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Pennsylvania Supreme Court Adopts Rule Change Recommended By The Disciplinary Board

Oversight board believes that an "open" system will enhance the integrity of an already excellent legal system

(Camp Hill, Pa.) - Marvin J. Rudnitsky, Chairman of the Disciplinary Board of the Supreme Court of Pennsylvania, a 16-member agency created by the Supreme Court with oversight and investigative power to review the conduct of Pennsylvania lawyers, announced today that the Supreme Court has approved the Board's proposed amendments to the established process of disciplinary proceedings. The existing method of conducting inquiries and disciplinary procedures abides by a confidentiality rule. Under the approved rule changes to the Pennsylvania Rule of Disciplinary Enforcement 402, disciplinary proceedings will be open to public review once formal charges are filed against an attorney.

"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," Rudnitsky said. "Allowing public access to proceedings has been adopted by 41 of 51 jurisdictions throughout the United States. Our role as appointed members of the Disciplinary Board was to thoroughly study this issue by soliciting input from national experts, American Bar Association representatives, the public and Pennsylvania attorneys. Our proposed amendments were carefully drafted to promote positive change to the disciplinary proceedings while protecting the reputation of attorneys."

According to Rudnitsky, the adopted amendments to the confidentiality component of the existing system include a series of safeguards to prevent false accusations against attorneys from being made public. "The rule change includes safeguards for lawyers in the event a groundless complaint is filed by a disgruntled consumer," Rudnitsky explained. "The system (and the complaint) will not become public until after formal charges are filed against the attorney."

In order to formalize charges in a disciplinary proceeding, the complaint is thoroughly investigated and reviewed to ensure formal charges are warranted. Formal charges are only filed after the Office of Disciplinary Counsel (ODC) 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 one of the Disciplinary Board's hearing committee members, who must concur with the filing of formal charges. Under the adopted rules, if formal charges are indeed filed and an answer is filed or the time to file an answer has passed, then the record becomes public.

The adopted amendment will keep all accusations confidential until after a Board hearing officer has had an opportunity to review each case and determine whether it has merit. The amended rules also give the Board discretion to seal some records and proceedings, and loosens access to records by other agencies investigating attorney misconduct. Rudnitsky 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.

The American Bar Association (ABA) adopted a policy, which recommends that disciplinary proceedings be made public upon the filing of formal charges. Since then, many states have reviewed their disciplinary processes, opening their systems to public scrutiny. Presently, 41 of 51 jurisdictions in the United States allow public access to proceedings. Pennsylvania was one of the jurisdictions with a closed system. In a report compiled by the ABA entitled, "National Lawyer Population by State, 2003," Pennsylvania ranked second in number of lawyers (40,562) in a jurisdiction with a closed disciplinary system. Only New York had a larger number of lawyers (137,108) in states that operate with closed systems. Only New York, Alabama, Delaware, Idaho, Kentucky, Mississippi, Missouri, South Dakota, Virginia and Wyoming continue to hold disciplinary proceedings under rules of confidentiality.

Prior to the Pennsylvania rule change, out of the ten most populous states in the U.S., California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, New Jersey, Georgia and North Carolina, only two had closed disciplinary systems - New York and Pennsylvania.

Rudnitsky said that the Disciplinary Board felt strongly that it was their duty as Board members to thoroughly review and evaluate the benefits and/or disadvantages of an open system in Pennsylvania. "This has been more than a two-year process which we all took very seriously," Rudnitsky said.

According to Rudnitsky, the process began by receiving input from national experts and ABA representatives regarding how other jurisdictions have handled opening their disciplinary system. The Pennsylvania Supreme Court indicated to the Board that it would consider revising its rules. A Notice of Proposed Rulemaking was published in The Pennsylvania Bulletin on June 26, 2004, with comments initially due on or before July 30, 2004. In order to provide interested parties with additional time to submit written comments regarding these proposed amendments, the Board twice extended the period to respond. The comment period was first extended to August 31, 2004, and it was extended again until September 30, 2004.

As of the close of the comment period, the Board received 50 written comments regarding the proposed amendments. Twenty comments were in favor of the proposed amendments; 10 comments favored the proposed amendments but suggested changes; and 20 comments opposed the proposed amendments. The Board thoroughly reviewed all of the comments received and on November 16, 2004 unanimously approved forwarding revised proposed amendments to Rule 402, Pa.R.D.E. to the Supreme Court with its recommendation that they be adopted.

"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," Rudnitsky 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 more than 57,000 active lawyers licensed in the Commonwealth."

The Disciplinary Board's goals are to protect the general public, maintain a high standard of integrity in the legal profession, and 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.

"We feel that we have addressed the important, yet difficult task of balancing the interest of the public while protecting the interest and privacy of lawyers," Rudnitsky said. "We investigated the issue from every conceivable angle, to ensure that the interests of all involved parties were considered. We are pleased that the Supreme Court of Pennsylvania supported our recommendations and adopted the proposed amendments."

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 for contact Karen Gross at (717) 975-2148 or kgross@hersheyphilbin.com.