In a Notice of Proposed Rulemaking published in the Pennsylvania Bulletin on March 6, 2021 (51 Pa.B. 1128), the Disciplinary Board proposed a series of amendments to the Rules of Disciplinary Enforcement regarding confidentiality and access to documents in disciplinary matters. Comments on the proposed rule may be submitted on or before April 5, 2021.
Rule 102, Definitions, would be amended to distinguish between formal proceedings, which are open to the public with some exceptions, and informal proceedings, which are not open.
Rule 209, currently titled “Immunity,” will be amended to include complaints and immunity. The current provision that complaints are confidential until formal charges are filed would be replaced with the following language:
Unless and until formal charges are filed and the complainant is designated as a witness at the prehearing conference, or Disciplinary Counsel determines that the complaint contains exculpatory material, the complaint shall not be provided to the respondent-attorney. At or after the prehearing conference, the senior or experienced hearing committee member or the special master may enter a protective order on cause shown to prohibit disclosure of the complaint or parts of it to the public.
Rule 402, Access to Disciplinary Information and Confidentiality, would be amended to add two new subparagraphs to (d):
(d) This rule shall not be construed to:
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(4) 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.
(5) 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.
Language will be added to subdivision (e) of Rule 402 to specify that complaints are not open to public access.
The Note to Rule 402 contains added language providing that “a petition for discipline is part of a formal proceeding; therefore, the petition is open to the public and part of the public record. [citations omitted] However, the proceeding and the petition do not become open to the public until an answer is filed or the time to file an answer expires without an answer being filed.”
Comments may be submitted until April 5, 2021 to:
The Disciplinary Board of the Supreme Court of Pennsylvania
601 Commonwealth Avenue, Suite 5600
PO Box 62625
Harrisburg, PA 17106-2625
Fax: (717) 231-3381
Email: DBoard.Comments@pacourts.us