Question & Answers About the Pennsylvania Disciplinary Process – Part II
Reprinted from the Summer 2023 Edition of The Philadelphia Lawyer, (c) 2023, Philadelphia Bar Association, Reprinted With Permission
By Daniel J. Siegel
In this column, I will continue to answer questions about the disciplinary process for attorneys licensed in Pennsylvania. Based on feedback from the first column, I will continue the Question & Answer format. Feel free to contact me if there are questions you want to be answered in future columns.
I RECEIVED A LETTER THAT WAS CALLED A “DB-7.” WHAT SHOULD I DO NOW?
After the Office of Disciplinary Counsel investigates a complaint against an attorney, it will determine whether to proceed further. If it determines that no discipline is warranted, Disciplinary Counsel will close its investigation without providing notice to the attorney that the investigation occurred.
If Disciplinary Counsel believes that its investigation revealed a violation or potential violation of the Pennsylvania Rules of Professional Conduct sufficient to warrant discipline, it will send a Request for Statement of Respondent’s Position, commonly known as a DB-7, to the subject attorney. Pursuant to Disciplinary Board Rules and Procedures, § 87.7(a), the Request is a “Condition precedent to recommendation for discipline.” The Rule further provides that “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.”
A DB-7 generally contains an introduction and then advises the attorney of the following information: (1) the nature of the grievance, (2) whether the investigation was initiated by the Office of Disciplinary Counsel pursuant to § 87.1(b) (relating to initiation of investigations), or if the investigation was initiated by someone other than Disciplinary Counsel, the DB-7 will contain the name and address of the complainant; and (3) advise the attorney to respond to the allegations by filing with the applicable office a “Statement of Position.”
Generally, the respondent will have 30 days from the date of the DB-7 to file a Statement of Position. In some circumstances, the DB-7 may provide a shorter time for a reply, while in other cases, Disciplinary Counsel will grant the respondent an extension of time to file a reply. In most cases, the DB-7 will contain averments to which a reply is requested as well as a request that the respondent produce documents and other records in response.
Disciplinary Board Rule § 87.7(c) requires that “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 Rule further explains that “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.”
WHAT IF I DO NOT RESPOND TO THE DB-7?
Pennsylvania Rule of Disciplinary Enforcement 203(b)(7) specifies that “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” shall be a ground for discipline. In other words, even if an attorney has not violated the Rules, he or she may be subject to discipline for failing to reply to a DB-7.
Failing to respond to a DB-7 is analogous to failing to file an Answer to a Complaint in a lawsuit. Consequently, attorneys who receive a DB-7 should act immediately and prepare a response or retain counsel to prepare a response. There are instances when attorneys who may not have been subject to discipline find themselves receiving discipline for failing to respond to a DB-7 simply because the lack of a reply is deemed an admission of the items asserted in the DB-7.
SHOULD I RETAIN COUNSEL TO ANSWER A DB-7?
Because lawyers could lose their right to practice as the result of a disciplinary proceeding, and because the process can be confusing, it is recommended that attorneys retain counsel. In addition, some legal professional liability policies provide coverage for disciplinary matters.
THE DB-7 ASKS FOR COPIES OF MY IOLTA ACCOUNT RECORDS. DO I NEED TO PRODUCE THOSE?
Yes, you must produce those records promptly regardless of whether you file a response to the DB-7. Otherwise, you may be subject to immediate disciplinary proceedings.
Under Rule 87.7(3), “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.”
If an attorney fails to produce the requested IOLTA account records, Rule 87.7(e) states that inaction – in and of itself – “may result in the initiation of proceedings under 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.”
NOW THAT I FILED AN ANSWER TO THE DB-7, WHAT HAPPENS?
After reviewing the information produced in response to a DB-7, Disciplinary Counsel will review the response and determine how it will proceed. Disciplinary Counsel may, for example, issue a Supplemental Request for Respondent’s Position, known as a DB-7A, or dismiss the complaint because (1) it is frivolous, (2) the complaint is outside the jurisdiction of the Disciplinary Board, or (3) of Disciplinary Board policy or prosecutorial discretion.
If Disciplinary Counsel does not issue a DB-7A or dismiss the Complaint, Rule of Disciplinary Enforcement 208(a) permits the office to (1) issue a conditional or unconditional informal admonition, (2) issue a conditional or unconditional private reprimand, (3) issue a conditional or unconditional public reprimand, or (4) proceed with filing formal charges before a Disciplinary Board Hearing Committee or a special master.
CAN I GIVE UP MY LICENSE TO PRACTICE LAW WITHOUT PROCEEDING TO A HEARING?
Yes. Rule of Disciplinary Enforcement 215 permits the imposition of “Discipline on consent” by an attorney under investigation. An attorney may, under the Rule, submit a “Voluntary Resignation,” which, in essence, is an agreement to be disbarred.
A Voluntary Resignation must contain a verified statement by the attorney stating that the attorney desires to resign and that: (1) the resignation is being rendered freely and voluntarily rendered, the attorney is aware of the implications of submitting the resignation, and the attorney has consulted or followed the advice of counsel in connection with the decision. The statement must also acknowledge (1) that an investigation is pending into allegations that the attorney has been guilty of misconduct, including a description of the nature of the allegations, (2) that the material facts upon which the compliant is based are true, (3) the attorney is resigning because he or she could not successfully defend against the charges, (4) submission of the resignation is irrevocable, (5) the attorney may seek reinstatement of his or her right to practice law by complying with Rule of Disciplinary Enforcement 218(b) and (c), (6) the resignation will become a matter of public record upon delivery of the resignation to Disciplinary Counsel or the Disciplinary Board, (7) that after the entry of an Order of the Supreme Court disbarring the attorney, he or she will comply with requirements of Rule of Disciplinary Enforcement 217, including the requirements relating to trust accounting, the Rule’s cease-and-desist provisions, and the filing a of verified statement of compliance.
WHO APPROVES AN ATTORNEY’S VOLUNTARY RESIGNATION?
After the verified statement is filed with the Disciplinary Board, the Board files it with the Pennsylvania Supreme Court, which enters an Order disbarring the attorney on consent. Upon their filing, the resignation statement and the Order approving it becomes a matter of public record. If the resignation statement is submitted “before the filing and service of a petition for discipline and the filing of an answer or the time to file an answer has expired,” the statement is not publicly disclosed or made available for use in any proceeding other than a subsequent reinstatement proceeding except under certain conditions specified in Rule 215.
ARE THERE OTHER TYPES OF DISCIPLINE, OTHER THAN DISBARMENT, TO WHICH I CAN AGREE WITHOUT PROCEEDING TO A HEARING?
Yes. Rule of Disciplinary Enforcement 217(d) states that at any stage of a disciplinary investigation or proceeding, a respondent-attorney and Disciplinary Counsel may file a joint Petition in Support of Discipline on Consent. Under the Rule, the Petition must (1) include the specific factual allegations that the attorney admits committing, (2) specify the Rules of Professional Conduct and Rules of Disciplinary Enforcement allegedly violated, and (3) contain a specific recommendation for discipline.
Similar to a Voluntary Resignation, the attorney’s statement must also acknowledge (1) the attorney consents to the recommended discipline, (2) the attorney’s consent is rendered freely and voluntarily, and the attorney is aware of the implications of submitting consent, (3) an investigation is pending into allegations that the attorney has been guilty of misconduct, including a description of the nature of the allegations, (4) that the material facts upon which the complaint is based are true, (5) the attorney consents because he or she could not successfully defend against the charges.
WHO APPROVES THE DISCIPLINE TO WHICH AN ATTORNEY CONSENTS?
A joint Petition in Support of Discipline on Consent is filed with the Disciplinary Board and stays any pending proceedings. A panel composed of three members of the Disciplinary Board reviews the petition and may approve or deny it.
If a panel approves a Petition consenting to an informal admonition or private reprimand, with or without probation, the Board shall enter an appropriate order, and the Board shall arrange to have the attorney appear before Disciplinary Counsel to receive an informal admonition or before a designated panel of three members selected by the Board Chair to receive a private reprimand.
If the panel approves a Petition consenting to a public reprimand, the Board will enter an Order and arrange for the attorney to appear before the Board or a designated panel of three members to receive a public reprimand. If the panel approves a Petition consenting to public censure or suspension, the Board will file the recommendation and the Petition with the Supreme Court. If the Supreme Court grants the Petition, it will enter an Order disciplining the attorney on consent. If the panel of the Board or the Supreme Court denies the Petition, the members of the Board who participated on the reviewing panel are prohibited from any further consideration of the same matter. Any stayed proceedings shall resume; neither the Petition nor the affidavit may be used against the attorney in any disciplinary or other judicial proceeding.
In the next installment of this column, I will discuss how disputed disciplinary proceedings occur and answer other questions presented by readers. If you have questions, please send them to me at the email address below.
Daniel J. Siegel, a member of the Board of The Philadelphia Lawyer, is the principal of the Law Offices of Daniel J. Siegel, LLC, and chair of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility. He provides ethical, techno-ethical, and disciplinary guidance and representation, as well as appellate, writing, and trial preparation services to other attorneys. He can be reached at email@example.com.