THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CH. 83 ]
Proposed Amendments to the Pennsylvania Rules of Disciplinary Enforcement Relating to Access to Disciplinary Information and Confidentiality
[51 Pa.B. 2486]
[Saturday, May 8, 2021]Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania (''Board'') is considering recommending to the Supreme Court of Pennsylvania (''Court'') that the Court amend Rules 215 and 402 of the Pennsylvania Rules of Disciplinary Enforcement (''Enforcement Rule'' or ''Pa.R.D.E.''), as set forth in Annex A.
EXPLANATORY REPORT Pa.R.D.E. 402. Access to Disciplinary Information and Confidentiality.
Pa.R.D.E. 402 governs access to disciplinary information and confidentiality. Subdivisions (a) and (b) specify the timing of opening a proceeding to the public. Until the proceeding is open, it remains confidential, except as set forth in subdivision (c). Current Pa.R.D.E. 402(c)(3) allows public access to a proceeding when it is based on the Court's order of temporary suspension from the practice of law pursuant to Enforcement Rule 208(f)(1). Under subdivision (f)(1), the suspension may be imposed by the Court when the continued practice of law by an attorney is causing immediate and substantial public or private harm because of misappropriation of funds by such person to his or her own use, or because of other egregious conduct in manifest violation of the rules. Under these circumstances, it is important and necessary to allow public access to information concerning such proceeding in order to safeguard the public against potential harm.
Two other bases for temporary suspension of an attorney's license to practice law are not included in the exceptions to confidentiality under current Pa.R.D.E. 402(c)(3). A temporary suspension under Enforcement Rule 208(f)(5) may be imposed by the Court when an attorney engages in contemptuous conduct against the Board by disregarding applicable provisions of the Enforcement Rules, failing to maintain or produce records required by the Pennsylvania Rules of Professional Conduct and Enforcement Rules in response to a request or demand under the rules, failing to comply with a valid subpoena or engaging in any other conduct that materially delays or obstructs the conduct of a proceeding under the Enforcement Rules. A temporary suspension under Enforcement Rule 214(d) may be imposed by the Court upon the attorney's conviction of a crime or at any time before or after a guilty plea or verdict of guilt.
Regardless of the basis, an order of temporary suspension signifies the Court's determination that an attorney is no longer allowed to practice law until further definitive action. The Board proposes amending subdivision (c)(3) of Pa.R.D.E. 402 to expand the confidentiality exceptions to include proceedings based on orders of temporary suspension entered by the Court under Enforcement Rule 208(f)(5) and Enforcement Rule 214(d). The Board can find no justification for distinguishing among the types of temporary suspension and concludes that the rationale for making an exception to confidentiality for Enforcement Rule 208(f)(1) temporary suspensions applies with equal force to temporary suspensions under Enforcement Rule 208(f)(5) and Enforcement Rule 214(d). The public is better served when it has access to information relating to temporarily suspended attorneys. The proposal further clarifies what information becomes public upon the entry of the Court's order of temporary suspension.
Subdivision (d) clarifies that Pa.R.D.E. 402 should not be construed to deny access to relevant information to certain agencies and boards or prevent information from being reported or utilized under specific circumstances. The Board proposes amending subdivision (d) by adding new paragraph (4) to permit Office of Disciplinary Counsel to make an informal referral of an attorney to Lawyers Concerned for Lawyers of Pennsylvania, Inc. (''LCL-PA''), if Disciplinary Counsel believes that an attorney may benefit from the services of LCL-PA. The proposal permits Disciplinary Counsel to share with LCL-PA information deemed confidential as part of the referral.
The express mission of LCL-PA is to provide a peer assistance program to attorneys who face mental health or substance use challenges, by a combination of confidential helpline services, volunteer support and education. The proposed amendment is especially timely, as the COVID-19 pandemic has placed untold pressures and stresses on members of the legal profession. Due to its investigatory capacity and its interaction with attorneys, Office of Disciplinary Counsel is in a pivotal and front line position to facilitate connecting an attorney to available resources. Office of Disciplinary Counsel's ability to make an informal referral benefits not only the attorney, but the profession, the courts and the public at large.
Importantly, key language in the proposal maintains the attorney's confidentiality by underscoring that LCL-PA is not permitted to report information about the attorney to Disciplinary Counsel or its staff. Further, the fact that a referral was made and its outcome shall not be relevant for any purpose and may not be considered or disclosed by Disciplinary Counsel in any proceeding under the rules. This language is critical because it encourages attorneys to seek help and addresses hesitation the attorney may have about participation in a lawyers' assistance program.
Pa.R.D.E. 215. Discipline on Consent.
Enforcement Rule 215(c) governs the confidentiality of a resignation statement submitted by an attorney who is the subject of an investigation into allegations of misconduct. Subdivision (c) sets forth five exceptions, one of which is when the resignation is based on an order of temporary suspension from the practice of law entered by the Court either pursuant to Enforcement Rule 208(f)(1) or pursuant to Enforcement Rule 214.
The Board proposes two amendments to Enforcement Rule 215(c)(5). The first amendment is to expand the exception to confidentiality to include orders of temporary suspension under Enforcement Rule 208(f)(5). This is the logical consequence of the Board's proposed revision to Enforcement Rule 402(c)(3), which will permit public access to information and proceedings concerning temporary suspensions under Enforcement Rule 208(f)(5). The second proposed revision is a minor change to describe Enforcement Rule 214 as ''relating to a criminal proceeding.'' This language best describes the rule, as in addition to governing an attorney convicted of a crime, Enforcement Rule 214 permits temporary suspension of an attorney prior to conviction.
Interested persons are invited to submit written comments, suggestions or objections by mail or facsimile to the Executive Office, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, facsimile number (717-231-3381), email address Dboard.comments@pacourts.us on or before June 14, 2021.
By The Disciplinary Board of the
Supreme Court of PennsylvaniaJESSE G. HEREDA,
Executive Director
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 B. MISCONDUCT Rule 215. Discipline on consent.
* * * * * (c) Confidentiality of resignation statement.—The fact that the attorney has submitted a resignation statement to Disciplinary Counsel or the Board for filing with the Supreme Court shall become a matter of public record immediately upon delivery of the resignation statement to Disciplinary Counsel or the Board. The order disbarring the attorney on consent shall be a matter of public record. 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:
(1) upon order of the Supreme Court,
(2) pursuant to an express written waiver by the attorney,
(3) upon a request of another jurisdiction for purposes of a reciprocal disciplinary proceeding,
(4) upon a request by the Pennsylvania Lawyers Fund for Client Security Board pursuant to Enforcement Rule 521(a) (relating to cooperation with Disciplinary Board), or
(5) when the resignation is based on an order of temporary suspension from the practice of law entered by the Court either pursuant to Enforcement Rule [208(f)(1)] 208(f) (relating to emergency temporary suspension orders and related relief) or pursuant to Enforcement Rule 214 (relating to [attorneys convicted of crimes] a criminal proceeding).
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Subchapter D. MISCELLANEOUS PROVISIONS Rule 402. Access to Disciplinary Information and Confidentiality.
(a) Except as provided in subdivisions (b), (d) and (k), all proceedings under these rules shall be open to the public after:
(1) the filing of an answer to a petition for discipline;
(2) the time to file an answer to a petition for discipline has expired without an answer being filed;
(3) the filing and service of a petition for reinstatement; or
(4) the Board has entered an Order determining a public reprimand.
(b) Notwithstanding subdivision (a), an informal proceeding under these rules in which it is determined that private discipline should be imposed but that subsequently results in the filing of formal charges shall not be open to the public until or unless the Supreme Court enters its order for the imposition of public discipline.
(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) [the proceeding is based on] an order of temporary suspension from the practice of law is entered by the Court pursuant to Enforcement Rule [208(f)(1)] 208(f) (relating to emergency temporary suspension orders and related relief) or Enforcement Rule 214(d) (relating to temporary suspension based on a criminal proceeding), in which case the proceedings and filings related to the petition, the order, and any petition to dissolve, amend or modify shall be public;
* * * * * (d) This rule shall not be construed to:
* * * * * (3) Prevent the Pennsylvania Lawyers Fund for Client Security from utilizing information obtained during any investigation to pursue subrogated claims.
(4) Prevent the Office of Disciplinary Counsel from making an informal referral of an attorney to Lawyers Concerned for Lawyers of Pennsylvania, Inc. (LCL-PA), if Disciplinary Counsel believes that the attorney may benefit from the services of LCL-PA. Disciplinary Counsel may share with LCL-PA information deemed confidential under these Enforcement Rules as part of the referral. LCL-PA shall not report information about the subject attorney to Disciplinary Counsel or to any staff of the Office of Disciplinary Counsel. The fact that a referral was made and its outcome shall not be relevant for any purpose and may not be considered or disclosed by Disciplinary Counsel in any proceeding under these Rules.
Official Note: Subdivision (d)(4) is intended to facilitate mental health and substance use referrals to Pennsylvania's approved lawyers' assistance program while preserving the confidentiality that is essential to that program's success. See Pennsylvania Rules of Professional Conduct, Rule 8.3(c) and Comment (7).
(e) Subdivision (a) shall not be construed to provide public access to:
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[Pa.B. Doc. No. 21-704. Filed for public inspection May 7, 2021, 9:00 a.m.]
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