Model Rules for Lawyer Disciplinary Enforcement
Nature of Proceedings. Disciplinary proceedings are neither civil nor criminal but are sui generis.
Proceedings Governed by Rules of Civil Procedure and Evidence. Except as otherwise provided in these rules, the [state rules of civil procedure] and the [state rules of evidence in civil nonjury matters] apply in discipline and disability cases.
Standard of Proof. Formal charges of misconduct, lesser misconduct, petitions for reinstatement and readmission, and petitions for transfer to and from disability inactive status shall be established by clear and convincing evidence.
Burden of Proof. The burden of proof in proceedings seeking discipline or transfer to disability inactive status is on disciplinary counsel. The burden of proof in proceedings seeking reinstatement, readmission, or transfer from disability inactive status is on the respondent.
Prehearing Conference. At the discretion of the [hearing committee] [board] or upon request of either party, a conference may be ordered for the purpose of obtaining admissions or otherwise narrowing the issues presented by the pleadings. The conference shall be held before the chair of the [hearing committee] [board] or another member of the [committee] [board] designated by the chair.
Hearings Recorded. The hearing should be recorded. Upon request, the board shall make the record of a hearing available.
Related Pending Litigation. Upon a showing of good cause to the board, the processing of a disciplinary matter may be stayed because of substantial similarity to the material allegations of pending criminal or civil litigation or disciplinary action.
Hearings on Lesser Misconduct. Hearings to adjudicate formal charges alleging lesser misconduct as defined in Rule 9(B) shall proceed in accordance with these rules except as follows:
(1) The hearing shall be held by a single adjudicator [member of a hearing committee] who shall be a lawyer and shall make written findings of fact and conclusions of law and shall:
(a) dismiss;
(b) recommend the imposition of no sanction other than reprimand, costs, restitution, probation not to exceed one year, or a combination thereof; or
(c) remand to a hearing committee if the misconduct is not lesser misconduct as defined in Rule 9(B).(2) A prehearing conference need not be held. If no prehearing conference is held, the hearing shall commence within [30] days after the hearing committee member is designated.
(3) Respondent, complainant and disciplinary counsel shall have the right to seek review of the decision by a three member panel of the board, which shall either adopt the decision of the single adjudicator or make written findings. The panel shall either dismiss the case or impose a sanction that does not constitute a restriction on the respondent's right to practice.
(4) The decision of the appellate adjudicator may be reviewed at the discretion of the court upon application by respondent, complainant or disciplinary counsel. The court shall grant review only in cases involving significant issues of law or upon a showing that the decision constituted an abuse of discretion. The court shall either adopt the decision or reject it. If the court rejects the decision, it shall make written findings and either dismiss the case or impose a sanction that does not constitute a restriction on the respondent's right to practice.
(5) Upon final disposition of the case, the written findings and conclusions of the final adjudicator shall be published in an appropriate journal or reporter and a copy shall be mailed to the respondent and to the complainant and to the ABA National Discipline Data Bank.Delay Caused by Complainant. Neither unwillingness or neglect of the complainant to sign a complaint or prosecute a charge or settlement or compromise between the complainant and the lawyer or restitution by the lawyer, shall, in itself, justify abatement of the processing of any complaint.
Effect of Time Limitations. Except as is otherwise provided in these rules, time is directory and not jurisdictional. Failure to observe prescribed time intervals may result in sanctions against the violator but does not justify abatement of any discipline or disability investigation or proceeding.
Complaints Against Disciplinary Agency Members. If a complaint is filed against disciplinary counsel or disciplinary counsel's staff, a member of a hearing committee, or a member of the board, the matter shall proceed in accordance with these rules except that:
(1) If the respondent is disciplinary counsel or a member of the staff, the board shall appoint a special counsel to present the case;
(2) If the respondent is a member of a hearing committee, the chair of the board shall appoint a special hearing committee for the case; or
(3) If the respondent is a member of the board, the chief justice shall appoint a special board for the case.
Commentary
The holder of a license to practice law is subject to discipline for breaches of the standards of professional conduct; the license must not be arbitrarily taken away and the holder is entitled to procedural due process in any proceeding relating to such conduct. Such due process rights include fair notice of the charges, right to counsel, right to cross-examine witnesses, right to present arguments to the adjudicators, right of appeal (Rule 11); and right to subpoena and discovery (Rules 14 and 15).
The standard of proof for misconduct is higher than "preponderance of the weight of credible evidence" which is usually deemed sufficient in civil proceedings, yet not as stringent as "beyond a reasonable doubt" required in criminal cases.
A prehearing conference may be held by the chairman sua sponte, or upon request of counsel, the respondent (or respondent's counsel), or another hearing committee member. Prehearing conferences need not be held in lesser misconduct cases.
The hearing may be recorded by any method authorized in the jurisdiction. The record will assist the hearing committee in the preparation and presentation of its report. If the matter ultimately results in a recommendation for discipline, the record should be forwarded with the findings and recommendation. The recording should be available to the respondent upon request, and a transcript provided at cost.
Statutes of limitation are wholly inappropriate in lawyer disciplinary proceedings. Conduct of a lawyer, no matter when it has occurred, is always relevant to the question of fitness to practice. The time between the commission of the alleged misconduct and the filing of a complaint predicated thereon may be pertinent to whether and to what extent discipline should be imposed, but should not limit the agency's power to investigate.
This rule provides a rational basis for appointment of special counsel, special hearing committee, or special board by the next higher entity in the adjudicative process.
Simplified, expedited procedures should be utilized when a matter meets the definition of lesser misconduct in Rule 9(B) but there is no agreement that respondent will participate in an appropriate program under Rule 21.
A procedure involving a single hearing committee member should expedite a matter that can only result in a sanction that does not restrict the right to practice.
Lawyer discipline actions are in fact licensing proceedings. Due process accorded to respondent lawyers should be commensurate with the rights and privileges under review. Where the alleged misconduct would not warrant a sanction restricting the lawyer's right to practice, there is no justification for more elaborate procedures. The recommended expedited procedures preserve the rights to notice and hearing, to present evidence and confront witnesses, and to seek review. At first, a respondent facing a possible reprimand or probation might think that full formal hearing and appeal procedures would provide more protection to his or her professional reputation. A more realistic assessment will show that the recommended expedited procedures are fair and equitable and offer sufficient protection, while full formal procedures are burdensome emotionally and financially compared to the rights at stake.
Who bears the expenses of the transcript and when that expense must be paid is a matter determined by each jurisdiction. Rule 34 deals with instances where the respondent is indigent. Rule 4(F)(1) requires that a hearing committee member who hears a matter involving alleged lesser misconduct refrain from serving on a hearing committee involving the matter if it is determined that the misconduct is not "lesser" as defined in Rule 9(B) and will proceed under Rule 11.
Next - RULE 19. LAWYERS FOUND GUILTY OF A CRIME.