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 the Disciplinary Board's Power to Authorize Electronic Means to Conduct Proceedings and Public Access Through Livestream Technology
[51 Pa.B. 5359]
[Saturday, August 28, 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 that the Court amend Pennsylvania Rules of Disciplinary Enforcement 205 and 402, as set forth in Annex A.
EXPLANATORY REPORT Consistent with state courts and agencies in the Commonwealth, during the COVID-19 outbreak the Board has continued its essential operations by conducting hearings, arguments, reprimands and other proceedings remotely through the use of advanced video communication technology. Livestream technology provides public access to public proceedings. Recognizing both that the future is uncertain and that the use of remote proceedings and livestream technology has benefitted the disciplinary system by providing flexibility and greater public access, the Board proposes amendments to Rules 205(c) and 402(j).
Pa.R.D.E. 205(c) enumerates the Board's powers and duties. The Board's proposal adds the additional power to authorize electronic means to conduct proceedings within the rules and decisional law of the Court and the Board. While current Rule 402(j) gives the Board, as well as hearing committees, special masters and the Supreme Court, the ability to authorize electronic and photographic means during a proceeding to present evidence, perpetuate the record, or for other judicial administration purposes, the Board determined that it is necessary to solidify its power to authorize electronic means by specifically setting forth that power in Rule 205.
Pa.R.D.E. 402 governs access to disciplinary information and confidentiality. The Board's proposal amends subdivision (j) to address public access to public proceedings. New subparagraph (j)(2) provides that public access to a public proceeding before a hearing committee, special master or the Board shall consist of or be supplemented by livestream technology. Based on the experience gained over the past 16 months, the Board views the public's ability to observe livestreamed public proceedings on YouTube as a great benefit. The livestream allows much greater access to disciplinary and reinstatement proceedings, as it affords members of the public the convenience of viewing a proceeding from any location, rather than having to attend a proceeding in-person at one of the district offices in the Commonwealth. The proposed revisions further provide that the livestream access ceases upon the conclusion of the proceeding and the official record of the proceeding is the record generated by the court reporter, if such is applicable.
The use of livestream technology does not prohibit the public from attending proceedings in-person. Proposed subparagraph (j)(3) permits public access to a public proceeding through a request process, which will ensure adherence to any health and safety policies in place at the time of the request. The tandem approach of livestream technology and public access upon request accomplishes reasonable means of access to disciplinary proceedings.
Interested persons are invited to submit written comments, suggestions or objections by mail, email 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 September 27, 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 205. The Disciplinary Board of the Supreme Court of Pennsylvania.
* * * * * (c) The Board shall have the power and duty:
* * * * * (16) To decide, through the Board Chair, the Vice-Chair, or a designated lawyer-member of the Board, an interlocutory appeal to the Board when such appeal is permitted by the Enforcement Rules, the Board Rules, or other law.
(17) To authorize the use of electronic means to conduct proceedings before a hearing committee, special master or the Board, in accordance with Board Rules, Enforcement Rules and the decisional law of the Court and the Board.
[(17)] (18) To exercise the powers and perform the duties vested in and imposed upon the Board by law.
(d) The Board shall, to the extent it deems feasible, consult with officers of local bar associations in the counties affected concerning any appointment which it is authorized to make under these rules.
Subchapter D. MISCELLANEOUS PROVISIONS Rule 402. Access to Disciplinary Information and Confidentiality.
* * * * * [(j)] (j)(1) This rule does not permit broadcasting, televising, recording or taking photographs during a proceeding under these rules, except that a hearing committee, a special master, the Board or the Supreme Court when conducting a proceeding may authorize the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record or for other purposes of judicial administration.
(2) Public access to a public proceeding before a hearing committee, special master or the Board shall consist of or be supplemented by livestream technology, which access shall cease upon the conclusion of the proceeding. The official record of the proceeding shall be the record generated by the court reporter, as applicable.
(3) A request for in-person access to a public proceeding other than by the parties, their attorneys and reasonably necessary staff shall be made to the Board at least 30 days in advance of the scheduled proceeding.
(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.
* * * * *
[Pa.B. Doc. No. 21-1376. Filed for public inspection August 27, 2021, 9:00 a.m.]
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