Model Rules for Judicial Disciplinary Enforcement

Section III. Disciplinary Proceedings
Rule 23. Discipline By Consent

  1. Approval. At any time after the filing of formal charges and before final disposition, the respondent may agree with disciplinary counsel that the respondent shall admit to any or all of the formal charges in exchange for a stated sanction. The agreement shall be submitted to the hearing panel of the commission assigned to the case, which shall either:
    (1) reject the agreement; or
    (2) submit the agreement to the highest court for approval.
  2. Rejection of Sanction. If the stated sanction is rejected by the hearing panel or the highest court, the admission shall be withdrawn and cannot be used against the respondent in any proceedings.
  3. Affidavit of Consent. A respondent who consents to a stated sanction shall sign an affidavit stating that:
    (1) the respondent consents to the sanction;
    (2) the consent is freely and voluntarily rendered;
    (3) there is presently pending a proceeding involving allegations of misconduct; and
    (4) the facts set forth in the affidavit are true.
  4. Order of Discipline. The commission shall file the affidavit with the highest court. The affidavit shall remain confidential until it is accepted by the highest court. The highest court shall either reject the agreement or enter the order disciplining the respondent. The final order of discipline shall be based upon the formal charges and the conditional admission.

Commentary
Either the respondent or disciplinary counsel may initiate negotiations on discipline by consent, but both parties must agree to the stipulation. The stipulation is conclusive evidence of guilt.

Discipline by consent is beneficial to all participants. It enables the respondent who acknowledges guilt to avoid the personal anguish and expense of a proceeding and it relieves the public and the judicial discipline system of the time-consuming and expensive necessity of a formal proceeding.

In the event the proposed stipulated discipline is disapproved by the hearing panel or the highest court or the matter is returned for formal proceedings for any reason, the respondent's admission of the charges cannot be used against the respondent.

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