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THE COURTS

Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS

PART V.  PROFESSIONAL ETHICS AND CONDUCT

[204 PA. CODE CH. 83]

Amendment of Rule 402 of the Pennsylvania Rules of Disciplinary Enforcement; No. 59 Disciplinary Rules; Doc. No. 1

[37 Pa.B. 2602]
[Saturday, June 9, 2007]

Order

Per Curiam:

   And Now, this 23rd day of May, 2007, Rule 402 of the Pennsylvania Rules of Disciplinary Enforcement is amended to read as follows.

   This Order shall be processed in accordance with Rule 103(b) of the Pennsylvania Rules of Judicial Administration. The amendments adopted hereby shall take effect upon publication in the Pennsylvania Bulletin and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending.

Annex A

TITLE 204.  JUDICIAL SYSTEM GENERAL PROVISIONS

PART V.  PROFESSIONAL ETHICS AND CONDUCT

Subpart B.  DISCIPLINARY ENFORCEMENT

CHAPTER 83.  PENNSYLVANIA RULES OF DISCIPLINARY ENFORCEMENT

Subchapter D.  MISCELLANEOUS PROVISIONS

Rule 402.  Access to Disciplinary Information and Confidentiality.

   (a)  Except as provided in subdivisions (b) [and], (d) and (k), all proceedings under these rules shall be open to the public after:

*      *      *      *      *

   (c)  Until the proceedings are open under subdivision (a) or (b), all proceedings involving allegations of misconduct by or disability of an attorney shall be kept confidential unless:

*      *      *      *      *

   (3)  in matters involving alleged disability, the Supreme Court enters its order transferring the respondent-attorney to inactive status pursuant to Enforcement Rule 301 (relating to proceedings where an attorney is declared to be incompetent or is alleged to be incapacitated); or

   (4)  [the proceeding is based upon allegations that have become generally known to the public; or

   (5)]  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.

*      *      *      *      *

   (k)  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:  Paragraph (d)(2) is based on 18 Pa.C.S. § 5108 (relating to compounding). Otherwise Disciplinary Counsel may be in the anomalous position of violating Rule 8.4 of the Pennsylvania Rules of Professional Conduct.

   Although subdivision (k) provides that a formal proceeding that becomes open to the public under subdivision (a) 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 of time. Thus, subdivision (k) 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.

[Pa.B. Doc. No. 07-1005. Filed for public inspection June 8, 2007, 9:00 a.m.]



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