A Question Of Balance: Privacy Of Attorney v. Public Interest In Open Bar Proceedings

A petitioner who had filed for reinstatement in the District of Columbia  and thereafter voluntarily withdrew the petition was successful in his attempt to redact portions of the hearing committee report from the public record.

A hearing committee report had been filed that had recommended denial of the petition when the voluntary withdrawal occurred, per the report of the Board on Professional Responsibility

On November 15, 2016, the Court granted the motion to dismiss, denied the request to preclude citation to the Hearing Committee report in future proceedings, and referred to the Board the request that the Hearing Committee report not be published on the D.C. Bar website.

In D.C. , there is a strong presumption in favor of full access to information concerning formal proceedings (not dismissed complaints) such as petitions alleging misconduct and reinstatement petitions.

Nonetheless

D.C. Bar R. XI, § 17(a) provides that all proceedings before a Hearing Committee shall be open to the public, and all documents filed in a disciplinary matter are available for public inspection, absent entry of a protective order pursuant to § 17(d). See also Board Rule 9.7(d) (reinstatement proceedings are open to the public, subject to the issuance of a protective order). Here, although Petitioner’s reinstatement hearing was open to the public, he has requested that certain information publicly disclosed to the Hearing Committee be redacted from the Hearing Committee’s report, which is currently available on the D.C. Bar’s website. We have reviewed the redacted materials and conclude that Petitioner has a legitimate privacy interest in their contents. Thus, the Board must balance the public interest in the openness of disciplinary proceedings against the Petitioner’s desire to prevent the further disclosure of sensitive personal information provided to the Hearing Committee. In considering this issue, we note that, because Petitioner has withdrawn his petition for reinstatement, and has agreed that a redacted version of the Hearing Committee report should remain publicly available, the public interest in access to the unredacted Hearing Committee report is lessened. We also note that Disciplinary Counsel agrees that only a redacted version of the Hearing Committee report should be publicly available.

In light of the parties’ agreement to the redaction of the Hearing Committee report and future use of the unredacted Hearing Committee report, the personal privacy interests of Petitioner, and the limited public interest in the redacted information, the Board Chair has issued an order directing that the unredacted version of the Hearing Committee report be removed from the Bar’s website and the  Fastcase® legal research service, and replaced with the redacted version agreed upon by the parties.

The redacted version of the hearing committee report is attached to the board order. The case is In re Michael Beattie (try this link)

The redactions are fairly extensive, with five full pages (by my count) blacked out and other sentences throughout similarly shielded from public view. 

I have no problem with this approach given the procedural posture. Notably, the hearing committee tells us more about the misconduct than was disclosed in the consent disbarment.

Of course, my views may be in part a product of the fact that the author is my former student. (Mike Frisch)

The petitioner consented to disbarment in 2009. (Mike Frisch)