for Client Security Board investigating a claim for reimbursement arising from conduct by the respondent-attorney.

   (b)  Notice to respondent-attorney. Enforcement Rule 402(g) provides that, except as provided in subsection (c), if nonpublic information is requested pursuant to subsection (a) and the respondent-attorney has not signed an applicable waiver of confidentiality, the respondent-attorney shall be notified in writing at the last known address of the respondent-attorney of what information has been requested and by whom, together with a copy of the information proposed to be released to the requesting agency or board. The notice shall advise the respondent-attorney that the information will be released 20 days after mailing of the notice unless the respondent-attorney objects to the disclosure. If the respondent-attorney timely objects to the disclosure, the information shall remain confidential unless the requesting agency or board obtains an order of the Supreme Court requiring its release or the respondent-attorney withdraws the objection.

   (c)  Exception to required notice to respondent-attorney. Enforcement Rule 402(h) provides that, if an agency or board requesting the release of information under subsection (a) has not obtained an applicable waiver of confidentiality from the respondent-attorney, and the agency or board requests that the information be released without giving notice to the respondent-attorney, the requesting agency or board shall certify that:

   (1)  the request is made in furtherance of an ongoing investigation into misconduct by the respondent-attorney;

   (2)  the information is essential to that investigation; and

   (3)  disclosure of the existence of the investigation to the respondent-attorney would seriously prejudice the investigation.

   (d)  Restrictions on available information. The fact that:

   (1)  a complaint has been filed shall not be deemed relevant for the purposes of this section if the complaint was dismissed;

   (2)  a complaint is pending but undisposed of shall not be deemed relevant for the purposes of this section unless otherwise determined in a specific case by the Office of Disciplinary Counsel with the concurrence of the Chair or Vice Chair of the Board;

   (3)  an informal admonition has been administered to a respondent-attorney under any circumstances other than following a formal proceeding shall not be disclosed at any time to an agency specified in subsection (a)(3) or (4); and

   (4)  an informal admonition or private reprimand was administered more than six years before the request for access is made shall not be deemed relevant if no other grievances or complaints resulting in the imposition of discipline were filed against the respondent-attorney during such six year period.

§ 93.105.  Protected information.

   Enforcement Rule 402(e) provides that this subchapter shall not be construed to provide public access to:

   (1)  the work product of the Board, Disciplinary Counsel, hearing committee members, or special masters;

   (2)  deliberations of a hearing committee, special master, the Board or the Supreme Court; or

   (3)  information subject to a protective order issued under § 93.106 (relating to protective orders).

§ 93.106.  Protective orders.

   (a)  General rule. Enforcement Rule 402 (f) provides that the Board may, upon application of any person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential, and the Board may direct that proceedings be conducted so as to implement the order, including requiring that a hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of a protective order.

   (b)  Applications at conferences and hearings. Upon application of any person during a conference or hearing under Chapter 89 Subchapter C (relating to hearing procedures) and for good cause shown, the senior or experienced hearing committee member conducting the conference or the hearing committee or special master conducting the hearing may issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential, and may direct that a hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of the protective order. Upon the submission of an application for a protective order, the conference or hearing shall be recessed for the conduct of an in camera meeting of the parties with the hearing committee member, hearing committee or special master for consideration of the application. The ruling on the application for a protective order may be appealed to the Board. An appeal to the Board may stay the conduct of hearings in the matter at the discretion of the hearing committee.

   Official Note:  A party seeking a protective order is encouraged to apply for the order at the prehearing conference to allow time for a potential appeal to the Board.

§ 93.107.  Broadcasting and other recording of proceedings.

   Enforcement Rule 402(j) provides that this subchapter does not permit broadcasting, televising, recording or taking photographs during a proceeding under these rules, except that a hearing committee, a special master, the Board or the Su-preme Court when conducting a proceeding may authorize the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record or for other purposes of judicial administration.

[Pa.B. Doc. No. 06-322. Filed for public inspection February 24, 2006, 9:00 a.m.]



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