Rule 6

Model Rules for Lawyer Disciplinary Enforcement

  1. Lawyers Admitted to Practice. Any lawyer admitted to practice law in this jurisdiction, including any formerly admitted lawyer with respect to acts committed prior to resignation, suspension, disbarment, or transfer to inactive status, or with respect to acts subsequent thereto which amount to the practice of law or constitute a violation of these Rules or of the Rules of Professional Conduct [Code of Professional Responsibility] or any Rules or Code subsequently adopted by the court in lieu thereof, and any lawyer specially admitted by a court of this jurisdiction for a particular proceeding and any lawyer not admitted in this jurisdiction who practices law or renders or offers to render any legal services in this jurisdiction, is subject to the disciplinary jurisdiction of this court and the board.
  2. Former Judges. A former judge who has resumed the status of a lawyer is subject to the jurisdiction of the board not only for conduct as a lawyer but also for misconduct that occurred while the lawyer was a judge and would have been grounds for lawyer discipline, provided that the misconduct was not the subject of a judicial disciplinary proceeding as to which there has been a final determination by the court. Misconduct by a judge that is not finally adjudicated before the judge leaves office falls within the jurisdiction of the lawyer disciplinary agency.

  3. Incumbent Judges. Incumbent judges shall not be subject to the jurisdiction of the agency; however, if an incumbent judge is to be removed from office in the course of a judicial discipline or disability proceeding, the court shall first afford the board and the respondent an opportunity to submit a recommendation whether lawyer discipline should be imposed, and if so, the extent thereof.

  4. Powers Not Assumed. These rules shall not be construed to deny to any court the powers necessary to maintain control over its proceedings.

Commentary
Admission to practice triggers the jurisdiction of the disciplinary authority, regardless of the location of the lawyer, the place where the act occurred, or whether the lawyer is qualified to practice; the court has the right and the obligation to inquire into any facts bearing upon the lawyer's fitness to practice.

A lawyer specially admitted in a state has a license for that limited appearance and is subject to the disciplinary authority of that jurisdiction. In the same way that the motorist has given his implied consent to be bound by the traffic laws of the states he travels, the lawyer admitted for a limited purpose subjects himself or herself to the rules of conduct in the jurisdiction.

It is inappropriate for the state in which the lawyer is specially admitted to rely exclusively upon the lawyer's home jurisdiction to enforce ethical standards. The witnesses and other evidence of misconduct are likely to be located in the adopted jurisdiction. Moreover, the jurisdiction in which the misconduct occurred will be far more interested in pursuing the matter. Finally, misconduct should in the first instance be judged by the ethical standards of the jurisdiction where it occurred.

If at the time a judge leaves office the entity responsible for bringing judicial disciplinary proceedings has an investigation in progress against him or her, the matter should be immediately transferred to the lawyer disciplinary agency. The only issue in that circumstance is the lawyer's fitness to continue to practice in light of the alleged misconduct. Since a judge may be subject to discipline as a judge for conduct that does not constitute misconduct as a lawyer, the allegations giving rise to the jurisdiction of the agency under paragraph B must cite conduct violating the Code of Judicial Conduct which also constitutes grounds for lawyer discipline.

The judicial discipline and disability retirement commission has special expertise to evaluate the conduct of sitting judges and to determine how that conduct reflects upon their continued ability to hold office. The status of a judge as a judge and discipline to be imposed during the judge's tenure should be determined by judicial discipline and disability retirement proceedings.

Consequently, even if the misconduct occurred prior to the judge's assumption of office, the commission should have jurisdiction since the judge's status as a judge is at issue. If a lawyer disciplinary agency has an investigation in progress against a judge at the time the judge takes office, it should immediately transfer the file to the commission. If the judge is to be removed from office and thus returned to the practice of law, the court should afford the lawyer disciplinary agency the opportunity to be heard on the issue of what lawyer discipline, if any, should be imposed. The agency has the special expertise to determine how conduct reflects upon a lawyer's continued qualification to practice law.

Affording the agency an opportunity to be heard on the subject of lawyer discipline protects the right of the profession to preserve the high standards of conduct that it maintains in the public interest.


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