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D. Attorney and judicial discipline

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  • 4th Circuit

    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).

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  • Idaho

    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).

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  • Kansas

    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:

    Rule            Title
    Prefatory
    201             Jurisdiction
    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
    209             Complaints
    210             Investigations
    211             Formal Hearings
    212             Proceedings Before the Supreme Court
    213             Refusal of Complainant to Proceed
    214             Matters Involving Related Pending Civil or Criminal Litigation
    215             Service
    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
    219             Reinstatement
    220            Proceedings Where an Attorney is Declared or is Alleged to be Incapacitated
    221             Appointment of Counsel to Protect Clients’ Interests
    222             Confidentiality
    223             Immunity
    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:

    Rule            Title
    601             Code of Judicial Conduct (Superseded)
    601A          Code of Judicial Conduct (Superseded)
    601B           Kansas Code of Judicial Conduct
    Preamble
    Scope
    Terminology
    Application
    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
    604             Definitions
    605             Powers of Commission
    605A          Powers of Hearing Panel
    606             Disqualification/Recusal
    607             Confidentiality
    608             Immunity
    609             Investigation
    610             Letters of Caution and Informal Advice
    611             Cease and Desist - Formal Proceedings
    612             Answer
    613             Setting for Hearing
    614             Hearing
    615             Evidence
    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
    624             Costs
    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

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  • Pennsylvania

    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).

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  • Virginia

    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).

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