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

[37 Pa.B. 520]
[Saturday, February 3, 2007]

   Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to The Supreme Court of Pennsylvania that it amend the Pennsylvania Rules of Disciplinary Enforcement with respect to the confidentiality of disciplinary proceedings.

   On October 26, 2005, the Supreme Court of Pennsylvania adopted amendments to the Rules of Disciplinary Enforcement providing for public access to certain disciplinary proceedings. Under the new system of public access, formal disciplinary proceedings become open to the public before a decision is made on what type of discipline, if any, is to be imposed. The Board is considering proposing that in the case of a formal proceeding in which it is decided to impose private discipline or in which all of the charges against the respondent-attorney are dismissed, the record of the proceeding be closed.

   Although the Board is proposing that a formal proceeding that becomes open to the public will subsequently be closed if it results in the imposition of private discipline or dismissal of all the charges, the closing of the proceeding cannot change the fact that the proceeding was open to the public for a period of time. Thus, the Board is also proposing to make clear that the respondent-attorney may request that the record of the proceeding remain open to demonstrate that the charges were dismissed or only private discipline was imposed.

   The Board is also considering proposing the repeal of Pa.R.D.E. 402(c)(4) which provides that a proceeding may be opened to the public when the allegations on which it is based become generally known to the public. Making a decision that allegations are generally known to the public involves difficult judgments that the Board is not well-equipped to make. And in light of the increased public access to disciplinary proceedings, the Board does not believe that Pa.R.D.E. 402(c)(4) serves an important public function.

   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 March 9, 2007.

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 D.  MISCELLANEOUS PROVISIONS

Rule 402.  Access to Disciplinary Information and Confidentiality.

   (a)  Except as provided in subdivisions (b) [and], (d) and (k), all proceedings under these rules shall be open to the public after:

*      *      *      *      *

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

*      *      *      *      *

   (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

   (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.

*      *      *      *      *

   (k)  If a formal proceeding results in the imposition of private discipline or dismissal of all the charges, the proceeding shall cease to be open to the public when the decision to impose private discipline or dismiss the charges becomes final, unless the respondent-attorney requests that the record of the proceeding remain open to the public.

   Official Note:  Paragraph (d)(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.

   Although subdivision (k) provides that a formal proceeding that becomes open to the public under subdivision (a) will subsequently be closed if it results in the imposition of private discipline or dismissal of all the charges, the closing of the proceeding cannot change the fact that the proceeding was open to the public for a period of time. Thus, subdivision (k) makes clear that the respondent-attorney may request that the record of the proceeding remain open to demonstrate that the charges were dismissed or only private discipline was imposed.

[Pa.B. Doc. No. 07-153. Filed for public inspection February 2, 2007, 9:00 a.m.]

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