Model Rules for Lawyer Disciplinary Enforcement
Evaluation. The disciplinary counsel shall evaluate all information coming to his or her attention by complaint or from other sources alleging lawyer misconduct or incapacity. If the lawyer is not subject to the jurisdiction of the court, the matter shall be referred to the appropriate entity in any jurisdiction in which the lawyer is admitted. If the information, if true, would not constitute misconduct or incapacity, the matter may be referred to the central intake office, or to any of the component agencies of the comprehensive system of lawyer regulation established by Rule 1, or dismissed. If the lawyer is subject to the jurisdiction of the court and the information alleges facts which, if true, would constitute misconduct or incapacity, disciplinary counsel shall conduct an investigation.
Upon the conclusion of an investigation, disciplinary counsel may:
(a) dismiss;
(b) refer respondent, in a matter involving lesser misconduct, to the Alternatives to Discipline Program, pursuant to Rule 11(G); or
(c) recommend probation, admonition, the filing of formal charges, the petitioning for transfer to disability inactive status, or a stay.Investigation.
(1) All investigations shall be conducted by disciplinary counsel. Upon the conclusion of an investigation, disciplinary counsel may:
(a) dismiss;
(b) refer respondent, in a matter involving lesser misconduct, to the Alternatives to Discipline Program, pursuant to Rule 11(G); or
(c) recommend probation, admonition, the filing of formal charges, the petitioning for transfer to disability inactive status, or a stay.(2) Notice to Respondent. Disciplinary counsel shall not recommend a disposition other than dismissal or stay without first notifying the respondent in writing of the substance of the matter and affording him or her an opportunity to be heard. Notice to the respondent at his or her last known address is sufficient.
(3) Disciplinary counsel's recommended disposition shall not be subject to review upon the respondent's request for review. Disciplinary counsel's recommended disposition other than a dismissal or a referral to the Alternatives to Discipline Program shall be reviewed by the chair of a hearing committee selected in order from the roster established by the board. The complainant shall be notified of the disposition of a matter following investigation. The complainant may file a written request for review of counsel's dismissal within [thirty] days of receipt of notice of disposition pursuant to Rule 4(B)(6)(c). Disciplinary counsel's dismissal shall be reviewed by the chair upon the complainant's request for review. The chair may approve, disapprove, or modify the recommendation or appealed dismissal. Disciplinary counsel may appeal a decision to disapprove or modify his or her recommendation to a reviewing chair of a second hearing committee also selected in order from the roster established by the board who shall approve either disciplinary counsel's recommendation or the action of the first reviewer, but the decision of the second reviewing chair shall not be appealable. Any hearing committee whose chair reviews a recommendation of disciplinary counsel is disqualified from participating in further consideration of the matter.Admonition or Probation Imposition.
(1) If a matter is recommended to be concluded by admonition or by probation, disciplinary counsel shall notify the respondent in writing of the proposed disposition and of the right to demand in writing within [fourteen] days that the matter be disposed of by a formal proceeding. Failure of the respondent to so demand within [fourteen] days after written notice of the proposed admonition or probation constitutes consent to the admonition or probation.
(2) If the respondent within [fourteen] days demands a formal hearing, formal charges may be instituted.Formal Charges. If a matter is to be resolved by a formal proceeding, disciplinary counsel shall prepare formal charges in writing that give fair and adequate notice of the nature of the alleged misconduct.
(1) Disciplinary counsel shall file the charges with the board.
(2) Disciplinary counsel shall cause a copy of the formal charges to be served upon the respondent and proof of service to be filed with the board.
(3) The respondent shall file a written answer with the board and serve a copy on disciplinary counsel within [twenty] days after service of the formal charges, unless the time is extended by the chair of the hearing committee. In the event the respondent fails to answer within the prescribed time, or the time as extended, the factual allegations shall be deemed admitted as provided in Rule 33(A).
(4) If there are any material issues of fact raised by the pleadings or if the respondent requests the opportunity to be heard in mitigation, the [hearing committee] [board] shall serve a notice of hearing upon disciplinary counsel and the respondent, stating the date and place of hearing at least [twenty-five] days in advance thereof. The notice of hearing shall advise the respondent of the right to be represented by a lawyer, to cross-examine witnesses and to present evidence. The complainant, if any, shall have the right to make a statement to the [hearing committee] [board] concerning the respondent's alleged misconduct and the effect of the alleged misconduct on the complainant. The hearing shall be recorded. The [hearing committee] [board] shall promptly submit its report containing its findings and decision on dismissal or sanction to the [board] [court] and shall serve the report on disciplinary counsel and respondent.
(5) Information concerning prior discipline of the respondent shall not be divulged to the hearing committee until after the committee has made a finding of misconduct unless said information is probative of issues pending in the present matter.Review by Board. Review by the board shall be limited to a review of the report from the hearing committee and the record below. The board shall not review a matter unless: (a) the respondent or disciplinary counsel files objections with the board within [20] days of the date of service of the report, or (b) a majority of the full board, at its next meeting after submission of the report, votes to review the matter. If the board does not review the matter and the hearing committee has decided to dismiss the matter, the matter shall be dismissed. If the board does not review the matter and the sanction recommended by the hearing committee is not disbarment or suspension, the board shall impose the sanction upon the respondent. If the board does not review the matter and the sanction recommended by the hearing committee is disbarment or suspension, the board shall transmit the report of the hearing committee to the court with a statement that the parties have waived objections and the board has declined to review the matter. If the matter is to be reviewed by the board, the respondent and disciplinary counsel should be afforded an opportunity to file briefs and present oral argument during the review by the board. The board shall adopt rules establishing a timetable and procedure for the filing of briefs and presentation of argument.
(1) Decision by Board. Following its review, the board may approve, modify, or disapprove the recommendation of the hearing committee. The board shall prepare a written report containing its findings and decision on sanction or decision to dismiss the matter. A copy of the report shall promptly be submitted to the court and served on disciplinary counsel and the respondent. If the board determines that the matter shall be dismissed or that a sanction other than disbarment or suspension shall be imposed, and the court does not vote to review the matter, then the board shall dismiss the matter or impose the sanction upon respondent.
(2) During its review, the board shall not receive or consider any evidence that was not presented to the hearing committee, except upon notice to the respondent and disciplinary counsel and opportunity to respond. The hearing committee is the initial trier of fact; the board serves an appellate review function. If new evidence warranting a reopening of the proceeding is discovered, the case should be remanded to the hearing committee.Review by the Court. The court may, within its discretion, review a matter if the respondent or disciplinary counsel files objections to the report of the board or if a majority of the court, within the time for filing objections, votes to review the matter. If the court does not review the matter and the sanction decided upon by the board or by the hearing committee with review declined by the board is suspension or disbarment, the court shall impose the sanction.
(1) The respondent and disciplinary counsel may file objections to the report of the board within [twenty] days from the date of service. Within [sixty] days after the court grants review, the respondent and disciplinary counsel may file briefs and present oral arguments pursuant to the rules governing civil appeals. Upon conclusion of the proceedings, the court shall promptly enter an appropriate order. The decision of the court shall be in writing and state the reasons for the decision. Upon final disposition at any stage of the proceedings, the written findings shall be published in an appropriate journal or reporter and a copy shall be mailed to the respondent and the complainant and to the ABA National Discipline Data Bank.
(2) During its review, the court shall not receive or consider any evidence that was not presented to the hearing committee, except upon notice to the respondent and disciplinary counsel and opportunity to respond.
(3) If new evidence warranting a reopening of the proceeding is discovered, the case shall be remanded to the hearing committee.Alternatives to Discipline Program.
(1) Referral to Program. In a matter involving lesser misconduct as defined in Rule 9(B), prior to the filing of formal charges, disciplinary counsel may refer respondent to the Alternatives to Discipline Program. The Alternatives to Discipline Program may include fee arbitration, arbitration, mediation, law office management assistance, lawyer assistance programs, psychological counseling, continuing legal education programs, ethics school or any other program authorized by the court.
(2) Notice to Complainant. Pursuant to Rule 4(B)(6), the complainant, if any, shall be notified of the decision to refer the respondent to the Alternatives to Discipline Program, and shall have a reasonable opportunity to submit a statement offering any new information regarding the respondent. This statement shall be made part of the record.
(3) Factors. The following factors shall be considered in determining whether to refer a respondent to the program:(a) whether the presumptive sanction under the ABA Standards for Imposing Lawyer Sanctions for the violations listed in the complaint is likely to be no more severe than reprimand or admonition;
(b) whether participation in the program is likely to benefit the respondent and accomplish the goals set forth by the program;
(c) whether aggravating or mitigating factors exist; and
(d) whether diversion was already tried.(4) Contract. Disciplinary counsel and the respondent shall negotiate a contract, the terms of which shall be tailored to the individual circumstances. In each case, the contract shall be signed by the respondent and the disciplinary counsel. The contract shall set forth the terms and conditions of the plan for the respondent and, if appropriate, shall identify the use of a practice monitor and/or a recovery monitor and the responsibilities of the monitor(s). The contract shall provide for oversight of fulfillment of the contract terms. Oversight includes reporting of any alleged breach of contract to the disciplinary counsel. The contract shall also provide that the respondent will pay all costs incurred in connection with the contract. The contract shall include a specific acknowledgment that a material violation of a term of the contract renders voidable the respondent's participation in the program for the original charge(s) filed. The contract may be amended upon agreement of the respondent and disciplinary counsel. If a recovery monitor is assigned, the contract shall include respondent's waiver of confidentiality so that the recovery monitor may make necessary disclosures in order to fulfill the monitor's duties under the contract.
(5) Effect of Non-participation in the Program. The respondent has the right not to participate in the Alternatives to Discipline Program. If the respondent does not participate, the matter will proceed as though no referral to the program had been made.
(6) Status of Complaint. After an agreement is reached, the disciplinary complaint shall be held in abeyance [dismissed] pending successful completion of the terms of the contract.
(7) Termination.(a) Fulfillment of the Contract: The contract is automatically terminated when the terms of the contract have been fulfilled. Successful completion of the contract constitutes a bar to any further disciplinary proceedings based upon the same allegations.
(b) Material Breach: A material breach of the contract shall be cause for termination of the respondent's participation in the program. After a material breach, disciplinary proceedings may be resumed or reinstituted.Commentary
The evaluation process eliminates those matters over which the agency has no jurisdiction. It precedes investigation, which is reserved for those matters determined to involve a lawyer subject to the jurisdiction of the agency and allegations which, if true, would constitute misconduct.If the matter is terminated at this stage because the matter does not involve allegations of misconduct, disciplinary counsel should notify the complainant and refer him or her to the central intake office. Disciplinary counsel may refer matters to the central intake office or directly to any of the component agencies included in the comprehensive lawyer regulation system established by Rule 1, such as the lawyer assistance program (which provides assistance for impairment problems) or the fee arbitration program.
Matters terminated at the evaluation stage because they concern a lawyer not admitted to practice in the jurisdiction should be forwarded by disciplinary counsel to the agency for the jurisdiction in which the lawyer is admitted. The complainant should be notified of the disposition if a matter is concluded at the screening stage.
A stay is appropriate only in extraordinary circumstances. Disciplinary counsel must determine whether the complainant or the respondent will suffer prejudice in the pending proceeding should the disciplinary action proceed immediately. In some cases, witnesses and evidence pertinent to both cases might not be obtainable at a later date; in other cases, the disciplinary action may be expedited by waiting for evidence to be adduced in another proceeding.
Fairness requires that no recommendation adverse to the respondent be made without providing him or her an opportunity to be heard. This does not mean that the respondent is entitled to notice immediately upon receipt of a complaint. In some instances, early notice would be harmful to the investigation. It does mean that the respondent has a right to be heard before the investigation is concluded and an adverse disposition formulated. If the matter is dismissed or stayed following investigation, respondent has no reason to appeal.
The review process preserves elements of bifurcation within the unitary system, because the recommendation of disciplinary counsel is subject to review and approval by a representative of the adjudicative body. The approval of counsel's recommendation to file formal charges by the reviewing member amounts to a finding of probable cause to proceed.
In order to prevent any possibility of forum shopping by disciplinary counsel, the hearing committee chairperson should be designated by the board. The hearing committee of which the reviewing chair is a member should be disqualified from any future consideration of the matter, in order to avoid being placed in the position of passing upon the correctness of his or her approval of the recommendation to prosecute formal charges.
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.
If the first reviewing chairperson does not approve the recommendation, disciplinary counsel may submit the matter to a second reviewing chairperson who shall decide the issue by approving either the recommendation of disciplinary counsel or the modification thereon made by the first reviewer. The decision of the second reviewing chair shall be final within the agency.
The court, the board, or disciplinary counsel may impose probation. If probation is imposed by the board or by counsel, the consent of the respondent is required. The terms of the probation should specify periodic review of the order of probation, and provide a means to supervise the progress of the respondent.
Admonitions should be in writing and served upon the respondent. If the respondent does not consent to the admonition or probation, formal charges are instituted. The procedure is similar to the rejection of a settlement offer in a civil case or a plea bargain in a criminal case, which results in a trial.
The fact that refusal to consent to the admonition or probation subjects the respondent to formal charges and potentially more serious discipline does not violate due process any more than does the fact that a person charged with a crime is subject to conviction of a more serious offense when he or she refuses to plead to a lesser crime.
Prior discipline is relevant and material to the issue of the sanction to be imposed for the conduct which is the subject of the pending charges. Prior discipline is, except in unusual circumstances, not relevant or material to the issue of whether the conduct alleged has occurred. Consequently, introduction of evidence of prior discipline before a finding that the present charges have been sustained is prejudicial. Such records should not ordinarily be introduced until a finding of guilt has been made.
If evidence of prior discipline is necessary to prove the present charges (e.g. an allegation that the respondent continued to practice despite suspension) or to impeach (e.g. false testimony by respondent as to lack of prior discipline), it may be offered. However, it should not be used as a substitute for proving the allegations at issue.
The hearing may be recorded by any method authorized in the jurisdiction. The record will assist the hearing committee in the preparation and presentation of its report. If the matter ultimately results in a recommendation for discipline, the record should be forwarded with the findings and recommendation. The recording should be available to the respondent upon request, and a transcript provided at cost. The hearing committee is the initial trier of fact; the board serves an appellate review function. If new evidence warranting a reopening of the proceeding is discovered, the case should be remanded to the hearing committee.
Unless the decision of the hearing committee or the board is appealed or unless the board or court affirmatively decides to review a matter, cases should be disposed at the earliest possible stage. Of course, the court must retain ultimate responsibility for all disciplinary matters and, thus, must reserve the right to review any matter or even hold a de novo hearing if it so determines. This should occur only in extraordinary cases involving significant questions of law.
In all other cases, the court should rely on its disciplinary counsel, the hearing committee, and the board to dispose of matters in accordance with established disciplinary law. This will both speed up the process and reduce the burden on the court. If new evidence warranting a reopening of the proceeding is discovered, the case should be remanded to the hearing committee. Written opinions of the court not only serve to educate members of the profession about ethical behavior, but also provide precedent for subsequent cases. Moreover, this requirement is manageable; the courts in the jurisdictions with the heaviest caseloads currently write opinions in every contested disciplinary case they decide. If a matter is concluded without review by the court, the report of the board or hearing committee should be published in the official reporter. The agency should establish time guidelines for proceedings under Rule 11. Time guidelines under this Rule are directory and not jurisdictional.
The agency should establish guidelines for the following: (1) evaluation of information, investigation, and the filing and service of formal charges or other disposition of a matter; (2) hearing; and (3) review by the board. Evaluation, investigation, and the filing and service of formal charges or other disposition of routine matters generally should be completed within six months; complicated matters generally should be completed within twelve months. The period from the filing and service of formal charges to the filing of the report of the hearing committee generally should not exceed six months. The period for review by the board generally should not exceed six months. Thus, overall time periods generally should not exceed the following: eighteen months for routine matters that are reviewed by the board and twenty-four months for complicated matters that are reviewed by the board.
The overwhelming majority of complaints made against lawyers allege instances of lesser misconduct. Single instances of minor neglect or minor incompetence, while technically violations of the rules of professional conduct, are seldom treated as such. These complaints are almost always dismissed. Summary dismissal of these complaints is one of the chief sources of public dissatisfaction with the system.
These cases seldom justify the resources needed to conduct formal disciplinary proceedings. In most of these cases, the respondent's conduct does not justify imposing a disciplinary sanction. Therefore, these matters should be removed from the disciplinary system and handled administratively. It may be appropriate to compensate the client for the respondent's substandard performance by a fee adjustment or other arbitrated or mediated settlement. The respondent may need guidance to improve his or her skills or to overcome a problem with substance abuse.
A respondent has the right to refuse to participate in the Alternatives to Discipline Program. The only adverse consequence of a respondent's refusal to participate shall be that it is a factor to be considered by disciplinary counsel in determining whether to recommend the filing of formal charges. Disciplinary counsel may recommend formal charges even if the original complaint alleged lesser misconduct as defined in Rule 9(B). Disciplinary counsel, of course, retains the discretion to dismiss the complaint. If fee arbitration is mandatory in the jurisdiction, there is obviously no need for respondent's consent.
Participation in the program is not intended as an alternative to discipline in cases of serious misconduct or in cases that factually present little hope that participation will achieve program goals. In addition, the program will only be considered in cases where, assuming all the allegations against the respondent are true, the presumptive sanctions would be less than suspension or disbarment or other restrictions on the right to practice. See Rule 9(B). After the filing and service of formal charges, a referral to any of the component agencies included in the comprehensive lawyer regulation system established by Rule 1 shall be made as written conditions pursuant to Rule 10(B).
The existence of one or more aggravating factors does not necessarily exclude participation in the program. For example, neglect cases often include a pattern of misconduct and multiple offenses, but do not involve dishonesty, bad faith, or a breach of fiduciary obligation. Thus, the existence of "a pattern of misconduct" and/or "multiple offenses" should not make a respondent ineligible for the program. A pattern of lesser misconduct may be a strong indication that office management is the real problem and that this program is the best way to address that underlying problem.
Factors that may indicate ineligibility for participation in the program include evidence of a dishonest or selfish motive, bad faith in, or the obstruction of, the disciplinary process, the submission of false evidence, or an indifference to making restitution. Both mitigating and aggravating factors should also be considered. The presence of one or more mitigating factors may qualify an otherwise ineligible respondent for the program.
The existence of prior disciplinary offenses would not necessarily make a respondent ineligible for referral to the Alternatives to Discipline Program. Consideration should be given to whether the respondent's prior offenses are of the same or similar nature, whether the respondent has previously been placed in the Alternatives to Discipline Program for similar conduct and whether it is reasonably foreseeable that the respondent's participation in program will be successful.
Each participant in the program will become a party to a contract that is specifically designed to address the alleged violations. It will be the respondent's responsibility to carry out the contract provisions. The contract provisions will indicate who is responsible to oversee the fulfillment of the terms of the contract. The person overseeing the contract must report to the disciplinary counsel any non-compliance with the contract provisions.
In order to encourage voluntary participation in lawyer assistance programs, such programs provide confidentiality. Rule 8.3(c) of the ABA Model Rules of Professional Conduct states: "This Rule does not require disclosure of information . . . gained by a lawyer or judge while serving as a member of an approved lawyers assistance program to the extent that such information would be confidential if it were communicated subject to the attorney-client privilege." However, participation in the Alternatives to Discipline program differs from voluntary participation in a LAP program. The Alternatives to Discipline Rule recognizes this difference and requires the recovery monitor to make necessary disclosures in order to fulfill his or her duties under the contract.
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