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Section/Rule:
5.31
Subject:
Rule 5 - Rules Governing the Missouri Bar and the Judiciary - Complaints and Proceedings Thereon
Publication / Adopted Date:
June 20, 1995
Topic:
Records Under Rule 5; Confidential Records and Proceedings; Public Documents and Proceedings; Redaction Requirements; Protective Orders; Permissive Disclosure; Dissemination of Disciplinary Information
Revised / Effective Date:
July 1, 2023
5.31 Records Under Rule 5
; Confidential Records and Proceedings; Public Documents and Proceedings; Redaction Requirements; Protective Orders; Permissive Disclosure; Dissemination of Disciplinary Information
(a) Confidential Records and Proceedings.
(1) All proceedings, the records of all proceedings, investigations, records pursuant to Rule
5.30
, and records of the Advisory Committee under this Rule
5
shall be confidential except as otherwise provided in this Rule 5.31.
(2) All confidential records shall be deposited with, and maintained by, the Chief Disciplinary Counsel, except all confidential records pursuant to Rule
5.30
and records of the Advisory Committee shall be maintained by the Legal Ethics Counsel.
(b) Public Documents and Proceedings.
(1) Upon the filing of an information and an answer or other responsive pleading with the Advisory Committee, all materials filed in connection with the information and all related proceedings are public unless a protective order is issued.
(2) The Advisory Committee may adopt regulations regarding public and media access and "media coverage" of open disciplinary hearings consistent with this Rule 5.31 and subject to approval by this Court.
(3) A written admonition becomes public upon its acceptance.
(4) Upon the filing of an information in this Court, whether as an initial matter or after proceedings before a disciplinary hearing panel, all materials filed in connection with the information are public unless otherwise ordered by this Court or protected by a protective order issued pursuant to Rule 5.31(c).
(5) All pleadings and documents filed with the Advisory Committee or this Court shall be redacted in accordance with Rule
84.015
. The responsibility for redacting such information rests solely with counsel, the parties, or any other person preparing, offering, or filing the document.
(6) The following aspects of otherwise public proceedings shall remain confidential:
(A) Deliberations by a disciplinary hearing panel; and
(B) Deliberations of and work product prepared by the Chief Disciplinary Counsel, the Chief Disciplinary Counsel's staff, the Advisory Committee, the Legal Ethics Counsel, the Legal Ethics Counsel's staff, and the regional disciplinary committees.
(c) Protective Orders and Closing Records After Disposition. A protective order may be issued upon application, or on the motion of the presiding officer or the chair of the Advisory Committee, and for good cause shown to protect the interests of a complainant, witness, third party, or respondent. A party seeking to file a document or other item that is confidential or privileged by operation of law shall seek a protective order.
(1) A protective order may be issued by the chair of the Advisory Committee prior to the appointment of a disciplinary hearing panel. The disciplinary hearing panel may issue a protective order from the time of its appointment until an information, if any, is filed in this Court.
(2) A protective order may prohibit the disclosure of specific information and direct that the proceedings be conducted so as to implement the order including, but not limited to, an order that the hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of the application.
(3) Special consideration shall be given to an application for a protective order regarding information that is confidential or privileged by operation of law.
(4) When good cause is shown and a protective order is necessary, the order should be written as narrowly as is practicably feasible.
(5) Once issued, a protective order is effective throughout the disciplinary proceeding, including disposition by this Court if the matter is reviewed by this Court, but is subject to withdrawal or modification.
(6) Once a protective order issues, parties must file all subsequent documents in accordance with the terms of such protective order, including any required redactions.
If a disciplinary hearing panel recommends dismissal of an information and the Chief Disciplinary Counsel accepts the recommendation, records of the information shall be confidential upon request of the respondent.
If this Court dismisses an information, the respondent may move to have records of the information sealed from public access.
(d) Permissible Disclosure of Confidential Records.
(1) Confidential records may be inspected only by the Advisory Committee, the Chief Disciplinary Counsel, members of the regional disciplinary committee conducting an investigation, the Legal Ethics Counsel, and the person complained against or that person's duly authorized representative, unless otherwise ordered by this Court. A complainant may be provided with copies of those materials the complainant submitted.
(2) If public statements that are false or misleading are made about any otherwise confidential disciplinary proceeding or record, the Chief Disciplinary Counsel or the Advisory Committee chair may disclose information to the extent necessary to correct such false or misleading statements.
(3) The Chief Disciplinary Counsel may make otherwise confidential records of disciplinary proceedings available to:
(A) The Commission on Retirement, Removal and Discipline when the confidential records relate to a possible violation of Rule
2
;
(B) The Board of Law Examiners when the confidential records relate to the qualifications of an applicant for admission;
(C) Appropriate lawyer disciplinary authorities in other jurisdictions when the confidential records relate to possible violations by a lawyer licensed, or applying for licensure, in that jurisdiction;
(D) Law enforcement agencies acting within the scope of their lawful authority when the confidential records relate to possible criminal conduct; and
(E) Other persons as reasonably necessary to perform duties under this Rule
5
.
(4) Nothing in this Rule 5.31(d) compels the Chief Disciplinary Counsel to make confidential records available under Rule 5.31(d)(3) without a subpoena and court order.
(e) Dissemination of Disciplinary Information. Notice of discipline imposed by this Court under this Rule
5
and reinstatements shall be given by the Chief Disciplinary Counsel:
(1) To the disciplinary enforcement agency of every other jurisdiction in which the respondent is licensed or to the American Bar Association National Lawyer Regulatory Data Bank if that jurisdiction fully participates with the data bank;
(2) For publication in the Journal of The Missouri Bar; and
(3) To the presiding judge of each judicial circuit and each chief judge of the court of appeals.
This Court, the Chief Disciplinary Counsel, the Legal Ethics Counsel, and The Missouri Bar may disseminate public records of lawyer discipline by additional means including electronic records to ensure public access to a lawyer's status, contact information, disciplinary history, and pending public disciplinary matters through a single point of access. The Chief Disciplinary Counsel also may transmit copies of such records to other tribunals and agencies.
ADVISORY COMMITTEE REGULATION RE: RULE 5.31: PUBLIC
AND MEDIA ACCESS TO MATTERS PENDING BEFORE A
DISCIPLINARY HEARING PANEL
(a) Definitions.
(1) "Advisory Committee," the committee appointed by this Court pursuant to Rule
5.01
.
(2) "Disciplinary Hearing Panel," a three-member panel hearing each matter for which an information is filed, as provided in Rule
5.04
.
(3) "Disciplinary Hearing Officer," a lawyer or nonlawyer appointed by this Court as provided in Rule
5.04
.
(4) "Hearing Room," any space in which any portion of a disciplinary proceeding occurs, including a virtual space.
(5) "Legal Ethics Counsel," the ethics counsel serving as staff and counsel to the Advisory Committee pursuant to Rule
5.07(b)
.
(6) "Media" includes any person who regularly gathers, processes, and disseminates news or information about matters of public interest in any medium. "Media" also includes any educational institution or its representatives seeking media coverage of a judicial proceeding for educational purposes.
(7) "Media Coverage" includes audio, video, or electronic recording; streaming, broadcasting, filming, or televising; photographing; or otherwise transmitting information, including by text, electronic mail, online post, or other electronic format, whether for live or later dissemination in any medium.
(8) "Media Equipment" includes still or video cameras, audio recorders, and any other device capable of taking photographs, making audio or video recordings, or otherwise transmitting information, including texts, online posts, or other electronic messages, whether for live or later dissemination in any medium.
(9) "Notice in Writing" shall include notice sent via electronic mail.
(10) "Participant" shall include witnesses and parties.
(11) "Presiding Officer," the person whom the chair of the Advisory Committee has designated as the presiding officer pursuant to Rule
5.04
.
(12) "Public" includes any person not otherwise defined in this Regulation.
(13) "Recording" includes audio, video, or electronic recording; streaming, broadcasting, filming, or televising; photographing; or otherwise transmitting information, including by text, electronic mail, online post, or other electronic format, whether for live or later dissemination in any medium.
(b) Open Proceedings. Each proceeding in which an information has been filed and in which an answer or other responsive pleading has been received is public as provided in Rule 5.31. Public and media access to matters pending before a disciplinary hearing panel shall be in accordance with this Rule 5.31 and Regulation. No member of the public or media shall have access to matters or proceedings that are confidential or subject to a protective order pursuant to this Rule 5.31. Anyone seeking to disrupt a proceeding shall leave the hearing room at the request of the presiding officer.
(c) Public and Media Access to Attend Hearings. Members of the public and media may attend disciplinary hearings that are public in accordance with this Rule 5.31 and Regulation. Recording of such proceedings shall be prohibited except for members of the media who have provided notice requesting media coverage and been granted such permission by the presiding officer in accordance with this Regulation. No person may use any device capable of media coverage in a hearing room unless specifically authorized under the provisions of this Regulation.
(d) Procedural.
(1) Requests for Media Coverage. All requests for media coverage or otherwise to use media equipment in the hearing room shall be made to the Legal Ethic Counsel in writing as soon as practicable after the disciplinary proceeding is scheduled but at least five business days in advance of the scheduled proceeding. Any member of the media making a request to the Legal Ethics Counsel for media coverage of a disciplinary proceeding shall include the name of the person seeking such coverage; the affiliated entity, if any; and the media equipment to be used. The Legal Ethics Counsel shall provide notice in writing of said request to counsel for all parties, parties appearing without counsel, and the hearing officers as soon practicable thereafter. The presiding officer may extend or reduce these times to ensure adequate notice, to prevent delay in a disciplinary proceeding, or to ensure the efficient administration of the disciplinary process.
(2) Legal Ethics Counsel Coordinates Arrangements. Whenever possible, the presiding officer and all interested members of the media shall coordinate all arrangements for media coverage with the Legal Ethics Counsel. The Legal Ethics Counsel may designate a media coordinator when appropriate. A media coordinator may be either a member of the media or other appropriate person. Whether to designate a media coordinator, and selection thereof, shall be in the sound discretion of the Legal Ethics Counsel.
(3) Notice to Witnesses. Before the proceeding commences, counsel shall inform any person counsel may call as a witness that the witness will be subject to media coverage unless the presiding officer limits or prohibits such coverage.
(4) Objections. Upon the objection of a party or other participant, or on the disciplinary hearing panel's own motion and for good cause shown, the presiding officer, in consultation with the other hearing officers, may prohibit any or all media coverage of a participant in a disciplinary proceeding or any or all of the participant's testimony.
(5) Media Conference. The presiding officer may hold a conference, in person or by any other means, concerning applications or plans for media coverage. During the conference, the presiding officer may hear any objections to media coverage and set terms and conditions of media coverage. To the extent appropriate to protect confidential or privileged matters, the presiding officer may exclude media from portions of the conference.
(e) Conditions of Media Coverage. Media coverage of a disciplinary proceeding will be permitted in the hearing room if expressly authorized by order of the presiding officer and under the following conditions:
(1) Any media granted permission to conduct media coverage shall be provided access to this Regulation and, by appearing at a proceeding, are deemed to have agreed to comply with this Regulation and any directives the presiding officer may issue pursuant to this Regulation.
(2) The presiding officer may prescribe such conditions of coverage as provided for in this Regulation, including the manner in which objections may be raised and whether media coverage may be conducted in the hearing room before or after a disciplinary proceeding or while the proceeding otherwise is in recess. Any media coverage the presiding officer permits must be executed in a manner that ensures the fairness and dignity of the proceeding.
(3) Even when media coverage is expressly permitted, the presiding officer shall limit or disallow media coverage of a proceeding if the presiding officer concludes, under the circumstances of the particular proceeding, such coverage would materially interfere with the rights of the parties to a fair hearing or the substantial rights of individual participants, including, but not limited to, the security, privacy, confidentiality, or attorney-client privilege of participants to the proceedings. Restrictions the presiding officer may impose on media coverage may not be evaded by photographing or recording proceeding activities from outside the hearing room, such as through a door or window.
(4) Prohibitions on Media Coverage. Media coverage is prohibited of any:
(A) Disciplinary proceeding or part thereof covered by a protective order or required under state or federal law to be closed. No coverage shall be permitted of any juveniles.
(B) Conferences between attorneys and their clients, between co-counsel, between counsel and one or more hearing officers, or between or among hearing officers, to protect the attorney-client privilege and the right to effective counsel.
(C) Materials: on counsel tables; subject to a discussion with one or more hearing officers regarding the admissibility of the materials; or otherwise not admitted into evidence, to ensure the fairness of the proceeding. The presiding officer may provide the media access, after the proceeding concludes or while the proceeding is in recess, to exhibits received into evidence, subject to ruling on any objection from counsel in the proceeding, unless subject to a protective order or filed under seal.
(5) Unintentional or Inadvertent Violations. In the event of an unintentional or inadvertent violation of any of these provisions:
(A) The media shall prevent the recording, photographing, or reporting, as a result of media coverage, from being disseminated in any manner; and
(B) The presiding officer shall take any other appropriate
action, including, but not limited to, the limitation or termination of media coverage.
(6) Adjacent Areas. Regardless of whether media coverage of a proceeding is granted, the presiding officer may prohibit media conducting interviews, recording, photographing, or preparing a report in the hallways immediately adjacent to the entrances to the hearing room if such activity would interfere with the fairness of the proceeding or otherwise is prohibited by local officials or building or law firm managers.
(7) Limitations on Coverage Once Granted. The presiding officer may limit or terminate media coverage at any time during the proceedings if the presiding officer finds:
(A) Any media has violated this Regulation or any directives the presiding officer imposed pursuant to this Regulation; or
(B) Any substantial rights of individual participants or rights to a fair hearing may be prejudiced if media coverage is allowed to continue.
(f) Technical.
(1) Equipment Limitations. All media equipment to be used pursuant to this Regulation during disciplinary proceedings must be unobtrusive in both size and appearance, without distracting sound or light, and of sufficient technical quality to prevent interference with the disciplinary proceeding. The presiding officer may limit the number of media personnel and the amount of media equipment in a hearing room covering a disciplinary proceeding and may require other media personnel to pool coverage in accordance with this Regulation and as the presiding officer deems appropriate under particular circumstances. The hearing panel is not required to reject a hearing room because it will not allow for the presence of video or audio recording equipment. No live media coverage shall be permitted except as specifically authorized by the presiding officer.
(A) Still Photography. No more than one still photographer shall be permitted to participate at one time unless the presiding officer otherwise approves in advance.
(B) Video Recording. Not more than one videographer, using a single device, shall be permitted in the hearing room during a disciplinary proceeding. Such equipment must be designed or modified so participants in the disciplinary proceeding are unable to determine when the equipment is recording. When practicable, recording or broadcasting equipment that is not a component part of a video camera shall be located outside the hearing room. When video recording equipment is not compatible, the presiding officer may permit use of an additional device and operator.
(C) Audio Recording. Not more than one audio recording system shall be set up in the hearing room for media coverage of a disciplinary proceeding at any time. Such recording shall be made from an existing audio system present in the hearing room if the existing system produces sound technically suitable for broadcast. Any changes in an existing audio system must be approved by the presiding officer. Microphones for use by counsel and hearing officers shall be equipped with off/on switches to facilitate compliance with this Regulation. When practicable, electronic audio recording equipment and any operating personnel shall be located outside the hearing room.
(D) Advance Approval. It shall be the duty of the media to demonstrate to the presiding officer reasonably in advance of the proceeding that the equipment sought to be utilized meets the requirements of this Regulation. Failure to obtain advance approval for equipment may preclude its use in the proceeding. All media and media equipment should be in place at least 30 minutes prior to the scheduled time of commencement of the proceeding.
(E) Nonapproved Uses Prohibited. Any media equipment approved for still photography, video recording, or audio recording of a disciplinary proceeding is to be used only for the specified purpose. If the equipment is capable of making other types of recordings or producing other content, no such recordings may be made or content produced without express permission of the presiding officer.
(2) Lighting. Other than light sources already existing in the hearing room, no external lighting equipment, flashes, or other artificial light device of any kind shall be employed in the hearing room.
(3) Pooling.
(A) If multiple media personnel apply under the provisions of this Regulation for media coverage for the same disciplinary proceeding, they shall be pooled appropriately based on the type of media coverage they seek. The Legal Ethics Counsel, media coordinator, or presiding officer should endeavor to rotate still photographers and videographers as may be appropriate under the circumstances. Requests for copies of audio or video recordings or photographs shall be directed to only the pool representative, who shall supply such copies upon request to the media in the pool at a price not exceeding actual cost. Failure to make timely application for coverage may result in exclusion from the pool and from access to resulting media coverage.
(B) The presiding officer shall not be called upon to mediate any media dispute regarding pooling. In the absence of advance media agreement, coordinated through the Legal Ethics Counsel or the media coordinator, the presiding officer may exclude any or all media coverage.
(4) Location of Media Equipment and Personnel. When media access has been granted, the presiding officer shall designate an area or areas in the hearing room where media equipment and operating personnel shall be located. The area or areas designated shall provide reasonable access to the proceeding to be covered. The remainder of the media pool may be located in an auxiliary room, if one is available, although the hearing panel is not required to reject a facility because it will not allow for an auxiliary room for use by the media pool. No media or media equipment shall block the view of persons seated in the public area of the hearing room.
(5) Movement During Proceedings. Media must set up and remove all media equipment permitted by the presiding officer only when the proceeding is not in session and at all times shall operate from a fixed position. Still photographers and videographers shall not move about the hearing room while proceedings are in session, nor shall they engage in any movement that attracts undue attention.
(6) Personal Audio Devices. Notwithstanding other provisions of
this Regulation, the presiding officer may permit the media to use inconspicuous personal recording devices to make audio recordings solely as personal notes of the proceeding. Media proposing to use a personal audio recording device must make timely application to the Legal Ethics Counsel and obtain advance permission from the presiding officer. Any such audio recording must be in accordance with the provisions governing media access and coverage in general, may not be used for any other purpose, and, if the device is capable of making other types of recordings or producing other content, no such recordings may be made without express permission of the presiding officer.
(7) Use of Devices. No person may use any device capable of media coverage in a hearing room unless specifically authorized under the provisions of this Regulation. The presiding officer may authorize media to use electronic devices solely for textual notetaking and writing if they are configured to operate quietly and in such a manner as to avoid undue distractions.
(8) Decorum. All media personnel in the hearing room shall wear business or business-casual attire; shall not assume any body position inappropriate for spectators; and otherwise shall maintain proper decorum at all times while covering a disciplinary proceeding.
(Approved November 14, 2012, effective January 1, 2013, Amended December 27, 2016, effective July 1, 2017; amended October 22, 2018, effective January 1, 2019; amended May 31, 2022, effective January 1, 2023; amended November 22, 2022; January 1, 2023; amended May 23, 2023, effective July 1, 2023.)
