By Order dated March 22, 2022, the Supreme Court of Pennsylvania adopted amendments to the Pennsylvania Rules of Disciplinary Enforcement (Pa.R.D.E.) relating to confidentiality of proceedings.
Pa.R.D.E. 102, “Definitions”, adds definitions for “formal proceedings” and “informal proceedings.” Informal proceedings begin with a complaint submitted to the Office of Disciplinary Counsel or an investigation initiated by that office and cover all proceedings up to the filing of a petition for discipline. Informal proceedings are not open to the public. Formal proceedings begin with the filing of a petition for discipline and are open to the public. Documents generated in an informal proceeding are not open, unless they are made part of the record in a formal proceeding.
Pa.R.D.E. 209, formerly titled “Immunity”, is amended to “Complaints and Immunity.” A new subsection (a) provides that the complaint shall not be provided to a respondent-attorney unless and until formal charges are filed and the complainant is designated as a witness, or Disciplinary Counsel determines that it contains exculpatory material. Hearing committee members or special masters are authorized to enter protective orders to prevent disclosure of the complaint to the public upon cause shown.
Several amendments are made to Pa.R.D.E. 402, “Access to Disciplinary Information and Confidentiality”. Subsection 3(c) now provides that proceedings based on a criminal conviction under Pa.R.D.E. 214(d) are open on the same basis as petitions for temporary suspension under Pa.R.D.E. 208(f).
The amendment adds three exceptions to the requirement of confidentiality under subsection (d). Disciplinary Counsel are authorized to disclose the disposition of a complaint to the complainant, including describing the discipline imposed and any conditions attached. The Board is permitted to exercise its discretion to allow public access to a complaint or portions where the interests of justice require, with prior notice to the parties. Disciplinary Counsel may make a referral of an attorney to Lawyers Concerned for Lawyers of Pennsylvania (LCL-PA) and share information as part of the referral. LCL-PA may not report information about a subject attorney to Disciplinary Counsel.
A new subsection (4) is added to Pa.R.D.E. 402(e), specifying documents not open to the public, to clarify that a complaint filed with Disciplinary Counsel or the Board is not part of the open record.
A new note to the rule clarifies that the proceeding and the petition for discipline do not become public until an answer has been filed, or the time to file an answer has passed.
These amendments take effect thirty days from adoption, or on April 21, 2022.