Do Judges Protect Each Other?: Confidentiality of Judicial Discipline Proceedings

Abstract

One could argue that members of a profession, in disciplining those who misbehave from within their own ranks, might be particularly harsh because the miscreants bring the occupation into disrepute. On the other hand, skeptics about the process by which any profession polices itself are inclined to believe that an occupation's members protect their own. One way in which they might do so is by keeping claims of ethical transgression from the public eye?at least until the transgressions were proved or almost certainly proved. There certainly are strong, if not incontrovertible, grounds for keeping confidential the complaints that are made to professional discipline bodies, at least in the early stages of the compaint process, to protect individuals' reputations from frivolous and unfounded accu sations. Yet, particularly where confidentiality provisions cover the milder forms of discipline, such as reprimands and censure, the public's perception is that the profession is engaged in a cover-up. Such beliefs are reinforced by the limited number of serious discipinary actions, such as suspension from practice, taken against lawyers and doctors. The question of how to evaluate actions one member of a profession takes in connection with discipline of another member is posed by a recent case in which a federal judge was called upon to rule on a challenge to a state judicial discipline system's confidentiality provisions. The judge's ruling recognizes the competing interests of openness, toward which the First Amendment strongly tilts, and confidentiality, claimed to protect the judicial discipline process so that both the process and the judiciary can be more effective. The case, therefore, is useful in presenting these competing interests. However, the judge's arguments in favor of limiting confidentiality seem also to show clearly a resistance to openness, based on an unjustified fear of its consequences. The Connecticut statute judicial discipline had provided that someone called before the judicial discipline commission (Judicial Review Council) shall not disclose his knowledge of such investigation to a third party unless respondent requests that such investigation and disclosure be open (Conn.Gen. Stat. ?51-51/). U.S. district judge Jose Cabranes, now of the Second Circuit, found that provision acceptable in barring disclosure of the fact of an investigation or of information obtained by dealing with the council. However, he held the provision to be violati ve of the First Amendment because it prevented an individual from revealing the contents of his or her own testimony to the council. Kamasinski v. Judicial Review Council, 797 F.Supp. 1083 (D.Conn. 1992). He based his conclusion as to the statute's unconstitutionality on governing Supreme Court precedent,