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August 14, 2018

Model Rules for Judicial Disciplinary Enforcement

Section III. Disciplinary Proceedings
Rule 24. Hearing

  1. Scheduling. Upon receipt of the respondent's answer or upon expiration of the time to answer, the hearing panel of the commission shall schedule a public hearing and notify disciplinary counsel and respondent of the date, time and place of the hearing.
  2. Hearing Panel. The hearing shall be conducted by the hearing panel of the commission, a subpanel of the hearing panel or a hearing officer. See Rule 3.E.
  3. Conduct of Hearing.
    (1) All testimony shall be under oath.
    (2) Disciplinary counsel shall present evidence on formal charges.
    (3) Disciplinary counsel may call the respondent as a witness.
    (4) Both parties shall be permitted to present evidence and produce and cross-examine witnesses.
    (5) The hearing shall be recorded verbatim. Whenever a transcript is requested by respondent, disciplinary counsel, a member of the hearing panel or the highest court, a transcript of the hearing shall be produced promptly and shall be provided to the respondent without cost.
    (6) Disciplinary counsel and the respondent may submit proposed findings, conclusions and recommendations for sanction or order of dismissal to the hearing panel.
    (7) If a subpanel or hearing officer is used, the findings are to be submitted to the hearing panel.
  4. Dismissal or Recommendation for Sanction. The hearing panel shall either dismiss the case or recommend a sanction to the highest court. The hearing panel shall decide a matter only upon the concurrence of a majority of all members of the panel.
  5. Submission of the Report. Within [30] days after the hearing or after the filing of the transcript if one was requested, the hearing panel shall file with the highest court the record of the proceeding and a report setting forth a written summary, proposed findings of fact, conclusions of law, any minority opinions and the order of dismissal or recommendation for sanction. The hearing panel shall at the same time serve the report upon the respondent and disciplinary counsel.
  6. Notice of Exceptions. Within [10] days of receipt of the hearing panel's report, the respondent and disciplinary counsel may file with the highest court notice of exceptions to the findings, conclusions or recommendations for sanction or order of dismissal of the hearing panel. The failure to file notice of exceptions constitutes acceptance of the findings of fact, conclusions of law and order of dismissal or recommendation for sanction.
  7. Notice to {Lawyer Disciplinary Agency}. Whenever the hearing panel recommends the suspension or removal of a respondent, it shall serve a copy of its report on the {lawyer disciplinary agency} at the same time the report is filed with the highest court. The {lawyer disciplinary agency} may file with the highest court recommendations for imposing lawyer disciplinary sanctions on the respondent. Recommendations from the {lawyer disciplinary agency} shall be filed in a brief in accordance with Rule 25.B.


In several jurisdictions, the full commission conducts the hearing. Under these Model Rules, an investigative panel of the commission determines whether disciplinary counsel has sufficient grounds to conduct a full investigation After the investigation, the investigative panel determines whether reasonable cause exists to believe misconduct was committed. After the hearing panel of the commission conducts the hearing, it determines whether to recommend discipline to the highest court or to dismiss the case. The hearing panel has the option of appointing a hearing officer or subpanel of the hearing panel to take evidence. See Rule 3.E(4)(b). Under this option, the full hearing panel reviews the report of the hearing officer or subpanel and then makes its determination to dismiss or recommend sanctions. These functions of the commission are adjudicative in nature.

If formal charges are not answered and are deemed admitted, the hearing shall be for the purpose of determining the appropriate sanction. See Rule 21.

A disciplinary proceeding is not a criminal proceeding. The respondent may not decline to testify but may claim the protection of the Fifth Amendment. However, the respondent may be removed from judicial office for failing to respond to questions about the conduct in issue.

Disciplinary counsel and respondent are encouraged to stipulate to any issue of fact or law so as to shorten the time for the hearing.