Local Rule Rule 83.6: Rules of Attorney Conduct

Rule 83.6 Rules of Attorney Conduct

The United States District Court for the Eastern District of Pennsylvania, in furtherance of its inherent power and responsibility to supervise the conduct of attorneys who are admitted to practice before it, promulgates the following Rules of Disciplinary Enforcement superseding all of its other Rules pertaining to disciplinary enforcement heretofore promulgated.

Rule I -- Attorneys Convicted of Crimes.

A. An attorney admitted to practice in this court shall promptly notify the Clerk of this court whenever he or she has been convicted in any court of the United States, or the District of Columbia, or of any state, territory, commonwealth or possession of the United States of a serious crime as hereinafter defined. Upon such notification or upon the filing with this court of a certified copy of the judgment of conviction, the court shall enter an order immediately suspending that attorney, whether the conviction resulted from plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of any appeal, until final disposition of a disciplinary proceeding to be commenced upon such conviction. A copy of such order shall immediately be served upon the attorney. Upon good cause shown, the court may set aside such order when it appears in the interest of justice to do so.

B. The term "serious crime" shall include any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction where the judgment was entered, involves false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a "serious crime".

C. A certified copy of a judgment of conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that attorney based upon the conviction.

D. Upon the filing of a certified copy of a judgment of conviction of an attorney for a serious crime, the court shall in addition to suspending that attorney in accordance with the provisions of this rule, also refer the matter to counsel for the institution of a disciplinary proceeding before the court in which the sole issue to be determined shall be the extent of the final discipline to be imposed as a result of the conduct resulting in the conviction, provided that a disciplinary proceeding so instituted will not be brought to final hearing until all appeals from the conviction are concluded.

E. Upon the filing of a certified copy of a judgment of conviction of an attorney for a crime not constituting a "serious crime," the court may refer the matter to counsel for whatever action counsel may deem warranted, including the institution of a disciplinary proceeding before the court; provided, however, that the court may in its discretion make no reference with respect to convictions for minor offenses.

F. An attorney suspended under the provisions of this rule will be reinstated immediately upon the filing of a certificate demonstrating that the underlying conviction of a serious crime has been reversed, but the reinstatement will not terminate any disciplinary proceeding then pending against the attorney, the disposition of which shall be determined by the court on the basis of all available evidence pertaining to both guilt and the extent of discipline to be imposed.

Rule II -- Discipline or Prohibitions Imposed By Other Courts or Authorities.

A. Any attorney admitted to practice before this court, upon being subjected to public discipline by any other court of the United States or the District of Columbia, or by a court of any state, territory, commonwealth or possession of the United States, or upon being prohibited from the practice of law for failure to fulfill any continuing legal education requirement, for voluntarily entering into inactive status, or for any other reason, shall promptly notify the Clerk of this court of such action. Placement on inactive status or other action taken for failure to maintain a bona fide office in another jurisdiction shall not be grounds for discipline or other action by this court so long as the attorney maintains a bona fide office in another jurisdiction.

B. Upon notification as required under paragraph A or the filing of a certified or exemplified copy of a judgment or order demonstrating that an attorney admitted to practice before this court has been disciplined by another court or otherwise has been prohibited from the practice of law, the Chief Judge of this court, if he or she deems it appropriate, shall forthwith issue a notice directed to the attorney containing:

1. a copy of the judgment or order from the other court or authority; and

2. an order to show cause directing that the attorney inform this court within thirty 30 days after service of that order upon the attorney, personally or by mail, of any claim by the attorney predicated upon the grounds set forth in paragraph D that the imposition of the identical discipline or prohibition by the court would be unwarranted and the reasons therefor.

C. In the event the discipline or prohibition imposed in the other jurisdiction has been stayed there, any reciprocal action imposed in this court shall be deferred until such stay expires.

D. Upon the expiration of thirty (30) days from service of the notice issued pursuant to the provisions of (B) above and after an opportunity for any attorney contesting the imposition of the identical discipline or prohibition to be heard by one or more judges designated by the Chief Judge, this court shall impose the identical discipline or prohibition unless the respondent-attorney demonstrates, or this court finds, that upon the face of the record upon which the discipline or prohibition in another jurisdiction is predicated it clearly appears:

1. that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

2. that there was such an infirmity of proof as to give rise to the clear conviction that this court could not, consistent with its duty, accept as final the conclusion on that subject; or

3. that the imposition of the same discipline or prohibition by this court would result in grave injustice; or

4. that the misconduct or other basis established for the discipline or prohibition is deemed by this court to warrant substantially different action.

Where this court determines that any of the above elements exist, it shall enter such other order as it deems appropriate.

E. In all other respects, a final adjudication in another court or authority that an attorney has been guilty of misconduct or otherwise should be prohibited from the practice of law shall establish conclusively the facts for purposes of a proceeding under this rule in the court of the United States.

F. This court may at any stage appoint counsel to investigate and/or prosecute the proceeding under this rule.

G. The judge or judges to whom any proceeding under this rule is assigned shall make a report and recommendations to the court after the parties have been heard, which will be filed under seal and served on the parties. A party shall serve and file under seal any objections within fourteen (14) days thereafter. Further submissions by any party shall be served and filed under seal within seven (7) days after service of any objections. The court shall then decide the matter; after decision the report and recommendation, any objections, and any submissions shall be unsealed unless otherwise ordered by the court.

H. Any attorney who is disciplined or otherwise prohibited from the practice of law by a state court or authority may continue to practice in this court if this court decides, in accordance with this Rule, that no discipline or prohibition should be imposed. However, continuance of practice in this court does not authorize an attorney to practice in any other jurisdiction, and no attorney shall hold out himself or herself as authorized to practice law in any jurisdiction in which the attorney is not admitted.

Rule III -- Disbarment on Consent or Resignation in other Courts.

A. Any attorney admitted to practice before this court who shall be disbarred on consent or resign from the bar of any other court of the United States or the District of Columbia, or from the bar of any state, territory, commonwealth or possession of the United States while an investigation into allegations of misconduct is pending, shall, upon the filing with this court of a certified or exemplified copy of the judgment or order accepting such disbarment on consent or resignation, cease to be permitted to practice before this court and be stricken from the roll of attorneys admitted to practice before this court.

B. Any attorney admitted to practice before this court shall, upon being disbarred on consent or resigning from the bar of any other court of the United States or the District of Columbia, or from the Bar of any state, territory, commonwealth or possession of the United States while an investigation into allegations of misconduct is pending, promptly inform the Clerk of this court of such disbarment on consent or resignation.

Rule IV -- Standards for Professional Conduct.

A. For misconduct defined in these rules, and for good cause shown, and after notice and opportunity to be heard, any attorney admitted to practice before this court may be disbarred, suspended from practice before this court, reprimanded or subjected to such other disciplinary action as the circumstances may warrant.

B. Acts or omissions by an attorney admitted to practice before this court, individually or in concert with any other person or persons, which violate the Rules of Professional Conduct adopted by this Court shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of any attorney-client relationship.

The Rules of Professional Conduct adopted by this court are the Rules of Professional Conduct adopted by the Supreme Court of Pennsylvania, as amended from time to time by that state court, except as otherwise provided by specific rule of this Court after consideration of comments by representatives of bar associations within the state, except that prior court approval as a condition to the issuance of a subpoena addressed to an attorney in any criminal proceeding, including a grand jury, shall not be required. The propriety of such a subpoena may be considered on a motion to quash.

Rule V -- Disciplinary or Other Proceedings against Attorneys.

A. When the misconduct or other basis for action against an attorney (other than as set forth in Rule 83.6 Section II) or allegations of the same which, if substantiated, would warrant discipline or other action against an attorney admitted to practice before this court shall come to the attention of a judge of this court, whether by complaint or otherwise, and the applicable procedure is not otherwise mandated by these rules, the judge shall refer the matter to the Chief Judge who shall issue an order to show cause.

B. Upon the respondent-attorney's answer to the order to show cause, if any issue of fact is raised or the respondent-attorney wishes to be heard in mitigation, the Chief Judge shall set the matter for prompt hearing before one or more judges of this court, provided however that if the proceeding is predicated upon the complaint of a judge of this court the hearing shall be conducted before a panel of three other judges of this court appointed by the Chief Judge.

C. This court may at any stage appoint counsel to investigate and/or prosecute the proceeding under this rule.

D. This court may refer any matter under this rule to the appropriate state disciplinary or other authority for investigation and decision before taking any action. The attorney who is the subject of the referral shall promptly notify this court of the decision of any state court or authority and shall take whatever steps are necessary to waive any confidentiality requirement so that this court may receive the record of that referral.

E. The judge or judges to whom any proceeding under this rule is assigned shall make a report and recommendation to the court after the parties have been heard, which will be filed under seal and served on the parties. A party shall serve and file under seal any objections within fourteen (14) days thereafter. Further submissions by any party shall be served and filed under seal within seven (7) days after service of any objections. The court shall then decide the matter; after decision the report and recommendation, any objections, and any submissions shall be unsealed unless otherwise ordered by the court.

Rule VI -- Disbarment on Consent While Under Disciplinary Investigation or Prosecution.

A. Any attorney admitted to practice before this court who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may consent to disbarment, but only by delivering to this court an affidavit stating that the attorney desires to consent to disbarment and that:

1. the attorney's consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of so consenting;

2. the attorney is aware that there is a presently pending investigation or proceeding involving allegations that there exist grounds for the attorney's discipline the nature of which the attorney shall specifically set forth;

3. the attorney acknowledges that the material facts so alleged are true; and

4. the attorney so consents because the attorney knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, the attorney could not successfully defend himself or herself.

B. Upon receipt of the required affidavit, this court shall enter an order disbarring the attorney.

C. The order disbarring the attorney on consent shall be a matter of public record. However, the affidavit required under the provisions of this rule shall not be publicly disclosed or made available for use in any other proceeding except upon the order of this court.

Rule VII -- Reinstatement.

A. After Disbarment or Suspension. An attorney suspended for three months or less shall be automatically reinstated at the end of the period of suspension upon the filing with the court of an affidavit of compliance with the provisions of the order. An attorney suspended for more than three months or disbarred may not resume practice until reinstated by order of this court.

B. Time of Applications Following Disbarment. A person who has been disbarred after hearing or by consent may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment.

C. Hearing on Application. Petitions for reinstatement under this rule by an attorney who has been disbarred, suspended or otherwise prohibited from the practice of law shall be filed with the Clerk of this court. Upon the filing of the petition, the Chief Judge shall assign the matter for prompt hearing before one or more judges of this court, provided however that if the proceeding was predicated upon the complaint of a judge of this court the hearing shall be conducted before a panel of three other judges of this court appointed by the Chief Judge. The judge or judges assigned to the matter shall promptly schedule a hearing at which the petitioner shall have the burden of demonstrating by clear and convincing evidence that the petitioner has the moral qualifications, competency and learning in the law required for admission to practice law before this court and that the petitioner's resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice, or subversive of the public interest. In the case where this court has imposed discipline or otherwise taken adverse action identical to that imposed or taken by a state court or authority, any petition for reinstatement in this court shall be held in abeyance until a petition for reinstatement to practice in the state court has been filed and finally decided. Nonetheless, if the petition for reinstatement to practice in the state court remains pending before the state court or authority for more than a year without a final decision, this court may proceed to consider and decide the petition pending before it. Whenever the state court renders a final decision, the attorney shall promptly file with this court a copy of said decision including any findings of fact and conclusions of law. After review of the state court decision, this court may reconsider its action upon notice and an opportunity to be heard. This court shall not hold the reinstatement petition in abeyance where the state disciplining or taking other action against the attorney does not provide for reinstatement under the circumstances. If the discipline imposed or other action taken by this court was different from that imposed or taken by the state court or authority, this court will proceed to consider the petition for reinstatement upon receipt.

D. The court may at any stage appoint counsel in opposition to a petition for reinstatement.

E. Deposit for Costs of Proceeding. Petitions for reinstatement under this rule shall be accompanied by an advance cost deposit in an amount to be set from time to time by the court to cover anticipated costs of the reinstatement proceeding.

F. Conditions of Reinstatement. If the petitioner is found unfit to resume the practice of law, the petition shall be dismissed. If the petitioner is found fit to resume the practice of law, the judgment shall reinstate the petitioner, provided that the judgment may make reinstatement conditional upon the payment of all or part of the costs of the proceedings, and upon the making of partial or complete restitution to parties harmed by petitioner whose conduct led to the suspension or disbarment. Provided further, that if the petitioner has been suspended or disbarred for five years or more, reinstatement may be conditioned, in the discretion of the judge or judges before whom the matter is heard, upon the furnishing of proof of competency and learning in the law, which proof may include certification by the bar examiners of a state or other jurisdiction of the attorney's successful completion of an examination for admission to practice subsequent to the date of suspension or disbarment.

G. Successive Petitions. No petition for reinstatement under this rule shall be filed within one year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person.

H. The judge or judges to whom any proceeding under this rule is assigned shall make a report and recommendation to the court after the parties have been heard, which will be filed under seal and served on the parties. A party shall serve and file under seal any objections within fourteen (14) days thereafter. Further submissions by any party shall be served and filed under seal within seven (7) days after service of any objections. The court shall then decide the matter; after decision the report and recommendation, any objections, and any submissions shall be unsealed unless otherwise ordered by the court.

I. Any attorney who is reinstated may practice before this court notwithstanding the refusal or failure of any state court to reinstate said attorney to practice. However, reinstatement to practice before this court does not authorize an attorney to practice in any other jurisdiction, and no attorney shall hold out himself or herself as authorized to practice law in any jurisdiction in which the attorney is not admitted.

Rule VIII -- Attorneys Specially Admitted.

Whenever an attorney applies to be admitted or is admitted to this court for purposes of a particular proceeding, the attorney shall be deemed thereby to have conferred disciplinary jurisdiction upon this court for any alleged misconduct of that attorney arising in the course of or in the preparation for such proceeding.

Rule IX -- Service of Papers and Other Notices.

Service of an order to show cause instituting a formal disciplinary proceeding shall be made by personal service or by registered or certified mail addressed to the respondent-attorney at the address shown in the roll of attorneys of this court or the most recent edition of the Legal Directory. Service of any other papers or notices required by these rules shall be deemed to have been made if such paper or notice is addressed to the respondent-attorney at the address shown on the roll of attorneys of this court or the most recent edition of the Legal Directory; or the respondent's attorney at the address indicated in the most recent pleading or other document filed by them in the course of any proceeding.

Rule X -- Appointment of Counsel.

Whenever counsel is to be appointed pursuant to these rules to investigate allegations of misconduct or prosecute disciplinary proceedings or in conjunction with a reinstatement petition filed by a disciplined attorney, this court shall appoint as counsel the disciplinary agency of the Supreme Court of Pennsylvania, or other disciplinary agency having jurisdiction. If no such disciplinary agency exists or such disciplinary agency declines appointment, or such appointment is clearly inappropriate, this court shall appoint as counsel one or more members of the Bar of this court to investigate allegations of misconduct or to prosecute disciplinary proceedings under these rules, provided, however, that the respondent-attorney may move to disqualify an attorney so appointed who is or has been engaged as an adversary of the respondent-attorney in any matter. Counsel, once appointed, may not resign unless permission to do so is given by this court.

Rule XI -- Duties of the Clerk.

A. Upon being informed that an attorney admitted to practice before this court has been convicted of any crime, the Clerk shall determine whether the clerk of the court in which such conviction occurred has forwarded a certificate of such conviction to this court. If a certificate has not been forwarded, the Clerk shall promptly obtain a certificate and file it with this court.

B. Upon being informed that an attorney admitted to practice before this court has been subjected to discipline by another court, the Clerk shall determine whether a certified or exemplified copy of the disciplinary judgment or order has been filed with this court, and if not, the Clerk shall promptly obtain a certified or exemplified copy of the disciplinary judgment or order and file it with this court.

C. Whenever it appears that any person convicted of any crime or disbarred or suspended or censured or disbarred on consent by this court is admitted to practice law in any other jurisdiction or before any other court, the Clerk shall, within ten (10) days of that conviction, disbarment, suspension, censure, or disbarment on consent, transmit to the disciplinary authority in such other jurisdiction, or for such other court, a certificate of the conviction or a certified exemplified copy of the judgment or order of disbarment, suspension, censure, or disbarment on consent, as well as the last known office and residence addresses of the defendant or respondent.

D. The Clerk shall promptly notify the National Discipline Data Bank operated by the American Bar Association of any order imposing public discipline upon any attorney admitted to practice before this court.

Rule XII – Jurisdiction.

Nothing contained in these rules shall be construed to deny to this court such powers as are necessary for the court to maintain control over proceedings conducted before it, such as proceedings for contempt under Title 18 of the United States Code or under Federal Rule of Criminal Procedure 42.