Subchapter A. PRELIMINARY PROVISIONS
COMPLAINTS Sec.
87.1. Initiation of investigations.
87.2. Manner of filing, form, and contents of complaint.
87.3. Distribution of complaint forms.
87.4. Preliminary screening and docketing of complaints.
87.5. Transmission to disciplinary district office for investigation.
87.6. Investigation.
87.7. Notification to respondent-attorney of complaint and duty to respond; duty to produce Pa.R.P.C. 1.15’s required records and effect of failure to produce.
87.8. District office action or recommendation.
87.9. Office of Disciplinary Counsel action.
INQUIRIES
87.21. Inquiries.
COMPLAINTS
§ 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.
Source The provisions of this § 87.1 amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 241. Immediately preceding text appears at serial pages (83152) and (42731).
§ 87.2. Manner of filing, form, and contents of complaint.
Any person who alleges misconduct against an attorney may file a complaint, which may be in either paper or electronic form.
(a) A written complaint may be in the form of a letter or other appropriate writing, or submitted on an official complaint form (Form DB-2). Complaints in paper form may be filed by mail, facsimile transmission, or delivery in person to the location identified in § 85.5(a) (relating to location of the Office of the Chief Disciplinary Counsel) or one of the locations identified in § 85.5(b) (relating to the locations of the Disciplinary District Offices).
(b) The filing of complaints electronically shall be conducted only through electronic means approved by the Board. Instructions for electronic filing and protocols shall be available on the Disciplinary Board’s website.
(c) A complaint shall be signed by the complainant and shall contain a statement of the facts upon which the complaint is based. Submission of a complaint through electronic means signifies intent to sign. Verification of the complaint shall not be required. If necessary the Office of Disciplinary Counsel will assist the complainant in reducing the grievance to writing.
Source The provisions of this § 87.2 amended August 4, 2017, effective in 30 days, 47 Pa.B. 4519. Immediately preceding text appears at serial page (376256).
§ 87.3. Distribution of complaint forms.
The Office of Disciplinary Counsel shall provide each person who alleges misconduct against an attorney with a blank paper complaint form, or direct such person to the electronic form.
Source The provisions of this § 87.3 amended August 4, 2017, effective in 30 days, 47 Pa.B. 4519. Immediately preceding text appears at serial page (376256).
§ 87.4. Preliminary screening and docketing of complaints.
Complaints received by the Office of Disciplinary Counsel against Disciplinary Counsel involving alleged violations of the Disciplinary Rules shall be transmitted forthwith to the Executive Office 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.
Source The provisions of this § 87.4 amended January 15, 1988, effective April 1, 1988, 18 Pa.B. 242; amended April 18, 2008, effective April 19, 2008, 38 Pa.B. 1812; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552. Immediately preceding text appears at serial pages (387874) to (387875).
§ 87.5. Transmission to disciplinary district office for investigation.
Enforcement Rule 208(a)(1) provides that all investigations, whether upon complaint or otherwise, shall be initiated and conducted by Disciplinary Counsel. The complaint shall be transmitted to the district office of the Office of Disciplinary Counsel for the appropriate district as determined by § 93.2 (relating to venue).
Source The provisions of this § 87.5 amended August 4, 2017, effective 30 days after publication, 47 Pa.B. 4519. Immediately preceding text appears at serial page (376256).
§ 87.6. Investigation.
Subject to the policy supervision and control of the Chief Disciplinary Counsel, the investigative staff of the district office shall make such investigation of the complaint and report thereon as may be appropriate.
§ 87.7. Notification to respondent-attorney of complaint and duty to respond; duty to produce Pa.R.P.C. 1.15’s required records and effect of failure to produce.
(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 respondent-attorney has been notified of the allegations and the time for response under subdivision (b)(2) of this rule, if applicable, has expired.
(b) Transmission of notice. Except as provided in subsection (a) of this section, 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 investigations), the name and address of the complainant; and
(2) the requirement that the respondent-attorney respond to the allegations against the respondent-attorney by filing with the district office a statement of position. Unless a shorter time is fixed by the Chief Disciplinary Counsel in such notice, the respondent-attorney shall have 30 days from the date of such notice within which to file a statement of position in the district office.
The notice requirements of this subdivision (b) shall be applicable to any Form DB-7A (Supplemental Request for Statement of Respondent’s Position), in which case the notice shall advise the respondent-attorney of the requirement that the respondent-attorney respond to the supplemental allegations by filing with the district office a statement of position with respect thereto.
(c) Contents of statement of position. All statements of position shall be in writing and sufficiently detailed as to advise Disciplinary Counsel and any reviewing hearing committee member that the Executive Office may appoint under § 87.32 (relating to action by reviewing hearing committee member) of the nature of any defense. The respondent-attorney should include with the statement any corroborating documentation and may include in the statement mitigating factors and any relevant facts or circumstances that may assist Disciplinary Counsel in determining under § 87.8(b) the action to be taken or the disposition recommended.
(d) Effect of failure to respond. Enforcement Rule 203(b)(7) provides that failure by a respondent-attorney without good cause to respond to a request (Form DB-7) or supplemental request (Form DB-7A) by Disciplinary Counsel for a statement of the respondent-attorney’s position shall be grounds for discipline. Failure to respond may also be a violation of Rule of Professional Conduct 8.1(b).
Official Note
Except as provided in subsection (e) of this section, if Disciplinary Counsel’s request or supplemental request for a statement of position contains a separate request for production of records or documents (other than required records under Pa.R.P.C. 1.15(c) and § 91.177 of Chapter 91 Subchapter H of these Rules), the respondent-attorney’s nonproduction shall not be a basis for discipline under Enforcement Rule 203(b)(7) but may constitute evidence of non-cooperation with Disciplinary Counsel’s inquiry. Disciplinary Counsel may obtain a subpoena to compel production of the records and documents requested in the Form DB-7 or DB-7A, and the respondent-attorney’s wilful failure to comply with the subpoena would serve as a basis for discipline under RPC 8.4(d) and various provisions of the Enforcement Rules.
(e) Duty to produce Pa.R.P.C. 1.15’s required records and time for production. Notwithstanding any other provision in this section, if Disciplinary Counsel requests records required to be maintained under Pa.R.P.C. 1.15(c), Enforcement Rule 221(e), and § 91.177(a) (all of which relate to required records) in a Form DB-7 (Request for Statement of Respondent’s Position) or Form DB-7A (Supplemental Request for Statement of Respondent’s Position), the respondent-attorney shall provide the records to Disciplinary Counsel within ten business days of receipt of the Form DB-7 or Form DB-7A, as the case may be, whether or not the respondent-attorney files the statement of position required to be filed under subsection (b) of this section. The Form DB-7 or Form DB-7A will be considered received for purposes of this subsection if: 1) personal service of the Form DB-7 or Form DB-7A on the respondent-attorney is accomplished; 2) a copy of the Form DB-7 or Form DB-7A is delivered to an employee, agent or other responsible person at the office of the respondent-attorney as determined by the address furnished by the respondent-attorney in the last registration statement filed by the respondent-attorney pursuant to Enforcement Rule 219(c) (relating to annual registration of attorneys); or 3) mailed by certified mail with return receipt requested to one or more of the addresses furnished by the respondent-attorney in the last registration statement and delivery is accepted as shown by electronic or paper return receipt containing the name or signature of the respondent-attorney or other person who accepted delivery. The time in which to produce the required records (ten business days) is separate from the time fixed for the filing of the respondent-attorney’s statement of position under paragraph (b)(2).
(f) Effect of failure to produce Pa.R.P.C. 1.15’s required records. Enforcement Rule 221(g)(3) and § 91.179 of Chapter 91 Subchapter H of these Rules provide that failure to produce Pa.R.P.C. 1.15 records in response to a request or demand for such records may result in the initiation of proceedings pursuant to Enforcement Rule 208(f)(1) or (f)(5) (relating to emergency temporary suspension orders and related relief), the latter of which specifically permits Disciplinary Counsel to commence a proceeding for the temporary suspension of a respondent-attorney who fails to maintain or produce Pa.R.P.C. 1.15(c) records after receipt of a request or demand authorized by subdivision (g) of Enforcement Rule 221 or any provision of these Rules.
Source The provisions of this § 87.7 amended February 20, 2004, effective February 21, 2004, 34 Pa.B. 948; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687; amended August 5, 2011, effective August 6, 2011, 41 Pa.B. 4202; amended August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (397801) to (397803).
§ 87.8. District office action or recommendation.
(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) A conditional or unconditional public reprimand by the Board of the attorney concerned.
(5) 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 of complaint), the 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, private reprimand, or public reprimand. An informal admonition, private reprimand, or public 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 paragraphs (b)(1), (2), (3), (4), or (5) of this section may be recommended by the assigned Disciplinary Counsel and taken with the written concurrence of the Disciplinary Counsel-in-Charge, any other Disciplinary Counsel designated to serve in his or her absence or unavailability, the Chief Disciplinary Counsel, or any 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 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, Disciplinary Counsel shall prepare and attach to the file Form DB-3 (Referral of Complaint to Reviewing Hearing Committee Member).
Source The provisions of this § 87.8 amended May 18, 1979, effective May 19, 1979, 9 Pa.B. 1607; amended August 30, 1985, effective August 31, 1985, 15 Pa.B. 3080; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 241; amended April 13, 1990, effective April 14, 1990, 20 Pa.B. 2009; amended March 11, 2005, effective March 12, 2005, 35 Pa.B. 1656; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552. Immediately preceding text appears at serial pages (387877) to (387878) and (363133).
§ 87.9. Office of Disciplinary Counsel action.
(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 maybring 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 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 Executive Office 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 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 Disciplinary Counsel-in-Charge or designated 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 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.
Source 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; amended August 11, 2012, effective immediately, 42 Pa.B. 5156; amended April 18, 2019, effective in 30 days from date of publication, Immediately preceding text appears at serial pages (363133) to (363134).
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.
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