RULE 18. Access to Disciplinary Information

(a)   Confidentiality. Prior to service of Bar Counsel?s disciplinary petition or an Information upon the respondent, the disciplinary proceeding is confidential, except that the pendency, subject matter, and status of an investigation by Bar Counsel or a Grievance Commission panel may be disclosed by Bar Counsel if:

(1)    respondent has waived confidentiality;

(2)    the proceeding is based upon allegations that include the respondent?s conviction of a crime;

(3)    the proceeding is based upon allegations that have become generally known to the public; or

(4)    there is a need to notify another person or entity, in order to protect the public, the administration of justice, or the legal profession.

(b)   Public Information. All filings submitted to the Board Clerk or the Executive Clerk of the Court shall be available to the public after a determination that probable cause exists to believe that misconduct occurred and the filing and service of formal charges, unless the complainant or respondent obtains a protective order for specific testimony, documents or records.

(c)   Public Proceedings. Upon service of Bar Counsel?s disciplinary petition or information upon the respondent, the proceeding is public except for:

(1)    deliberations of the Grievance Commission panel, or the Court; and

(2)    information with respect to which the Grievance Commission panel, or the Court has issued a protective order.

(d)   Protective Orders. To protect the interests of a complainant, witness, third party, or respondent, the Grievance Commission panel, the Board, a Single Justice, or the Court may, upon motion and for good cause shown, issue a protective order prohibiting the disclosure of specific information and directing that the proceedings be conducted so as to implement the order.

(e)   Disclosure of Nonpublic Information. The Court, a Single Justice, the Board, Grievance Commission panels, and Bar Counsel may not disclose any nonpublic information, other than that authorized for disclosure under Rule 18(a) and (b), unless pursuant to one of the following:

(1)    a written authorization from the respondent;

(2)    an order of a court having appropriate jurisdiction; or

(3)    other lawful authority to compel a disclosure.

(f)   Release of Confidential Information to Authorized Entities. The provisions of this rule shall not be construed to deny access to relevant information to authorized entities, including members of the Grievance, Fee Arbitration or Professional Ethics Commissions, agencies investigating the qualifications of judicial candidates, jurisdictions investigating qualifications for admission to practice of law or considering reciprocal disciplinary action, law enforcement agencies investigating qualifications for government employment, the ABA National Lawyer Regulatory Data Bank, the Committee on Judicial Responsibility and Disability, the Maine Assistance Program for Lawyers and Judges, or the Lawyers' Fund for Client Protection.

(g)   Release to Law Enforcement and the Maine Assistance Program. The provisions of this section shall not be construed to prevent Bar Counsel or any person from notifying (1) the appropriate law enforcement agency of complaints that accuse the respondent attorney of conduct in violation of a criminal law, or (2) the Director of the Maine Assistance Program for Lawyers and Judges, of the name of any lawyer whom Bar Counsel determines should be contacted concerning the program.

(h)   Release to Investigators or Prosecutors. The provisions of this section shall not be construed to prohibit Bar Counsel?s use of relevant information in the investigation or prosecution of complaints pursuant to Rules 2 or 13.

(i)   File Retention. The Board shall retain all files. Files may be retained in a digital format.

(j)   Duty of Officials and Employees of the Board. All officials and employees of the Board in a proceeding under these Rules shall conduct themselves so as to maintain the confidentiality mandated by this rule. However, any person, including but not limited to members of the Board, Grievance Commission and Board staff, may notify governmental officials of actual or threatened criminal conduct by any individual.

(k)   Copying and Attestation Fees. Copying and attestation fees shall be the same as those for proceedings in the Court.

Reporter?s Notes - June 2015

Rule 18(a) is partially based on Model Rule 16(B), but the committee chose to adopt a structure more similar to former Maine Bar Rule 7.3(k)(2) to confirm the broad confidentiality of grievance filings before formal charges have been approved and filed.

Rule 18(b) is derived from Model Rule 16(C) and denotes that the filing of charges is point at which related filings are public. It is analogous to former Maine Bar Rule 7.1(e) and Regulation 29.

Rule 18(c) is more similar to former Maine Bar Rule 7.3(e) and Board Regulation #29 than to related Model Rule 18(C). The committee chose to use language in Rule 18(c) that retains the former Maine Bar Rules? provision that matters remain confidential until the charging pleading has been formally filed.

Rule 18(d) is similar to Model Rule 16(E) and is equivalent to former Maine Bar Rule 7.1(e)(2)(B) allowing for the tribunal to issue a protective order where good cause is shown for a matter to be kept confidential. The committee elected to use the more modified script of the former Maine Bar Rules than that of Model Rule 16(E). Rule 18(e) is a modification of Model Rule 16(F) with the committee choosing language more similar to portions of former Maine Bar Rule 7.3(k) for the allowance of limited exceptions to the confidentiality of the initial investigation of grievance complaints.

Rule 18(f) has no direct Model Rule equivalent and is based upon the committee?s adoption of the confidentiality exceptions contained in former Maine Bar Rule 7.3(k)(3).

Rule 18(g) has no Model Rule equivalent, and is a major rewrite of the existing expungement requirements of former Maine Bar Rule 5(d). The committee found that the Board of Overseers? retention?normally in digital format?was the manner in which matters should be handled instead of the current practice of file and record destruction after a set date, depending on the matter. The committee found no appropriate basis to destroy records that may later be needed to answer or confirm subsequent related inquiries or filings.

Rule 18(h) is similar to Model Rule 16(J) and has no equivalent in the former Maine Bar Rules.

Advisory Note? January 2017

Upon being promulgated and adopted effective July 1, 2015, it had been intended that the new Rule 18 would adopt and follow the earlier script contained with the confidentiality provisions of Rule 7.3(k) (see Reporter?s Notes). However, the necessary provisions and ?exceptions? contained within Rule 7.3(k)(4)-(6) that allowed for proper notice of complaint matters to be given to other appropriate and necessary officials and agencies, or to such individual Bar Counsel deems necessary to contact in order to properly and completely investigate complaints, were omitted in Rule 18 as then adopted. That necessary language is now promulgated within Rule 18(g)(h)(j), as amended.