Model Rules for Lawyer Disciplinary Enforcement
A. Transmittal of Proof of Determination of Guilt by Clerk of Trial Court. The clerk of any court in this state in which a lawyer is found guilty of a crime shall within [ten] days after the finding of guilt transmit a certified copy of proof of the finding of guilt to counsel for the lawyer disciplinary agency of every state in which the lawyer is admitted to practice.
B. Determination of "Serious Crime. Upon being advised that a lawyer subject to the disciplinary jurisdiction of this court has been found guilty of a crime, disciplinary counsel shall determine whether the crime constitutes a "serious crime" warranting immediate interim suspension. If the crime is a "serious crime," disciplinary counsel shall prepare an order for interim suspension and forward it to the court and the respondent with proof of the finding of guilt. Disciplinary counsel shall in addition file formal charges against the respondent predicated upon the finding of guilt. On or before the date established for the entry of the order of interim suspension the lawyer may assert any jurisdictional deficiency that establishes that the suspension may not properly be ordered, such as that the crime did not constitute a "serious crime" or that the lawyer is not the individual found guilty. If the crime is not a "serious crime," counsel shall process the matter in the same manner as any other information coming to the attention of the agency.
C. Definition of "Serious Crime. A "serious crime" is any felony or any lesser crime that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt, conspiracy or solicitation of another to commit a "serious crime."
D. Immediate Interim Suspension. The court has exclusive power to place a lawyer on interim suspension.
(1) Imposition. The court shall place a lawyer on interim suspension immediately upon proof that the lawyer has been found guilty of a serious crime regardless of the pendency of any appeal.
(2) Termination. The court has exclusive power to terminate an interim suspension. In the interest of justice, the court may terminate an interim suspension at any time upon a showing of extraordinary circumstances, after affording disciplinary counsel notice and an opportunity to be heard.
E. Conviction as Conclusive Evidence. For purposes of a hearing on formal charges filed as a result of a finding of guilt, a certified copy of a judgment of conviction constitutes conclusive evidence that the lawyer committed the crime, and the sole issue in any such hearing shall be the nature and extent of the discipline to be imposed.
F. Automatic Reinstatement from Interim Suspension upon Reversal of Finding of Guilt or Conviction. If a lawyer suspended solely under the provisions of paragraph D demonstrates that the underlying finding of guilt or conviction has been reversed or vacated, the order for interim suspension shall be vacated and the lawyer placed on active status. The vacating of the interim suspension will not automatically terminate any formal proceeding then pending against the lawyer, the disposition of which shall be determined by the hearing committee and the board on the basis of the available evidence other than the finding of guilt or conviction.
G. Notice to Clients and Others on Interim Suspension. An interim suspension under this rule shall constitute a suspension of the lawyer for the purpose of Rule 27.
Commentary
Interim suspension is necessary both to protect members of the public and to maintain public confidence in the legal profession. The interim suspension not only removes any danger to clients and the public which the respondent may pose, but also serves to protect the profession and the administration of justice from the specter created where an individual found guilty of a "serious crime" continues to serve as an officer of the court in good standing.
Interim suspension is not final discipline; therefore counsel must proceed to file formal charges based upon the finding of guilt and subsequent conviction. Formal proceedings should not be conducted until all appeals from the conviction have been exhausted, unless the respondent requests that the hearing not be deferred.
Continued practice by a lawyer found guilty of a "serious crime" undermines the public confidence in the profession and the administration of justice. Because there may be delay between a determination of guilt and the entry of a judgment of conviction, the disciplinary agency should seek interim suspension upon the finding of guilt. It is difficult to understand why a lawyer found guilty of stealing funds from a client can continue to handle client funds, why a lawyer found guilty of securities fraud can continue to prepare and certify registration statements, or why a lawyer found guilty of conspiracy to suborn perjury can continue to try cases and present witnesses. Immediate suspension of a lawyer so found guilty, regardless of the pendency of any appeal, is essential to preserve public confidence.
The first order of suspension (i.e. until criminal judgment becomes final) is provisional and temporary, awaiting the affirmance or reversal of the judgment of conviction. It does not purport to determine the charge against the petitioner or to settle his or her fitness to remain a member of the bar. Its purpose is to preserve the respect and dignity of the court until the facts authorizing summary disbarment mature into a final judgment.
An interim suspension remains in effect until it is lifted by the court, or until the court imposes a final disciplinary sanction. An interim suspension should be terminated if the underlying basis no longer exists. Thus, if a finding of guilt or subsequent judgment of conviction for a "serious crime" is reversed or vacated, the court should immediately enter an order terminating the interim suspension.
A respondent may petition the court to terminate an interim suspension on the grounds that extraordinary circumstances exist. If a petition for termination of an interim suspension is granted, the relief authorized should be limited to that which is absolutely necessary. For example, if the suspended lawyer demonstrates that, because of the lawyer's unique qualifications, his or her unavailability to conduct an important trial would seriously prejudice a client, the court should limit its order terminating the suspension to that trial.
The issue to be determined in a disciplinary proceeding predicated upon the finding of guilt of a lawyer for a crime is whether the conduct established by the determination of guilt and subsequent conviction warrants discipline, and if so, the extent of discipline to be imposed. The respondent may offer evidence of mitigating circumstances not inconsistent with the essential elements of the crime whose existence is conclusively established by the finding of guilt.
Proof of guilt must be more convincing in a criminal case than in a disciplinary proceeding. Thus, the respondent found guilty under the higher standard in the criminal case should not be able to relitigate the issue of guilt in the course of a disciplinary proceeding with its relatively lower standard of proof.
Moreover, practical difficulties stand in the way of relitigating guilt. Witnesses may be reluctant to cooperate again; some may have died following the conclusion of the criminal case; others may be outside the jurisdiction of the agency. In those situations the testimony of the respondent proclaiming innocence would for all practical purposes stand uncontroverted if the issue of guilt could be relitigated.
The order terminating the interim suspension does not prevent the agency from continuing with any disciplinary proceeding initiated on the basis of the finding of guilt or conviction (which has been reversed or where the defendant has been pardoned), but the underlying conduct must be established by evidence other than the determination of guilt or the conviction.
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