Subchapter C. HEARING PROCEDURES
CONFIDENTIALITY Sec.
89.65. Proceedings confidential.
PREHEARING CONFERENCES
89.71. Conferences to expedite proceedings.
89.72. Subjects which may be considered at conferences to expedite hearings.
89.73. Initiation of conferences.
89.74. Authority of hearing committee member or special master at conferences.
HEARING
89.91. Appearances.
89.92. Order of procedure.
89.93. Presentation by the parties.
89.94. Limiting number of witnesses.
89.95. Additional evidence.
TRANSCRIPT
89.101. Recording of proceedings.
89.102. Transcript corrections.
89.103. Copies of transcripts.
EVIDENCE AND WITNESSES
89.121. Oral examination.
89.122. Fees of witnesses.
89.123. Evidence by persons associated with the Board.
STIPULATIONS
89.131. Presentation and effect of stipulations.
EVIDENCE GENERALLY
89.141. Admissibility of evidence.
89.142. Reception and ruling on evidence.
89.143. Form and size of documentary evidence.
89.144. Copies to participants.
EVIDENCE ON TYPE OF DISCIPLINE
89.151. Separate consideration of evidence relevant to type of discipline.
ORAL ARGUMENT AND BRIEFS
89.161. Oral argument.
89.162. Time for filing of briefs.
89.163. Content and form of briefs.
89.164. Filing and service of briefs.
REPORT
89.171. Filing of report.
89.172. Contents of report.
89.173. Report a part of the record.
89.174. Service of report.
ABBREVIATED PROCEDURE
89.181. Abbreviated procedure.
CONFIDENTIALITY
§ 89.65. Proceedings confidential.
Proceedings before a hearing committee or special master shall be governed by Chapter 93 Subchapter F (relating to confidentiality).
Source The provisions of this § 89.65 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (143985).
PREHEARING CONFERENCES
§ 89.71. Conferences to expedite proceedings.
In order to provide opportunity for the submission and consideration of facts, arguments, offers for settlement of any of the issues in a proceeding, or consideration of means by which the conduct of the hearing may be facilitated and the disposition of the proceeding expedited, conferences between the participants for such purposes may be held at any time prior to or during hearings as time, the nature of the proceeding, and the public interest may permit.
Source The provisions of this § 89.71 amended through May 18, 1979, effective May 26, 1979, 9 Pa.B. 1665. Immediately preceding text appears at serial page (31723).
§ 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:
(1) The simplification of the issues.
(2) The exchange and acceptance of service of exhibits proposed to be offered in evidence.
(3) The obtaining of admissions as to, or stipulations of, facts not remaining in dispute, or the authenticity of documents which might properly shorten the hearing.
(4) The limitation of the number of witnesses and the identification of expert witnesses. The member of a hearing committee presiding at a conference may order the parties to exchange the names and addresses of all expert witnesses and to provide the opposing party with copies of all expert reports. The order may provide that failure to comply with it shall have the consequences described in § 89.93(c) (relating to exclusion of evidence).
(5) The discovery or production of data.
(6) Such other matters as may properly be dealt with to aid in expediting the orderly conduct and disposition of the proceeding.
Source The provisions of this § 89.72 amended through May 18, 1979, effective May 26, 1979, 9 Pa.B. 1665; amended December 7, 1990, effective immediately, 20 Pa.B. 6042; amended August 18, 1995, effective immediately, 25 Pa.B. 3335; amended October 18, 2002, effective immediately, 32 Pa.B. 5175; amended February 24, 2006, effective immediately, 36 Pa.B. 929. Immediately preceding text appears at serial page (309908).
§ 89.73. Initiation of conferences.
(a) General rule. The hearing committee or special master, with or without motion, and after consideration of the probability of beneficial results to be derived therefrom, may direct that a conference be held, and direct the respondent-attorney and staff counsel to appear thereat to consider any or all of the matters enumerated in § 89.72 (relating to subjects which may be considered at conferences to expedite hearings). Due notice of the time and place of such conference shall be given to the respondent-attorney and staff counsel. Where a proceeding is in the hands of a hearing committee, the conference may be conducted by the chair of the hearing committee or by a single senior or experienced hearing committee member designated in writing by the chair.
(b) Preparation for and action at conference. All participants shall attend the conference fully prepared for a useful discussion of all problems involved in the proceeding, both procedural and substantive, and fully authorized to make commitments with respect thereto. Such preparation should include, among other things, advance study of all relevant material, and advance informal communication between the participants, including requests for additional data and information, to the extent it appears feasible and desirable.
Source The provisions of this § 89.73 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended July 29, 1994, effective July 30, 1994, 24 Pa.B. 3706; amended March 11, 2005, effective immediately, 35 Pa.B. 1656. Immediately preceding text appears at serial pages (293528) to (293529).
§ 89.74. Authority of hearing committee member or special master at conferences.
(a) General rule. The senior or experienced hearing committee member presiding at any conference may dispose of by ruling, irrespective of the consent of the participants, any procedural matters which the chair of the committee is authorized to rule upon during the course of the proceeding, and which it appears may appropriately and usefully be disposed of at that stage. Where it appears that the proceeding would be substantially expedited by distribution of proposed exhibits and written prepared testimony reasonably in advance of the hearing session, such advance distribution by a prescribed date may be directed at the discretion of the presiding hearing committee member. The presiding hearing committee member may also order the exchange of the names and addresses of expert witnesses and copies of all expert reports. An order for the distribution of exhibits and written testimony or the identification of expert witnesses and exchange of expert reports shall be made with due regard for the convenience and necessity of the respondent-attorney and staff counsel, and may provide that failure to comply with it shall have the consequences described in § 89.93(c) (relating to exclusion of evidence). The rulings of the presiding hearing committee member made at a conference shall control the subsequent course of the hearing, unless modified for good cause shown.
(b) Special masters. A special master may exercise at a conference all of the powers granted to a presiding hearing committee member by subsection (a).
Source The provisions of this § 89.74 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended August 18, 1995, effective immediately, 25 Pa.B. 3335; amended March 11, 2005, effective immediately, 35 Pa.B. 1656. Immediately preceding text appears at serial page (302915).
HEARING
§ 89.91. Appearances.
The hearing committee or special master shall cause to be entered upon the record all appearances, with a notation in whose behalf each appearance is made.
Source The provisions of this § 89.91 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (143987).
§ 89.92. Order of procedure.
(a) Disciplinary proceedings. In proceedings upon a petition for discipline the Office of Disciplinary Counsel shall have the burden of proof, shall initiate the presentation of evidence, and may present rebuttal evidence.
(b) Reinstatement proceedings. In proceedings upon a petition for reinstatement the respondent-attorney shall have the burden of proof, shall initiate the presentation of evidence, and may present rebuttal evidence.
§ 89.93. Presentation by the parties.
(a) General rule. The respondent-attorney and staff counsel shall have the right of presentation of evidence, cross-examination, objection, motion and argument. The taking of evidence and subsequent proceedings shall proceed with all reasonable diligence and with the least practicable delay.
Official Note
See D.Bd. Rules § 89.2(c) (relating to equity procedure to apply) for limitations on hearing motions.
(b) Objections. When objections to the admission or exclusion of evidence or other procedural objections are made, the grounds relied upon shall be stated briefly, if so requested by the hearing committee or special master, and may be stated briefly if no such request is made. Formal exceptions are unnecessary and shall not be taken to procedural rulings.
(c) Exclusion of expert evidence. The hearing committee or special master may exclude the introduction of expert testimony or reports as to which a party has failed to comply with an order under § § 89.72(4) (relating to subjects which may considered at conferences to expedite hearings) or 89.74(a) (relating to authority of hearing committee member or special master at conferences).
(d) Exclusion of factual evidence. Enforcement Rule 208(b)(4) provides that no evidence with respect to factual allegations of the complaint that have been deemed or expressly admitted may be presented at any hearing on the matter, absent good cause shown. See § 89.54(d) (relating to effect of failure to answer).
Source The provisions of this § 89.93 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended August 18, 1995, effective immediately, 25 Pa.B. 3335; amended February 20, 2004, effective February 21, 2004, 34 Pa.B. 948; amended August 7, 2020, effective in 30 days, 50 Pa.B. 4014. Immediately preceding text appears at serial page (397832).
§ 89.94. Limiting number of witnesses.
The hearing committee or special master may limit appropriately the number of witnesses who may be heard upon any issue to eliminate unduly repetitious or cumulative evidence.
Source The provisions of this § 89.94 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (143987).
§ 89.95. Additional evidence.
At the hearing, the hearing committee or special master may, if deemed advisable, authorize any participant to file specific documentary evidence as a part of the record within a fixed time, expiring not less than ten days before the date fixed for filing and serving briefs. Any post-hearing document permitted or required by these rules to be filed of record shall become a part of the record.
Source The provisions of this § 89.95 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (143987).
TRANSCRIPT
§ 89.101. Recording of proceedings.
Hearings shall be reported by an official reporter designated by the Executive Office and except as provided in § 89.181 (relating to abbreviated procedure), a transcript of such report shall be a part of the record and the sole official transcript of the proceeding. Such transcripts shall include a verbatim report of the hearings and nothing shall be omitted therefrom except as is directed on the record by the hearing committee or special master. After the closing of the record, there shall not be received in evidence or considered as part of the record any document submitted after the close of testimony except as provided in § 89.95 (relating to additional evidence) or changes in the transcript as provided in § 89.102 (relating to transcript corrections). Oral argument, if any, made pursuant to § 89.161 (relating to oral argument) shall not be included in the transcript of the hearing or become a part of the record unless so requested by a party after completion of the oral argument.
Source The provisions of this § 89.101 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended May 27, 1994, effective immediately, 24 Pa.B. 2693; amended April 18, 2019, effective in 30 days from date of publication, 49 Pa.B. 5552. Immediately preceding text appears at serial page (309913).
§ 89.102. Transcript corrections.
Corrections in the official transcript may be made only to make it conform to the evidence presented at the hearing. No corrections or physical changes shall be made in or upon the official transcript of the hearing, except as provided in this section. Transcript corrections agreed to by all parties may be incorporated into the record, if and when approved by the hearing committee, at any time during the hearing or after the close of the hearing, as may be permitted by the hearing committee, but not less than ten days in advance of the time fixed for filing briefs. The hearing committee may call for the submission of proposed corrections and may make disposition thereof at appropriate times during the course of a proceeding.
Source The provisions of this § 89.102 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (143988).
§ 89.103. Copies of transcripts.
The Board will cause to be made a stenographic record of all hearings and such copies of the transcript thereof as it requires for its own purposes. A respondent-attorney desiring copies of such transcript may purchase such copies from the official reporter. Any witness may purchase from the official reporter a copy of the transcript, or any part thereof, relating to the testimony of such witness.
EVIDENCE AND WITNESSES
§ 89.121. Oral examination.
Witnesses shall be examined orally unless the testimony is taken by deposition as provided in § § 91.11—91.18 (relating to depositions) or the facts are stipulated in the manner provided in § 89.72 (relating to subjects which may be considered at conferences to expedite hearings) or in § 89.131 (relating to presentation and effect of stipulations). Pursuant to Enforcement Rule 213(e), witnesses whose testimony is to be taken shall be sworn, or shall affirm, before their testimony shall be deemed evidence in the proceeding or any questions are put to them.
§ 89.122. Fees of witnesses.
Witnesses subpoenaed by the Office of Disciplinary Counsel shall be paid the same fees and mileage as are paid for like services in the courts of common pleas. Witnesses subpoenaed at the instance of a respondent-attorney shall be paid the same fees by the respondent-attorney at whose instance the witness is subpoenaed.
§ 89.123. Evidence by persons associated with Board.
Members and employes of the Board, hearing committee members and special masters shall not testify as a character witness in any proceeding under these rules.
Source The provisions of this § 89.123 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended March 11, 2005, effective immediately, 35 Pa.B. 1656. Immediately preceding text appears at serial page (198386).
STIPULATIONS
§ 89.131. Presentation and effect of stipulations.
Independently of the orders or rulings issued as provided by § 89.72 (relating to subjects which may be considered at conferences to expedite hearings) the participants may stipulate as to any relevant matters of fact or the authenticity of any relevant documents. Such stipulations may be received in evidence at a hearing, and when so received shall be binding on the participants with respect to the matters therein stipulated.
EVIDENCE GENERALLY
§ 89.141. Admissibility of evidence.
(a) General rule. In any proceeding admissibility of evidence shall be governed by the rules of evidence observed by the courts of common pleas of this Commonwealth in nonjury civil matters at the time of the hearing.
(b) Pleadings. The petition for discipline and answer thereto, and similar formal documents upon which a hearing is fixed shall, without further action, be considered as parts of the record, but in no event shall pleadings, or any part thereof, be considered as evidence of any fact other than that of the filing thereof unless offered and received in evidence in accordance with these rules.
Source The provisions of this § 89.141 amended through May 18, 1979, effective May 26, 1979, 9 Pa.B. 1665. Immediately preceding text appears at serial page (31728).
§ 89.142. Reception and ruling on evidence.
The hearing committee or special master shall rule on the admissibility of all evidence. The number of witnesses to be heard on any issue may be limited appropriately as provided in § 89.94 (relating to limiting number of witnesses).
Source The provisions of this § 89.142 amended November 14 and 17, 1989 and December 6 and 20, 1989, 20 Pa.B. 2009, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (143990).
§ 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, and shall conform to the requirements of § 89.5(a) (relating to format of pleadings and documents) whenever practicable.
Source The provisions of this § 89.143 amended February 24, 2006, effective immediately, 36 Pa.B. 929. Immediately preceding text appears at serial page (198387).
§ 89.144. Copies to participants.
Except as otherwise provided in these rules, when exhibits of a documentary character are offered in evidence, copies shall be furnished to the participants present at the hearing. In the case of a hearing before a hearing committee, three copies of each exhibit of documentary character shall be furnished for the use of the hearing committee. In the case of a hearing before a special master, one copy of each exhibit of documentary character shall be furnished for the use of the special master.
Source The provisions of this § 89.144 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (143990).
EVIDENCE ON TYPE OF DISCIPLINE
§ 89.151. Separate consideration of evidence relevant to type of discipline.
(a) General rule. The receipt of evidence which is relevant solely on the issue of the type of discipline to be imposed shall be deferred until after the hearing committee or special master has found that the evidence establishes a prima facie violation of at least one of the disciplinary rules or enforcement rules alleged in the petition for discipline to have been violated. However, the hearing committee or special master need not specify the rule or rules found to have been violated before proceeding with the receipt of evidence under this rule.
(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:
(1) Address, age and residence.
(2) Name, address, age and residence and relationship of dependents.
(3) Schools attended and degrees obtained.
(4) Date of admission in each jurisdiction to which admitted, and general history of the occupation of the respondent-attorney, with the names of all partners, associates in business and employers, if any, the dates and duration of all such relationships and employments during at least the preceding ten years.
(5) If during the period covered by the response to paragraph (4) the respondent-attorney was, while admitted to the practice of law, also engaged in any other occupation, the approximate number of hours per week devoted to each type of occupation and the approximate proportion of income derived therefrom, stated separately for each period during which the information materially differs from such information applicable to other periods.
(6) In cases involving charges of mishandling or misuse of funds of clients or others, a financial net worth statement of respondent-attorney summarizing assets and liabilities.
(7) A statement showing the dates, general nature and final disposition of every civil action during at least the preceding ten years in which the respondent-attorney was or is a party defendant and which placed in issue his or her conduct or competency or charged a violation of any disciplinary rule.
(8) A statement showing the dates, general nature and ultimate disposition of every matter involving the arrest or prosecution of the respondent-attorney during the preceding ten years.
(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 § 93.104(d) (relating to restrictions on available information) not available for use against the respondent-attorney.
(10) Any history of substance abuse by the respondent-attorney, and any rehabilitation programs currently or previously participated in by the respondent-attorney.
Official Note
Where a respondent-attorney seeks to be placed on probation under § 89.291 (relating to probation), evidence under paragraph (b)(10) will be particularly important. The respondent-attorney should be prepared to offer evidence to assist the Board in fixing the conditions of probation, including the selection of a recognized or accredited residential treatment or rehabilitation program in which the respondent-attorney may be required to participate.
(c) Responsibility of hearing committee or special master. Where the hearing committee or special master concludes that the presentation of the participants does not appear to have developed an adequate background picture of the respondent-attorney the hearing committee or special master should consider the desirability of augmenting the record through appropriate questioning. The hearing committee or special master shall, in appropriate cases, make a finding on whether restitution has been made.
(d) Procedure. The hearing committee or special master may make appropriate provision for the timing of the receipt of evidence under this rule, e.g. by:
(1) immediately proceeding to the reception of evidence after announcement of a general adverse finding on the issue of misconduct in the manner provided by subsection (a).
(2) receiving written submissions by the participants within a fixed time (not to exceed 10 days) after service of findings and conclusions on the issue of misconduct, or
(3) reconvening the hearing where necessary to resolve a factual issue relevant to the type of discipline to be imposed.
The 60-day period of § 89.171 (relating to filing of report) runs from the conclusion of the hearing or briefing, as the case may be, on the issue of alleged misconduct and is not extended by the time required for any proceedings under this section.
Source The provisions of this § 89.151 amended April 8, 1983, effective April 9, 1983, 13 Pa.B. 1244; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 243; amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009; amended February 24, 2006, effective immediately, 36 Pa.B. 929. Immediately preceding text appears at serial pages (198388) to (198390).
ORAL ARGUMENT AND BRIEFS
§ 89.161. Oral argument.
At the close of the taking of testimony in each proceeding the hearing committee or special master may hear oral argument on the issues in the proceeding. As provided by § 89.101 (relating to recording of proceedings) oral argument shall be excluded from the transcript and shall not become a part of the record. No other oral argument shall be heard by a hearing committee or special master.
Source The provisions of this § 89.161 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (143993).
§ 89.162. Time for filing of briefs.
(a) General rule. Unless waived by the participants at the close of the taking of testimony, or pursuant to § 89.181 (relating to abbreviated procedure), briefs may be filed with the hearing committee or special master and served pursuant to § 89.22 (relating to service by a participant) as follows:
(1) By staff counsel within 20 days after the filing of the transcript of the hearing.
(2) By the respondent-attorney within 20 days after the filing of the brief of staff counsel.
(b) Reinstatement proceedings. In reinstatement proceedings the order of the filing of briefs shall be the reverse of the order set forth in subsection (a).
Source The provisions of this § 89.162 amended November 14 and 17, 1989 and December 6 and 20, 1989, effective April 14, 1990, 20 Pa.B. 2009. Immediately preceding text appears at serial page (143993).
§ 89.163. Content and form of briefs.
(a) General rule. Briefs shall contain:
(1) A concise statement of the case.
(2) An abstract of the evidence relied upon by the participants filing, preferably assembled by subjects, with references to the pages of the record or exhibits where the evidence appears.
(3) Proposed findings and conclusions together with the reasons and authorities therefor, separately stated.
(b) Exhibits. Exhibits should not be reproduced in the brief, but may, if desired, be reproduced in an appendix to the brief. Any analysis of exhibits relied on should be included in the part of the brief containing the abstract of evidence under the subjects to which they pertain.
(c) Length. Briefs (exclusive of any cover, table of contents, table of citations or appendix) shall be limited to 6,000 words in length and shall be in 14-point Arial typeface. For good cause shown, the limitation on length may be altered or waived with respect to a particular brief upon application to and order of the Chair of the hearing committee or the special master at least ten days before the time fixed for the filing of the brief.
Source The provisions of this § 89.163 amended August 18, 1995, effective immediately, 25 Pa.B. 3335; amended March 11, 2005, effective immediately, 35 Pa.B. 1656; amended May 8, 2020, effective in 30 days from date of publication, 50 Pa.B. 2387. Immediately preceding text appears at serial page (397838).
§ 89.164. Filing and service of briefs.
Briefs not filed and served on or before the dates fixed therefor shall not be accepted for filing, except by special permission of the hearing committee or special master. In the case of a formal proceeding that is in the hands of a hearing committee, one copy of each brief shall be served on each member of the committee and one copy shall be filed with the Board Prothonotary. In the case of a formal proceeding that is in the hands of a special master, one copy of each brief shall be served on the special master and one copy shall be filed with the Board Prothonotary. A hearing committee or special master may permit or direct the service of a different number of copies of a brief on the members of the hearing committee or special master.
Source The provisions of this § 89.164 amended January 26, 1990, effective January 27, 1990, 20 Pa.B. 343; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended July 13, 2001, effective July 14, 2001, 31 Pa.B. 3731; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended February 12, 2021, effective 30 days after publication, 51 Pa.B. 781. Immediately preceding text appears at serial pages (401566) and (397839).
REPORT
§ 89.171. Filing of report.
Enforcement Rule 208(c) provides that unless waived in the manner provided in § 89.181 (relating to abbreviated procedure) at the conclusion of the hearing, the hearing committee or special master shall submit a report to the Board containing the findings and recommendations of the committee or special master. Such report shall be filed with the Board Prothonotary no later than 60 days after the conclusion of the hearing and submission of briefs, if any. Failure to file a report within the time prescribed by this section shall not affect the validity of the report when filed or of the proceedings generally.
Source The provisions of this § 89.171 amended March 6, 1981, effective March 7, 1981, 11 Pa.B. 782; amended January 26, 1990, effective January 27, 1990, 20 Pa.B. 343; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552. Immediately preceding text appears at serial pages (309915) to (309916).
§ 89.172. Contents of report.
General rule. The report of the hearing committee or special master shall be accompanied by Form DB-10 (Transmittal of Report of Hearing) and shall set forth:
(1) A brief summary, not to exceed one page, of the nature of the case, the ultimate issue or issues involved, and the conclusions and recommendations as to disposition of the hearing committee or special master.
(2) A concise statement of the case, including a citation of each Disciplinary Rule alleged or found to have been violated by the respondent-attorney.
(3) The rulings on admission of evidence and other procedural matters, which may be set forth by reference to the pages of the transcript wherein such rulings are recorded.
(4) Findings of fact.
(5) Discussion.
(6) Conclusions of law.
(7) Recommended disposition of the petition.
Source The provisions of this § 89.172 amended January 26, 1990, effective January 27, 1990, 20 Pa.B. 343; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552. Immediately preceding text appears at serial page (309916).
§ 89.173. Report a part of the record.
The report of the hearing committee or special master and the record before the hearing committee or special master shall become a part of the record of the proceeding on file with the Executive Office.
Source The provisions of this § 89.173 amended January 26, 1990, effective January 27, 1990, 20 Pa.B. 343; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552. Immediately preceding text appears at serial page (309916).
§ 89.174. Service of report.
The Board Prothonotary shall serve copies of the report of the hearing committee or special master upon the respondent-attorney and staff counsel.
Source The provisions of this § 89.174 amended January 26, 1990, effective January 27, 1990, 20 Pa.B. 343; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552. Immediately preceding text appears at serial pages (309916) and (363151).
ABBREVIATED PROCEDURE
§ 89.181. Abbreviated procedure.
(a) Scope. At the conclusion of the hearing, it may be obvious to all participants that no showing of misconduct has been made or that there has been adequate proof of a violation of § 85.7 (relating to grounds for discipline) and that some form of private discipline or a public reprimand would be appropriate. In such circumstances the cost and delay of the preparation of a formal transcript is unnecessary and the preparation of a detailed report as provided by § 89.172 (relating to contents of report) is an unnecessary and time-consuming burden on the hearing committee and others. Where the participants can stipulate to an acceptable determination the procedures of this section minimize cost, effort and time for all participants. This section may be applicable to combined reinstatement and disciplinary hearings conducted before a hearing committee pursuant to § 89.273(b)(4) (relating to combined hearings in reinstatement matters where formal disciplinary proceedings are then pending or have been authorized against the formerly admitted attorney).
(b) General rule. The respondent-attorney and staff counsel in the manner provided by subsection (c), may agree to waive the preparation of a transcript and the filing of formal findings and recommendations. In such situations, unless the Board directs otherwise, the committee may submit to the Board a summary determination of the committee and stipulation of discipline.
(c) Procedures.
(1) Immediately after the conclusion of the hearing the members of the hearing committee shall, if practicable and if neither the respondent-attorney nor staff counsel object to proceeding under this section, temporarily recess the proceedings and meet in private to determine whether a finding of misconduct should be made.
(2) The Committee shall immediately reconvene the proceedings and announce their conclusion on the issue of misconduct.
(3) If a violation of § 85.7 has been found the hearing committee shall immediately:
(i) receive evidence pursuant to § 89.151 (relating to separate consideration of evidence relevant to type of discipline);
(ii) temporarily recess the proceedings;
(iii) meet in private to determine the type of discipline which the committee will recommend to the Board; and
(iv) reconvene the proceedings and announce the discipline which the committee will recommend to the Board.
(4) Immediately after announcing that a violation of § 85.7 has not been found or the discipline that the committee will recommend to the Board, as the case may be, the committee shall deliver to the participants Form DB-43 (Hearing Committee Determination Under Abbreviated Procedure) setting forth the summary determination of the committee. The official reporter shall be directed by the hearing committee not to prepare a transcript until receipt from the committee of specific instructions to do so.
(5) The participants shall be conclusively deemed to have accepted the summary determination of, and (if a violation of § 85.7 has been found) to have stipulated that the Board shall impose the type of discipline recommended by, the committee unless either the respondent-attorney or staff counsel shall, within five days after receipt of the Form DB-43 as provided in paragraph (4), file a copy of such Form DB-43 with objections to the summary determination of the hearing committee indicated thereon.
(6) If a timely objection is made as provided in paragraph (5) the participants may file briefs, the official reporter shall be directed to prepare a transcript and the hearing committee shall submit to the Board formal findings and recommendations in the manner and within the time otherwise provided by these rules.
(7) If no timely objection is made no briefs shall be filed, no formal findings and recommendations shall be prepared by the hearing committee and the official reporter shall not prepare a transcript. The chair of the hearing committee shall, however, prepare and file a brief summary of the case, in the form of a letter to the Board, which summary ordinarily should not exceed two pages in length, and the record of the proceedings shall forthwith be transmitted to the Board Prothonotary which shall serve upon the respondent-attorney and staff counsel copies of the brief summary of the case filed by the chair of the hearing committee.
(8) Thereafter the Board shall either:
(i) affirm the finding that no violation of § 85.7 has been shown and dismiss the proceeding;
(ii) impose or cause to be imposed the type of private discipline, stipulated by the participants;
(iii) impose the public reprimand, stipulated by the participants; or
(iv) remand the record to the hearing committee with instructions to fix a briefing schedule and to proceed as provided in paragraph (6), if for any reason the type of discipline stipulated by the parties is not accepted by the Board.
(9) Where the proceeding is disposed of as provided by paragraph (8)(i), (ii), or (iii), the official reporter shall preserve the untranscribed notes or recording of testimony in the manner and for the duration specified by the Executive Office.
Source The provisions of this § 89.181 amended May 18, 1979, effective May 19, 1979, 9 Pa.B. 1607; amended through April 8, 1983, effective April 9, 1983, 13 Pa.B. 1244; amended May 17, 1991, effective May 18, 1991, 21 Pa.B. 2332; amended March 11, 2005, effective March 12, 2005, 35 Pa.B. 1656; amended August 7, 2009, effective August 8, 2009, 39 Pa.B. 4725; amended August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (404228) and (397841) to (397842).
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