March 2007

Topic:
Because the lawyer disciplinary function is essentially judicial in nature, and because the lawyer regulatory process is generally under the ultimate administrative authority of a court, lawyer regulatory records and documents should typically protected from dissemination pursuant to public record statutes.

Michael l. Kettenbach v. Board of Bar Overseers and Another Bar Counsel, 448 Mass. 1019, 863 N.E.2d 36 (Mass. March 23, 2007). Massachusetts Superior Court Judge Maria I. Lopez resigned from the bench in 2003 while facing judicial disciplinary charges. Pending at the time of her resignation was a recommendation that she be suspended for six months for her misconduct. See  http://www.mass.gov/cjc/FinalLOPEZ.htm. Lopez had been charged with wrongdoing occurring during the course of a highly publicized criminal proceeding against Charles "Ebony" Horton, a transgendered man who pled guilty to sexually assaulting an 11-year-old boy. Lopez caused a media uproar when she sentenced Horton to probation and house arrest for the crime. A videotape of the sentencing hearing, with Lopez loudly castigating the prosecutor in the matter while angrily pointing an index finger at him, was widely shown on television stations in the Northeast. Once Lopez resigned from the bench, judicial disciplinary authorities lost jurisdiction over her. Thereafter, Michael I. Kettenbach filed a public records request seeking information about Lopez from the Massachusetts lawyer regulator. At the time of the request (and continuing to the present day), Lopez was on inactive status as a member of the bar of the Commonwealth and thus not authorized to practice. She was, however, still subject to the disciplinary jurisdiction of the lawyer regulatory agency. Rebuffed in his request for information, Kettenbach filed suit against the Board of Bar Overseers and bar counsel seeking production of all documents in their custody relating to Lopez' status as a member the bar. He brought the action pursuant to a Massachusetts public records statute and demanded that the Board and bar counsel permit him to inspect, examine, and obtain one copy of every document in their custody, or in the custody of either of them, relating to the former judge's status. Such documents, Kettenbach alleged, included any writing by which Lopez would have "advise[d] the [b]oardthatshe desire[d] to assume inactive status and to discontinue the practice of law in this Commonwealth," as well as "any writing proposing or memorializing any agreement or stipulation between [the former judge] and the [board], under which the defendants, or either of them, agreed with [the former judge] or with the [commission on judicial conduct] not to pursue an investigation of [the former judge's] professional conduct, provided that [the former judge] sought inactive status as a member of the bar." A Motion to dismiss was filed by the defendants. Later, a single justice of the county court the motion. Undeterred, Kettenbach appealed to the Supreme Judicial Court. His was a difficult argument, as the Supreme Judicial Court has long held that court records are not public records within the terms of the public records statute. Kettenbach nevertheless asserted that documents made or received by the lawyer disciplinary authority and its agents were different from those generated by a court. Because of the differing function of disciplinary work, the regulatory records should be exposed to public view. The Supreme Judicial Court conceded that a public records statute must be construed to ensure that the public has prompt access to all public records in the custody of state governmental and in the custody of governmental entities of political subdivisions of the Commonwealth. Yet, a governmental entity, according to the Court, should be defined as "any authority established by the General Court to serve a public purpose, any department, office, commission, committee, council, board, division, bureau, or other agency within the Executive Branch of the Commonwealth, or within a political subdivision of the Commonwealth. It shall not include the legislature and the judiciary." (emphasis added). Therefore, the public records law applies to only one of the three branches of State government, namely the Executive branch. Because the lawyer disciplinary function is essentially judicial, and because the Board of Bar Overseers is under the ultimate administrative authority of the courts, their processes are protected from dissemination. The Court did not consider Kettenbach's suggestion that the regulation's reference to the "judiciary" does not encompass the entire "judicial branch of government," as it was made solely in a footnote in his reply brief and was unsupported by any authority. Although this case has precedential application only in Massachusetts, it should have broad persuasive authority in any jurisdiction where public record statutes exempt courts.

As an aside, Kettenbach's lawyer in this action has advised the press that he does not know why his client wanted the Lopez records. See Massachusetts Lawyers Weekly (April 10, 2007 issue appearing at www.masslawyersweekly.com).