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This past month, we dealt with an interesting question that led us to the rules relating to inactive status. As we found ourselves flipping between the Rules of Disciplinary Enforcement, the Rules of Professional Conduct and the Continuing Legal Education Rules, we realized we had hit on another area of our practice that was complicated, commonly misunderstood and had widespread application. In short, we had found an ideal topic for our column!

There are many reasons why attorneys assume inactive status. Whether out of a desire to retire, a lengthy illness or maybe a move to another jurisdiction, the fact of the matter is that many of us will, at some point, relinquish our active status as members of the Pennsylvania bar. This column is devoted to helping you avoid the common pitfalls that surround the transfer to, maintenance of, and return to the bar rolls from inactive status.

First, if you’re not careful, you could be placed on inactive status involuntarily. There are two ways this can happen. Rule 219 of the Pennsylvania Rules of Disciplinary Enforcement authorizes the annual bar admission fee that we all have to pay and the accompanying questionnaire/verified statement we are required to fill out every year for the Administrative Office of Pennsylvania Courts. An attorney’s failure to return the annual fee and accompanying questionnaire/verified statement to the administrative office is deemed a request for transfer to inactive status — and, unless corrected, will result in the entry of an order transferring the attorney to inactive status.

In addition, Rule 111 of the Continuing Legal Education Rules authorizes the CLE board to report and recommend to the Pennsylvania Supreme Court that an attorney who has failed to comply with the annual 12-credit CLE requirement be placed on inactive status. Bottom line? If you want to maintain your active license, you need to make sure you remit your annual fee and accompanying questionnaire/verified statement to the Administrative Office of Pennsylvania Courts and complete your annual CLE requirements in a timely fashion.

Pa. R.D.E. 219 also provides for the voluntary assumption of inactive status by attorneys upon written notice to the Administrative Office of Pennsylvania Courts. While transfer to voluntary inactive status relieves an attorney from paying the annual bar admission fee, he or she still must fill out and return the accompanying questionnaire/verified statement to the administrative office for six years following the assumption of inactive status.

The rationale for this requirement is simple – the Office of Disciplinary Counsel needs to know the current whereabouts of attorneys who have recently assumed inactive status in the event that a complaint is lodged against them. Inactive attorneys are subject to the jurisdiction of the Disciplinary Board of the Supreme Court.

As you might suspect, transferring to inactive status entails a bit more than just sending a notice to the administrative office, cleaning out the desk, kicking the dust off your shoes and locking the front door to the office. Pennsylvania attorneys assuming inactive status must comply with Pa. R.D.E. 217, which requires all formerly admitted attorneys to promptly notify in writing all of the following individuals of their transfer to inactive status and resulting inability to act as counsel:

All clients in pending matters;

All persons to whom the attorney owes or may owe a fiduciary duty; and

Anyone else with whom the attorney may reasonably expect to have professional contacts and who might reasonably infer that the attorney remains an active member of the bar.

Pa.R.D.E. 217 also prohibits inactive attorneys from performing any law-related services unless they file a formal notice of employment with the Disciplinary Board, obtain direct supervision from an attorney in good standing, and limit the services rendered to those permitted under Rule 217(j)(2). These limitations are designed to ensure that the attorney is acting in no more than a paralegal capacity, and is not holding herself out to the public as a lawyer. Communication with clients or other third parties is limited to “ministerial matters.” In addition, the rule prohibits inactive attorneys from representing themselves to others as a lawyer, accepting retainers or referral fees, or otherwise receiving, disbursing or handling client funds.

The Disciplinary Board takes compliance with Pa. R.D.E. 217 seriously. Attorneys are required to file a statement verifying compliance with all of the requirements of the rule with the board, within 10 days of transfer to inactive status. Inactive attorneys are further required to notify the board of any other jurisdictions to which they are admitted to practice and their current mailing addresses.

What about the attorney admitted in another jurisdiction, on inactive status here, but who wishes to appear in a Pennsylvania matter? On its face, the rule does not appear to provide an exception to its prohibition on the provision of law-related services for inactive attorneys who maintain an active license in another jurisdiction and who wish to appear, pro hac vice, in a matter pending in Pennsylvania, or provide legal services to their employer here as in-house counsel in accordance with Rule 5.5 of the Pennsylvania Rules of Professional Conduct.

We think that an attorney in this situation who rarely practices in Pennsylvania is probably permitted to do so pro hac vice. However, under Pa. R.C.P. 1012.1(5), the court may deny a pro hac vice motion for admission if “the candidate is, in effect, practicing as a Pennsylvania attorney, in light of the nature and extent of the activities of the candidate in the commonwealth, without complying with the Pennsylvania requirements for the admission to the bar.” For the out-of-state attorney who wishes to practice here on an infrequent, but regular basis, remaining active is probably the best course of action.

Now, what if you are thinking about assuming inactive status but want to keep open the possibility of resuming the active practice of law here in Pennsylvania? In that case, you need to pay particular attention to the rules governing reinstatement, Pa. R.D.E. 218 and Pa. R.D.E. 219(h) and (j). Pa. R.D.E. 219(j) provides that an attorney shall be returned to the active rolls upon request so long as he has not been inactive for more than three years, he is not currently subject to discipline and he has paid the annual fee for the current year and any past due fees to the administrative office.

Of course, while you are inactive, your CLE requirement is deferred. However, once you go back to active status, Pennsylvania CLE Board Regulations Section 6(b) applies. Rule 6(b) provides that the lawyer will have 12 months to complete the deferred CLE requirements, not to exceed two times the current annual requirement, in addition to the CLE credit required for the current year.

In contrast, attorneys who assume inactive status for more than three years are required to make a formal petition for reinstatement pursuant to Pa. R.D.E. 218(a). Disciplinary counsel is permitted to file a response to the petition for reinstatement with the Disciplinary Board, and (unless you have been subject to suspension or disbarment) the petition “shall be considered by a single senior or experienced hearing committee member.” Ultimately, the Pennsylvania Supreme Court must rule on petitions for reinstatement from inactive status of more than three years, and it is the responsibility of the formerly admitted attorney to demonstrate that she has the “moral qualifications, competency and learning in the law required for admission to practice.”

To reiterate, attorneys who assume inactive status, voluntarily or otherwise, are not exempt from compliance with the Rules of Disciplinary Enforcement. Pa. R.D.E. 201(a)(3) provides that “[t]he exclusive disciplinary jurisdiction of the Supreme Court and the board under these rules extends to . . . [a]ny formerly admitted attorney, with respect to acts prior to suspension, disbarment or transfer to inactive status, or with respect to acts subsequent thereto which amount to the practice of law or constitute the violation of these rules or rules of the board adopted pursuant hereto.”

In addition, Pa. R.D.E. 218(j) authorizes the Office of Disciplinary Counsel to bring an action in any court of competent jurisdiction for injunctive and other relief against any formerly admitted attorney who fails to comply with rules 217 and 218 or is otherwise continuing to practice law.

Wikipedia defines “active” as “having the power or quality of acting; causing change; communicating action or motion, nimble; energetic; diligent.” We think those adjectives apply very well to the lawyers we know and have the pleasure to practice with. And next time you find yourself digging around in the various sets of rules that govern our profession, don’t give up – give us a call. We like to be active, too.

Litigation associate Karen M. Ibach contributed to the research and drafting of this article.

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