812 Proposed amendments to the Pennsylvania Rules of Disciplinary Enforcement regarding access to disciplinary information and confidentiality

PART V. PROFESSIONAL ETHICS AND CONDUCT

[ 204 PA. CODE CH. 83 ]

Proposed Amendments to the Pennsylvania Rules of Disciplinary Enforcement Regarding Access to Disciplinary Information and Confidentiality

[46 Pa.B. 2407]
[Saturday, May 14, 2016]

 Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is considering recommending to the Pennsylvania Supreme Court that it adopt the amendments to Pennsylvania Rule of Disciplinary Enforcement 402 to facilitate cooperation with other disciplinary agencies, as set forth in Annex A.

 Enforcement Rule 402 establishes access to disciplinary information and confidentiality. Proposed changes will allow requests for nonpublic information by disciplinary enforcement agencies in other jurisdictions investigating misconduct by a respondent-attorney to be processed more quickly than the current rule allows. In the twenty-first century practice of law, it is an increasing occurrence that lawyers are admitted in more than one jurisdiction or rely on Rule of Professional Conduct 5.5(c) for the multijurisdictional practice of law. Permitting the free flow of information allows disciplinary enforcement agencies to make informed decisions and better use of often limited resources when regulating attorney conduct. The proposed changes will ensure the prompt and efficient flow of information between Pennsylvania's Office of Disciplinary Counsel and out-of-state disciplinary enforcement agencies. In so doing, cooperation between disciplinary agencies is increased and the public interest is served.

 The Board has evaluated the approaches of other jurisdictions and our inquiry has revealed that at least six other jurisdictions permit the disclosure of otherwise confidential information to out-of-state attorney disciplinary agencies.¹

 Current subdivision (c) provides that until proceedings are open under subdivisions (a) or (b), all proceedings involving allegations of misconduct by or disability of an attorney shall be confidential, with some enumerated exceptions. One of these exceptions is found under subsection (c)(2), which states that proceedings are confidential unless the investigation is predicated upon a conviction of the respondent-attorney for a crime or reciprocal discipline. The proposed change to subsection (c)(2) adds the language ''or disability under Enforcement Rule 216.'' This comports with the language of Rule 216 pertaining to reciprocal discipline and disability.

 Current subsection (c)(4) exempts from confidentiality the Supreme Court order transferring a respondent-attorney to disability inactive status pursuant to Rule 301. New subparagraph (c)(4)(i) emphasizes that only the Supreme Court order transferring the attorney to disability inactive status shall be a matter of public record, while new subparagraph (c)(4)(ii) provides that any other document involved in such disability matter is not to be publicly disclosed and is subject to the provisions of Enforcement Rules 301(e)(4) and 402(g). This language is added specifically to underscore the heightened privacy interests that attend a respondent-attorney's health information and which are protected by the specific prohibition in Rule 301 against the release of those documents, except for very limited circumstances.

 Current subdivisions (g) and (h) require out-of-state disciplinary enforcement agencies to adhere to waiver and notice requirements in order to obtain information. Proposed changes to subdivisions (g) and (h) will remove that burden from such agencies so as to give expedited access to requested information.

 Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3382), Email address [e-mail] on or before June 24, 2016.

By the Disciplinary Board of the
Supreme Court of Pennsylvania

ELAINE M. BIXLER, 
Secretary

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 D. MISCELLANEOUS PROVISIONS

Rule 402. Access to Disciplinary Information and Confidentiality.

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 (c) Until the proceedings are open under subdivision (a) or (b), all proceedings involving allegations of misconduct by or disability of an attorney shall be kept confidential unless:

 (1) the respondent-attorney requests that the matter be public, or waives confidentiality for a particular purpose specified in writing;

 (2) the investigation is predicated upon a conviction of the respondent-attorney for a crime, or reciprocal discipline or disability under Enforcement Rule 216;

 (3) the proceeding is based on an order of temporary suspension from the practice of law entered by the Court pursuant to Enforcement Rule 208(f)(1) (relating to emergency temporary suspension orders and related relief);

 (4) in matters involving alleged disability, the Supreme Court enters its order transferring the respondent-attorney to inactive status pursuant to Enforcement Rule 301 (relating to proceedings where an attorney is declared to be incompetent or is alleged to be incapacitated)[; or], but

 i. in such cases the order transferring the attorney to disability inactive status shall be a matter of public record, and

 ii. any other document is subject to the provisions of Enforcement Rules 301(e)(4) and 402(g); or

 (5) there is a need to notify another person or organization, including the Lawyers' Fund for Client Security, in order to protect the public, the administration of justice, or the legal profession.

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 (g) Except as provided in [subsection] subdivision (h), if nonpublic information is requested pursuant to subdivision (d)(1)(i), (iii), or (iv) [or (v)] and the respondent-attorney has not signed an applicable waiver of confidentiality, the respondent-attorney shall be notified in writing at the last known address of the respondent-attorney of what information has been requested and by whom, together with a copy of the information proposed to be released to the requesting agency or board. The notice shall advise the respondent-attorney that the information will be released 20 days after mailing of the notice unless the lawyer objects to the disclosure. If the lawyer timely objects to the disclosure, the information shall remain confidential unless the requesting agency or board obtains an order of the Supreme Court requiring its release or the respondent-attorney withdraws the objection.

 (h) If an agency or board requesting the release of information under subdivision (d)(1) other than the Judicial Conduct Board [and the], Pennsylvania Lawyers Fund for Client Security Board and lawyer disciplinary enforcement agencies in other jurisdictions has not obtained an applicable waiver of confidentiality from the respondent-attorney, and the agency or board requests that the information be released without giving notice to the respondent-attorney, the requesting agency or board shall certify that:

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[Pa.B. Doc. No. 16-812. Filed for public inspection May 13, 2016, 9:00 a.m.]

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