Section 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 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

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(d) (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.

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 6, 2011, effective immediately, 41 Pa.B. 4202; amended August 11, 2012, effective immediately, 42 Pa.B. 5156; amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544. Immediately preceeding text appears at serial pages (363131) to (363132).