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THE COURTS

PART V. PROFESSIONAL ETHICS AND CONDUCT

[ 204 PA. CODE CH. 83 ]

Proposed Amendments to the Pennsylvania Rules of Disciplinary Enforcement Creating an Emeritus Status for Pro Bono Legal Representation

[47 Pa.B. 3488]
[Saturday, June 24, 2017]

 Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Supreme Court of Pennsylvania that it adopt new Rule 403 of the Pennsylvania Rules of Disciplinary Enforcement (''Pa.R.D.E.'') creating an emeritus status for attorneys who retire from the practice of law and seek to provide pro bono services to legal aid organizations, as set forth in Annex A.

 By way of background, in August 2015, the Supreme Court of Pennsylvania requested that the Disciplinary Board and the Continuing Legal Education Board (''the Boards'') review a proposal of the Pennsylvania, Allegheny County and Philadelphia Bar Associations to amend the rules to permit retired and inactive attorneys to provide pro bono services to low-income Pennsylvanians. Between August 2015 and August 2016, the Boards met separately and jointly to analyze the proposal and materials provided by the bar associations, to determine how best to construct an emeritus program, and to develop a framework of rules. In August 2016, the Boards sent an emeritus program proposal to the bar associations and requested input. Following revisions to the proposal based on this input, in December 2016, the Boards sent the proposal to the Supreme Court. By letter dated December 30, 2016, the Court asked the Boards to publish proposed rules for comment.

 Emeritus programs create a pool of qualified volunteer attorneys to provide services to those in need. Emeritus attorneys perform valuable roles in the community by bolstering legal aid and other nonprofit programs to help close the gap between the need for and the availability of free legal services. Currently, thirty-eight jurisdictions have emeritus programs in place. A review of these programs reveals that there is a great degree of variability in how states design their rules. The Boards' primary goal in establishing an emeritus program in Pennsylvania is to balance encouraging pro bono work with protecting citizens of the Commonwealth.

 Proposed Pa.R.D.E. 403 creates an emeritus status for pro bono legal representation. The proposed rule addresses qualifications, application procedure, transfer to emeritus status, limitation on practice, eligible legal aid organizations, renewal of emeritus status and continuing legal education requirements.

 In order to transfer to emeritus status pursuant to proposed section (a), an attorney must be on retired status. In devising the specifics of the emeritus rule, the Boards are mindful that the original, national focus for this type of program was to address shortfalls in legal services to the poor by tapping into the services of senior attorneys no longer practicing law to perform pro bono work.1 This focus, in conjunction with the Boards' responsibility to protect the public, the courts, and the integrity of the legal profession, informed the Boards' decision to limit the scope of the proposed emeritus program to retired attorneys.2 The Boards are cognizant that this limitation reduces the pool of candidates; however, unlike other states, the Boards are not proposing age or length of practice restrictions,3 so that a retired attorney, regardless of age or number of years practicing prior to retirement, is eligible to pursue emeritus status.

 The application requirements are set forth in proposed section (b). Proposed subsections (1), (2), and (3) request various pieces of personal information about the attorney, a list of all courts outside of the Commonwealth and jurisdictions in which the attorney has been licensed, along with the current status thereof, and prior discipline in other jurisdictions.

 The retired attorney must complete twelve hours of continuing legal education within one year prior to the application date as a prerequisite to transferring to emeritus status, pursuant to proposed subsection (b)(4). Although the Boards recognize that the continuing legal education prerequisite may present a disincentive to participation, emeritus attorneys will be practicing law similar to active status attorneys; therefore, the Boards concluded that this prerequisite is necessary to ensure the competence of emeritus attorneys, some of whom may have been on retired status for a number of years and thus, not required to maintain knowledge of the law. We further note that this is a reduction of the continuing legal education prerequisite of thirty-six hours required for attorney reinstatement to active status from other statuses. See, Disciplinary Board Rule § 89.279(a); 47 Pa.B. 311 (Jan. 21, 2017).

 The emeritus applicant must verify that he or she is authorized solely to provide pro bono services, is not permitted to handle client funds, and is not permitted to ask for or receive compensation, pursuant to proposed subsections (b)(5), (6), and (7).

 Proposed subsection (b)(8) requires the attorney, at the time of application, to pay a registration fee of $35, an amount less than the current $225 for active attorneys and $100 for inactive attorneys. The Boards concluded that a de minimus fee is necessary in light of the administrative duties involved with registration of emeritus attorneys. At least sixteen jurisdictions require emeritus attorneys to pay a full or reduced attorney registration fee.4

 Once the application is approved and the attorney is transferred to emeritus status, the attorney will be eligible to provide pro bono services only through an eligible legal aid organization. The vast majority of jurisdictions have similar requirements.5 Proposed sections (c) and (d) address transfer to emeritus status and limitation of practice. An ''eligible legal aid organization'' is defined in proposed section (e) as a not-for-profit organization that provides legal services.

 Thereafter, pursuant to proposed section (f), in order to commence working for a legal aid organization, the emeritus attorney is required to submit an eligible legal aid organization form to the Secretary of the Disciplinary Board for approval of each organization for which the attorney expects to perform pro bono services. An emeritus attorney is able to volunteer with multiple legal aid organizations, as long as the attorney files the legal aid forms. Among other pieces of information, the form requests a description of the legal services performed by the organization and the nature of the duties expected to be performed by the emeritus attorney. The supervising attorney of the organization must verify that the organization has malpractice insurance to cover the emeritus attorney and that the organization will provide training and support to the emeritus attorney. These criteria help to ensure the protection of the public.

 An emeritus attorney may renew the status on an annual basis between January 1 and January 31 of each year. Proposed subsection (g)(2) sets forth the procedure for renewal. Subsection (g)(3) informs emeritus attorneys that failure to file the annual fee form and pay the annual fee by January 31 shall result in the emeritus attorney's transfer to retired status. There will be no assessment of late fees for failure to renew at the designated time. A transfer back to retired status will require the attorney to begin the emeritus process anew if emeritus status is desired.

 Proposed section (h) informs emeritus attorneys that they are subject to annual continuing legal education requirements, pursuant to the Pennsylvania Rules of Continuing Legal Education. We note that the Continuing Legal Education Board is issuing its own Notice of Proposed Rulemaking on this same date with the same deadline for comments.

 Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3382), Email address Dboard.comments@pacourts.us on or before August 24, 2017.

By the Disciplinary Board of the
Supreme Court of Pennsylvania

JULIA FRANKSTON-MORRIS, Esq., 
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 D. MISCELLANEOUS PROVISIONS

Rule 403. Emeritus Status.

 (a) Qualifications. An attorney admitted in Pennsylvania who is registered as retired and who seeks to provide pro bono services under this rule shall transfer to emeritus status by complying with the requirements listed below.

 (b) Application Procedure. Prior to the representation described in (d), an attorney shall complete and submit to the Attorney Registration Office an Application for Emeritus Status which shall include the following:

 (1) The name, attorney identification number, telephone number, current email and residence address of the attorney, the latter of which shall be an actual street address, a rural route box number, or a post office box number. Upon an attorney's written request submitted to the Attorney Registration Office and for good cause shown, the contact information will be nonpublic information and will not be published on the Board's website or otherwise disclosed;

 (2) A list of all courts (except courts of this Commonwealth) and jurisdictions in which the attorney has been licensed to practice law with the current status thereof;

 (3) Prior disciplinary record in other jurisdictions;

 (4) The list of approved Continuing Legal Education courses that the attorney has completed during the 12 month period immediately preceding the submission of the Application for Emeritus Status, totaling no fewer than 12 credit hours, 10 of which shall be in the substantive area of law and 2 of which shall be in ethics;

 (5) Verification that the attorney is authorized solely to provide pro bono services to eligible legal aid organizations;

 (6) Verification that the attorney is not permitted to handle client funds;

 (7) Verification that the attorney will neither ask for nor receive compensation of any kind for the legal services authorized under this rule;

 (8) A registration fee of $35.00.

 (c) Transfer to Emeritus Status. Upon review of the completed form and verification of the information, the application shall be approved the Attorney Registration Office and the attorney's status as retired shall be changed to emeritus.

 (d) Limitation of Practice. An emeritus attorney is authorized solely to provide pro bono legal services under the auspices of an eligible legal aid organization and without charge or an expectation of fee by the attorney.

 (e) Eligible Legal Aid Organization. An ''eligible legal aid organization'' for the purposes of this rule is a not-for-profit organization that provides legal services.

 (f) Approval of Eligible Legal Aid Organization. Prior to the commencement of services described in (d), the emeritus attorney shall submit an Eligible Legal Aid Organization Form to the Secretary of the Board for approval. The emeritus attorney shall submit a separate form for each eligible legal aid organization for which the attorney expects to perform pro bono services. The form shall include the following:

 (1) The name and address of the Eligible Legal Aid Organization and the name of the supervising attorney;

 (2) A description of the legal services performed by the organization and the nature of the duties expected to be performed by the emeritus attorney;

 (3) Verification of the existence and extent of the malpractice insurance that will cover the emeritus attorney;

 (4) Verification that the organization will provide training and support to the emeritus attorney.

 (g) Renewal of Emeritus Status. An emeritus attorney who is registered to provide services under this rule may renew the status on an annual basis.

 (1) On or before January 1 of each year, the Attorney Registration Office shall transmit to all emeritus attorneys a notice to register by January 31.

 (2) On or before January 31 of each year, emeritus attorneys who seek to renew the status shall pay an annual fee of $35.00 and shall file with the Attorney Registration Office a form prescribed by the Office which shall include the following:

 (i) The name, attorney identification number, telephone number, current email and residence address of the attorney, the latter of which shall be an actual street address, a rural route box number, or a post office box number. Upon an attorney's written request submitted to the Attorney Registration Office and for good cause shown, the contact information provided by the attorney will be nonpublic information and will not be published on the Board's website or otherwise disclosed;

 (ii) A list of all courts (except courts of this Commonwealth) and jurisdictions in which the attorney has been licensed to practice law, with the current status thereof;

 (iii) Prior disciplinary record in other jurisdictions;

 (iv) Verification that the attorney is authorized solely to provide pro bono services to eligible legal aid organizations;

 (v) Verification that the attorney is not permitted to handle client funds;

 (vi) Verification that the attorney will neither ask for nor receive compensation of any kind for the legal services authorized under this rule;

 (3) Failure to file the annual fee form and pay the annual fee by January 31 shall result in the transfer to retired status.

 (h) Continuing Legal Education Requirements. An emeritus attorney shall be subject to the annual CLE requirement. See Pa.R.C.L.E. 105(d).

[Pa.B. Doc. No. 17-1037. Filed for public inspection June 23, 2017, 9:00 a.m.]

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1  http://www.americanbar.org/content/dam/aba/administrative/probono_public_service/ls_pb_emeritus2016.authcheckdam.pdf

2  Of the thirty-eight jurisdictions that have emeritus rules, six restrict such programs to retired attorneys. See, http://www.americanbar.org/content/dam/aba/administrative/probono_public_service/ls_pb_emeritus2016.authcheckdam.pdf

3  http://www.americanbar.org/content/dam/aba/administrative/law_aging/Emeritus_Rules_Chart.authcheckdam.pdf

4  http://www.americanbar.org/content/dam/aba/administrative/probono_public_service/ls_pb_emeritus2016.authcheckdam.pdf

5  Of the thirty-eight jurisdictions that have emeritus programs, more than thirty require that the emeritus attorney's services be performed through a certified or organized legal services program. See, http://www.americanbar.org/content/dam/aba/administrative/probono_public_service/ls_pb_emeritus2016.authcheckdam.pdf



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