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).
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).
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
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).
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.
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).
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.