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July 15, 2020

Rule 12

Model Rules for Lawyer Disciplinary Enforcement

  1. From Civil Suits. Communications to the board, hearing committees, or disciplinary counsel relating to lawyer misconduct or disability and testimony given in the proceedings shall be absolutely privileged, and no lawsuit predicated thereon may be instituted against any complainant or witness. Members of the board, members of hearing committees, disciplinary counsel, monitors, or any person acting on their behalf, and staff shall be immune from suit for any conduct in the course of their official duties.

  2. From Criminal Prosecution. Upon application by disciplinary counsel and notice to [appropriate prosecuting authority], the court may grant immunity from criminal prosecution to a witness in a discipline or disability proceeding.

    Agency personnel are an integral part of the judicial process and are entitled to the same immunity which is afforded to prosecuting lawyers. Immunity protects the independent judgment of the agency and avoids diverting the attention of its personnel as well as its resources toward resisting collateral attack and harassment.

    The Rule recommends absolute privilege rather than qualified privilege; qualified privilege may not protect against harassment made possible by simply alleging malice in a lawsuit. Conduct on the part of agency personnel which is not authorized or exceeds assigned duties is not protected.

    A policy of conferring absolute immunity on the complainant encourages those who have some doubt about a lawyer's conduct to submit the matter to the proper agency, where it may be examined and determined. Without immunity, some valid complaints will not be filed. The individual lawyer may suffer some hardship as the result of the occasional filing of a malicious complaint, but a profession that wants to retain the power to police its own members must be prepared to make some sacrifice to that cause.

    It is unlikely that even a malicious complaint will cause any damage beyond some inconvenience. The members of the agency to whom the complaint is submitted will surely not hold it against the lawyer, for their very function is to separate meritorious from undeserving complaints. The policy of agencies not to divulge the existence of complaints while they are being investigated effectively protects the lawyer from any unwarranted public disclosure. Thus, the lawyer is given more practical protection than a party to an ordinary suit, in which pleadings are public. Immunity from civil actions attaches only to communications made to the agency.

    As disciplinary agencies have grown, they have increasingly recognized the necessity for initiating investigations into areas of misconduct that are unlikely to generate complaints, and the problem of uncooperative witnesses has become more prevalent. Witnesses are reluctant to testify, particularly in the course of investigations into areas of practice involving such acts as ambulance chasing, the filing of false damage claims, immigration frauds, illegal adoptions and other misconduct from which the client derives substantial benefits. The client is reluctant to answer any questions concerning such matters since the truth may implicate him or her as well as the lawyer in criminal conduct. As a result, a client may rely on the constitutional privilege against self-incrimination to avoid disclosure of the misconduct. When that occurs, testimony can be obtained only if there is a procedure by which the witness can be granted immunity from criminal prosecution.

    The conferring of immunity on a witness in the course of a disciplinary proceeding concerns the local law enforcement authorities, because it prevents the institution of a criminal prosecution based on the witness's disclosures in the course of his or her subsequent testimony. Any procedure authorizing immunity should therefore require that local law enforcement authorities be served with a copy of the application requesting immunity and that the application itself be judicially determined. This will enable law enforcement authorities to assert any objection they may have to immunizing the witness and to have that objection judicially weighed against the necessity for granting immunity for purposes of the disciplinary proceedings. Because a grant of immunity is a waiver of the state's right to proceed criminally against the individual, legislation may be necessary to implement this Rule. A lawyer granted witness immunity, although protected from criminal prosecution, is still subject to discipline for the underlying misconduct revealed by his or her testimony.

    Next - RULE 13. SERVICE.

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    Center for Professional Responsibility