§ 93.102. Access to disciplinary information and confidentiality.
(a) General rule. Enforcement Rule 402(a) provides that, except as provided in subsections (b) and (d) and § 93.104 (relating to access by judicial system agencies to confidential information) and § 93.108 (relating to restoration of confidentiality), 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;
(4) the Board has entered an Order determining a public reprimand; or
(5) after the expiration of any order restricting access to disciplinary information.
(b) Certain informal proceedings. Enforcement Rule 402(b) provides that, notwithstanding subsection (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) Exceptions to initial confidentiality. Enforcement Rule 402(c) provides that, until the proceedings are open under subsection (a) or (b), all proceedings involving allegations of misconduct by or disability of an attorney shall be kept confidential unless:
(1) the respondent-attorney requests that the matter be public, or waives confidentiality for a particular purpose specified in writing,
(2) the investigation is predicated upon a conviction of the respondent-attorney for a crime or reciprocal discipline,
(3) an order of temporary suspension from the practice of law is entered by the Court pursuant to Enforcement Rule 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,
(4) in matters involving alleged disability, the Supreme Court enters its order transferring the respondent-attorney to disability inactive status pursuant to Chapter 91 Subchapter D (relating to disability), 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.
(d) Permitted uses of otherwise confidential information. Enforcement Rules 402(d)(2), (3), (4), (5) and (6) provide that the provisions of subsections (a) and (b) of this section shall not be construed to:
(1) Require Disciplinary Counsel to refrain from reporting to law enforcement authorities the commission or suspected commission of any criminal offense or information relating to a criminal offense.
Official Note
The Note to Enforcement Rule 402 provides that subsection (d)(1) is based on 18 Pa.C.S. § 5108 (relating to compounding) and that otherwise Disciplinary Counsel may be in the anomalous position of violating Rule 8.4 of the Pennsylvania Rules of Professional Conduct.
(2) Prevent the Pennsylvania Lawyers Fund for Client Security from utilizing information obtained during an investigation to pursue subrogated claims.
(3) Prevent Disciplinary Counsel or the Board from notifying the complainant of the disposition of a complaint, including the type of discipline imposed and any condition attached to the discipline.
(4) Prevent the Board from exercising its discretion to provide public access to a complaint or portions thereof, as the interests of justice may require. The affected parties shall be notified in advance of the intent to disclose otherwise confidential material.
(5) Prevent 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.
Note
Subsection (d)(5) of this rule 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) Waiver. Any respondent-attorney may in writing waive the benefits, in whole or in part, of this subchapter.
(f) National Lawyer Regulatory Data Bank. Enforcement Rule 402(i) provides that the Board shall transmit notice of all public discipline imposed by the Supreme Court, transfers to or from disability inactive status, and reinstatements to the National Lawyer Regulatory Data Bank maintained by the American Bar Association.
(g) Requests for documents. Requests for copies of documents relating to disciplinary proceedings that are available to the public under this subchapter must be in writing and directed to the Executive Office. A copying fee, which shall be the same as the copying fee charged to respondent-attorneys, must be prepaid at the time a request is made.
(h) Transcripts and exhibits. The Board will not make available to the public copies of transcripts or exhibits introduced as evidence in a proceeding.
Official Note
Nothing in this Rule shall preclude any individual from obtaining copies of transcripts or exhibits through the official reporter designated by the Executive Office.
Source The provisions of this § 93.102 amended May 18, 1979, effective May 19, 1979, 9 Pa.B. 1607; amended March 10, 1989, effective March 11, 1989, 19 Pa.B. 952; amended February 24, 2006, effective February 25, 2006, 36 Pa.B. 929; amended April 18, 2008, effective April 19, 2008, 38 Pa.B. 1812; amended May 29, 2009, effective May 30, 2009, 39 Pa.B. 2687; amended August 10, 2012, effective August 11, 2012, 42 Pa.B. 5156; amended September 27, 2019, effective 30 days after publication, 49 Pa.B. 5552; amended April 29, 2022, effective 30 days after publication, 52 Pa.B. 2581; amended December 15, 2023, effective 30 days after publication, 53 Pa.B. 7704. Immediately preceding text appears at serial pages (410155) to (410157).
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