Model Rules for Lawyer Disciplinary Enforcement
Types of Sanctions. Misconduct shall be grounds for one or more of the following sanctions:
(1) Disbarment by the court.
(2) Suspension by the court for an appropriate fixed period of time not in excess of three years.
(3) Probation imposed by the court not in excess of two years, or imposed by the board or counsel with the consent of the respondent not in excess of two years; provided, however, that probation may be renewed for an additional [two year] period by consent or after a hearing to determine if there is a continued need for supervision. If the respondent objects to the board or counsel's imposition of probation, the misconduct must either be made the subject of formal charges or a recommendation that probation be imposed must be filed with the court. The conditions of probation should be stated in writing. Probation shall be used only in cases where there is little likelihood that the respondent will harm the public during the period of rehabilitation and the conditions of probation can be adequately supervised. Probation shall be terminated upon the filing of an affidavit by respondent showing compliance with the conditions and an affidavit by the probation monitor stating that probation is no longer necessary and summarizing the basis for that statement.
(4) Reprimand by the court or the board. A reprimand shall be in writing and either imposed in person or served upon the respondent by certified mail. A reprimand issued by the court shall be published in the official reports for the guidance of other lawyers. A reprimand imposed by the board shall be published in the journal of the state bar and in a newspaper of general circulation in each judicial district in which the lawyer maintained an office for the practice of law.
(5) Admonition by disciplinary counsel imposed with the consent of the respondent and the approval of the chair of a hearing committee. An admonition cannot be imposed after formal charges have been issued. Admonitions shall be in writing and served upon the respondent. They constitute private discipline since they are imposed before the filing of formal charges. Only in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer, should an admonition be imposed. A summary of the conduct for which an admonition was imposed may be published in a bar publication for the education of the profession, but the lawyer shall not be identified. An admonition may be used in subsequent proceedings in which the respondent has been found guilty of misconduct as evidence of prior misconduct bearing upon the issue of the sanction to be imposed in the subsequent proceeding.
(6) Upon order of the court or the board, or upon stipulation, restitution to persons financially injured, disgorgement of all or part of the lawyer's or law firm's fee, and reimbursement to the client security [protection] fund.
(7) Upon order of the court or the board, or upon stipulation, assessment of the costs of the proceedings, including the costs of investigations, service of process, witness fees, and a court reporter's services, in any case where discipline is imposed or there is a transfer to disability inactive status.
(8) Limitation by the court on the nature or extent of the respondent's future practice.Conditions. Written conditions may be attached to an admonition or a reprimand. Failure to comply with such conditions shall be grounds for reconsideration of the matter and prosecution of formal charges against the respondent.
Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the court or board shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions.
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer's misconduct; and
(4) the existence of any aggravating or mitigating factors.Public Nature of Sanctions. Disposition of lawyer discipline shall be public in cases of disbarment, suspension, probation, and reprimand. In all cases of public discipline by the court, the court shall issue a written opinion setting forth its justification for imposing the sanction in that particular case.
Commentary
Since the court has exclusive responsibility to license lawyers, it has the sole authority to remove the license. The duration of a suspension should reflect the nature and extent of the lawyer's misconduct and any mitigating or aggravating circumstances involved. See Rule 10(C). Where the misconduct is so severe that even a three-year suspension is not adequate, the lawyer should be disbarred.The court should not suspend a lawyer indefinitely. It should specify the minimum period of time which must elapse before the lawyer may seek reinstatement.
Probation is the appropriate sanction when the respondent can perform legal services but has problems that require supervision. Probation should be used only in those cases where there is little likelihood that the respondent will harm the public during the period of rehabilitation and the conditions of probation can be adequately supervised. Probation may be an appropriate sanction in certain cases of disability, if the condition is temporary or minor, and capable of treatment without transfer to disability inactive status.
The court, the board, or counsel may impose probation. If probation is imposed by the board or by counsel, the consent of the respondent is required. If the respondent objects, the misconduct must either be made the subject of formal charges or a recommendation that probation be imposed must be filed with the court. The terms of the probation should specify periodic review of the order of probation, and provide means to supervise the progress of the respondent. If the probation monitor does not file an affidavit supporting termination of probation, disciplinary counsel should investigate to determine whether the period of probation should be extended, other discipline should be imposed or other appropriate action taken.
The capacity and resources of the agency to effectively supervise respondents on probation is limited. Usually probation should not be renewed more than once; if the problem cannot be resolved by probation of two years or less, probation may be an inadequate sanction and a suspension may be more appropriate. In exceptional circumstances, however, probation may be renewed for a specified period of time.
A reprimand is imposed only in cases of relatively minor misconduct. It can be imposed only after the filing of formal charges and a hearing. A reprimand should be in writing and imposed either in person or served upon the respondent by certified mail. A reprimand issued by the court should be published in the official reports for the guidance of other lawyers. A reprimand imposed by the board shall be published in the journal of the state bar and in a newspaper of general circulation in each judicial district in which the lawyer maintained an office for the practice of law.
Certain kinds of minor misconduct can be adequately disposed of without a full trial if the parties concur. The determination that admonition is the appropriate sanction in a particular case requires not only consent by the respondent, but also approval by a hearing committee chair, which should be in writing and based on full understanding of the relevant facts. If the respondent refuses to accept an admonition, however, the admonition is vacated and the matter disposed of by formal charges.
Admonitions should be in writing and served upon the respondent. They constitute private discipline since they are imposed before the filing of formal charges. There are situations in which it may be appropriate to impose private discipline. A private sanction in those cases informs the lawyer that his or her conduct is unethical but does not unnecessarily stigmatize a lawyer from whom the public needs no protection. To deter other lawyers from such conduct, the bar should publish a report describing the facts in cases where admonitions are imposed but omitting the names of the disciplined lawyers. An admonition may be used in subsequent proceedings in which the respondent has been found guilty of misconduct as evidence of prior misconduct bearing upon the issue of the sanction to be imposed in the subsequent proceeding.
Whenever possible, the disciplinary process should facilitate restitution to the victims of the respondent's misconduct without requiring victims to institute separate proceedings at their own expense. If the value of the client's loss resulting from the respondent's misconduct is established, the respondent should be ordered to make restitution in that amount as promptly as circumstances permit.
Restitution when ordered should be made a part of the disciplinary order as a condition of reinstatement. The respondent must present proof of restitution as part of any application for reinstatement. See Rule 25(I). Failure to comply with the order for restitution may itself warrant discipline.
Whenever a respondent is found to have engaged in misconduct warranting the imposition of discipline, he or she should be required to reimburse the agency for the costs of the proceedings, other than attorney fees.
Placement of limitations on practice under Rule 10(A)(8) is a form of probation which may only be imposed by the court.
The Standards for Imposing Lawyer Sanctions were adopted by the ABA in 1986. These standards provide a framework to guide the courts and disciplinary agencies, including disciplinary counsel, in imposing sanctions, thereby providing the flexibility to select the appropriate sanction in each particular case of lawyer misconduct. The sanction imposed may depend on the presence of aggravating or mitigating factors. The following lists of aggravating and mitigating circumstances are found in Standard 9. Aggravating factors include: prior disciplinary offenses; dishonest or selfish motive; a pattern of misconduct; multiple offenses; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; submission of false evidence, false statements or other deceptive practices during disciplinary process; refusal to acknowledge wrongful nature of conduct; vulnerability of victim; substantial experience in the practice of law; and indifference to making restitution. Mitigating factors include: absence of prior disciplinary record, absence of dishonest or selfish motive; personal or emotional problems; timely good faith effort to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and remoteness of prior offenses. The Standards for Imposing Lawyer Sanctions set forth a comprehensive system for determining sanctions, permitting flexibility and creativity in assigning sanctions in particular cases of lawyer misconduct. Use of the Standards will help achieve the degree of consistency in the imposition of lawyer discipline necessary for fairness to the public and the bar.
Ultimate disposition of lawyer discipline should be public in cases of disbarment, suspension, and reprimand. Only in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer, should private discipline be imposed.
The purposes of lawyer sanctions can best be served, and the consistency of those sanctions enhanced, if courts and disciplinary agencies articulate the reasons for the sanctions imposed. Courts perform a valuable service for the legal profession and the public when they issue opinions in lawyer discipline cases that explain the imposition of a specific sanction. Written opinions of the court not only serve to educate members of the profession about ethical behavior, but also provide precedent for subsequent cases.
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