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PA Bulletin, Doc. No. 04-1116

THE COURTS

Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS

PART V.  PROFESSIONAL ETHICS AND CONDUCT

[204 PA. CODE CH. 83]

Amendments to the Pennsylvania Rules of Disciplinary Enforcement Relating to the Confidentiality of Disciplinary Proceedings

[34 Pa.B. 3243]

   Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Pennsylvania Supreme Court that it amend the Pennsylvania Rules of Disciplinary Enforcement as set forth in Annex A to provide that disciplinary proceedings will not be confidential after the filing and service of a petition for discipline and the filing of an answer or the time to file an answer has expired or after the filing of a petition for reinstatement. In addition, Statements of Resignation would be public if a petition for discipline has been filed and served and the time to file an answer has expired.

   Pa.R.D.E. 402(a)(1) currently provides that disciplinary proceedings are generally confidential until the Supreme Court enters an order imposing some form of public discipline. The Board believes that it will increase public confidence in the disciplinary system, and thus in the judicial system generally, if the disciplinary process is open to the public at an earlier stage.

   40 of 51 jurisdictions throughout the United States have systems which become public not later than the filing of formal charges (i.e. a petition for discipline). Of those, 36 jurisdictions open the proceedings with the filing of formal charges. Arizona, Florida and West Virginia make all records accessible to the public after a finding of probable cause or dismissal for lack of probable cause and Oregon is entirely open from the filing of a complaint. Among the 11 jurisdictions which are not considered ''open,'' Alabama, Delaware, Kentucky and South Dakota make the matter public after the Board recommends public discipline.

   Prior to 1980, almost all systems had proceedings which were confidential until the state high court issued an order of public discipline. In 1980, the American Bar Association Commission on Evaluation of Disciplinary Enforcement (the McKay Commission) issued a Report which is a compilation of years of study of every state disciplinary system in the Country. One of the most important findings of the Commission was that public confidence in the system must be increased.

   Interested persons are invited to submit written comments regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, First Floor, Two Lemoyne Drive, Lemoyne, PA 17043, on or before July 30, 2004.

By The Disciplinary Board of the Supreme Court of
   Pennsylvania

ELAINE M. BIXLER,   
Executive Director and 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 A.  PRELIMINARY PROVISIONS

Rule 104.  Filings with the Supreme Court.

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   (c)  Centralized filing. All filings with the Supreme Court under these rules shall be made only with the prothonotary, and the person making a filing shall not distribute copies to the members of the Court. [It shall be the responsibility of the prothonotary to preserve the confidentiality of filings to the extent and as provided in Rule 402 (relating to confidentiality) and elsewhere in these rules.]

Subchapter B. MISCONDUCT

Rule 208.  Procedure.

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   (d)  Review and action by Board.

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   (2)  The Board shall either affirm or change in writing the recommendation of the hearing committee or special master by taking the following action, as appropriate within 60 days after the adjudication of the matter at a meeting of the Board;

*      *      *      *      *

   (iii)  Other discipline. In the event that the Board shall determine that the matter should be concluded by probation, censure, suspension, disbarment, or by informal admonition or private reprimand in cases where the respondent-attorney is unwilling to have the matter concluded by informal admonition or private reprimand, it shall file its findings and recommendations, together with the briefs, if any, before the Board and the entire record, with the Supreme Court. A respondent-attorney who is unwilling to have the matter concluded by an informal admonition or private reprimand [shall evidence such unwillingness by filing,] must file within thirty (30) days after notice of the determination of the Board, a notice of appeal [including a statement that the respondent-attorney understands that the effect of the appeal will be to terminate the confidential status of the matter]. [See Rule 402(a)(5) (relating to confidentiality).] Review by the Supreme Court shall be de novo and the Court may impose a sanction greater or less than that recommended by the Board.

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Rule 209.  Immunity.

   (a)  Complaints submitted to the Board or Disciplinary Counsel shall be confidential unless the matter results in the filing of formal charges. See Rule 402(a) (relating to access to disciplinary information and confidentiality). Members of the Board, members of hearing committees, special masters, Disciplinary Counsel and staff shall be immune from civil suit for any conduct in the course of their official duties. All communications to the Board, a hearing committee, special master, or Disciplinary Counsel relating to misconduct by a respondent-attorney and all testimony given in a proceeding conducted pursuant to these rules shall be absolutely privileged and the person making the communication or giving the testimony shall be immune from civil suit based upon such communication or testimony, except that such immunity shall not extend to any action that violates Rule 402 [(relating to confidentiality)]. For purposes of this subdivision (a), the staff of the Board shall be deemed to include conservators and sobriety, financial or practice monitors appointed pursuant to these rules or the rules of the Board.

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Rule 213.  Subpoena power, depositions and related matters.

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   (c)  Confidentiality. A subpoena issued under this rule shall clearly indicate on its face that the subpoena is issued in connection with a confidential investigation under these rules, and that it is regarded as contempt of the Supreme Court or grounds for discipline under these rules for a person subpoenaed to in any way breach the confidentiality of the investigation. It shall not be regarded as a breach of confidentiality for a person subpoenaed to consult with an attorney. The subpoena and deposition procedures of these rules shall be subject to the protective requirements of confidentiality provided in Rule 402 (relating to access to disciplinary information and confidentiality).

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Rule 215.  Resignations by attorneys under disciplinary investigation.

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   (c)  The order disbarring the attorney on consent shall be a matter of public record[, but for the purposes of Enforcement Rule 402(a)(1) (relating to confidentiality) the order shall not be an order for the imposition of public discipline]. [The] If the statement required under the provisions of subdivision (a) of this rule 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 shall not be publicly disclosed or made available for use in any proceeding other than a subsequent reinstatement proceeding except:

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Subchapter D.  MISCELLANEOUS PROVISIONS

Rule 402.  Access to Disciplinary Information and Confidentiality.

   (a)  All proceedings under these rules shall be open to the public after the filing and service of a petition for discipline and the filing of an answer or the time to file an answer has expired or a petition for reinstatement except as provided in subdivision (c).

   (b)  Until the proceedings are open under subdivision (a), all proceedings involving allegations of misconduct by or disability of an attorney shall be kept confidential [until or] unless:

   (1)  [the Supreme Court enters its order for the imposition of public discipline;

   (2)]  the respondent-attorney requests that the matter be public, or waives confidentiality for a particular purpose specified in writing;

   [(3)] (2)  the investigation is predicated upon a conviction of the respondent-attorney for a crime or reciprocal discipline;

   [(4)] (3)  in matters involving alleged disability, the Supreme Court enters its order transferring the respondent-attorney to inactive status pursuant to Enforcement Rule 301 (relating to proceedings where an attorney is declared to be incompetent or is alleged to be incapacitated); [or,

   (5)  the respondent-attorney appeals under Rule 208(d)(2)(iii) (relating to review and action by Board) a determination by the Board imposing an informal admonition or private reprimand.]

   (4)  the proceeding is based upon allegations that have become generally known to the public; or

   (5)  there is a need to notify another person or organization, including the Lawyers' Fund for Client Security, in order to protect the public, the administration of justice, or the legal profession.

   [(b)] (c)  This rule shall not be construed to:

   (1)  Deny access to relevant information at any point during a proceeding under these rules to:

   (i)  authorized agencies investigating the qualifications of judicial candidates, [or to]

   (ii)  the Judicial [Inquiry and Review] Conduct Board with respect to an investigation it is conducting, [or to]

   (iii)  other jurisdictions investigating qualifications for admission to practice [or to];

   (iv)  law enforcement agencies investigating qualifications for government employment;

   (v)  lawyer disciplinary enforcement agencies in other jurisdictions investigating misconduct by the respondent-attorney; or

   (vi)  the Pennsylvania Lawyers Fund for Client Security Board investigating a claim for reimbursement arising from conduct by the respondent-attorney.

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   (3)  Prevent the Pennsylvania Lawyers Fund for Client Security from utilizing information obtained during any investigation to pursue subrogated claims.

   (d)  Subdivision (a) shall not be construed to provide public access to:

   (1)  the work product of the Board, Disciplinary Counsel, hearing committee members, or special masters;

   (2)  deliberations of a hearing committee, special master, the Board or the Court; or

   (3)  information subject to a protective order issued by the Board under subdivision (e).

   (e)  The Board may, upon application of any person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential, and the Board may direct that proceedings be conducted so as to implement the order, including requiring that a hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of a protective order.

   (f)  Except as provided in subdivision (g), if nonpublic information is requested pursuant to subdivision (b)(1) and the respondent-attorney has not signed an applicable waiver of confidentiality, the respondent-attorney shall be notified in writing at the last known address of the respondent-attorney of what information has been requested and by whom, together with a copy of the information proposed to be released to the requesting agency or board. The notice shall advise the respondent-attorney that the information will be released 20 days after mailing of the notice unless the lawyer objects to the disclosure. If the lawyer timely objects to the disclosure, the information shall remain confidential unless the requesting agency or board obtains an order of the Supreme Court requiring its release or the respondent-attorney withdraws the objection.

   (g)  If an agency or board requesting the release of information under subdivision (b)(1) has not obtained an applicable waiver of confidentiality from the respondent-attorney, and the agency or board requests that the information be released without giving notice to the respondent-attorney, the requesting agency or board shall certify that:

   (1)  the request is made in furtherance of an ongoing investigation into misconduct by the respondent-attorney;

   (2)  the information is essential to that investigation; and

   (3)  disclosure of the existence of the investigation to the respondent-attorney would seriously prejudice the investigation.

   (h)  [In addition, the] The Board shall transmit notice of all public discipline imposed by the Supreme Court, [or transfer] transfers to or from inactive status[,] for disability, and reinstatements to the National [Discipline] Lawyer Regulatory Data Bank maintained by the American Bar Association.

   Official Note: Paragraph [(b)](c)(2) is based on 18 Pa.C.S. § 5108 (relating to compounding). Otherwise Disciplinary Counsel may be in the anomalous position of violating Rule 8.4 of the Pennsylvania Rules of Professional Conduct.

[Pa.B. Doc. No. 04-1116. Filed for public inspection June 25, 2004, 9:00 a.m.]


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