Lawyer disciplinary proceedings would be subject to greater public scrutiny under a state ethics board proposal.
Sep. 10, 2004

LINK

Cases involving Pennsylvania lawyers facing disciplinary action would be more open to the public under a new rule proposed by the Disciplinary Board of the Supreme Court of Pennsylvania.

Such proceedings currently are kept secret until the state Supreme Court imposes public censure, suspension or disbarment. A proposed amendment to the board's rules would make the case public after a formal charge and answer are filed, or the time to file an answer has expired.

The change would bring Pennsylvania in line with the majority of states, which now allow public access to attorney disciplinary proceedings.

"We have an outstanding system of discipline in Pennsylvania," said board Chairman Louis N. Teti. Lawyers supporting the proposed change want to "[make] sure that the disciplinary system is effective, so the public can be protected," he said.

Some lawyers, however, predict the proposal will have a chilling effect on attorneys who would otherwise fight an informal admonition or private reprimand, because such a challenge could result in the filing of formal charges which would be made public.

The board will consider a suggestion from the Philadelphia Bar Association that proceedings remain confidential in cases where informal admonitions or private reprimands are recommended, Teti said.

Pennsylvania is one of only 14 states that keep attorney disciplinary proceedings secret until there is a recommendation that discipline be imposed or the matter is closed, according to the American Bar Association's Center for Professional Responsibility. Thirty-three states and the District of Columbia make attorney disciplinary proceedings public once probable cause is found or a formal complaint is filed -- a position consistent with the ABA's Model Rules for Lawyer Disciplinary Enforcement.

"The need to protect the integrity of the disciplinary process in the eyes of the public requires that at [that] point further proceedings be open to the public," states the commentary to Model Rule 16 of the ABA rules governing public access to disciplinary information. "An announcement that a lawyer accused of serious misconduct has been exonerated after a hearing behind closed doors will be suspect. The same disposition will command respect if the public has had access to the evidence."

Pennsylvania's 16-member disciplinary board, which reviews conduct and assures compliance by all attorneys with state ethics rules, began considering the proposed rule change in August 2003, Teti said. The public comment period was initially set to expire July 30, but was extended once to August 31, and again to September 30, to give lawyers more time to respond, he said. After the comment period ends, the rules committee will meet and make recommendations to the board, which decides whether to recommend approval of the proposal by the Supreme Court. It is uncertain when the new rule would take effect.

The court last month adopted several unrelated changes to the Pennsylvania Rules of Professional Conduct, to take effect Jan. 1, 2005.



(Rule 402 of the Pennsylvania Rules of Disciplinary Enforcement) -- KK

Related stories:

Attorney under investigation must stay mum (6/20/03)
LINK

Order to keep FBI documents secret doesn't violate First Amendment rights of attorney targeted by a disciplinary investigation, supreme court says.
June 20, 2003 -- An attorney under a disciplinary probe for saying two judges used cocaine cannot talk about or release documents showing the FBI investigated the same judges for cocaine use, the Colorado Supreme Court ruled Monday.

The court says the restriction on speech does not violate the attorney's First Amendment rights because it is limited to the investigatory phase of the disciplinary action and necessary to protect the privacy of the judges who requested the restriction.

The attorney, whose name remains confidential, received the FBI documents after Colorado's Attorney Regulation Counsel subpoenaed them while investigating the attorney for disciplinary violations. The attorney then publically distributed the documents detailing the FBI's investigation by filing them in various courts of record.

The judges who were the subjects of the FBI investigation then asked for a protective order to stop further spread of the information. The judge presiding over the disciplinary action granted the order, which the supreme court upheld.

The state rules governing attorney discipline specifically give an attorney under investigation the right to publicly release any information that emerges during the investigation. Colorado revised the rules in 1999 with a major goal "to make the system of attorney discipline more publicly visible," Justice Michael Bender wrote in the unanimous opinion.

Although Colorado's highest court acknowledged both the attorney's right to publicize the information and a "legitimate public interest in an FBI investigation of two judges," it held those rights and interests give way to the privacy concerns in this situation. The U.S. Attorney's office never brought charges against the judges investigated for cocaine use.

The attorney had argued that the restrictions on further release of the FBI investigation was an unconstitutional after-the-fact prior restraint on speech.

The court, however, balanced First Amendment concerns against the government's interest in protecting the discovery process by allowing for confidentiality, as well as the actual restriction on speech.

The attorney would be free to publicize information about the judges' alleged cocaine use that he learned from a source independent of the investigatory phase of the disciplinary action or if the documents become part of the public record when a formal disciplinary action is taken against the attorney.

(In re the Matter of the Requests of Investigation of Attorney E.) -- KH

State bar drafts sunshine policy for disciplinary hearings (6/20/2001)

LINK

If adopted an amendment to the Supreme Court rules will make public the process by which attorneys in the state are reprimanded for ethical lapses.
The Virginia State Bar Council approved a measure at its June 14 annual meeting that would, if approved by the state high court, increase public access to attorney disciplinary proceedings.

The amendment permits the public to attend a second-tier hearing which handles violations that would not result in the loss of a license to practice law. Hearings before the disciplinary board, which addresses more serious infractions, have been open to the public.

Under disciplinary rules, a subcommittee first reviews all complaints filed against an attorney. Based on the severity of the alleged wrongdoing, the three-member subcommittee then refers the dispute to either the district committee or the disciplinary board. The proposal covers the district committee hearings.

"If the Virginia State Bar is going to retain the privilege of regulating itself, we have to retain the public's confidence in the process, and this is a way of doing it," said Joseph A. Condo, president of the council.

The amendment would also make a procedural change to the subcommittee that determines whether there should be a hearing for the complaint. Under the current system, only one person on the three-member subcommittee must vote to set the matter for hearing, which is not public. The proposed amendment would require two members of the three-member subcommittee to vote for the hearing, which would be public.

"The bar council decided that since the stakes got raised, the votes should be raised," Condo said of the necessary votes to make the hearing public.

Steve Serdikoff, associate counsel for HALT, a national organization based in Washington, D.C., which pushes for legal reform, said the Virginia disciplinary hearings operate much like other states.

"For the most part, attorney discipline in this country is completely self-regulating," Serdikoff said. "It really sort of bends toward the will of the attorneys. Attorney discipline therefore is generally closed off to the public."

He agreed with Virginia's initiative to further open the process to the public, but said that the process was not open enough. Serdikoff said the process needs to be publicized and made understandable to the public.

"I think it should be public information all the way around," he said.

Before the rule change becomes effective, the Virginia Supreme Court must approve it. Barbara Williams, counsel to the state bar, was uncertain when the court would consider the change.

Another proposed change to the current system is to limit the number of private reprimands to two in 10 years. Condo said that unless the attorney can show that there were mitigating circumstances, an attorney will be publicly disciplined if he has had more than two private reprimands.

"The rule now has some teeth in it limiting it to two," Condo said.

-- AP