Supreme Court Opens Disciplinary System to Public View

On October 26, 2005, the Supreme Court of Pennsylvania adopted an order in which it changed a confidentiality policy that has been in effect since the founding of the Disciplinary Board thirty-three years ago, and ordered that disciplinary proceedings will become public matters, once a proceeding is initiated by a Petition for Discipline and the respondent-attorney has had an opportunity to answer the charges. This proposal was originally published by the Disciplinary Board in June 2004.

Public Disciplinary Proceedings:

The Basic Rule: The pivotal provision of the new rule is an amendment to Rule 402 of the Pennsylvania Rules of Disciplinary Enforcement (Pa. R.D.E.) which states:

Except as provided in subdivisions (b) and (d), 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; or
(3) the filing and service of a petition for reinstatement.

Under the Pa.R.D.E., a Petition for Discipline is filed when the Office of Disciplinary Counsel has conducted an investigation which includes notice and an opportunity for the respondent-attorney to answer the charges, after which, on recommendation of the Office of Disciplinary Counsel, a reviewing member of a hearing committee or a panel of the Disciplinary Board concludes that formal disciplinary charges are warranted. If on recommendation of Disciplinary Counsel these reviewing authorities conclude that some sort of private discipline is appropriate, the matter never reaches the point where a Petition for Discipline would be filed and the matter remains confidential.

The case will become public only after the respondent-attorney has had an opportunity to file an answer to the Petition for Discipline, and has either done so or failed to do so within the time allotted for an answer.

Types of Public Cases: Cases based on a criminal conviction or on public discipline entered in another state or jurisdiction will be public, as they always have. When a lawyer who has been suspended, disbarred, or placed on inactive status files a petition for reinstatement to the bar, that proceeding will also be public.

Public Cases -- Special Circumstances: The rule also states that a matter may become public if “the proceeding is based upon allegations that have become generally known to the public,” or if there is a need to disclose information to protect the public, the administration of justice, or the legal profession.

Broadcasting and media: The rule does not permit broadcasting, televising, recording, or taking photographs during disciplinary proceedings, except as specifically allowed by a Hearing Committee, Special Master, the Disciplinary Board, or the Supreme Court for purposes of perpetuating a record or other purposes related to judicial administration.

Nonpublic Information: Certain information will remain confidential under the new rule. Circumstances where confidentiality still applies include the following:

Pending or Closed Complaints: Prior to the filing of a Petition for Discipline, information on complaints under investigation or closed matters remains confidential and is considered “nonpublic information.”

Private Discipline Matters: Lawyers who have been ordered to submit to private discipline, such as informal admonition or private reprimand, have the right to appeal by requesting the institution of formal charges. A Petition for Discipline may also be filed against a Lawyer who is ordered to submit to private discipline, but who fails to appear for that discipline or to comply with conditions attached to it. These proceedings will not be public unless or until the Supreme Court enters an order imposing public discipline upon the respondent-attorney. This is the only major provision added to the rulemaking since its publication by the Disciplinary Board in June 2004.

Protective Orders: The rule also includes a provision allowing the Disciplinary Board to issue a protective order prohibiting the disclosure of specific information.

Requests for Nonpublic Information: There is also an extensive procedure under which nonpublic information may be requested by individuals or agencies. The respondent-attorney is provided with a notice of the request and is given 20 days to reply, and if the respondent-attorney fails to object, the information may be released. Under most circumstances information may be released if the respondent-attorney waives the protection of confidentiality, as well.

Investigating Agencies: There are also circumstances under which an agency may request release of information without notice to the respondent-attorney. The agency must certify that the request is in connection with an investigation of misconduct by the respondent-attorney, the information is essential to that investigation, and the disclosure of the inquiry would seriously prejudice the investigation.

Minor changes to other Rules of Disciplinary Enforcement to reflect these principles are also made.

Effective Date: The rulemaking will become effective upon publication in the Pennsylvania Bulletin. It is expected that this will occur November 12, 2005. The new provisions will apply to all matters filed after that date, and to those matters pending at the time in which a petition for discipline or reinstatement has not been filed.

The Rule is available online here. The order adopting the changes is posted here.