Local Rule LCvR 83.3: RULES OF DISCIPLINARY ENFORCEMENT FOR ATTORNEYS

LCvR 83.3 RULES OF DISCIPLINARY ENFORCEMENT FOR ATTORNEYS A. Introduction.

1. Responsibility of Court. The United States District Court for the Western District of Pennsylvania, in furtherance of its inherent power and responsibility to supervise the conduct of attorneys who are admitted to practice before it, or admitted for the purpose of a particular proceeding (pro hac vice), promulgates the following rules of Disciplinary Enforcement superseding all of its rules pertaining to disciplinary enforcement heretofore promulgated.

2. Adoption of Rules of Professional Conduct. Acts or omissions by an attorney admitted to practice before this Court, individually or in concert with others, that 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 an 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, except that Rule 3.10 has been specifically deleted as a rule of this Court, and as otherwise provided by specific order of this Court.

3. Sanctions for Misconduct. For misconduct defined in these rules, 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.

4. Admission to Practice as Conferring Disciplinary Jurisdiction. Whenever an attorney applies to be admitted or is admitted to this Court for purposes of a particular proceeding (pro hac vice), 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.

B. Disciplinary Proceeding.

1. Reference to Counsel. When misconduct or allegations of misconduct which, if substantiated, would warrant discipline on the part of an attorney admitted to practice before this Court shall come to the attention of a District Judge or Magistrate Judge of this Court, whether by complaint or otherwise, and the applicable procedure is not otherwise mandated by these rules, or in the event a petition for reinstatement has been filed by a disciplined attorney, the Chief Judge shall in his or her discretion and with prior agreement of the Disciplinary Board of the Supreme Court of Pennsylvania appoint as counsel attorneys serving in the Office of Disciplinary Counsel of the Disciplinary Board or one or more members of the bar of this Court to investigate allegations of misconduct or to prosecute disciplinary proceedings under these rules or in conjunction with such a reinstatement petition, 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.

2. Recommendation of Counsel. Should such counsel conclude after investigation and review that a formal disciplinary proceeding should not be initiated against the respondent-attorney because sufficient evidence is not present, or because there is pending another proceeding against the respondent-attorney, the disposition of which in the judgment of the counsel should be awaited before further action by this Court is considered or for any other valid reason, counsel shall file with this Court a recommendation for disposition of the matter, whether by dismissal, admonition, deferral, or otherwise setting forth the reasons therefor.

3. Order to Show Cause. Should such counsel conclude after investigation and review that a formal disciplinary proceeding should be initiated, counsel shall obtain an order of this Court upon a showing of probable cause requiring the respondent-attorney to show cause within thirty (30) days after service of that order upon that attorney, personally or by mail, why the attorney should not be disciplined.

4. Hearings. 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 disciplinary 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, or if there are fewer than three Judges eligible to serve or the Chief Judge is the complainant, by the Chief Judge of the Court of Appeals. Where a Judge merely refers a matter and is not involved in the proceeding, he or she shall not be considered a complainant.

All such proceedings shall be conducted by counsel appointed pursuant to LCvR 83.3.B.1 or such other counsel as the Court may appoint for such purpose.

The Judge or Judges to whom a disciplinary proceeding is assigned by the Chief Judge may conduct a further hearing, and/or otherwise take additional testimony, or hear or receive oral or written argument, and shall make a recommendation based thereon to the Board of Judges. The Board, after consideration of the recommendation, shall enter such order as it shall determine by a majority vote of the active Judges in service at the next meeting of the board to be appropriate, including dismissal of the charges, reprimand, suspension for a period of time, disbarment, or such action as may be proper.

C. Attorneys Convicted of Crimes.

1. Immediate Suspension. Upon the filing with this Court of a certified copy of a judgment of conviction demonstrating that any attorney admitted to practice before this Court 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, the Chief Judge shall enter an order immediately suspending that attorney, whether the conviction resulted from a 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 Chief Judge may set aside such order when it appears in the interest of justice so to do upon concurrence of a majority of active Judges in service.

2. Definition of Serious Crime. 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."

3. Certified Copy of Conviction as Evidence. 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.

4. Mandatory Reference for Disciplinary Proceeding. Upon the filing of a certified copy of a judgment of conviction of an attorney for a serious crime, the Court shall refer the matter for the institution of a disciplinary proceeding 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.

5. Discretionary Reference for Disciplinary Proceedings. 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 provided, however, that the Court may in its discretion make no reference with respect to convictions for minor offenses.

6. Reinstatement Upon Reversal. 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.

D. Discipline Imposed by Other Courts.

1. Notice by Attorney of Public Discipline. Any attorney admitted to practice before this Court shall, 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, promptly inform the Clerk of this Court of such action.

2. Proceedings after Notice of Discipline. Upon 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, this Court shall forthwith issue a notice directed to the attorney containing:

a. A copy of the judgment or order from the other Court; and b. 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 LCvR 83.3.D.4 that the imposition of the identical discipline by the Court would be unwarranted and the reasons therefor.

3. Stay of Discipline in Other Jurisdiction. In the event the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in this Court shall be deferred until such stay expires.

4. Reciprocal Discipline. Upon the expiration of thirty (30) days from service of the notice issued pursuant to the provisions of LCvR 83.3.D.2, this Court shall impose the identical discipline unless the respondent-attorney demonstrates, or this Court finds, that upon the face of the record upon which the discipline in another jurisdiction is predicated it clearly appears that:

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

b. there was such an infirmity of proof establishing the misconduct 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;

c. the imposition of the same discipline by this Court would result in grave injustice; or d. the misconduct established is deemed by this Court to warrant substantially different discipline.

In the event that an attorney files a timely answer alleging one or more of the elements set forth in LCvR 83.3.D.4, the Chief Judge shall set the matter for prompt hearing before one or more Judges of this Court who may order and conduct a further hearing, or take testimony or hear argument, and make a recommendation to the Board of Judges. The Board, after consideration of the recommendation, shall enter such order, as it shall determine by a majority vote of the active Judges in service at the next meeting of the Board, including dismissal of the charges, reprimand, suspension for a period of time, disbarment, or such action as may be proper.

5. Conclusive Evidence of Final Adjudication. In all other respects, a final adjudication in another Court that an attorney has been guilty of misconduct shall establish conclusively the misconduct for the purposes of a disciplinary proceeding in this Court.

6. Appointment of Counsel. This Court may at any stage appoint counsel to prosecute the disciplinary proceedings, pursuant to LCvR 83.3.B.I.

E. Disbarment on Consent or Resignation.

1. Automatic Cessation of Right to Practice. 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.

2. Attorney to Notify Clerk of Disbarment. 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, promptly inform the Clerk of this Court of such disbarment on consent or resignation.

F. Disbarment on Consent While under Disciplinary Investigation or Prosecution.

1. Consent to Disbarment. 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:

a. 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;

b. the attorney is aware that there is 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;

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

2. Consent Order. Upon receipt of the required affidavit, this Court shall enter an order disbarring the attorney.

3. Public Record. 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 order of this Court.

G. Reinstatement.

1. After Disbarment or Suspension. An attorney suspended for three (3) 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 (3) months or disbarred may not resume practice until reinstated by order of this Court.

2. Time of Application 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 (5) years from the effective date of this disbarment.

3. Hearing on Application. Petitions for reinstatement by a disbarred or suspended attorney under this rule shall be filed with the Chief Judge of this Court. Upon receipt of the petition, the Chief Judge shall refer the petition to counsel for investigation and recommendation, and shall assign the matter for a hearing, or other appropriate action, before one or more Judges of this Court, provided, however, that if the disciplinary proceeding was predicated upon the complaint of a Judge of this Court, the hearing shall be conducted before a panel of three (3) other Judges of this Court appointed by the Chief Judge, or, if there are fewer than three (3) Judges eligible to serve or the Chief Judge was the complainant, by the Chief Judge of the Court of Appeals. The Judge or Judges assigned to the matter shall schedule a hearing, if necessary, at which the petitioner shall have the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency and learning in the law required for admission to practice law before this Court and that his or her 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.

The Judge or Judges shall make a recommendation to the Board of Judges and the Board shall enter an appropriate order, as determined by a majority vote of the active Judges in service at the next meeting of the Board.

4. Duty of Counsel. In all proceedings upon a petition for reinstatement, cross-examination of the witnesses of the respondent-attorney and the submission of evidence, if any, in opposition to the petition shall be conducted by counsel.

5. 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.

6. 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 him or her, 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 the petitioner whose conduct led to the suspension or disbarment. Provided further, that if the petitioner has been suspended or disbarred for five (5) 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.

7. Successive Petitions. No petition for reinstatement under this rule shall be filed within one (1) year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person.

H. Service of Papers and Other Notices. Service of an order to show cause instituting a formal disciplinary proceeding or other papers or notices required by these rules shall be made by personal service or by registered or certified mail addressed to the respondent-attorney at the address most recently registered by him or her with the Clerk of Court. 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 most recently registered with the Clerk of Court; or to counsel or respondent's attorney at the address indicated in the most recent pleading or other document filed by them in the course of any proceeding under these rules.

I. Duties of the Clerk of Court.

1. Filing Certificate of Conviction. Upon being informed that an attorney admitted to practice before this Court has been convicted of any crime, the Clerk of this Court 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 so forwarded, the Clerk of this Court shall promptly obtain a certificate and file it with this Court.

2. Filing Disciplinary Judgment. Upon being informed that an attorney admitted to practice before this Court has been subjected to discipline by another Court, the Clerk of this Court 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 of Court shall promptly obtain a certified or exemplified copy of the disciplinary judgment or order and file it with this Court.

3. Filing Consent Order. Upon being informed that an attorney admitted to practice before this Court has been disbarred on consent or resigned in another jurisdiction while an investigation into allegations of misconduct was pending, the Clerk of this Court shall determine whether a certified or exemplified copy of the disciplinary judgment or order striking the attorney's name from the rolls of those admitted to practice has been filed with the Court, and, if not, shall promptly obtain a certified or exemplified copy of such judgment or order and file it with the Court.

4. Transmittal of Record to Other Courts. 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 of this Court shall, within fourteen (14) 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 or 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.

5. National Discipline Data Bank. The Clerk of Court 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.

J. Retention of Control. 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 Fed. R. Crim. P. 42.

K. Confidentiality. All investigations of allegations of misconduct, and disciplinary proceedings authorized by these rules shall be kept confidential until or unless:

1. the Judge or Judges to whom the matter is assigned determine otherwise;

2. the respondent-attorney requests in writing that the matter be public;

3. the investigation or proceeding is predicated on a conviction of the respondent-attorney for a crime; or 4. the Court determines that discipline is appropriate in accordance with LCvR 83.3.B.4.

This rule shall not prohibit counsel, appointed pursuant to LCvR 83.3.B.I or any member of this Court, from reporting to law enforcement authorities the suspected commission of any criminal offense.

Comment (June 2008)

The amended Rule adds headings, modifies the numbering and clarifies and modernizes language in the Rule. The amendment reorganizes the Rule and clarifies the process whereby allegations of attorney misconduct are investigated and, if appropriate, prosecuted. The amended Rule clarifies that the word "Counsel" refers to a member of the bar of the Court appointed by the Chief Judge to perform the investigation and/or prosecution.