THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CH. 83 ]
Proposed Amendments to the Rules of Disciplinary Enforcement to Define Informal Proceedings and Formal Proceedings, Make Complaints Confidential, and Clarify Access to Disciplinary Information and Confidentiality
[51 Pa.B. 1128]
[Saturday, March 6, 2021]Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania (''Board'') is considering recommending to the Supreme Court of Pennsylvania that the Court amend Rules 102, 209 and 402 of the Pennsylvania Rules of Disciplinary Enforcement (''Enforcement Rules'' or ''Pa.R.D.E.''), as set forth in Annex A.
Rule 102. Definitions.
The Board proposes amending Pa.R.D.E. 102 by adding the definitions of ''informal proceedings'' and ''formal proceedings'' to the rule. Disciplinary proceedings are classified as ''informal'' or ''formal.'' Informal proceedings commence with the filing of a complaint to the Office of Disciplinary Counsel or an investigation initiated by the Office of Disciplinary Counsel. An informal proceeding includes all proceedings up to the filing of a petition for discipline. The record of an informal proceeding is not open to the public. Formal proceedings commence with the filing of a petition for discipline containing the allegations of misconduct. A formal proceeding does not include any of the submissions or documents generated during an informal proceeding unless such are made part of the record at the formal proceeding. Formal proceedings are open to the public, pursuant to Pa.R.D.E. 402.
Although the terms ''informal'' and ''formal'' proceedings are used frequently in the Enforcement Rules, the current rules do not define these terms. This leads to confusion regarding which proceedings, filings and documents are confidential and which are accessible to the public. The proposed definitions eliminate confusion and provide clarity.
Rule 209. Immunity.
Current Pa.R.D.E. 209(a) provides that ''Complaints submitted to the Board or Disciplinary Counsel shall be confidential unless the matter results in the filing of formal charges.'' Thus, the rule permits public access to complaints in any matter where formal proceedings have commenced. The Board proposes amending subdivision (a) of Pa.R.D.E. 209 to make complaints confidential even if formal proceedings have commenced, and to further specify the circumstances under which a respondent-attorney may be provided with the complaint.
A complaint filed against an attorney may contain any number of claims of misconduct, some of which upon investigation by Office of Disciplinary Counsel, may be found to be unsubstantiated and therefore do not appear in the petition for discipline. The petition for discipline is the operative charging document in a formal proceeding and contains only those allegations that have been reviewed by Disciplinary Counsel and approved by a reviewing hearing committee member or Board panel, or are based on other proceedings (for example, a criminal conviction).
Under current subdivision (a), a complaint may be disclosed to the public after the initiation of formal charges, despite the fact that the complaint may contain unfounded allegations of misconduct not included in the petition for discipline that commenced the formal proceedings. Such unfounded allegations generally should not be disclosed to the public.
For these reasons, the Board's proposal makes all complaints confidential, except in the limited circumstances outlined in the proposed amendment that allow a complaint to be provided to the respondent-attorney.1
Additionally, the proposal includes changing the title of Pa.R.D.E. 209 to ''Complaints and Immunity'' to better reflect the contents of the rule.
Rule 402. Access to Disciplinary Information and Confidentiality.
Pa.R.D.E. 402 governs access to disciplinary information and confidentiality. Subdivision (d) of Pa.R.D.E. 402 clarifies that the rule should not be construed to deny access to relevant information to certain agencies and boards or prevent information from being reported or utilized under specific circumstances. The Board proposes amending subdivision (d) by adding new subsections (4) and (5).
Disciplinary Board Rules §§ 87.9 and 87.51(a)(1) require that either the Office of Disciplinary Counsel or Executive Office notify a complainant of the disposition of a complaint. This requirement does not appear in the Enforcement Rules, nor do either set of rules provide guidance regarding the contents of such notice. Proposed new subsection 402(d)(4) states that Enforcement Rule 402 shall not be construed to prevent notifying a complainant of the disposition of a complaint and specifically authorizes the notice to include the type of discipline imposed and any condition attached to the disciplinary sanction. This proposed language ensures that a complainant is fully informed of the final outcome of their complaint.
Proposed new subsection 402(d)(5) states that Rule 402 shall not be construed to prevent the Board from exercising its discretion to disclose a complaint or portions thereof, in the interests of justice, and further states that the affected parties shall be notified in advance of the Board's intent to disclose otherwise confidential material. The proposed language preserves the Board's discretion to act in furtherance of its duty to protect the public.
Subdivision (e) of Pa.R.D.E. 402 provides that the public is not permitted access to certain types of information, such as work product and deliberations of the Board and Disciplinary Counsel, and information subject to a protective order. The Board proposes adding a new subsection (e)(4) to clarify that public access to complaints submitted to the Board or Disciplinary Counsel is prohibited. This new language reinforces the proposed amendment to Pa.R.D.E. 209(a) that makes complaints confidential.
The Board proposes adding a new note at the end of Pa.R.D.E. 402 to explain that under subdivision (a), related to the timing of when proceedings are open to the public, a petition for discipline is part of a formal proceeding and is open to the public and part of the public record, although the public is not permitted access until an answer has been filed or the time to file the answer has expired.
Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Executive Office, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3381), Email address Dboard.comments@pacourts.us on or before April 5, 2021.
By the Disciplinary Board of the
Supreme Court of PennsylvaniaJESSE G. HEREDA,
Executive Director
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart B. DISCIPLINARY ENFORCEMENT
CHAPTER 83. PENNSYLVANIA RULES OF DISCIPLINARY ENFORCEMENT
Subchapter A. PRELIMINARY PROVISIONS Rule 102. Definitions.
* * * * * Foreign legal consultant—A person who holds a current license as a foreign legal consultant issued under Rule 341 of the Pennsylvania Bar Admission Rules.
''Formal proceedings.'' Proceedings that commence with the filing of a petition for discipline. A formal proceeding does not include any of the submissions or documents generated during an informal proceeding unless they are made part of the record at the formal proceeding by motion, by stipulation, or by admission as an exhibit during a hearing. Pursuant to Enforcement Rule 402(a), formal proceedings are open to the public, except as provided in Enforcement Rules 402(b) and 402(k).
Formerly admitted attorney—A disbarred, suspended, administratively suspended, permanently resigned, retired or inactive attorney.
Hearing Committee—A hearing committee appointed under Enforcement Rule 206 (relating to hearing committees and special masters).
Informal admonition—Private informal admonition by Disciplinary Counsel.
''Informal proceedings.'' Proceedings that commence with the submission of a complaint to the Office of Disciplinary Counsel or an investigation initiated by the Office of Disciplinary Counsel. An informal proceeding includes all proceedings up to the filing of a petition for discipline. Informal proceedings are not open to the public.
''Legal Counsel.'' Counsel to the Board and Special Counsel.
* * * * *
Subchapter B. MISCONDUCT Rule 209. Complaints and Immunity.
(a) Complaints submitted to the Board or Disciplinary Counsel shall be confidential [unless the matter results in the filing of formal charges]. See [Rule 402(a)] Rule 402(e) (relating to access to disciplinary information and confidentiality). 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.
(b) Members of the Board, members of hearing committees, special masters, Disciplinary Counsel and staff shall be immune from civil suit for any conduct in the course of their official duties. All communications to the Board, a hearing committee, special master, or Disciplinary Counsel relating to misconduct by a respondent-attorney and all testimony given in a proceeding conducted pursuant to these rules shall be absolutely privileged and the person making the communication or giving the testimony shall be immune from civil suit based upon such communication or testimony. For purposes of this subdivision [(a)] (b), the staff of the Board shall be deemed to include conservators and sobriety, financial or practice monitors appointed pursuant to these rules or the rules of the Board.
[(b)] (c) Complaints against members of the Board involving alleged violations of the Disciplinary Rules or these rules shall be handled in the same manner as other complaints, except that if action is required by the Board, the Board shall notify the Supreme Court which shall appoint an Ad Hoc Disciplinary Board comprised of five former members of the Board who shall discharge the functions of the Board and have all the powers of the Board with respect to that one matter only.
[(c)] (d) Complaints against Disciplinary Counsel involving alleged violations of the Disciplinary Rules or these rules shall be submitted directly to the Board and assigned to a reviewing member of the Board for disposition.
Official Note: The provisions of [subdivision (a) of the] this rule recognize that the submission and receipt of complaints against attorneys, and the investigation, hearing, decision and disposition of such complaints, are all parts of a judicial proceeding conducted pursuant to the inherent power of the Supreme Court of Pennsylvania. The immunity from civil suit recognized to exist in [subsection (a)] subdivision (b) is that which exists for all participants in judicial proceedings under Pennsylvania law, so long as their statements and actions are pertinent, material and during the regular course of a proceeding.
Subchapter D. MISCELLANEOUS PROVISIONS Rule 402. Access to Disciplinary Information and Confidentiality.
* * * * * (d) This rule shall not be construed to:
* * * * * (3) Prevent the Pennsylvania Lawyers Fund for Client Security from utilizing information obtained during any investigation to pursue subrogated claims.
(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.
(e) Subdivision (a) shall not be construed to provide public access to:
(1) the work product of the Board, Disciplinary Counsel, hearing committee members, or special masters;
(2) deliberations of a hearing committee, special master, the Board or the Court; [or]
(3) information subject to a protective order issued by the Board under subdivision (f); or
(4) a complaint submitted to the Board or Disciplinary Counsel.
(f) The Board may, upon application of any person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential, and the Board may direct that proceedings be conducted soas to implement the order, including requiring that a hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of a protective order.
* * * * * Official Note: Under subdivision (a), a petition for discipline is part of a formal proceeding; therefore, the petition is open to the public and part of the public record. See Enforcement Rule 102(a) (definition of ''Formal Proceedings''); Enforcement Rule 208(b)(1) (formal proceedings instituted by filing a petition for discipline). 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.
[Paragraph] Subsection (d)(2) is based on 18 Pa.C.S. § 5108 (relating to compounding). Otherwise Disciplinary Counsel may be in the anomalous position of violating Rule 8.4 of the Pennsylvania Rules of Professional Conduct.
Although subdivision (k) provides that a formal proceeding that becomes open to the public under subdivision (a) will subsequently be closed if it results in the imposition of private discipline or dismissal of all the charges, the closing of the proceeding cannot change the fact that the proceeding was open to the public for a period of time. Thus, subdivision (k) makes clear that the respondent-attorney may request that the record of the proceeding remain open to demonstrate that the charges were dismissed or only private discipline was imposed.
[Pa.B. Doc. No. 21-322. Filed for public inspection March 5, 2021, 9:00 a.m.] _______
1 During the investigative stage, the respondent-attorney has the opportunity to respond to Office of Disciplinary Counsel's request for a statement of position that informs the respondent that a complaint was filed by a named complainant; however, the actual complaint is not provided to the respondent.
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