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PART V. PROFESSIONAL ETHICS AND CONDUCT

[ 204 PA. CODE CHS. 83, 85 AND 87 ]

Amendments to the Rules of Disciplinary Enforcement and the Disciplinary Board Rules Relating to Grounds for Discipline and Notification to Respondent-Attorney of Complaint and Duty to Respond

[40 Pa.B. 6775]
[Saturday, November 27, 2010]

 Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Pennsylvania Supreme Court that the Court amend subsection (b) of Pennsylvania Rule of Disciplinary Enforcement 203 as set forth in Annex A.

 Notice is also given that if the Supreme Court were to adopt the proposed amendment as set forth in Annex A, the Disciplinary Board's intent would be to amend its Rules of Organization and Procedure as set forth in Annex B.

 In order to accommodate its system of self-regulation while maintaining the highest of ethical standards, the legal profession imposes certain obligations upon its members.

 Some obligations applicable to Pennsylvania lawyers assist the Disciplinary Board in identifying activities that require investigation and possible disciplinary action. Pennsylvania lawyers are obligated to report substantially serious professional misconduct of another lawyer (RPC 8.3(a)) or judge (RPC 8.3(b)), to self-report a conviction for a serious crime (Pa.R.D.E. 214(a)), and to self-report certain types of professional discipline imposed in another jurisdiction (Pa.R.D.E. 216(e)).

 Other obligations impose documentation requirements upon lawyers that facilitate Disciplinary Counsel's investigation and resolution of an ethics complaint that might be filed against the lawyer. Pennsylvania lawyers are obligated to communicate in writing to a client the basis or rate of the legal fee unless the lawyer has regularly represented the client (RPC 1.5(b)), to maintain a Trust Account in a financial institution licensed to do business in the Commonwealth of Pennsylvania (RPC 1.15(a)(4)), to maintain and preserve records of financial transactions involving fiduciary funds (RPC 1.15(c)), and to memorialize any business transaction with a client or one in which the lawyer acquires an interest adverse to the client (RPC 1.8(a)).

 A third category of obligations of a self-regulatory nature attach after the commencement of a disciplinary inquiry and require the respondent-attorney's cooperation during the investigatory or prosecutorial stages. One such obligation was created by Enforcement Rule 208(b)(3). By Order dated September 19, 2003, effective October 4, 2003, the Supreme Court amended Enforcement Rule 208(b)(3) to provide that any factual allegation in a petition for discipline that is not timely answered by the respondent-attorney shall be deemed admitted, which amendment essentially imposed a requirement that a respondent-attorney file an answer to a petition for discipline. The Notice of Proposed Rulemaking that preceded the amendment, which was captioned ''Amendments to the Pennsylvania Rules of Disciplinary Enforcement Relating to Cooperation by Respondent-Attorneys in Disciplinary Proceedings,'' noted that in every jurisdiction that had adopted a form of the Model Rules of Professional Conduct, except Pennsylvania, ''there is either a Rule of Professional Conduct that requires cooperation with the disciplinary authorities or a procedural rule that requires responses to inquiries from the disciplinary authorities.'' (PA BULLETIN, Vol. 33, No. 6, p. 744, 2/8/2003) Since the time of the amendment to Rule 208(b)(3), the experience of the Disciplinary Board has been that the resolution of formal charges against a respondent-attorney is greatly facilitated by requiring a respondent-attorney to file an answer to the charges.

 The Disciplinary Board has now decided that cooperation of the respondent-attorney should be mandatory at an earlier stage in the disciplinary process. Absent Disciplinary Counsel's serving a respondent-attorney with a subpoena for records or documents, there is no requirement in the current rules that a respondent-attorney cooperate with a disciplinary investigation prior to the filing and service of a petition for discipline. Complaints that survive Office of Disciplinary Counsel's initial screening and investigative process proceed under Disciplinary Board Rules (''D.Bd. Rules'') § 87.7(b), which requires Disciplinary Counsel to give the respondent-attorney written notice (DB-7 Letter) of the nature of the grievance and 20 days to respond by filing in the district office a statement of position. A respondent-attorney's ability to ignore a DB-7 Letter or to decline to provide a statement of position, without consequence, is inconsistent with those obligations requiring attorneys to participate in the profession's process of self-regulation. As a practical matter, experience has shown that a respondent-attorney, by virtue of the present or former professional relationship with the client and the case-related information received during that relationship, is uniquely positioned to respond to complaints filed by a client; the information that the respondent-attorney provides in the statement of position oftentimes provides a defense to some or all of the allegations, which results in a resolution favorable to the respondent-attorney, including dismissal of the complaint, or serves to mitigate any discipline that may result. A rule requiring a respondent-attorney to participate during the early stages of an investigation will also encourage the respondent-attorney to secure counsel at that point in the process, and the prompt retention of counsel will in most instances be of benefit to the respondent-attorney.

 Proposed Enforcement Rule 203(b)(7), when read in conjunction with D.Bd. Rules § 87.7(b), which is referenced in the proposed Enforcement Rule, provides that a respondent-attorney's failure without good cause to respond to Disciplinary Counsel's DB-7 Letter or a later supplemental letter (DB-7A Letter) by providing a statement of the respondent-attorney's position would be an independent ground for discipline, regardless of the lack of merit of the underlying complaint that prompted Disciplinary Counsel to prepare and forward to the respondent-attorney a DB-7 or DB-7A Letter. Subsection (c) of D.Bd. Rules § 87.7 would require that the respondent-attorney's statement of position be in writing and sufficiently detailed as to advise Disciplinary Counsel and any reviewing member of a hearing committee of the nature of any defense. That same subsection would give the respondent-attorney the option of submitting documentation that supports a defense and an opportunity to provide a statement and evidence of relevant or mitigating facts or circumstances.

 The proposed Note that accompanies subsection (d) of § 87.7 of the Disciplinary Board Rules clarifies that the respondent-attorney's obligation to provide a statement of position does not include a duty to produce records or documents in response to a request for production that Disciplinary Counsel might include in the DB-7 or DB-7A Letter. The Note, however, explains that nonproduction may be viewed as evidence of non-cooperation with Disciplinary Counsel's inquiry and warns that the willful failure to comply with a subpoena obtained by Disciplinary Counsel for those same records or documents will serve as a basis for discipline under RPC 8.4(d), which prohibits conduct prejudicial to the administration of justice, and under various provisions of the Enforcement Rules. See Pa.R.D.E. 203(b)(4). Thus, the Note encourages the respondent-attorney, upon receipt of a DB-7 Letter, to provide Disciplinary Counsel with the fullest cooperation.

 The ''without good cause'' standard in proposed subsection (b)(7) of Enforcement Rule 203 is the same standard that currently appears in subsection (b)(4) of Enforcement Rule 203, which latter subsection requires a respondent-attorney to comply with any order under the Enforcement Rules of the Supreme Court, the Board, a hearing committee or special master. The Board anticipates that under new Enforcement Rule 203(b)(7), Disciplinary Counsel will establish a prima facie violation by proving that Disciplinary Counsel complied with the substantive requirements of D.Bd. Rules § 87.7(b)(1) and the notice requirements of § 87.7(b)(2), at which point the burden will shift to the respondent-attorney to establish ''good cause'' for noncompliance, as the reasons for noncompliance and any supporting evidence will almost universally be within the exclusive knowledge and control of the respondent-attorney.

 By including the admonition that ''failure to respond may also be a violation of Rule of Professional Conduct 8.1(b),'' subsection (d) of proposed D.Bd. Rules § 87.7(d) leaves open the possibility that a respondent-attorney may also be charged with, and found to have violated, RPC 8.1(b) when the failure to provide a statement of position is ''knowing,'' as that term is defined in PA RPC 1.0(f). RPC 8.1(b) provides, in pertinent part, that ''a lawyer . . . in connection with a disciplinary matter, shall not . . . knowingly fail to respond to a lawful demand for information from a [ ] . . . disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.'' Comment [1] to RPC 8.1(b) makes clear that the duty imposed by RPC 8.1 applies to a lawyer's own discipline as well as that of others.

 Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, P. O. Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3382) on or before December 30, 2010.

By The Disciplinary Board of the
Supreme Court of Pennsylvania

ELAINE M. BIXLER, 
Secretary

Annex A

TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

Subpart B. DISCIPLINARY ENFORCEMENT

CHAPTER 83. PENNSYLVANIA RULES OF DISCIPLINARY ENFORCEMENT

Subchapter B. MISCONDUCT

Rule 203. Grounds for discipline.

*  *  *  *  *

 (b) The following shall also be grounds for discipline:

*  *  *  *  *

(7) Failure by a respondent-attorney without good cause to respond to Disciplinary Counsel's request or supplemental request under Disciplinary Board Rules, § 87.7(b) for a statement of the respondent-attorney's position.

*  *  *  *  *

Annex B

Subpart C. DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

CHAPTER 85. GENERAL PROVISIONS

§ 85.7. Grounds for discipline.

*  *  *  *  *

 (b) Enforcement Rule 203(b) provides that the following shall also be grounds for discipline:

*  *  *  *  *

(7) Failure by a respondent-attorney without good cause to respond to Disciplinary Counsel's request (Form DB-7) or supplemental request (Form DB-7A) under § 87.7(b) of these Rules for a statement of the respondent-attorney's position.

*  *  *  *  *

CHAPTER 87. INVESTIGATIONS AND INFORMAL PROCEEDINGS

Subchapter A. PRELIMINARY PROVISIONS

COMPLAINTS

§ 87.7. Notification to respondent-attorney of complaint and duty to respond.

*  *  *  *  *

 (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:

*  *  *  *  *

 (2) the [right to state his position with respect] 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 20 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 Board Secretary 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: If Disciplinary Counsel's request or supplemental request for a statement of position contains a separate request for production of records or documents, 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.

[Pa.B. Doc. No. 10-2257. Filed for public inspection November 24, 2010, 9:00 a.m.]



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