Samuel C. Stratton, Westchester, Pa., for petitioner.
James Patrick Leonard, Philadelphia Asst. Disc. Counsel, for Disciplinary Bd.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j., joins the Majority opinion and also files a concurring opinion.
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. § 726*fn1 and our King's Bench Powers by granting a "temporary restraining order"*fn2 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,
the information within her file is privileged and not subject to disclosure to other jurisdictions' disciplinary authorities until and unless public discipline is imposed.*fn3 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.*fn4
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
for 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.
The confidentiality 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, 348 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 non-governmental in nature, where the proceedings were conducted with the expectation of all concerned that unless public discipline were ...