§ 87.1. Initiation of investigations.

 (a)  At direction of Board. Upon the order of the Board (with the concurrence of at least five members of the Board), the Office of Disciplinary Counsel shall promptly undertake and complete an investigation of such conduct of any attorney or attorneys as may be specified in the order.

 (b)  By the Office of Disciplinary Counsel on its own motion. Except as otherwise provided by §  87.4 (relating to preliminary screening and docketing of complaints) the Office of Disciplinary Counsel shall promptly undertake and complete an investigation of all matters involving alleged violations of the Disciplinary Rules called to its attention by written complaint filed pursuant to §  87.2 (relating to contents of complaint) and may timely undertake and complete an investigation of any other matters otherwise coming to the attention of such Office.

 Complaints received by the Office of Disciplinary Counsel against Disciplinary Counsel involving alleged violations of the Disciplinary Rules shall be transmitted forthwith to the Office of the Secretary for disposition pursuant to §  93.52(d)(2) (relating to communications and filings generally). All other complaints shall be assigned a docket number consisting of the letter ‘‘C,’’ the number of the disciplinary district to which the matter will be assigned, the last two digits of the calendar year in which the matter is docketed, and the serial number of the matter in such disciplinary district in such calendar year, e.g.: ‘‘C4-73-1,’’ etc.

 (a)  General rule. Enforcement Rule 207(b)(2) provides that except in matters requiring dismissal because the complaint is frivolous or falls outside the jurisdiction of the Board, no disposition shall be recommended or undertaken by Disciplinary Counsel until the accused attorney has been notified of the allegations and the time for response under §  89.54 (relating to answer), if applicable, has expired.

 (b)  Transmission of notice. Except as provided in subsection (a), the district office shall prepare and forward to the respondent-attorney Form DB-7 (Request for Statement of Respondent’s Position), advising the respondent-attorney of:

   (1)  the nature of the grievance and if the investigation has not been initiated by the Office of Disciplinary Counsel pursuant to §  87.1(b) (relating to initiation of investigation), the name and address of the complainant; and

   (2)  the right to state his position with respect to the allegations against the attorney. Unless a shorter time is fixed by the Chief Disciplinary Counsel in such notice, the respondent-attorney shall have 20 days from the date of such notice within which to file a statement of position in the district office.

 (a)  General rule. Enforcement Rule 208(a)(2) provides that upon the conclusion of an investigation, Disciplinary Counsel may dismiss the complaint as frivolous or as falling outside the jurisdiction of the Board, or recommend:

   (1)  Dismissal of the complaint.

   (2)  A conditional or unconditional informal admonition of the attorney concerned.

   (3)  A conditional or unconditional private reprimand by the Board of the attorney concerned.

   (4)  The prosecution of formal charges before a hearing committee or special master.

 (b)  District office procedure. Following completion of any investigation of the complaint and after consideration of any statement of position filed by the respondent-attorney pursuant to §  87.7 (relating to notification to respondent-attorney of complaint) the Assistant Disciplinary Counsel assigned to the district office shall promptly report the district office disposition of the matter to the Chief Disciplinary Counsel by means of the appropriate form specified in subsection (c). The action taken or disposition recommended shall be one of the following:

   (1)  Dismissal for lack of jurisdiction.

   (2)  Dismissal because frivolous.

   (3)  Dismissal for any other reason.

   (4)  Conditional or unconditional informal admonition or private reprimand. An informal admonition or private reprimand shall be administered in those cases in which a violation of §  85.7 (relating to grounds for discipline) is found, but which is determined to be of insufficient gravity to warrant prosecution of formal charges.

   (5)  Prosecution of formal charges before a hearing committee or special master.

 (c)  Selection of form. Action under subsection (b)(1) or (2) may be taken by the Assistant Disciplinary Counsel-in-charge with the written concurrence of any other Assistant Disciplinary Counsel. In such cases the district office shall prepare and attach to the file Form DB-4 (Final Disposition of Complaint). In other cases where disposition under subsection (b)(1) or (2) may be appropriate, the Assistant Disciplinary Counsel-in-charge shall prepare a Form DB-5 (Recommendation on Final Disposition of Complaint) and forward such form and the related file to Chief Disciplinary Counsel for review and action. In all other cases Assistant Disciplinary Counsel shall prepare and attach to the file Form DB-3 (Referral of Complaint to Reviewing Hearing Committee Member).

 (a)  Frivolous or no jurisdiction. If the district office or Chief Disciplinary Counsel determines that the complaint should be dismissed under §  87.8(b)(1) or (2) (relating to district office action or recommendation) the Office of Disciplinary Counsel shall notify the complainant of such disposition by means of Form DB-33 (Notice of Dismissal of Complaint) and close the file on the matter. Wherever possible in cases of lack of jurisdiction the Office of Disciplinary Counsel shall advise the complainant that he or she may bring the matter to the attention of the authorities of the appropriate jurisdiction, to any fee disputes committee which may have been established for the county involved, or to any other duly constituted body which may be able to provide a forum for the consideration of the grievance. Where the respondent-attorney has been previously notified of the pendency of the complaint by means of Form DB-7 (Request for Statement of Respondent’s Position) or otherwise, the Office of Disciplinary Counsel shall, and may in any other case, transmit a copy of Form DB-33 to the respondent-attorney.

 (b)  Other cases. In all other cases the Office of Disciplinary Counsel shall forward to the Office of the Secretary Form DB-32 (Request for Designation of Reviewing Member).

   The provisions of this §  87.9 amended through May 18, 1979, effective May 26, 1979, 9 Pa.B. 1665. Immediately preceding text appears at serial page (31704).

INQUIRIES

§ 87.21. Inquiries.

 Upon receipt of an inquiry concerning the conduct of an attorney the Office of Disciplinary Counsel shall make such written response as may be appropriate in the circumstances and, if appropriate, may furnish a copy of its response to the attorney involved.

Subchapter B. REVIEW OF RECOMMENDED DISPOSITION OF COMPLAINT

Sec.

§ 87.31. Transmission to reviewing hearing committee member.

 Upon receipt of a request from the Office of Disciplinary Counsel for the assignment of a reviewing hearing committee member to review the disposition of a complaint recommended by the Office of Disciplinary Counsel, the Office of the Secretary shall assign a reviewing hearing committee member and forward the file with the recommendation of the Office of Disciplinary Counsel to the assigned reviewing hearing committee member for action.

 (a)  General rule. Enforcement Rule 208(a)(3) provides that, except where the complaint is dismissed because the complaint is frivolous or falls outside the jurisdiction of the Board, the reviewing hearing committee member may approve or modify the recommendation of the Office of Disciplinary Counsel concerning the disposition of a complaint.

 (b)  Approval.

   (1)  Failure of a reviewing hearing committee member to modify a recommendation within ten days after transmission by the Office of Disciplinary Counsel shall constitute approval of such recommendation.

   (2)  When in the judgment of the Chief Disciplinary Counsel prompt prosecution of formal charges is necessary for the protection of the public the Office of Disciplinary Counsel may reduce the period specified in paragraph (1) of this subsection to not less than 24 hours.

 (c)  Modification. If the reviewing hearing committee member determines to modify the recommendation of the Office of Disciplinary Counsel, the member shall set forth the determination on Form DB-3 (Referral of Complaint to Reviewing Hearing Committee Member) together with a brief statement of the reasons therefor. Such determination shall be one of the following:

   (1)  Dismissal of the complaint.

   (2)  A conditional or unconditional informal admonition.

   (3)  A conditional or unconditional private reprimand.

   (4)  Prosecution of formal charges.

 (d)  Return of file. Upon making a determination, but in no event later than 48 hours after the expiration of the period set forth in subsection (b) of this section, the reviewing hearing committee member shall return the file to the originating district office of the Office of Disciplinary Counsel.

 (a)  General rule. Enforcement Rule 208(a)(4) provides that Disciplinary Counsel may appeal the recommended disposition directed by a reviewing hearing committee member to a reviewing panel composed of three members of the Board. The appeal shall be set forth on Form DB-8 (Appeal from Determination of Reviewing Member), and shall state briefly the grounds relied upon by the Office of Disciplinary Counsel for recommending modification of the determination of the reviewing hearing committee member. The appeal shall be filed with the Office of the Secretary within 30 days after the determination of the reviewing hearing committee member has become effective. The preceding sentence is not applicable to a motion made by the Office of Disciplinary Counsel to dismiss formal charges, which motion may be made at any time.

 (b)  Appeal administrative. The appeal under subsection (a) shall be administrative and not adversary in nature. Copies of the appeal shall be available only to the Board and neither the respondent-attorney nor the reviewing hearing committee member shall be deemed a party to the appeal or have any right to be heard with respect thereto. See also §  93.103 (relating to identity of reviewing hearing committee member).

 (c)  Action by Board. The Office of the Secretary shall transmit the Form DB-8 and related file to a panel of three members of the Board designated by the Chairman, who shall consider the appeal and, as provided by Enforcement Rule 208(a)(4), order that the matter be concluded by dismissal, conditional or unconditional informal admonition or conditional or unconditional private reprimand or direct that a formal proceeding be instituted before a hearing committee or special master in the appropriate disciplinary district.

 (d)  Notice of Board action. The Office of the Secretary shall return the Form DB-8 and related file, showing the action of the reviewing panel of the Board on the appeal, to the Office of Disciplinary Counsel and shall notify the reviewing hearing committee member of the action taken by the Board.

 (a)  General rule. Enforcement Rule 208(a)(5) provides that a recommendation by a reviewing hearing committee member for a conditional or unconditional private reprimand shall be reviewed by a panel composed of three members of the Board who may approve or modify.

 (b)  Procedure. Where a recommendation by a reviewing hearing committee member for a conditional or unconditional private reprimand is not appealed by Disciplinary Counsel, the Office of the Secretary shall transmit the file to a panel of three members of the Board designated by the Chairman, who shall consider the matter and, as provided by Enforcement Rule 208(a)(5), approve or modify the recommendation for private reprimand.

 (c)  Notice of Board Action. The Office of the Secretary shall return the file, showing the action of the reviewing panel of the Board, to the Office of Disciplinary Counsel and shall notify the reviewing hearing committee member of the action taken by the Board.

   The provisions of this §  87.34 adopted July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended March 10, 1989, effective March 11, 1989, 19 Pa.B. 952. Immediately preceding text appears at serial pages (124577) to (124578).

Subchapter C. FINAL DISPOSITION WITHOUT
FORMAL PROCEEDINGS

Sec.

§ 87.51. Notification of disposition of complaint.

 (a)  General Rule. Upon completion of the procedures prescribed by Subchapter B (relating to review of recommended disposition of complaint), the Office of the Secretary or the Office of Disciplinary Counsel, as appropriate, shall:

   (1)  Notify the complainant of the disposition of the complaint.

   (2)  Unless the disposition involves the institution of formal proceedings, notify the respondent-attorney:

     (i)   that the complaint has been dismissed; or

     (ii)   that the respondent-attorney shall appear in person before the Chief Disciplinary Counsel or Board for the purpose of receiving an informal admonition or private reprimand. The respondent-attorney shall also be notified of the place and date to appear. The date fixed shall be not earlier than 20 days after the date of the notice to the respondent-attorney of the disposition of the complaint.

 (b)  Contents of notice.

   (1)  The notice to appear for private reprimand shall be on Form DB-12(IP) (Notice to Appear for Private Reprimand Following Informal Proceedings) and shall contain the statement required by §  89.205(c)(1) (relating to informal admonition or private reprimand following formal hearings).

   (2)  The notice to appear for informal admonition shall be given by the Office of Disciplinary Counsel on Form DB-12.1(IP) (Notice to Appear for Informal Admonition Following Informal Proceedings) and shall contain the statement required by §  89.205(c)(2).

   (3)  The notice to appear for informal admonition or private reprimand shall advise the respondent-attorney of:

     (i)   The right of the respondent-attorney under §  87.54 (relating to demand by respondent-attorney for formal proceedings) to demand the institution of formal proceedings.

     (ii)   The limited availability of the record of informal admonition or private reprimand under §  93.104(d) (relating to restrictions on available information).

 (a)  General rule. A respondent-attorney who is given notice of informal admonition pursuant to §  87.51 (relating to notification of disposition of complaint) and who does not timely demand the institution of a formal proceeding pursuant to §  87.54 (relating to demand by respondent-attorney for formal proceedings) shall appear in person before Disciplinary Counsel, at the time and place fixed for the administration of the informal admonition. A record (Form DB-38) (Record of Informal Admonition) shall be made of the fact of and basis for the informal admonition, which record shall be available only as provided in §  93.104(d) (relating to restrictions on available information).

 (b)  Failure to appear. The neglect or refusal of the respondent-attorney to appear for the purposes of informal admonition without good cause shall (as provided by Enforcement Rule 203(b)(2)) constitute an independent act of professional misconduct and shall automatically result in the institution of formal proceedings relating to such act of misconduct and to the grievance upon which such informal admonition was to relate.

 (a)  General rule. A respondent-attorney who is given notice of private reprimand pursuant to §  87.51 (relating to notification of disposition of complaint) and who does not timely demand the institution of a formal proceeding pursuant to §  87.54 (relating to demand by respondent-attorney for formal proceedings) shall appear in person before the Board, at the time and place fixed for the administration of the private reprimand. A record shall be made of the fact of and basis for the private reprimand, which record shall be available only as provided in §  93.104(d) (relating to restrictions on available information).

 (b)  Failure to appear. The neglect or refusal of the respondent-attorney to appear for the purposes of private reprimand without good cause shall (as provided by Enforcement Rule 203(b)(2)) constitute an independent act of professional misconduct and shall automatically result in the institution of formal proceedings relating to such act of misconduct and to the grievance upon which such private reprimand was to relate.

 (a)  General rule. Enforcement Rule 208(a)(6) provides that a respondent-attorney shall not be entitled to appeal an informal admonition, a private reprimand or any conditions attached thereto in cases where no formal proceeding has been conducted, but may demand as of right that a formal proceeding be instituted against such attorney in the appropriate disciplinary district; and that in the event of such demand, the respondent-attorney need not appear for the administration of the informal admonition or private reprimand, and the matter shall be disposed of in the same manner as any other formal proceeding, but any expenses of the proceeding taxed against the respondent-attorney shall be paid as required by §  89.205(b) (relating to taxation of expenses).

 (b)  Procedure. A demand under subsection (a) shall be in writing, shall be filed in the Office of the Secretary within 20 days after the date of the notice of the disposition of the complaint required by §  87.51 (relating to notification of disposition of complaint), which time limit is jurisdictional, and shall be accompanied by proof of service of a copy thereof upon the Office of Disciplinary Counsel.

   The provisions of this §  87.54 adopted July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended October 12, 1984, effective October 13, 1984, 14 Pa.B. 3749; amended March 10, 1989, effective March 11, 1989, 19 Pa.B. 952; amended October 13, 1989, effective October 14, 1989, 19 Pa.B. 4449; 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 pages (142272) to (142273).

Subchapter D. ABATEMENT OF INVESTIGATION

Sec.

§ 87.71. Refusal of complainant to proceed, compromise, etc.

 (a)  General rule. Enforcement Rule 211(a) provides that the processing of complaints involving material allegations which are substantially similar to the material allegations of pending criminal or civil litigation shall not be deferred unless the Board in its discretion, for good cause shown, authorizes such deferment; that in the event a deferment of disciplinary investigation or proceeding is authorized by the Board as the result of pending related litigation, the respondent-attorney shall make all reasonable efforts to obtain the prompt trial and disposition of such pending litigation; and that in the event the respondent-attorney fails to take reasonable steps to assure prompt disposition of the litigation, the investigation and subsequent disciplinary proceedings indicated shall be conducted promptly.

 (b)  Procedure. Twelve copies of an application for deferment of action under subsection (a) shall be filed in the Office of the Secretary with proof of service on the Office of Disciplinary Counsel. The Office of Disciplinary Counsel may file and serve a written response thereto within 20 days thereafter.

 (a)  Voluntary resignation. Enforcement Rule 215(a) provides that an attorney who is the subject of an investigation into allegations of misconduct by the attorney may submit a resignation, but only by delivering to the Board a verified statement stating that the attorney desires to resign and that:

   (1)  The resignation is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of submitting the resignation; and whether or not the attorney has consulted or followed the advice of counsel in connection with the decision to resign.

   (2)  The attorney is aware that there is a presently pending investigation into allegations that the attorney has been guilty of misconduct the nature of which the verified statement shall specifically set forth.

   (3)  The attorney acknowledges that the material facts upon which the complaint is predicated are true.

   (4)  The resignation is being submitted because the attorney knows that if charges were predicated upon the misconduct under investigation the attorney could not successfully defend against them.

 (b)  Representation by counsel. The verified statement under subsection (a) shall indicate whether or not the attorney has consulted or followed the advice of counsel (naming such counsel, if any) in connection with the decision to resign.

 (c)  Order of disbarment. Enforcement Rule 215(b) provides that receipt of the required statement, the Secretary of the Board shall file it with the Supreme Court and the Court shall enter an order disbarring the attorney on consent.

 (d)  Confidentiality of resignation statement. Enforcement Rule 215(c) provides that order disbarring the attorney on consent shall be a matter of public record; and that, if the statement required by subsection (a) is submitted before the filing and service of a petition for discipline and the filing of an answer or the time to file an answer has expired, the statement shall not be publicly disclosed or made available for use in any proceeding other than a subsequent reinstatement proceeding except:

   (1)  upon order by the Supreme Court,

   (2)  pursuant to an express written waiver by the attorney,

   (3)  upon a request of another jurisdiction for purposes of a reciprocal disciplinary proceeding, or

   (4)  upon a request by the Pennsylvania Client Security Fund Board pursuant to Enforcement Rule 521(a) (relating to cooperation with Disciplinary Board).

 (a)  General rule. Enforcement Rule 215(d) provides that at any stage of a disciplinary investigation or proceeding, a respondent-attorney and Disciplinary Counsel may file a joint Petition in Support of Discipline on Consent; and that the Petition shall be accompanied by an affidavit stating that the attorney consents to the recommended discipline and that:

   (1)  the 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 submitting the consent; and whether or not the attorney has consulted or followed the advice of counsel in connection with the decision to consent to discipline;

   (2)  the attorney is aware that there is presently pending an investigation into, or proceeding involving, allegations that the respondent-attorney has been guilty of misconduct as set forth in the Petition;

   (3)  the attorney acknowledges that the material facts set forth in the Petition are true; and

   (4)  the attorney consents because the attorney knows that if charges predicated upon the matter under investigation were filed, or continued to be prosecuted in the pending proceeding, the attorney could not successfully defend against them.

 (b)  Contents of Petition. Enforcement Rule 215(d) provides that a Petition shall include the specific factual allegations that the respondent-attorney admits he or she committed, the specific Disciplinary Rules and Enforcement Rules allegedly violated and a specific recommendation for discipline. The Petition must also set forth:

   (1)  any past discipline imposed on the attorney in any jurisdiction;

   (2)  a discussion of applicable precedent and how the recommended discipline compares with that imposed in reported cases;

   (3)  any aggravating or mitigating factors; and

   (4)  if the recommended discipline includes probation, a statement that the attorney understands that violation of the probation may result in the commencement of a proceeding under §  89.292 (relating to violation of probation).

 (c)  Handling of Petition. Enforcement Rule 215(e) provides that the Petition shall be filed with the Board; that the filing of the Petition shall stay any pending proceeding before a hearing committee, special master or the Board; and that the Petition shall be reviewed by a panel composed of three members of the Board who may approve or deny.

   Official Note

   The fact that a Petition is being negotiated is not grounds for a continuance, and formal proceedings will continue unabated until the Petition is filed as provided in subsection (c).

 (d)  Private discipline. Enforcement Rule 215(f) provides that if a panel approves a Petition consenting to an informal admonition or private reprimand, with or without probation, the Board shall enter an appropriate order, and it shall arrange to have the respondent-attorney appear before Disciplinary Counsel for the purpose of receiving an informal admonition or before a designated panel of three members selected by the Board Chair for the purpose of receiving a private reprimand.

 (e)  Public discipline. Enforcement Rule 215(g) provides that, if a panel approves a Petition consenting to public censure or suspension, the Board shall file the recommendation of the panel and the Petition with the Supreme Court; and that, if the Court grants the Petition, the Court shall enter an appropriate order disciplining the respondent-attorney on consent.

 (f)  Denial of Petition. Enforcement Rule 215(h) provides that, if either the panel of the Board or the Supreme Court denies a Petition, the members of the Board who participated on the reviewing panel shall not participate in further consideration of the same matter; and that any stayed proceedings shall resume as if the Petition had not been filed and neither the Petition nor the affidavit may be used against the respondent-attorney in any disciplinary proceeding or any other judicial proceeding.

 (g)  Costs. Enforcement Rule 215(i) provides that the panel of the Board in its discretion may direct that the necessary expenses incurred in the investigation and prosecution of the matter shall be paid by the respondent-attorney as a condition to the grant of the Petition; and that all expenses taxed under this subdivision shall be paid by the attorney before the imposition of discipline under subsection (d) or (e).

   The provisions of this §  87.74 adopted August 5, 2005, effective immediately, 35 Pa.B. 4301; amended February 24, 2006, effective immediately, 36 Pa.B. 929. Immediately preceding text appears at serial pages (312762) to (312764).