Subchapter F. CONFIDENTIALITY

§ 93.101. Complaints confidential.

 (a)  General rule. Enforcement Rule 402(a) provides that, except as provided in subsections (b) and (d) and § §  93.104 (relating to access by judicial system agencies to confidential information) and 93.108 (relating to restoration of confidentiality), all proceedings under these rules shall be open to the public after:

   (1)  the filing of an answer to a petition for discipline;

   (2)  the time to file an answer to a petition for discipline has expired without an answer being filed;

   (3)  the filing and service of a petition for reinstatement; or

   (4)  after the expiration of any order restricting access to disciplinary information.

 (b)  Certain informal proceedings. Enforcement Rule 402(b) provides that, notwithstanding subsection (a), an informal proceeding under these rules in which it is determined that private discipline should be imposed but that subsequently results in the filing of formal charges shall not be open to the public until or unless the Supreme Court enters its order for the imposition of public discipline.

 (c)  Exceptions to initial confidentiality. Enforcement Rule 402(c) provides that, until the proceedings are open under subsection (a) or (b), all proceedings involving allegations of misconduct by or disability of an attorney shall be kept confidential unless:

   (1)  the respondent-attorney requests that the matter be public, or waives confidentiality for a particular purpose specified in writing,

   (2)  the investigation is predicated upon a conviction of the respondent-attorney for a crime or reciprocal discipline,

   (3)  in matters involving alleged disability, the Supreme Court enters its order transferring the respondent-attorney to inactive status pursuant to Chapter 91 Subchapter D (relating to disability),

   (4)  there is a need to notify another person or organization, including the Lawyers’ Fund for Client Security, in order to protect the public, the administration of justice, or the legal profession.

 (d)  Permitted uses of otherwise confidential information. Enforcement Rule 402(d)(2) and (3) provides that the provisions of subsections (a) and (b) of this section shall not be construed to:

   (1)  Require Disciplinary Counsel to refrain from reporting to law enforcement authorities the commission or suspected commission of any criminal offense or information relating to a criminal offense.

   Official Note

   The Note to Enforcement Rule 402 provides that subsection (d)(1) is based on 18 Pa.C.S. §  5108 (relating to compounding) and that otherwise Disciplinary Counsel may be in the anomalous position of violating Rule 8.4 of the Pennsylvania Rules of Professional Conduct.

   (2)  Prevent the Pennsylvania Lawyers’ Fund for Client Security from utilizing information obtained during an investigation to pursue subrogated claims.

 (e)  Waiver. Any respondent-attorney may in writing waive the benefits, in whole or in part, of this subchapter.

 (f)  National Data Bank. Enforcement Rule 402(i) provides that the Board shall transmit notice of all public discipline imposed by the Supreme Court, transfers to or from inactive status for disability, and reinstatements to the National Lawyer Regulatory Data Bank maintained by the American Bar Association.

 (g)  Requests for documents. Requests for copies of documents relating to disciplinary proceedings that are available to the public under this subchapter must be in writing and directed to the Office of the Secretary. A copying fee, which shall be the same as the copying fee charged to respondent-attorneys, must be prepaid at the time a request is made.

 (h)  Transcripts and exhibits. The Board will not make available to the public copies of transcripts or exhibits introduced as evidence in a proceeding.

   Official Note

   Nothing in this Rule shall preclude any individual from obtaining copies of transcripts or exhibits through the official reporter designated by the Office of the Secretary.

 The identity of the hearing committee member acting under §  87.32 (relating to action by reviewing hearing committee) shall not be a part of the record in a formal proceeding under these rules and shall not be available to the respondent-attorney or the public.

 (a)  General rule. Enforcement Rule 402(d)(1) provides that the provisions of §  93.102(a) and (b) (relating to access to disciplinary information and confidentiality) shall not be construed to deny access to relevant information at any point during a proceeding under these rules to:

   (1)  authorized agencies investigating the qualifications of judicial candidates;

   (2)  the Judicial Conduct Board with respect to an investigation it is conducting;

   (3)  other jurisdictions investigating qualifications for admission to practice;

   (4)  law enforcement agencies investigating qualifications for government employment;

   (5)  lawyer disciplinary enforcement agencies in other jurisdictions investigating misconduct by the respondent-attorney; or

   (6)  the Pennsylvania Lawyers’ Fund for Client Security Board investigating a claim for reimbursement arising from conduct by the respondent-attorney.

 (b)  Notice to respondent-attorney. Enforcement Rule 402(g) provides that, except as provided in subsection (c), if nonpublic information is requested pursuant to subsection (a) and the respondent-attorney has not signed an applicable waiver of confidentiality, the respondent-attorney shall be notified in writing at the last known address of the respondent-attorney of what information has been requested and by whom, together with a copy of the information proposed to be released to the requesting agency or board. The notice shall advise the respondent-attorney that the information will be released 20 days after mailing of the notice unless the respondent-attorney objects to the disclosure. If the respondent-attorney timely objects to the disclosure, the information shall remain confidential unless the requesting agency or board obtains an order of the Supreme Court requiring its release or the respondent-attorney withdraws the objection.

 (c)  Exception to required notice to respondent-attorney. Enforcement Rule 402(h) provides that, if an agency or board requesting the release of information under subsection (a) has not obtained an applicable waiver of confidentiality from the respondent-attorney, and the agency or board requests that the information be released without giving notice to the respondent-attorney, the requesting agency or board shall certify that:

   (1)  the request is made in furtherance of an ongoing investigation into misconduct by the respondent-attorney;

   (2)  the information is essential to that investigation; and

   (3)  disclosure of the existence of the investigation to the respondent-attorney would seriously prejudice the investigation.

 (d)  Restrictions on available information. The fact that:

   (1)  a complaint has been filed shall not be deemed relevant for the purposes of this section if the complaint was dismissed;

   (2)  a complaint is pending but undisposed of shall not be deemed relevant for the purposes of this section unless otherwise determined in a specific case by the Office of Disciplinary Counsel with the concurrence of the Chair or Vice Chair of the Board;

   (3)  an informal admonition has been administered to a respondent-attorney under any circumstances other than following a formal proceeding shall not be disclosed at any time to an agency specified in subsection (a)(3) or (4); and

   (4)  an informal admonition or private reprimand was administered more than six years before the request for access is made shall not be deemed relevant if no other grievances or complaints resulting in the imposition of discipline were filed against the respondent-attorney during such six year period.

 Enforcement Rule 402(e) provides that this subchapter shall not be construed to provide public access to:

   (1)  the work product of the Board, Disciplinary Counsel, hearing committee members, or special masters;

   (2)  deliberations of a hearing committee, special master, the Board or the Supreme Court; or

   (3)  information subject to a protective order issued under §  93.106 (relating to protective orders).

 (a)  General rule. Enforcement Rule 402 (f) provides that the 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, and the Board may direct that proceedings be conducted so as to implement the order, including requiring that a hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of a protective order.

 (b)  Applications at conferences and hearings. Upon application of any person during a conference or hearing under Chapter 89 Subchapter C (relating to hearing procedures) and for good cause shown, the senior or experienced hearing committee member conducting the conference or the hearing committee or special master conducting the hearing may issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential, and may direct that a hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of the protective order. Upon the submission of an application for a protective order, the conference or hearing shall be recessed for the conduct of an in camera meeting of the parties with the hearing committee member, hearing committee or special master for consideration of the application. The ruling on the application for a protective order may be appealed to the Board. An appeal to the Board may stay the conduct of hearings in the matter at the discretion of the hearing committee.

   Official Note

   A party seeking a protective order is encouraged to apply for the order at the prehearing conference to allow time for a potential appeal to the Board.

 Enforcement Rule 402(j) provides that this subchapter does not permit broadcasting, televising, recording or taking photographs during a proceeding under these rules, except that a hearing committee, a special master, the Board or the Su-preme Court when conducting a proceeding may authorize the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record or for other purposes of judicial administration.

 Enforcement Rule 402(k) provides that if a formal proceeding results in the imposition of private discipline or dismissal of all the charges, the proceeding shall cease to be open to the public when the decision to impose private discipline or dismiss the charges becomes final, unless the respondent-attorney requests that the record of the proceeding remain open to the public.

   Official Note

   The Note to Enforcement Rule 402(k) explains that, although a formal proceeding that becomes open to the public under §  93.102 (access to disciplinary information and confidentiality) will subsequently be closed if it results in the imposition of private discipline or dismissal of all the charges, the closing of the proceeding cannot change the fact that the proceeding was open to the public for a period or time. Thus, this section makes clear that the respondent-attorney may request that the record of the proceeding remain open to demonstrate that the charges were dismissed or only private discipline was imposed.

   This §  93.108 adopted April 18, 2008, effective April 19, 2008, 38 Pa.B. 1812.