§ 91.3. Determination of validity of subpoena.
(a) In general. Enforcement Rule 213(d) provides that any attack on the validity of a subpoena issued under these rules shall be handled as follows:
(1) A challenge to a subpoena authorized by § 91.2(a)(1) (relating to subpoenas and investigations) shall be heard and determined by the hearing committee or special master before whom the subpoena is returnable in accordance with the procedure established by the Board in subsection (b).
(2) A challenge to a subpoena authorized by § 91.2(a)(2) shall be heard and determined by a member of a hearing committee in the disciplinary district in which the subpoena is returnable in accordance with the procedure established by the Board in subsection (b).
(3) A determination under paragraph (1) or (2) may be appealed to a lawyer-Member of the Board within ten days after service pursuant to § § 89.21(a) and 89.24 of the determination on the party bringing the appeal by filing a petition with the Board setting forth in detail the grounds for challenging the determination. The appealing party shall serve a copy of the petition on the non-appealing party by mail on the date that the appealing party files the appeal, and the non-appealing party shall have five business days after delivery to file a response. No attack on the validity of a subpoena will be considered by the Designated lawyer-Member of the Board unless previously raised before the hearing committee or special master. The Board Member shall decide the appeal within five business days of the filing of the non-appealing party’s response, if any. There shall be no right of appeal to the Supreme Court. Any request for review shall not serve to stay any hearing or proceeding before the hearing committee, special master or the Board unless the Court enters an order staying the proceedings.
(b) Procedure.
(1) A motion attacking a subpoena must be filed with the Board Prothonotary within ten days after service of the subpoena. A copy of the motion must be served on the other party to the investigation or proceeding. If a motion attacking a subpoena is filed by a third party to the investigation or proceeding who has been served with a subpoena, a copy of the motion must be served on Disciplinary Counsel and the respondent-attorney.
(2) Any answer to the motion must be filed with the Board Prothonotary within five business days after receipt of the motion served by the other party under paragraph (1).
(3) The Board Prothonotary must transmit the motion and any answer to the person designated in paragraphs (a)(1) or (2) to hear the motion, who must schedule a hearing on the motion within ten business days after the date by which an answer must be filed. A report with findings of fact and conclusions of law must be filed with the Board Prothonotary within ten business days after the conclusion of the hearing.
Source The provisions of this § 91.3 amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009; amended June 11, 1993, effective immediately, 23 Pa.B. 2729; amended March 11, 2005, effective immediately, 35 Pa.B. 1656; amended March 31, 2006, effective immediately, 36 Pa.B. 1490; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552; amended August 7, 2020, effective in 30 days, 50 Pa.B. 4014. Immediately preceding text appears at serial pages (397869) to (397870).
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