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 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).
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 Kansas Judicial Branch, Rules Relating to Discipline of Attorneys, 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
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).
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).