D. Attorney and judicial discipline
A consent order disbarring an attorney from the Fourth Circuit is a matter of public record. However, the required affidavit from the attorney indicating his/her consent to disbarment will not be publicly disclosed or made available for use in any other proceeding except upon order of this Court. See U.S. Ct. of App. 4th Cir. Local Rule 46(g).
Under the Northern District of Indiana’s Local Rules regarding grievance proceedings on allegations of attorney misconduct, “[a] written allegation of attorney misconduct must be filed under seal and remain sealed until the committee determines that there is a substantial question of misconduct.” N.D. Ind. Local R. 83-6.4(d). “The committee’s investigations, deliberations, hearings, determinations, and other proceedings—including all materials presented to the committee—are confidential,” and while its written report to the chief judge “is a public record . . . it must be—and remain—sealed if the committee recommends a private reprimand.” N.D. Ind. Local R. 83-6.5(f). See also N.D. Ill. Local R. 83.25(e) (attorney discipline proceedings before court’s Executive Committee “shall be confidential, except that the Committee may in the interests of justice and on such terms it deems appropriate” authorize the clerk to release information; when a proceeding is referred to a judge, the record and hearings shall be public, unless the judge for good cause orders otherwise, and final orders in disciplinary matters “shall be a matter of public record”). Cf. Oszust v. Town of St. John, 212 F.Supp.3d 770, 779 (N.D. Ind. 2016) (“courts have found no First Amendment right of access to police disciplinary hearings”).
In Milam v. Dominick's Finer Foods, Inc., 567 F.3d 830 (7th Cir. 2009), the Seventh Circuit rejected plaintiffs’ assertion that an affidavit submitted in support of their motion to set aside dismissal for “excusable neglect” should continue to be sealed on appeal because it “would potentially cause embarrassment and affect [counsel's] personal and professional reputation by disclosing personal matters"; confidentiality was not “justified by any statute or privilege,” and “[j]ust what the ‘neglect’ entailed, and why it was ‘excusable,’ are questions in which the public has a legitimate interest when they underlie a judicial decision.” Id. at 831.
Generally, with regard to attorney disciplinary proceedings, “all disciplinary proceedings before the Alabama State Bar shall remain confidential until: (1) [t]he respondent pleads guilty . . . or (2) the Disciplinary Board or Disciplinary Commission makes a finding of guilty.” Ala. R. Discip. Pro. R. 30(a). The Bar is required to publish notice of the surrender of license, disbarment, suspension, or transfer to disability inactive status in the Bar publication and in a newspaper of general circulation where the lawyer maintains an office. Ala. R. Discip. Pro. R. 30(e). Related proceedings that are not confidential, however, include (1) petitions for reinstatement pursuant to Rule 28, (2) proceedings for transfer to disability inactive status pursuant to Rule 27, (3) proceedings for interim suspension and summary suspension pursuant to Rule 20, (4) a character and fitness appeal pursuant to Rule V of the Rules Governing Admission to the Alabama State Bar, and (5) all matters relating to a surrender of license or to public probation. Ala. R. Discip. Pro. R. 30(b). Rule 30(b) further provides that “[t]here shall be no confidentiality in a particular proceeding if the respondent lawyer makes the matter public or requests that it be made public.” Id.
With regard to judicial discipline, all proceedings, including records, except the filing of a complaint by the Commission with the Court of the Judiciary, are confidential. Ala. Const. of 1901, amend. 328, § 6.17; Alabama Judicial Inquiry Commission Rule 5. In order to show a violation of confidentiality rules, the judge must at least present evidence that the source of the violation was the Judicial Inquiry Commission or Court of the Judiciary. Moore v. Alabama Judicial Inquiry Comm’n, 234 So. 3d 458, 487 (Ala. 2017).
Anytime the Judicial Discipline & Disability Commission takes official action with respect to a complaint about a judge, the matter should be open to public knowledge. If the commission decides on action short of the filing of formal charges against a judge, its letter to the judge containing an admonition or suggested adjustment shall be open to public inquiry. The letter shall contain all material facts relating to the proceeding and the conduct of the judge as well as any admonition or adjustment, including any terms and conditions, imposed by the commission. Records of the commission’s investigations leading to an admonition or adjustment will remain confidential, absent waiver by the judge or one of the other exceptions stated in Rule 7, but the action taken by the commission will not. In the matter of Rules 7 and 9 of the Arkansas Judicial Discipline and Disability Commission, 302 Ark. 633, 790 S.W.2d 143, 145 (1990).
Attorney and judicial discipline matters initially are resolved by the State Bar Court. “The State Bar is subject to the State Bar Act (Bus. & Prof. Code, § 6000 et seq.), which contains numerous statutes that make various of its activities and records public and others confidential. (See Bus. & Prof. Code, § 6000 et seq.) It is also subject to rules adopted by its governing body ….” Sander v. State Bar of California, 58 Cal. 4th 300, 310, 314 P.3d 488, 165 Cal. Rptr. 3d 250 (2013) (footnote, citations omitted).
Rules 5.9 through 5.16 of the Rules of Procedure of the State Bar of California address access to discipline records and proceedings. They establish a presumption of access except in limited circumstances (such as settlement conferences and moral character proceedings). A motion to seal must be “supported by specific facts showing that a statutory privilege or constitutionally protected interest exists that outweighs the public interest in the proceeding.” Id. R. 5.12(B). In addition, under Rule 5.16(A), “[a] public State Bar Court proceeding may be photographed, recorded, or broadcast only on written order of the hearing judge or, if pending in the Review Department, the Presiding Judge. A request must be in the form approved by the Executive Committee and submitted to the hearing judge or Review Department at least five days before the proceeding.” But see Chronicle Publ’g Co. v. Superior Court, 54 Cal. 2d 548, 573-574, 354 P.2d 637, 7 Cal. Rptr. 109 (1960) (complaints to State Bar not resulting in disciplinary action privileged, where confidentiality furthered State Bar’s interest in encouraging citizens to provide information and attorneys’ interests in avoiding publication of unfounded complaints weighed against disclosure).
Disciplinary matters are subject to review by the California Supreme Court or a California Court of Appeal under Business & Professions Code §§ 6082 and 6083. See In re Rose, 22 Cal. 4th 430, 438-441, 993 P.2d 956, 93 Cal. Rptr. 2d 298 (2000) (discussing procedural rules related to attorney discipline). The First Amendment and common law presumptions of access apply to appellate proceedings. Cal. R. Ct., Rule 8.45, et seq. (standards and procedures to seek closure or sealing of appellate proceedings or records).
In In re Requests for Investigation of Attorney E., 78 P.3d 300 (Colo. 2003), the Colorado Supreme Court considered the First Amendment implications of entering a protective order restricting dissemination of FBI investigation materials that focused on misconduct of two judges. The court concluded that “the protective order issued in this case pursuant to C.R.C.P. 251.31(e) for ‘good cause’ shown does not offend the First Amendment. Although there may be a legitimate public interest in an FBI investigation of two judges because of their positions as governmental officials, we hold that the two part balancing test” set forth in Seattle Times Co. v. Rinehart, 467 U.S. 20 (1984) and Bowlen v. District Court, 733 P.2d 1179 (Colo. 1987), “weights in favor of the protective order.” In re Requests for Investigation of Attorney E., 78 P.3d at 310.
The Florida Supreme Court has exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted. Fla. Const. Art. V, § 15.
In proceedings related to judicial discipline, until formal charges against a justice or judge are filed by the investigative panel with the clerk of the Supreme Court of Florida, all proceedings by or before the Judicial Qualifications Commission are confidential. Upon a finding of probable cause and the filing by the investigative panel with the clerk of formal charges against a justice or judge, such charges and all further proceedings before the commission shall be public. Fla. Const. Art. V, § 12(a)(4).
Attorney discipline claims are generally handled initially by Bar grievance committees. An attorney’s claim that The Florida Bar violated the Sunshine Law by refusing to allow him to attend a grievance committee meeting of the Bar was rejected in The Florida Bar v. Committe, 916 So. 2d 741 (Fla. 2005) (per curiam). The Court stated that “[t]he grievance committee meetings of the Bar are private, and therefore the Bar is justified in prohibiting [the attorney] from attendance.” Id. at 744–45. In Committe, the Court reviewed prior case law involving the application of the open government laws to The Bar, and reiterated its holding in The Florida Bar: in re Advisory Opinion, 398 So. 2d 446, 447 (Fla. 1981), that “[n]either the legislature nor the governor can control what is purely a judicial function.” Id. at 745.
Bar grievance records generally become available only upon a finding of probable cause. See R. Regulating Fla. Bar 3-7.1.
In the case of attorneys, the Supreme Court of Georgia retains ultimate authority to regulate the legal profession, but the State Bar of Georgia’s Office of the General Counsel serves as the Court’s arm to investigate and prosecute claims that a lawyer has violated the ethics rules. The State Bar will not confirm or deny that a grievance has been filed against an attorney, that an attorney is being investigated for an alleged violation of the Georgia Rules of Professional Conduct, or that an attorney has received private discipline. However, the State Bar’s public online member directory includes information about an attorney’s public disciplinary history.
In the case of judges, the Judicial Qualifications Commission was created in 1972 to conduct investigations and hearings with respect to complaints of ethical misconduct by Georgia judges and is also authorized to issue Advisory Opinions regarding appropriate judicial conduct. Under the Commission’s rules, which were revamped in 2017, confidentiality is the norm in the initial stages of a disciplinary case and if the complaint is dismissed but “[o]nce the formal charges have been filed and served upon the judge, the policy emphasis shifts from confidentiality to the public’s right to know.” Official Commentary, Rule 11, Rules of the Judicial Qualifications Commission of Georgia (available at https://www.gasupreme.us/wp-content/uploads/2017/11/JQC_Final_Rules_Order.pdf).
Under Idaho Court Administrative Rule 32(g)(28), all records and records of proceedings before the Idaho Judicial Council are exempt from disclosure until such time as the record of a disciplinary proceeding is filed by the Judicial Council in the Idaho Supreme Court. Idaho Code § 1-2103 provides the statutory authority for exempting such records and proceedings.
All papers filed with and the proceedings before the judicial council or masters appointed by the Supreme Court, pursuant to this section, shall be subject to disclosure according to chapter 3, title 9, Idaho Code, provided, however, that if allegations against a judge are made public by the complainant, judge or third persons, the judicial council may, in its discretion, comment on the existence, nature, and status of any investigation. The filing of papers with and the giving of testimony before the council or the masters shall be privileged; but no other publication of such papers or proceedings shall be privileged in any action for defamation except that (a) the record filed by the council in the Supreme Court continues privileged and upon such filing loses its confidential character and (b) a writing which was privileged prior to its filing with the council or the masters does not lose such privilege by such filing. The judicial council shall by rule provide for procedures under this section, including the exercise of requisite process and subpoena powers. A justice or judge who is a member of the council or Supreme Court shall not participate in any proceedings involving his own removal, discipline or retirement.
I.C. § 1-2103. The Idaho Supreme Court upheld the constitutionality of both of these provisions in Bradbury v. Idaho Judicial Council, 136 Idaho 63, 28 P.3d 1006 (2001).
Attorney discipline proceedings and records before the Idaho State Bar are similarly exempt from public disclosure under Idaho Court Administrative Rule 32(g)(26).
In Illinois, attorney discipline is handled by the Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois (the “ARDC”). (See https://www.iardc.org)
The ARDC clerk's file related to disciplinary proceedings becomes a matter of public record upon the filing of the proof of service indicating that the complaint has been served upon Respondent. The complaint, Reports of the Hearing or Review Boards, and other documents filed in the Clerk's file after the service of the complaint are a matter of public record, unless subject to a order sealing them. The Clerk’s file related to disability proceedings remains confidential unless and until the case is filed in the Supreme Court.
Public files maintained by the Clerk of the Commission may be viewed in the Clerk’s Office within the Commission's Chicago office at 130 East Randolph Drive, Suite 1100. You may make a request to view a file in person, by facsimile at (312) 565-1806, by telephone at (312) 565-2600, or by mail to the Commission’s Chicago office. Closed files located in our storage facility may require two days’ notice before being available for viewing. The Clerk’s office has a file room for examination of files. Files may not be taken apart or removed from the file room, which also has filing bins containing recent public filings, such as Supreme Court opinions, complaints, Hearing and Review Board reports, and briefs filed before the Review Board and the Supreme Court. A computer is available in the file review room for conducting research of disciplinary decisions.
Under Indiana Administrative Rule 9(C)(4), regarding access to court records, “Court” includes the Indiana Supreme Court, which governs attorney and judicial discipline. See Indiana Disciplinary Rule 23, § 1(b) (“The Supreme Court has exclusive jurisdiction of all cases in which an attorney is charged with misconduct under this Rule.”); Disciplinary Rule 25, § I(A) (“The Supreme Court of Indiana (the Supreme Court) has exclusive, original jurisdiction for the discipline, removal, and retirement of all judicial officers of this state.”).
Grievances filed with the Indiana Supreme Court Disciplinary Commission are maintained confidentially, as are responses and investigatory materials. Ind. R. Admis. & Disc. 23 § 22(a)(3). After a Disciplinary Complaint has been filed with the Supreme Court, all papers filed “shall be open and available to the public, except as provided by Admin. R. 9.” Ind. R. Admis & Disc. 23, § 22(a)(1). Additionally, all proceedings are generally open to the public after a Disciplinary Complaint is filed, Ind. R. Admis. & Disc. 23, § 22(a)(2), but officers may order a hearing or portions of a hearing to be closed or may order evidentiary exhibits to be sealed if necessary for any of the following purposes: (1) for the protection of witnesses; (2) to prevent likely disruption of the proceedings; (3) for the security of the hearing officer or any of the participants at the proceedings; (4) [t]o prevent the unauthorized disclosure of attorney-client confidences not at issue in the proceeding; (5) to protect medical information; and (6) for any other good cause shown which in the judgment of the hearing officer requires the hearing to be closed. Note that communications among the Disciplinary Commission and conditional agreements, advisory letters, and other particular documents are not open to the public. See Ind. R. Admis. & Disc. 23, § 22(a)(4), (5).
The Supreme Court publishes disciplinary orders and opinions online: http://www.in.gov/judiciary/2768.htm.
For judicial discipline, the Commission must not publicly disclose information relating to a complaint, inquiry, or investigation before formal charges are filed and served, with exceptions. Disciplinary Rule 25, § VIII(B)(1). After formal charges are filed, all pleadings and proceedings are public absent extraordinary circumstances. Disciplinary Rule 25, § VIII(B)(2). Commission deliberations, settlement conferences, and proposed settlement agreements are confidential, but settlement agreements submitted to the Supreme Court become public when the Supreme Court accepts the agreement and issues an opinion resolving the case. Disciplinary Rule 25, §VIII(B)(3).
In Iowa, complaints against attorneys are initially investigated by the attorney discipline board and a grievance commission. See Iowa Ct. Rules 34 and 35. Hearings in front of a grievance commission are confidential and private admonitions may be issued by the commission. Iowa Ct. Rule 34.4. However, if the commission finds attorney misconduct sufficient to justify reprimand, suspension, or revocation of an attorney’s license, the commission will file its recommendation with the Iowa Supreme Court. Iowa Ct. R. 34.4(2). Any report of reprimand or recommendations for attorney license suspension or revocation become public documents when filed with the clerk of the supreme court. Id.
Similarly, complaints filed against judges or employees of the judicial branch are investigated by a commission on judicial qualifications that can submit an application to the supreme court to retire, discipline, or remove a judicial officer or an employee of the judicial branch. See Iowa Code §§ 602.2101–2106 (2018). “All records, papers, proceedings, meetings, and hearings of the commission are confidential, but if the commission applies to the supreme court to retire, discipline, or remove a judicial officer, or to discipline or remove an employee of the judicial branch, the application and all of the records and papers in that proceeding are public documents.” Iowa Code § 602.2103 (2018).
Kansas Supreme Court rules regarding attorney discipline provide that, when a complaint is made against an attorney, proceedings, reports, records of investigations and hearings are “private and shall not be divulged in whole or in part to the public.” However, the complaint can become public if a disciplinary committee reviews it and “finds by a majority vote that there is probable cause to believe there has been a violation of the Attorney’s Oath or the disciplinary rules of the Supreme Court.” See Rules Adopted by the Supreme Court, Kansas Judicial Branch, http://www.kscourts.org/rules/Rule-List.asp?r1=Rules+Relating+to+Discipline+of+Attorneys. The rules linked from this location are as follows:
202 Grounds for Discipline
203 Types of Discipline
204 Kansas Board for Discipline of Attorneys
205 Disciplinary Administrator
206 Lawyers Assistance Program
207 Duties of the Bar and Judiciary
208 Registration of Attorneys
208A Mandatory Disclosure of Professional Liability Insurance
211 Formal Hearings
212 Proceedings Before the Supreme Court
213 Refusal of Complainant to Proceed
214 Matters Involving Related Pending Civil or Criminal Litigation
216 Subpoena Power, Witnesses and Pretrial Proceedings
216A Compliance Examinations by the Disciplinary Administrator
217 Voluntary Surrender of License
218 Notice to Clients, Opposing Counsel, and Courts of Record Following Suspension, Disbarment, or Voluntary Surrender of License
220 Proceedings Where an Attorney is Declared or is Alleged to be Incapacitated
221 Appointment of Counsel to Protect Clients’ Interests
224 Additional Rules of Procedure
Under Kansas Supreme Court rules, complaints about judges and related investigations and records are closed to the public, unless a judicial review panel initiates formal proceedings. The rules provide for a hearing to be conducted after issuance of a formal complaint that specifies “in ordinary language the charges against the judge and the alleged facts upon which such charges are based.” See Rule 607, http://www.kscourts.org/Rules/Judicial_Conduct/Rule%20607.pdf, and Rule 611(b)(2), http://www.kscourts.org/Rules/Judicial_Conduct/Rule%20611.pdf, which appear in Kansas Judicial Branch, Rules Relating to Judicial Conduct, http://www.kscourts.org/rules/Judicial_Conduct.asp. The rules linked from this location are as follows:
601 Code of Judicial Conduct (Superseded)
601A Code of Judicial Conduct (Superseded)
601B Kansas Code of Judicial Conduct
CANON ONE: Integrity and Independence of Judiciary
CANON TWO: Appearance of Impropriety
CANON THREE: Extrajudicial Activities
CANON FOUR: Political Activity
602 Commission on Judicial Qualifications
603 Secretary of the Commission and Panels
605 Powers of Commission
605A Powers of Hearing Panel
610 Letters of Caution and Informal Advice
611 Cease and Desist - Formal Proceedings
613 Setting for Hearing
616 Procedural Rights of Judge
617 Amendments to Notice or Answer
618 Extension of Time
619 Hearing Additional Evidence
620 Hearing Panel Disposition Or Recommendations
621 Temporary Suspension
622 Record of Hearing Panel Proceedings
623 Proceedings before the Supreme Court
625 Compensation and Expenses - Commission
626 Other Fees and Expenses
627 Additional Rules
640 Judges Assistance Committee
650 Judicial Ethics Advisory Panel
Kansas Judicial Ethics Advisory Opinions
651 Limitations on Judicial Service
In Kentucky, attorney disciplinary matters are confidential. Kentucky Supreme Court Rule 3.150 provides that, in a discipline matter, prior to a rendition of a finding of a violation and the recommendation of the imposition of a public sanction, the proceeding is confidential. Judicial discipline proceedings are generally closed unless and until formal charges are filed and an answer is filed. See Ky. Sup. Ct. R. 4.130. Final decisions imposing discipline upon attorneys and judges are publicly reported by the Kentucky Supreme Court.
Judiciary Commission pleadings that are filed with the Supreme Court as part of the judicial discipline process are subject to the Public Records Act. La. R.S. 44:10. This is the case even where only minimal discipline (censure) has been recommended. In In re John Doe, 679 So.2d 900 (La. 1996). The records of the Judiciary Commission itself are exempt from the Public Records Act. La. R.S. 44:10.
In In re Warner, 21 So.3d 218 (La. 2009), the Louisiana Supreme Court held the confidentiality rule for attorney disciplinary proceedings to be an unconstitutional content-based restriction of speech that violated the First Amendment of the United States Constitution.
Bar exam records are a special case. Bester v. La. Supreme Court Comm. on Bar Admissions, 779 So.2d 715 (La. 2001), rejected a plaintiff’s public records request for her failed bar examination test and the grading guidelines prepared by the Bar Committee. However, the Court, acting sua sponte, also adopted a rule allowing applicants to view their failed exams and model answers.
Attorney discipline is handled by Grievance Commissions appointed by the Board of Bar Overseers. Access to disciplinary information is governed by Me. Bar. R. 18.
Access to judicial disciplinary proceedings is governed by Rule 6 of the Rules of the Committee on Judicial Responsibility and Disability.
Attorney fee arbitration commission proceedings are confidential. See Me. Bar R. 7(h).
The Maryland Rules define the term “Special Judicial Unit” to mean “(1) the State Board of Law Examiners, the Accommodations Review Committee, and the Character Committees; (2) the Attorney Grievance Commission and Bar Counsel; and (3) the Commission on Judicial Disabilities, the Judicial Inquiry Board, and Investigative Counsel.” Md. Rule 16-902(l). Rather than set out a general policy of access to the records or proceedings of those entities, the Rules provide that “[a]ccess to judicial records of special judicial units is governed by the confidentiality Rules applicable to those particular units.” Md. Rule 16-905(b). For the Judicial Disabilities Commission, the Judicial Inquiry Board, and Investigative Counsel, see Md. Rule 18-409. For the Board of Law Examiners, the Accommodation Review Committee, and the Character Committees, see Md. Rule 19-105. For the Attorney Grievance Commission and Bar Counsel, see Md. Rule 19-707.
According to a list of frequently asked questions available from the Office of Lawyers Professional Responsibility at http://lprb.mncourts.gov/complaints/LawyerComplaintDocs/Complaint%20Brochure%20-%20English.pdf, complaints filed against lawyers generally are not public. Investigation files are not available to anyone except the lawyer. However, parts of the file may be disclosed when necessary for investigation. Any related Minnesota Supreme Court filings, trials, and hearings are open to the public.
The Mississippi Supreme Court has stated that even if information regarding attorney discipline is revealed during an Ethics Commission hearing, it is still considered confidential and not subject to public access. “Given the interest in protecting the confidentiality of the information revealed to the Mississippi Ethics Commission, the fact that the information has been previously divulged should be irrelevant. However, the records, files, and the deposition of the Mississippi Ethics Commission are subject to a valid subpoena properly issued by this Court.” Miss. Ethics Comm'n v. Comm. on Prof’l Responsibility, 672 So. 2d 1222 (Miss. 1996).
Attorney discipline proceedings are confidential. Neb. S. Ct. R. § 3-318(A) provides:
(A) The hearings, records, or proceedings of the Counsel for Discipline, the Committee on Inquiry, and the Disciplinary Review Board are confidential and shall not be made public except that the pendency, subject matter, and status of an investigation may be disclosed by the Committee on inquiry involved or the Disciplinary Review Board if
(1) the Respondent has waived confidentiality, either in writing or by public disclosure of information regarding the proceeding; or
(2) the proceeding is based upon conviction of a crime.
Attorney discipline decisions are ultimately made by the Nebraska Supreme Court. Most filings made with the Supreme Court relating to attorney discipline become public, either upon filing or when the disciplinary case is finally disposed.
Requests for disciplinary action against a judge are initially processed by the Commission on Judicial Qualifications. See Neb. Const. Art. V, Secs. 28-31. The preliminary investigations and hearings by the Commission on Judicial Qualifications are confidential Neb. S. Ct. R. § 5-104. If the Commission concludes that formal proceedings are warranted, it files a public complaint with the Nebraska Supreme Court. Neb. S. Ct. R. § 5-105. Hearing on the formal complaint is public and filings made, including any decisions, after the complaint is filed with the Supreme Court are also public. Neb. S. Ct. R. § 5-121.
All proceedings involving allegations of misconduct by an attorney shall be kept confidential until the filing of a formal complaint. All participants in a proceeding, including anyone connected with it, shall conduct themselves so as to maintain the confidentiality of the proceeding until a formal complaint is filed. In the event no formal complaint is filed, the disciplinary proceeding shall become public upon its conclusion, whether by dismissal or otherwise. S.C.R. 121.
Pursuant to Rule 17-304 NMRA, “[f]ormal proceedings conducted before a hearing committee or the Disciplinary Board shall be open to the public,” and “[a]ny person may publicly comment thereon.” In Guttman v. Widman, the Tenth Circuit held that the confidentiality provisions of New Mexico Supreme Court's attorney disciplinary rules did not require the complainant to keep his own complaints about his former attorney confidential. 188 F. App'x 691, 697 (10th Cir. 2006). However, the Disciplinary Board or a hearing committee may—upon request of the disciplinary counsel, upon request of the respondent, or, on its own initiative—place under seal (1) documents, pleadings and testimony relating to the physical or mental condition or treatment of the respondent; (2) matters regarding allegations of substance abuse by the respondent; or (3) matters resulting in private discipline or dismissal pursuant to a consent to discipline agreement, the recommendation of a hearing committee, or the decision of the Disciplinary Board. Rule 17-304(C) (1–3) NMRA.
Disciplinary proceedings against attorneys and judges are confidential up to a point. Rules 5.7 and 5.8 of the Oklahoma Supreme Court Rules Governing Disciplinary Proceedings, Okla. Stat. tit. 5, Ch. 1, App. 1–A, specifically provide that investigations shall not be made public and files and records in disciplinary investigations “shall be private and confidential.” Because the Supreme Court is exempt from the Oklahoma Open Meetings and Open Records Acts, meetings of the Professional Responsibility Commission investigating a complaint against a lawyer are not open to the public. However, once a formal complaint against an attorney has been prepared by the General Counsel of the Oklahoma Bar Association, approved by the Professional Responsibility Commission, and filed with the Supreme Court, the complaint and all further filings are public record. Rules 5.9 and 6.1. Hearings before the Trial Panel of the Professional Responsibility Commission are open to the public. Rule 6.9. By contrast, some disciplinary proceedings against other professionals are open to the public at an earlier stage. For example, disciplinary proceedings against medical doctors conducted by the Oklahoma Board of Medical Licensure and Supervision are subject to the Oklahoma Open Meetings Act (Okla. Stat. tit. 25, §§ 301 et seq.), Okla. Stat. tit. 59, § 488. Although an initial complaint to the Board against a doctor is confidential, records created by the Board after the initial complaint are open to the public under the Oklahoma Open Records Act (Okla. Stat. tit. 51, §§ 24A.1 et seq.), Okla. Stat. tit. 59, § 509.1(D)(2). See Board of Medical Licensure v. Miglaccio, 1996 OK CIV APP 37, 917 P.2d 483.
Oregon Bar disciplinary proceedings are open to the public. The Oregon State Bar is subject to both the public meeting and public records laws of Oregon. ORS 9.010. Furthermore, the bylaws of the Oregon Bar provide that disciplinary proceedings are open to the public. Oregon State Bar Bylaws 8.201(a) (2017), http://www.osbar.org/_docs/rulesregs/bylaws.pdf.
The Oregon Supreme Court has not directly addressed access to judicial proceedings regarding attorney discipline. However, access to those proceedings is likely protected by Article I, section 10 of the Oregon Constitution because “[t]he disposition by [the Oregon Supreme Court] of disciplinary matters is the performance of a public trust and, as such, is the public's business and should not be disposed of in other than a public manner.” In re Alley, 256 Or. 51, 54-55, 470 P.2d 943 (1970).
1. Attorney Discipline
Pennsylvania’s Rules of Disciplinary Enforcement provide that all attorney discipline proceedings shall remain confidential until (1) an answer to a discipline charge has been filed; (2) the time to answer a discipline charge has expired; (3) a petition for reinstatement has been filed and served, or (4) the Board has entered an order determining public reprimand. Pa. R.D.E. 402(a).
However, if the proceeding ultimately results in private discipline or dismissal of all the charges, it will cease being open to the public. Id. 402(k). In a decades-old decision, the Supreme Court of Pennsylvania held that keeping an attorney discipline proceeding confidential did not violate the First Amendment right of access where the proceeding resulted in no public discipline and concerned matters that were “noncriminal” and “nongovernmental” in nature. McLaughlin v. Philadelphia Newspapers, Inc., 348 A.2d 376 (Pa. 1975).
Even if a proceeding would ordinarily be confidential, an attorney-respondent can waive confidentiality. Pa. R.D.E. 402(c)(1). Moreover, a disciplinary proceeding will not be confidential if it is predicated on a criminal conviction or reciprocal discipline. Id. 402(c)(2).
The Disciplinary 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.” Id. 402(f).
2. Judicial Discipline
Complaints about judicial misconduct are sent to the Judicial Conduct Board for initial evaluation. Pa. R. Bd. Judicial Conduct § 25. Proceedings before the Judicial Conduct Board must remain confidential unless the judicial officer who is the subject of the complaint waives confidentiality and the Judicial Conduct Board determines that disclosure is appropriate. Id. §§ 17-18. Additionally, upon request from the judicial officer, limited disclosures are permitted where the investigation has become a matter of public record independent of any action taken by the Judicial Conduct Board. Id. § 18(a).
If the Judicial Conduct Board determines that a complaint has merit, it may file formal charges with the Court of Judicial Conduct. Pa. C.J.D.R.P. No. 301. Once formal charges are filed, all trial and post-trial proceedings before the Court of Judicial Conduct “shall be open to the public.” Id., Nos. 504(A), 505(C)(5).
Attorney disciplinary proceedings are closed until a formal complaint is filed with the Supreme Court, unless the attorney requests the matter be public or “investigation is premised on conviction of a crime.” S.D. Codified Laws § 16-19-99.
Judicial disciplinary proceedings are closed until the reviewing commission files a recommendation with the Supreme Court, unless the judge requests the matter be public or the “investigation is premised on conviction of either a felony crime or one involving moral turpitude.” S.D. Codified Laws § 16-1A, Appx. III(1).
The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for attorney disciplinary proceedings, specifically, “[r]ecords filed or created in the professional responsibility program, except as provided in Rule 12(A), (B), of Administrative Order No. 9, Rules Governing Establishment and Operation of the Professional Responsibility Program.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(21). Under Rule 12 of Administrative Order 9, Rules Governing Establishment and Operation of the Professional Responsibility Program, all records generated in connection with a complaint are confidential unless they are submitted to a hearing panel after the filing of formal charges or unless confidentiality is waived by both the complainant and the respondent attorney. See Rule 12(A)-(B) of Administrative Order 9, Rules Governing Establishment and Operation of the Professional Responsibility Program, available at:https://www.vermontjudiciary.org/about-vermont-judiciary/boards-and-commitees/professional-responsibility
After the filing of formal charges, all attorney disciplinary proceedings and all records submitted to a hearing panel after the filing of formal charges are public unless a party or disciplinary counsel obtains a protective order for specific records or testimony. Id. at (B). Proceedings for transfer to (or from) disability inactive status are confidential – however, the associated orders are public. Id. at (C). Proceedings seeking the interim suspension of a lawyer’s license are public, as are all orders suspending a license on an interim basis. Id. at (D). The decisions of hearing panels are publicly available, although the decisions do not “identify the parties or witnesses unless the matter is one in which a disposition of reprimand, suspension or disbarment is imposed.” Rule 13(E). Notices of public discipline, transfers to (or from) interim suspension status or disability inactive status are required to be “published in the legal journal and in a newspaper of general circulation in each area in which the lawyer actively practiced law.” Rule 13(B).
As for judicial disciplinary proceedings, “Vermont is one of a minority of states that permit public disclosure of judicial conduct proceedings after formal charges are brought against a judge but before any further action is taken.” Herald Ass’n v. Judicial Conduct Bd., 149 Vt. 233, 241, 544 A.2d 596, 601 (Vt. 1988). Accordingly, the Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords filed or created in connection with a proceeding before the Judicial Conduct Board prior to the filing of a formal charge, as provided by Rule 6(7) of the Rules of Supreme Court for Disciplinary Control of Judges.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(20), available at: https://www.vermontjudiciary.org/about-vermont-judiciary/boards-and-committees/judicial-conduct. Under Rule 6(7) of the Rules of Supreme Court for Disciplinary Control of Judges, records of complaints to the Judicial Conduct Board and records relating to the complaint and investigation, including all papers, files, transcripts and communications in proceedings before the Board are confidential unless a formal charge is filed. If a formal charge is filed against the judge, “the Formal Complaint, all subsequent pleadings, exhibits and rulings of the Board, and any hearing related to the Formal Complaint, shall be public.” Id.
In Herald Ass’n v. Judicial Conduct Bd., the Court denied a Vermont newspaper access to certain discovery material in a judicial conduct case pending before the Judicial Conduct Board. Referring to the confidentiality provisions in Rule 6 the Court stated: “[i]n common with all other states, we hold confidential complaints, and investigations of such complaints, unless they result in formal charges. Denial of public access to this stage protects judges from the injury which might result from publication of unexamined and unwarranted complaints.” Herald Ass’n, 149 Vt. at 241, 544 A.2d at 601 (quotation omitted).
Under the Rules of the Supreme Court of Virginia, the attorney discipline process is confidential unless there is a hearing on charges of misconduct or the lawyer receives public discipline (public admonition, public reprimand, suspension, or revocation). See generally, Va. Sup. Ct. R. Pt. 6, § IV, Para. 13-30 (confidentiality of disciplinary records and proceedings). See also Va. Sup. Ct. R. Pt. 6, § IV, Para. 13-16(G) (“District Committee hearings, except deliberations, shall be open to the public.”).
All papers filed with and proceedings before the Judicial Inquiry and Review Commission, including the identification of the judge being investigated, as well as all testimony and other evidence and any transcript thereof made by a reporter, is confidential. See Va. Code § 17.1-913(A). Interestingly, Article VI, § 10 of the Virginia Constitution initially provided that proceedings before the Commission “shall be confidential” but was amended to provide that the proceedings “may be confidential as provided by the General Assembly in general law.” See 1997 Acts of Assembly, c. 768; 1998 Acts of Assembly, c. 770; see also Va. Const. art. VI, § 10 (emphasis added). However, if the Commission files a formal complaint with the Virginia Supreme Court, the Virginia Constitution mandates that the proceedings before the Supreme Court be open to the public. See Va. Const. art. VI, § 10 (“Upon the filing of a complaint, the Supreme Court shall conduct a hearing in open court . . . .”). See also Landmark Commc'ns, Inc. v. Commonwealth, 217 Va. 699, 702, 233 S.E.2d 120, 123 (1977) (“[O]nly upon the filing of such a complaint is the record of a proceeding before the Commission placed in the public domain; only then does information concerning a proceeding before the Commission lose its confidential character.”), rev'd on other grounds Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829 (1978). Additionally, if the judge is prosecuted for perjury based on statements made in a proceeding before the Commission, records of the proceeding on which the perjury charge is based lose their confidential status. See Va. Code § 17.1-913(A).
The First Amendment does not permit the criminal punishment of a newspaper for divulging or publishing accurate information regarding confidential proceedings of the Judicial Inquiry and Review Commission. See Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829 (1978).
No Washington court has held that the public’s right of access to court proceedings and records extends to records of attorney and judicial discipline. However, under Art. 4, Sec. 31 (amend 71) of the Washington Constitution, confidentiality is mandatory during the “investigation phase of an inquiry into alleged [judicial] misconduct.” See Matter of Deming, 108 Wn.2d 82, 92–93, 736 P.2d 639, amended, 744 P.2d 340 (1987).
The West Virginia Rules of Judicial Disciplinary Procedure provide in Rule 2.4 that the details of complaints filed or investigations conducted by the Office of Disciplinary Counsel are confidential, except that the ODC may confirm or deny the existence of a complaint or investigation, explain procedures, or defend the right of a judge to a fair hearing. Before confirming or denying the existence of a complaint or investigation, the ODC will provide the judge with reasonable notice. Likewise, extraordinary proceedings against a judge brought by the West Virginia Supreme Court Administrative Director under Rule 2.14 also are initially confidential. Once formal charges are filed with the West Virginia Supreme Court Clerk’s Office, all documents filed with the clerk and the Judicial Hearing Board will be open to the public. See id. at Rule 2, http://www.courtswv.gov/legal-community/court-rules/judicial-disciplinary/judicial-1.html#jdp-2.
Likewise, the West Virginia Rules of Lawyer Disciplinary Procedure provide in Rule 2.6 the same provisions for confidentiality at the complaint or investigation stage before the filing of formal charges with the Supreme Court Clerk’s Office. See id. at Rule 2 (http://www.wvodc.org/2invest.html).
See Wis. Supreme Court Rule 22.40(1):
Prior to the filing of a misconduct complaint, medical incapacity petition, or petition for temporary license suspension, all papers, files, transcripts, and communications in any matter involving the office of lawyer regulation are to be held in confidence by the director and staff of the office of lawyer regulation, the members of the district committees, special investigators, the members of the special preliminary review panel, and the members of the preliminary review committee. Following the filing of a complaint or petition, the proceeding and all papers filed in it are public, except as expressly provided otherwise in this chapter or by law.