204 Pa. Code § 93.102 - Access to disciplinary information and confidentiality
(a)
General rule.
Enforcement Rule 402(a) provides that, except as provided in subsections (b)
and (d) and 93.104 (relating to access by judicial system agencies to
confidential information) and 93.108 (relating to restoration of
confidentiality), all proceedings under these rules shall be open to the public
after:
(1) the filing of an answer to a
petition for discipline;
(2) the
time to file an answer to a petition for discipline has expired without an
answer being filed;
(3) the filing
and service of a petition for reinstatement;
(4) the Board has entered an Order
determining a public reprimand; or
(5) after the expiration of any order
restricting access to disciplinary information.
(b)
Certain informal
proceedings. Enforcement Rule 402(b) provides that, notwithstanding
subsection (a), an informal proceeding under these rules in which it is
determined that private discipline should be imposed but that subsequently
results in the filing of formal charges shall not be open to the public until
or unless the Supreme Court enters its order for the imposition of public
discipline.
(c)
Exceptions
to initial confidentiality. Enforcement Rule 402(c) provides that,
until the proceedings are open under subsection (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,
(3) an order of
temporary suspension from the practice of law is entered by the Court pursuant
to Enforcement Rule 208(f) (relating to emergency temporary suspension orders
and related relief) or Enforcement Rule 214(d) (relating to temporary
suspension based on a criminal proceeding), in which case the proceedings and
filings related to the petition, the order, and any petition to dissolve, amend
or modify shall be public,
(4) in
matters involving alleged disability, the Supreme Court enters its order
transferring the respondent-attorney to disability inactive status pursuant to
Chapter 91 Subchapter D (relating to disability), 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.
(d)
Permitted uses of otherwise confidential information.
Enforcement Rules 402(d)(2), (3), (4), (5) and (6) provide that the provisions
of subsections (a) and (b) of this section shall not be construed to:
(1) Require Disciplinary Counsel to refrain
from reporting to law enforcement authorities the commission or suspected
commission of any criminal offense or information relating to a criminal
offense.
(2) Prevent the
Pennsylvania Lawyers Fund for Client Security from utilizing information
obtained during an investigation to pursue subrogated claims.
(3) 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.
(4) 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.
(5) Prevent Disciplinary
Counsel from making an informal referral of an attorney to Lawyers Concerned
for Lawyers of Pennsylvania, Inc. (LCL-PA), if Disciplinary Counsel believes
that the attorney may benefit from the services of LCL-PA. Disciplinary Counsel
may share with LCL-PA information deemed confidential under these Enforcement
Rules as part of the referral. LCL-PA shall not report information about the
subject attorney to Disciplinary Counsel or to any staff of the Office of
Disciplinary Counsel. The fact that a referral was made and its outcome shall
not be relevant for any purpose and may not be considered or disclosed by
Disciplinary Counsel in any proceeding under these Rules.
Note: Subsection (d)(5) of this rule is intended to facilitate mental health and substance use referrals to Pennsylvania's approved lawyers- assistance program while preserving the confidentiality that is essential to that program's success. See Pennsylvania Rules of Professional Conduct, Rule 8.3(c) and Comment (7).
(e)
Waiver. Any respondent-attorney may in writing waive the
benefits, in whole or in part, of this subchapter.
(f)
National Lawyer Regulatory Data
Bank. Enforcement Rule 402(i) provides that the Board shall transmit
notice of all public discipline imposed by the Supreme Court, transfers to or
from disability inactive status, and reinstatements to the National Lawyer
Regulatory Data Bank maintained by the American Bar Association.
(g)
Requests for documents.
Requests for copies of documents relating to disciplinary proceedings that are
available to the public under this subchapter must be in writing and directed
to the Executive Office. A copying fee, which shall be the same as the copying
fee charged to respondent-attorneys, must be prepaid at the time a request is
made.
(h)
Transcripts and
exhibits. The Board will not make available to the public copies of
transcripts or exhibits introduced as evidence in a
proceeding.
Notes
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