Rule 31

Model Rules for Lawyer Disciplinary Enforcement

  1. From Disposition by Central Intake Office. A complainant who is not satisfied with the disposition of a matter by the central intake office may appeal, within [thirty] days of receipt of notice pursuant to Rule 1(B)(5), to a hearing committee chair, who may approve, modify or disapprove the dismissal, or direct that the matter be investigated by disciplinary counsel.

  2. From Disposition by Disciplinary Agency. Except in matters involving lesser misconduct, which are governed by Rule 18(H)(3) and (4), a complainant who is not satisfied with the disposition of the matter following investigation and review by a committee chair may appeal, within [thirty] days of receipt of notice pursuant to Rule 4(B)(6) of the disposition by the committee chair, to a panel of the board, which may approve, modify or disapprove the disposition, or direct that the matter be investigated further. The determination of the board may be the subject of a petition for leave to appeal to the court, but leave shall not be granted unless the complainant shows that the board acted arbitrarily, capriciously, or unreasonably.

Commentary
It is very important that the disciplinary system be structured not only to actually protect the public, but also to inspire confidence in the public that the profession is acting to regulate itself.

Thus it is important that complainants have the right to appeal a dismissal of their complaints.

It is important that complainants feel they have had their day in court on the basis for their complaint. Disciplinary hearings are neither civil nor criminal but sui generis. It is incorrect to assume that, as in a criminal proceeding, the complainant has no rights in regard to case disposition. It is also incorrect to assume that, as in a civil proceeding, a complainant has full participation in the litigation.

Without a limited right of appeal, complainants may feel that their grievances were not given sufficient consideration by the disciplinary system as a whole. Public sentiments of "lawyers protecting their own" can stem from this misunderstanding.

It happens on occasion that disciplinary counsel and disciplinary boards make collective errors of judgment, or that the complainant's appeal results in a decision by the high court reversing old law. Without an apparatus for a limited right of appeal by complainants, the system denies itself an additional check and balance.

The board supervises the operations of the agency. Any person dissatisfied with the action of the agency may complain to the board. The complaint should be submitted to a panel of the board, rather than the entire board, so that those members not serving on the panel will be available to participate in any future proceedings involving the matter.

Members on the panel should be disqualified from any future consideration of the matter following their review of the complainant's protest.

A complainant should be able to have the court review the disposition of a matter if he or she believes that the agency has acted improperly. The court should not consider the appeal unless there is presented a prima facie showing that the agency abused its discretion.

bulletNext - RULE 32. STATUTE OF LIMITATIONS

bulletTable of Contents

bulletCenter for Professional Responsibility

Advertisement