The State Bar seeks public comment regarding proposed revisions to State Bar Rule of Procedure 2302 ("Rule 2302"), addressing the categories of people and entities to which the Chief Trial Counsel ("CTC") may disclose Confidential Information concerning inquiries, complaints, and investigations.
Deadline: October 19, 2018
The State Bar Act provides for the confidentiality of disciplinary proceedings prior to the initiation of formal charges or proceedings. (Bus. & Prof. Code § 6086.1(b).) California Business and Professions Code section 6086.1 does not define “confidential” or specify who may access information without violating confidentiality. The statute does not limit information sharing within the State Bar or with State Bar vendors, but it also does not specifically address such access. State Bar vendors may be considered part of the State Bar when they access Confidential Information as part of their work for the State Bar and within the confines of a confidentiality agreement with the State Bar.
Rule 2302 implements and interprets Section 6086.1. The current version of Rule 2302 begins with the baseline rule that information concerning inquiries, complaints or investigations is confidential ("Confidential Information"), and implies that only the Chief Trial Counsel (CTC) may access such information. The current Rule 2302 then explicitly grants the CTC discretion to disclose Confidential Information to enumerated State Bar employees, including Office of Chief Trial Counsel (OCTC) employees (Rule 2302(e)(1).).
The current version of Rule 2302(e) also explicitly grants the CTC discretion to share Confidential Information with several categories of non-OCTC State Bar employees and State Bar vendors. The current version of Rule 2302 does not expressly grant the CTC discretion to disclose confidential information to State Bar employees other than those enumerated in paragraphs (e)(1) and (e)(8) or to any State Bar vendors other than employees of a language interpretation or language translation company as set forth in paragraph (e)(10).
Several instances have arisen in which non-OCTC State Bar employees other than those expressly enumerated in the current rule have needed access to confidential information. For instance, employees of the State Bar Office of Information Technology often access confidential information in the course of their work on State Bar information systems. Similarly, State Bar vendors other than interpreters and translators need access to confidential information. For instance, as part of the next phase of the Case Management System implementation, the State Bar is hiring a vendor to scan various OCTC documents, many of which contain Confidential Information; this use will be governed by a confidentiality agreement with the vendor.
This proposal, if adopted, would amend Rule 2302 in the following ways:
Rule 2302(a): The current version of Rule 2302(a) states, in relevant part, that “[e]xcept as otherwise provided by law or these rules, information concerning inquiries, complaints or investigations is confidential.” The current version of Rule 2302(a) does not expressly specify to whom this confidential information must be kept confidential, though, read as a whole, the current rule provides that confidential information is confidential to the CTC, who then has discretion to disclose confidential information to others, including OCTC employees.
This proposal clarifies and simplifies Rule 2302(a) by amending it to state, in relevant part: “Except as otherwise provided by law or these rules, information concerning inquiries, complaints or investigations is confidential, and shall not be disclosed outside the Office of Chief Trial Counsel.” The amended Rule 2302 does not and need not address limitations on access to confidential information within OCTC; the CTC controls such access through management of the OCTC.
Rule 2302(e)(1): The proposed amendment expressly grants the CTC discretion to disclose confidential information to any State Bar employee, thus expressly conforming the rule to existing practice and clarifying that the rule permits necessary information sharing with State Bar employees. To further protect confidentiality, the amendment includes language prohibiting non-OCTC State Bar employees from sharing confidential information without authorization by the CTC.
Rule 2302(e)(2): The proposal adds a provision expressly granting the OCTC discretion to disclose confidential information to State Bar vendors that contractually agree to maintain confidentiality. This proposed amendment thus clarifies that Rule 2302 permits necessary information sharing with vendors performing State Bar work. Because this amendment renders redundant the specific provision for translators and interpreters in current Rule 2302(e)(10), this proposal also deletes that provision.
Rule 2302(f): The proposal also adds Rule 2302(f), which underscores that the discretion whether to disclose confidential information to persons or entities listed in paragraph (e) rests with the CTC or the CTC’s designee, and lists various factors to be considered in exercising this broad discretion. In addition, this provision explicitly allows the CTC or designee to take any necessary steps to protect the confidential information.
Rule 2302(g): Finally, the proposal adds Rule 2302(g), which ensures that Rule 2302’s authorization of access to Confidential Information by employees who serve under the Executive Director (or by the Executive Director herself or himself) is not construed as affecting the CTC’s independence vis-à-vis non-OCTC State Bar staff.
In addition to the amendments discussed above, the proposal renumbers the paragraphs of Rule 2302(e) and makes other minor clerical changes.
Rule 2302 will be changed as set forth in the attached redline and clean versions of the revised rule.
Regulation and Discipline Committee
October 19, 2018
Brady R. Dewar
Office of General Counsel
State Bar of California
180 Howard St.
San Francisco, CA 94105
Please reference the specific item in your comments.