Current through Register Vol. 54, No. 45, November 9, 2024
Section 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.The provisions of this §91.151 amended April 22, 1988, effective 4/23/1988, 18 Pa.B. 1915; amended December 7, 1990, effective 12/8/1990, 20 Pa.B. 6041; amended February 4, 1994, effective 2/5/1994, 24 Pa.B. 730; amended September 10, 2004, effective 9/11/2004, 34 Pa.B. 5013; amended August 6, 2011, effective immediately, 41 Pa.B. 4202; amended November 2, 2012, effective 11/3/2012, 42 Pa.B. 6864; amended February 28, 2015, effective 3/2/2015, 45 Pa.B. 544; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552; amended November 4, 2022, effective in 30 days from date of publication, 52 Pa.B. 6841.Amended by Pennsylvania Bulletin, Vol 53, No. 50. December 16, 2023, effective 12/16/2023