Attorney T. v. Office of Disciplinary Counsel

547 A.2d 350, 519 Pa. 280, 1988 Pa. LEXIS 208
CourtSupreme Court of Pennsylvania
DecidedAugust 10, 1988
Docket615 Disciplinary Docket 2
StatusPublished
Cited by4 cases

This text of 547 A.2d 350 (Attorney T. v. Office of Disciplinary Counsel) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Attorney T. v. Office of Disciplinary Counsel, 547 A.2d 350, 519 Pa. 280, 1988 Pa. LEXIS 208 (Pa. 1988).

Opinions

OPINION OF THE COURT

PAPADAKOS, Justice.

On March 18, 1988, Petitioner, Attorney T., filed the Petition now before us in which she requests this Court to exercise our extraordinary jurisdiction pursuant to 42 Pa. C.S. § 7261 and our King’s Bench Powers by granting a “temporary restraining order” 2 to prevent the Office of Disciplinary Counsel of Pennsylvania from revealing the content of her disciplinary file to the New Jersey disciplinary authorities. Petitioner contends that since her pending disciplinary matters have not been adjudicated, and do not fall into any of the exceptions to the requirement of confidentiality in disciplinary proceedings of Pa.R.D.E. 402, [282]*282the information within her file is privileged and not subject to disclosure to other jurisdictions’ disciplinary authorities until and unless public discipline is imposed.3 Disciplinary Counsel, on the other hand, contends that Pa.R.D.E. 402 not only does not prohibit the transfer of this information, but, in fact, Disciplinary Counsel is obliged to provide the information to the Office of Attorney Ethics for the Supreme Court of New Jersey pursuant to the Code of Professional Responsibility, DR 1-103(B).

In determining whether an injunction should be granted, we must consider the questions of whether Disciplinary Counsel is barred by Pa.R.D.E. 402 and applicable law regarding confidentiality of disciplinary proceedings from providing information and/or evidence of attorney misconduct in Pennsylvania or in other jurisdictions to the appropriate disciplinary authorities in such other jurisdictions prior to a final determination by this Court that the attorney has engaged in misconduct in Pennsylvania sufficient to warrant public discipline; and whether Pa.R.D.E. 402 impliedly converts all information/evidence of attorney misconduct wherever committed into privileged materials for purposes of DR 1-103(A) and (B). Disciplinary Counsel has also filed a Petition to Compel Medical Examination under Pa.R.D.E. 301(d) against Petitioner requesting that this Court order an independent medical examination to establish her present capacity to practice law in this jurisdiction.4

The facts underlying the instant petition are as follows: Petitioner is licensed to practice law in both Pennsylvania and New Jersey and is currently the subject of a Petition [283]*283for Discipline filed by Disciplinary Counsel alleging violations of several Disciplinary Rules of the Code of Professional Responsibility. None of the matters have yet been adjudicated by the Disciplinary Board of the Supreme Court of Pennsylvania (Board) and there has been no recommendation of discipline by the Board to this Court. During the course of the disciplinary investigation, and based on complaints filed by Petitioner’s Pennsylvania clients, Disciplinary Counsel discovered evidence indicating that Petitioner had co-mingled and possibly misappropriated the funds of Pennsylvania clients and at least one New Jersey client in violation of various Pennsylvania and New Jersey disciplinary rules.

The New Jersey Office of Attorney Ethics has requested that the Office of Disciplinary Counsel provide it with “any information” it may possess concerning Petitioner. This request was predicated on a pending disciplinary matter in that jurisdiction involving New Jersey clients, in which the New Jersey Supreme Court entered an order placing Petitioner on temporary disability inactive status in New Jersey. This transfer to inactive status was based upon alleged physical and emotional difficulties and is to continue pending the final resolution of the ethics proceeding. The issue of Petitioner’s capacity to practice law has been linked by her psychiatrist to injuries she received in an automobile accident and complications therefrom which have placed her in an exhausted mental state. Disciplinary Counsel has indicated its intent to make disclosure of the evidence it possesses relative to Petitioner’s misconduct in the representation of the New Jersey client and relative to her previous statements concerning her medical condition claiming that it is obligated to do so by Pennsylvania DR 1-103(B). Petitioner objected to such disclosure and filed the instant petition with this Court on March 18, 1988. Disciplinary Counsel replied in writing the same day and arguments were held on the motion before Mr. Justice McDermott on March 25, 1988. At that proceeding, Disciplinary Counsel agreed to preserve the confidentiality of Petitioner’s records pending a ruling by the full Court.

[284]*284The confidentialtiy of attorney disciplinary proceedings is well established and serves a vital function in assisting legitimate governmental processes. McLaughlin v. Philadelphia Newspapers, Inc., 465 Pa. 104, 848 A.2d 376 (1975). McLaughlin involved an action brought by a newspaper to vacate an impoundment order with respect to disciplinary proceedings regarding a private attorney who was later appointed to public office. The newspaper sought permission to have its personnel inspect and photograph records of the disciplinary proceeding. This Court held that it was not a violation of freedom of the press to deny the newspaper access to court records of disciplinary proceedings concerning matters which were non-criminal and nongovernmental in nature, where the proceedings were conducted with the expectation of all concerned that unless public discipline were imposed the proceedings would re"main confidential. An impoundment order was in accordance with standard practice and the lawyer involved desired that confidentiality be maintained. Id., 465 Pa. at 117-118, 348 A.2d 382-383.

The McLaughlin Court explained the rationale for confidentiality in disciplinary proceedings as required by Pennsylvania Rule of Disciplinary Enforcement 17-23, which was amended and redesignated as Pa.R.D.E. 402:

This rule, declaratory of prior practice in Pennsylvania, reflects the considered judgment that there is nothing to be gained and much to be lost, where an attorney’s reputation and livelihood are concerned, by opening to the public the record of proceedings concerning allegations of professional misconduct which are ultimately found to be groundless. Additionally, even where the charges brought against a lawyer have merit, it is often the case that the misconduct demands discipline of no greater magnitude than private reprimand. As a primary objective of such a minor penalty is the rehabilitation of the lawyer (in addition, of course, to the protection of the public interest), confidentiality may be considered essential to ensure that rehabilitative efforts are not thwarted [285]*285by disclosures which may be prejudicial. Thus, when McLaughlin as a private practitioner appeared before the court of common pleas to answer allegations of a noncriminal nature concerning his private practice, he did so with the expectation, fully warranted, that unless public discipline were imposed, i.e. public censure, suspension or disbarment, the proceedings would remain confidential.

Id., 465 Pa. at 112, 348 A.2d at 381 (footnote omitted).

There are specific exceptions to confidentiality set forth in Rule 402(a) which provides:

Rule 402. Confidentiality
(a) All proceedings involving allegations of misconduct by or disability of an attorney shall be kept confidential until or unless:

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Attorney T. v. Office of Disciplinary Counsel
547 A.2d 350 (Supreme Court of Pennsylvania, 1988)

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Bluebook (online)
547 A.2d 350, 519 Pa. 280, 1988 Pa. LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/attorney-t-v-office-of-disciplinary-counsel-pa-1988.