Section 95.2. Investigation of the mishandling and conversion of funds

(a) Where the Office of Disciplinary Counsel has some factual basis to support a suspicion or concern that there has been improper commingling or mishandling of entrusted funds or a failure to promptly account for or distribute such funds by a respondent-attorney, it is the policy of the Board that Disciplinary Counsel shall make a request or demand to the respondent-attorney for all relevant records, including the 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), unless such a request or demand would jeopardize an ongoing investigation. Disciplinary Counsel shall utilize one or more of the procedures authorized by Enforcement Rule 221(g) and § 91.178 (relating to availability of required records and requirement to produce), and Enforcement Rule 213 and § 91.2 (relating to subpoenas).

Official Note

An administrative agency’s request or demand for production of required records has been upheld if the agency has some factual basis to support a suspicion or concern that the law has been violated even if the evidence does not establish a violation, or the circumstances justify the agency’s seeking assurances that the law has not been violated; 2) the records sought are reasonably relevant to the inquiry; and 3) the demand is not too indefinite or overbroad. United States v. Morton Salt Co., 338 U.S. 632, 642-643, 652 (1950), cited in State Real Estate Com. v. Roberts, 441 Pa. 159, 164-165, 271 A.2d 246, 248 (1970), cert. denied, 402 U.S. 905 (1971); Unnamed Attorney v. Attorney Grievance Comm’n, 313 Md. 357, 364-365, 545 A.2d 685, 689 (1988).

(b) Where the Office of Disciplinary Counsel receives evidence of the misappropriation or conversion of entrusted funds by a respondent-attorney, it is the policy of the Board that Office of Disciplinary Counsel shall seek to obtain relevant records under the procedures in subsection (a), and, where deemed appropriate or necessary, seek the issuance of a subpoena duces tecum to the respondent-attorney and any relevant financial institution for some or all of the following records:

(1) all accounts into which the respondent-attorney may have deposited or otherwise transferred entrusted funds during a period reasonably related to that during which the misappropriation or conversion occurred;

(2) those records which are required to be maintained under Pa.R.P.C. 1.15(c), Enforcement Rule 221(e), and § 91.177(a)—(c); and

(3) all other records that may be relevant or necessary to confirming, corroborating or determining the extent of the misappropriation or conversion.

(c) No limitation intended. This section does not prohibit Disciplinary Counsel, at any stage of an investigation, from: 1) verbally requesting that a respondent-attorney voluntarily produce records; 2) seeking records from a financial institution or a person other than the respondent-attorney; or 3) seeking relevant records, by any authorized manner, of any type or nature and in relation to a suspected violation of a type other than one identified in this section.

The provisions of this § 95.2 amended January 30, 2015, effective March 2, 2015, 45 Pa.B. 544. Immediately preceding text appears at serial page (272351).