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Disciplinary Board Extends Comment Period

"Our role is to actively pursue and consider initiatives that promote positive change to the Pennsylvania legal system," Teti said.

(Camp Hill, PA) - The Disciplinary Board of the Supreme Court of Pennsylvania, a 16-member independent agency created by the Supreme Court with complete oversight and investigative power to review the conduct of Pennsylvania lawyers, recently announced that it is considering a historic step to alter the traditional confidential nature of disciplinary proceedings in Pennsylvania. The Disciplinary Board, which oversees and regulates compliance by all attorneys to the Pennsylvania Rules of Professional Conduct, is proposing a rule change which would amend the confidentiality rule as applied to formal disciplinary proceedings.

In order to provide interested parties with additional time to submit written comments regarding these proposed amendments, the Disciplinary Board has extended the initial comment period from July 30, 2004 to August 31, 2004. Members of the public and the legal profession are invited to provide their comments to the Disciplinary Board on or before August 31, 2004, after which all comments will be considered by the Board. The Board will then determine whether any revisions are necessary to the proposed rules, and/or whether to submit the proposed rules to the Supreme Court of Pennsylvania for formal adoption.

According to Louis N. Teti, Esquire, Chairman of the Disciplinary Board, under the proposed revisions to the Pennsylvania Rule of Disciplinary Enforcement 402, disciplinary proceedings would be open to public review once a Petition for Discipline is filed, and the respondent-attorney has either filed an answer, or the time within which to answer the petition has expired.

"Our role as appointed members of the Disciplinary Board is to actively pursue and consider initiatives that promote positive change to the Pennsylvania legal system," Teti said. "Allowing public access to proceedings has been adopted by 40 of 51 jurisdictions throughout the United States. We believe that it is our duty as board members to thoroughly review and evaluate the benefits and/or disadvantages of this initiative, and solicit public comment before submitting our formal recommendations to the Supreme Court of Pennsylvania. We have studied this issue quite thoroughly over the last year, and we have received input from national experts and ABA representatives regarding how other jurisdictions have handled opening their disciplinary systems."

Teti said that attorneys across the state, as well as the public, should view this as a step to enhance the integrity of an already excellent legal system.

"The Disciplinary Board holds Pennsylvania attorneys in the highest regard, and has the utmost respect for the quality, ethical work that they perform on a daily basis," Teti said. "Pennsylvania consumers are fortunate to have access to such reputable and professional attorneys, as well as to a legal system that is fair and just. In fact, each year there are only a minimal number of attorneys who are disciplined, and only a small percentage of them who are disbarred. This is a testament to the quality of Pennsylvania's attorneys, considering that there are over 55,000 active lawyers licensed in the Commonwealth."

According to Teti, approximately 5,000 new complaints were filed in the last year against attorneys in Pennsylvania; however, of those complaints, the vast majority of them were unfounded and dismissed without the filing of formal charges, after a thorough investigation determined that the accused attorney had not violated the Pennsylvania Rules of Professional Conduct. In fact, less than 2% of the new complaints filed resulted in the filing of formal charges.

"We understand that as important as it is for the consumer to have access to ethical information regarding their attorney, it is just as important to ensure that the reputation of the attorney is protected," Teti explained. "Therefore, the proposed rule includes safeguards for lawyers in the event a groundless complaint is filed by a disgruntled consumer. The system (and the complaint) would not become public until formal charges are filed against the attorney." Teti stressed that formal charges are only filed after the Office of Disciplinary Counsel has reviewed the complaint filed against the lawyer, and after the lawyer has had an opportunity to respond to the complaint and present his or her case. Even after the ODC determines that formal charges should be filed, the complaint and the attorney's response are carefully examined by a member of one of the Disciplinary Board's hearing committees, who must concur with the filing of formal charges. Under the proposed rules, if formal charges are indeed filed, then the record would become public.

The proposed changes would keep confidential all accusations until after the Board hearing officer has had an opportunity to review each case and determine whether it has merit. The proposal also gives the Board discretion to seal some records and proceedings, and loosens access to records by other agencies investigating attorney misconduct. Teti noted that the Board has received input from other states that have opened their disciplinary process at the point when formal charges are filed, and it appears that ample safeguards exist during the confidential investigative process to protect attorneys from unfounded accusations. He added that in 1992, the American Bar Association adopted a report that urges that disciplinary proceedings be made public upon the filing and service of formal charges. The commentary to the ABA report noted that, "once a finding of probable cause has been made, there is no longer a danger that the allegations against the respondent are frivolous."

"We are faced with the difficult but important task of balancing the interest of the public and protecting the interest and privacy of lawyers," Teti said. "We intend to thoroughly review this issue from all angles as we review the comments received from attorneys and the public, to ensure that the interests of all parties are considered."

The Disciplinary Board's goals are to protect the general public, to maintain a high standard of integrity in the legal profession, and to safeguard the reputation of the courts of Pennsylvania. The Board is comprised of 14 attorneys and two non-lawyers from across Pennsylvania, who meet regularly to review and decide cases, policy and Board administrative matters.

The Disciplinary Board was created by the Supreme Court of Pennsylvania to review conduct and assure compliance by all attorneys to the Pennsylvania Rules of Professional Conduct. For more information about the Disciplinary Board please visit www.padisciplinaryboard.org or contact Karen Gross at (717) 975-2148 or kgross@hersheyphilbin.com.