Subchapter A. PRELIMINARY PROVISIONS

§ 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)  Condition precedent to recommendation for discipline. Disciplinary Counsel shall not recommend or undertake a disposition of discipline under Enforcement Rule 204 (relating to types of discipline) 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, as falling outside the jurisdiction of the Board, or on the basis of Board policy or prosecutorial discretion. Disciplinary Counsel may 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 complete 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 on the basis of prosecutorial discretion.

   (4)  Dismissal on the basis of Board policy.

   (5)  Dismissal for any other reason.

   (6)  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.

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

 (c)  Selection of form. Action under subsection (b)(1), (2), (3), (4) or (5) of this section may be recommended by the assigned Assistant Disciplinary Counsel and taken with the written concurrence of the Assistant Disciplinary Counsel-in-Charge, any other Assistant Disciplinary Counsel designated to serve in his or her absence or unavailability, the Chief Disciplinary Counsel, or an Assistant Disciplinary Counsel designated by the Chief Disciplinary Counsel to review such recommendations. 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), (2), (3), (4) or (5) may be appropriate, the assigned Assistant Disciplinary Counsel shall prepare a Form DB-5 (Recommendation on Final Disposition of Complaint) and forward such form and the related file to Chief Disciplinary Counsel or his or her designee 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)  Dismissal of the complaint.If the district office or Chief Disciplinary Counsel or his or her designee, determines that the complaint should be dismissed under §  87.8(b)(1), (2), (3), (4) or (5) (relating to district office action or recommendation), the Office of Disciplinary Counsel shall notify the complainant of such disposition by letter and close the file on the matter. Wherever possible, 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 another agency or jurisdiction that has disciplinary authority over the respondent-attorney, to any fee disputes committee which may have been established for the county involved, to a criminal prosecution agency, or to any other duly constituted body which may be able to provide 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 notify the respondent-attorney of the dismissal and may transmit a copy of the dismissal letter to the respondent-attorney.

 (b)  Other cases. In all other cases the Office of Disciplinary Counsel shall forward to the Office of the Secretary a request for the assignment of a Reviewing Hearing Committee Member.

 (c)  Review of dismissed complaints. The Office of Disciplinary Counsel will review complaints dismissed under subsection (a) of this section upon request of the complainant. The request shall be in writing and submitted to the Assistant Disciplinary Counsel-in-Charge of the district office that dismissed the complaint. The request should specify the reason or reasons why Office of Disciplinary Counsel should reopen the investigation under §  87.6 and include any evidence that was not previously brought to the attention of Disciplinary Counsel. The Assistant Disciplinary Counsel-in-Charge or designated Assistant Disciplinary Counsel who concurred in the recommendation to dismiss the complaint pursuant to §  87.8(c) shall conduct the review and notify the complainant in writing of the decision to grant or deny the request. Where the request is denied by the Assistant Disciplinary Counsel-in-Charge, the complainant may direct a written request for further review to the Chief Disciplinary Counsel or his or her designee. The decision of the Chief Disciplinary Counsel or the designee shall be final for purposes of this subsection.

 (d)  No right to appeal. A complainant shall have no right to appeal the dismissal or any other disposition of a complaint under §  87.8 (relating to district office action or recommendation) or a final decision under paragraph (c) of this subsection to deny a request to reopen the investigation.

   The provisions of this §  87.9 amended through May 18, 1979, effective May 26, 1979, 9 Pa.B. 1665; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687. Immediately preceding text appears at serial pages (309892) to (309893).

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.