Current through Register Vol. 54, No. 45, November 9, 2024
Section 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).The provisions of this §91.121 amended through July 8, 1983, effective 7/9/1983, 13 Pa.B. 2138; amended August 7, 2009, effective immediately, 39 Pa.B. 4725; amended January 30, 2015, effective 3/2/2015, 45 Pa.B. 544.Amended by Pennsylvania Bulletin, Vol 53, No. 50. December 16, 2023, effective 12/16/2023