State Supreme Court sides with Missouri Lawyers Weekly
June 5, 2013
By Melissa Meinzer
Missouri Lawyers Media
JEFFERSON CITY, MO—In a unanimous decision April 5, the Missouri Supreme Court ruled the public should have access to a previously secret disciplinary hearing.
The ruling applies as well to all future disciplinary hearings.
The court issued an expedited opinion on a motion brought three days before by Missouri Lawyers Media, owner of Missouri Lawyers Weekly and six daily legal newspapers. The newspapers sought access to the Office of Chief Disciplinary Counsel’s hearing of Clayton attorney Susan Hais on four counts of misconduct.
“The Court finds that the interests of justice are best served by taking the unusual step of issuing a permanent writ without the delay and expense that would accompany the ordinary course of issuing a preliminary writ,” the court ruled in a per curiam decision.
Attorneys for Hais, as well as the media company, opposed the motion for protection that closed the hearing at its outset.
After being refused entry to the hearing, Missouri Lawyers Media first sought to gain entry by filing a motion with the disciplinary panel itself. That motion was denied behind closed doors, without Missouri Lawyers Media attorney Ben Lipman present. Lipman then filed a writ in the state Supreme Court April 2.
Hours after Lipman’s writ was filed, the high court temporarily halted the proceedings. Attorneys for Hais then filed a motion in support of Missouri Lawyers Media. In its response, the Office of Chief Disciplinary Counsel said that it would be willing to partially open the proceedings and selectively release transcripts and documents from the two days that had elapsed.
The Supreme Court said any new protective order “should be narrowly crafted to prohibit disclosure of confidential information and records without negating the otherwise essentially public nature of the proceeding.”
The decision pointed out that it was the court’s first opportunity to construe Rule 5.31, the rule relating to attorney discipline that was revised in July in an attempt to make the process more transparent.
“The panel erred in making all aspects of the proceeding confidential subject to later review to determine whether portions should be made public,” it said.
The ruling says that the respondents are “prohibited from enforcing their prior order making all proceedings confidential,” and specifies that it applies to “the remainder of this or any disciplinary hearing.”
Regarding details of underlying cases that may be private or confidential, the court wrote that, although the law may require them to be sealed or kept confidential, “[t]he disciplinary panel has no authority over whether such documents are or should remain confidential outside the context of the disciplinary hearing proceeding. … The panel’s sole role is to determine the disciplinary matter before it as provided in this Court’s rules,” it said.
“As required by the rule, testimony and records shall be open to the public unless pursuant to the rule and for the reasons as set out above, the panel finds that all or part of said testimony or records should be subject to a protective order. These standards shall be applied to future days of hearing in this matter and should promptly be applied in reviewing the portions of the hearing already undertaken to determine what should be made public under this rule,” the opinion states.
Richard Gard, president and publisher of Missouri Lawyers Media, hailed the speed and decisiveness with which the high court delivered its opinion.
“It’s a huge victory for sunshine in the attorney discipline process,” Gard said. “The Supreme Court changed the rule a year ago to bolster public confidence in the process. This ruling goes a long way toward doing that.”
The opinion did not address any mechanism for notifying the public about where and when hearings will take place.
“The devil,” Gard said, “is going to be in the details.”
The case is State ex rel. Missouri Lawyers Media v Disciplinary Hearing Panel Number DHP-11-029 et al., SC93279.