Opinion 88-9
(April 1988)

Your recent inquiry regarding an interpretation of Disciplinary Enforcement Rule 402 regarding the confidentiality of proceedings before the Disciplinary Board was presented to the Professional Guidance Committee at its meeting on March 21, 1988. The following constitutes the opinion of the Committee on your inquiry:

Rule 402(a) provides that:

All proceedings involving allegations of misconduct by or disability of an attorney shall be kept confidential until or unless:

(2) the respondent-attorney requests that the matter be public, or waives confidentiality for a particular purpose specified in writing.

It was the opinion of the Committee that by raising the fact of the past discipline in his complaint, the plaintiff/attorney had waived the confidentiality of those proceedings in writing, as provided for in the exception contained in Rule 402(a)(2). Were the rule to be interpreted differently, you would be unable to address the allegation raised in the plaintiff's complaint, which you must do if you are to properly and zealously represent your client.

The suggestion was made at the meeting that you may wish to file a motion asking the court for specific guidance on this issue. Although you may wish to do this, the Committee does not feel that this is necessary. If you so choose, you may raise the substance of the past disciplinary proceedings in your answer without taking any further measures regarding the confidentiality of that proceeding.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.