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Attorney discipline board proposes open proceedings

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Attorney discipline board proposes open proceedings

  • Lawyer disciplinary proceedings would be subject to greater public scrutiny under a state ethics board proposal.

Sep. 10, 2004 — 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

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