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PHILADELPHIA NEWSPAPERS v. DISCIPLINARY BOARD SUPREME COURT PENNSYLVANIA AND ALBERT B. GERBER (08/27/76)

SUPREME COURT OF PENNSYLVANIA


decided: August 27, 1976.

PHILADELPHIA NEWSPAPERS, INC. AND ANTHONY LAME, PETITIONERS,
v.
THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA AND ALBERT B. GERBER

COUNSEL

Dilworth, Paxson, Kalish & Levy, Stephen J. Mathes, Philadelphia, for petitioners.

Mercer D. Tate, Robert L. Trescher, John Herron, Ricardo Calvin Jackson, Philadelphia, for respondents.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion. Eagen, J., dissents.

Author: Per Curiam

[ 468 Pa. Page 383]

OPINION OF THE COURT

This is an action commenced by petitioners Philadelphia Newspapers, Inc. and Anthony Lame, one of its reporters, requesting this Court to issue a Writ of Prohibition to the Disciplinary Board of the Supreme Court of Pennsylvania prohibiting the Board from conducting a hearing on a petition that Albert B. Gerber be reinstated as a member of the bar.*fn1 Mr. Gerber voluntarily resigned from the bar in 1972 after having pleaded guilty

[ 468 Pa. Page 384]

    to various counts of federal securities fraud.*fn2 Early in 1976 he petitioned for reinstatement. Upon learning that petitioner Lame had sought admission to the reinstatement hearing when it should be held, Mr. Gerber requested the Board that the hearing be non-public. The Board agreed. This proceeding followed.

The issue raised in this action is an extremely narrow one. Petitioners do not allege that the Board's decision to bar the press from the hearing infringes on their First Amendment right to gather information.*fn3 Rather, the sole issue we are asked to address is whether under our present Rules of Disciplinary Enforcement*fn4 the Disciplinary Board has the authority, in its discretion, to conduct Mr. Gerber's hearing in camera. We hold that the Board's action was not in contravention of our rules nor an abuse of the Board's discretion. It follows that the limited attack on its decision must fail.

[ 468 Pa. Page 385]

Our Rules of Disciplinary Enforcement are silent on the question of the confidentiality of reinstatement proceedings.*fn5 The rules do, however, grant broad discretion to the Disciplinary Board to formulate rules to govern the conduct of proceedings before it. Thus Rule 17-5(c)(9) provides that the Board shall have the power "to adopt rules of procedure not inconsistent with these Rules." As a consequence, the Board can be said to have acted inconsistently with our Rules of Disciplinary Enforcement, and hence improperly, only if public policy dictates that the rules be read as mandating that reinstatement hearings be open to the public. We do not believe that the rules should be so read.

A reinstatement proceeding is a searching inquiry into a lawyer's present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer's suspension or disbarrment, but rather the nature and extent of the rehabilitative efforts he has made since the time the sanctions were imposed, and the degree

[ 468 Pa. Page 386]

    of success achieved in the rehabilitative process.*fn6 Prior to the hearing a lawyer seeking reinstatement [hereinafter respondent] must complete a reinstatement questionnaire which calls for a detailed account of respondent's financial and personal dealings during the period of his suspension or disbarrment. Respondent's activities during this period are the subject of an extensive investigation by the Board.

At the hearing respondent's rehabilitative effort is fully explored. As well as presenting a case in his own behalf, respondent is required to answer all allegations of improprieties raised by the counsel for the Board. The burden is on respondent and he must establish by clear and convincing evidence that he possesses

"the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth and that his resumption of the practice of law within the Commonwealth will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest." Rule 17-18(c) (emphasis added).

A determination of an individual's moral fitness to engage in the practice of law requires an exposure of sensitive aspects of the individual's personal life and an airing

[ 468 Pa. Page 387]

    of all charges or rumors of improprieties which have been raised against him before or since the original imposition of discipline. Public disclosure of these personal affairs or of these accusations could have a seriously prejudicial impact on the personal and professional life of the individual, with no corresponding benefit to others.*fn7 In recognition of this fact this Court has ordered that when a person makes his initial application for admission to the bar, the hearings probing the moral fitness of the applicant "shall not be open to the public." Rule 14. We see no reason why a lawyer who undergoes similar scrutiny in his reinstatement hearing should, as a matter of policy, be deprived of a similar protection. In the instant case the Board has determined that such protection should be extended to Mr. Gerber. In reaching this decision the Board acted consistently with the Rules of Disciplinary Enforcement. Accordingly, we must deny petitioner's application for a Writ of Prohibition.

It is so ordered.

[ 468 Pa. Page 388]

ROBERTS, Justice (dissenting).

The majority grants a disbarred attorney's request to have his reinstatement hearing conducted in secret. I dissent.

In 1972, respondent Gerber pled guilty to twelve counts of federal securities fraud involving 1.5 million dollars. He was sentenced to five year probation and voluntarily resigned from the Pennsylvania bar. Although the criminal activity which led to his disbarrment is part of the public record, the majority now permits his reinstatement hearing to be held in secret.

A reinstatement hearing is held to determine whether a disbarred attorney is fit to practice law in this Commonwealth. If a disbarred attorney is reinstated, he becomes an officer of the court. Therefore, reinstatement hearings are an integral part of this Court's obligation to supervise the judicial system. See In re Shigon, 462 Pa. 1, 22, 329 A.2d 235, 246 (1974); McLaughlin v. Philadelphia Newspapers, Inc., 465 Pa. 104, 119, 348 A.2d 376, 383 (1975) (dissenting opinion of Roberts, J.). As such, the hearings are public business and the public has a right to know upon what facts reinstatement is granted or denied. We have no special privilege to authorize this public business to be conducted secretly. As the Supreme Court of the United States stated in Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947):

"There is no special prerequisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit or censor events which transpire in proceedings before it."

See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975).

[ 468 Pa. Page 389]

Neither our rules nor common sense require or condone a secret reinstatement hearing which follows a criminal trial and a disciplinary proceeding, both of which had been made public. Honesty in government is promoted when "public business functions under the hard light of full public scrutiny." Tennessean Newspapers, Inc. v. Federal Housing Administration, 464 F.2d 657, 660 (6th Cir. 1972).

The majority concludes that conducting an open reinstatement hearing would be of no benefit to the public. To the contrary, it is essential to the maintenance of public trust in our legal system that these proceedings be open. If respondent is in fact rehabilitated and entitled to reinstatement, the basis for that determination, which could hardly be detrimental to respondent, should be opened to those interested. The public must know the basis for determining when a disbarred attorney is entitled to reinstatement before the integrity of such hearings can be ensured.

I must also disagree with the majority's assertion that this Court should recognize whatever interest respondent may have in keeping these proceedings secret. In the circumstances of this case, I can find no justification for the majority's solicitous protection of respondent from possible public embarrassment.*fn* Compare Cox Broadcasting Corp v. Cohn, supra.

[ 468 Pa. Page 390]

No public or private interest is served by the majority's sanction of unnecessary secrecy, and its only product can be suspicion and mistrust of our willingness and ability to supervise the legal profession. The majority fails to recognize the lesson taught by experience: that openness in public affairs is the foundation of a free society. I dissent.


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