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July 16, 2020

Rule 2

Model Rules for Lawyer Disciplinary Enforcement

  1. Agency. There is hereby established one permanent statewide agency to administer the lawyer discipline and disability system. The agency consists of a statewide board as provided in this Rule 2, hearing committees as provided for in Rule 3, disciplinary counsel as provided for in Rule 4, and staff appointed by the board and counsel. The agency is a unitary entity. While it performs both prosecutorial and adjudicative functions, these functions shall be separated within the agency insofar as practicable in order to avoid unfairness. The prosecutorial functions shall be directed by a lawyer employed full-time by the agency and performed, insofar as practicable, by employees of the agency. The adjudicative functions shall be performed by practicing lawyers and public members. No official of the [state bar] shall have the right to appoint any members or serve in an ex officio capacity.

  2. Appointment. A board shall be appointed by the court with the requisite authority and responsibility to administer the lawyer discipline and disability system. The board shall consist of [nine] members to serve for fixed, staggered terms, and to be referred to as the "board," which shall consist of:

    (1) [Two] members of the bar of this state and [one] public member appointed for an initial term of three years;
    (2) [Two] members of the bar of this state and [one] public member appointed for an initial term of two years; and
    (3) [Two] members of the bar of this state and [one] public member appointed for an initial term of one year.

    Subsequent terms of all members shall be for three years. No member shall serve more than two consecutive three-year terms. The members of the board shall not be subject to removal by the court during their terms of office except for cause.

  3. Election of Officers. The members of the board shall annually elect [the Court shall annually appoint] lawyer members as chair and vice-chair. The chair, and in the chair's absence the vice-chair, shall perform the duties normally associated with that office and shall preside over all meetings of the full board, ruling on all motions, objections, and evidence.

  4. Quorum. [Five] members shall constitute a quorum. The board shall act only with the concurrence of a majority of the whole board except as to administrative matters, which shall only require a majority of those present and voting.

  5. Compensation and Expenses. Members shall receive no compensation for their services, but may be reimbursed for travel and other expenses incidental to the performance of their duties.

  6. Abstention and Disqualification of Board Members; [Alternate Members].

    (1) Board members shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain.
    (2) In addition to complying with the Rules of Professional Conduct regarding a former judge or arbitrator (Model Rule of Professional Conduct 1.12), a former member of the board shall not personally represent a lawyer in any proceeding as provided in these Rules for a period of one year following completion of the member's service.
    [(3) The court shall maintain current rosters of lawyer and nonlawyer alternates. If a board member becomes incapacitated or disqualified, the next alternate on the appropriate roster shall take the place of the board member in the matter.]

  7. Powers and Duties. The board shall have the following powers and duties:

    (1) To propose rules of procedure for lawyer discipline and disability proceedings for promulgation by the court, and to comment on the enforceability of existing and proposed [Rules of Professional Conduct];
    (2) To review periodically the operation of the system with the court;
    (3) To appoint three or more hearing committees [within each disciplinary district] and

    (i) establish the rotation by which they will be assigned formal hearings,
    (ii) designate the chair for each, and
    (iii) assign the chair to review in rotation dispositions by the central intake office, recommendations of counsel for disposition of disciplinary matters and petitions for transfer to and from disability inactive status pursuant to Rule 3(E)(1);

    (4) To perform appellate review functions, consisting of review of the findings of fact, conclusions of law and recommendations of adjudicators in hearings on lesser misconduct pursuant to Rule 18(H) and of hearing committees with respect to formal charges, petitions for transfer to and from disability inactive status, and petitions for reinstatement, and prepare and forward to the court its own findings, if any, and recommendations, together with the record of the proceedings before the hearing committee;
    (5) To administer reprimands;
    (6) To impose probation for a specified period with the consent of the respondent;
    (7) To appoint and supervise its staff [including counsel], separate from the prosecutorial staff, to assist the board in its functions;
    (8) To inform the public about the existence and operation of the system and the disposition of each matter in which public discipline has been imposed, a lawyer has been transferred to or from disability inactive status, or a lawyer has been reinstated or readmitted; and
    (9) To delegate, in its discretion, to the chair or vice chair the power to act for the board on administrative and procedural matters.

With more than 750,000 lawyers licensed to practice in the United States, the highest courts of the states cannot handle discipline and disability matters directly by themselves. The agency assists the court in the exercise of its inherent power to supervise the bar, inquiring into all matters assigned to its jurisdiction by the court's rules of disciplinary enforcement. The agency performs prosecutorial and adjudicative functions, and reports its findings and recommendations to the court.

A statewide system provides the greatest degree of structural impartiality since it minimizes the adverse effects of local bias. Moreover, a statewide structure provides uniformity, since only a single statewide court and a single statewide agency are involved in the process. In a decentralized structure, complaints in one community may be governed by one set of standards and those in a different community by another. Consequently, lawyers admitted to practice in the same state may receive radically different discipline for the same misconduct.

A single statewide agency avoids these problems by imposing a single standard of conduct throughout the state.

In a unitary system, both prosecution and adjudication are the responsibility of a single agency. Nevertheless, prosecutorial and adjudicative functions should be separated as much as possible within the unitary system to avoid unfairness and any appearance of unfairness. Persons who perform prosecutorial functions should neither perform nor supervise persons who perform adjudicative functions, and vice versa. In addition, persons who perform adjudicative functions in a particular matter at a preliminary stage should not thereafter perform nor have control over persons who must later perform ultimate adjudicative functions in the same matter.

The disciplinary system should be controlled and managed exclusively by the state's highest court and not by state or local bar associations for these compelling reasons. First, the disciplinary process should be directed solely by the disciplinary policy of the court and its appointees and not influenced by the internal politics of bar associations. Second, the disciplinary system should be free from even the appearance of conflicts of interest or impropriety. When elected bar officials control all or parts of the disciplinary process, these appearances are created, regardless of the actual fairness and impartiality of the system. This is true whether the bar is unified or not.

Bar associations can properly manage such programs as mandatory fee arbitration, lawyer practice assistance, continuing legal education, voluntary arbitration and mediation. Bar operation of these programs does not create a conflict of interest or the appearance of impropriety. Although some of these programs may interact with the disciplinary process, it is entirely appropriate for the organized bar to cooperate with the court in the administration of such programs. Nothing in these rules should be construed as prohibiting bars from continuing to manage non-disciplinary matters nor should these rules be interpreted to support the elimination of unified state bars. Indeed, given the funding requirements of many of these programs, bars will be performing a vital public service in fulfilling these functions.

It is of course desirable, and in the larger states essential, for the board to have available the assistance of staff to carry out its functions. Staff responsible directly to the board, totally separate from counsel, should be hired for that purpose to further the separation of the prosecutorial and adjudicative functions within the unitary agency.

In the appointment process, there should be appropriate representation of all segments of the public and the profession, including minority members, women, and solo or small firm practitioners. A combination of lawyers and nonlawyers on the board results in a more balanced evaluation of complaints. Currently more than two-thirds of all jurisdictions involve public members in their disciplinary structure. Participation by nonlawyers increases the credibility of the discipline and disability process in the eyes of the public. There is a human tendency to suspect the objectivity of a discipline body composed solely of members of the respondent's professional colleagues. Involving public members helps allay that suspicion.

It is recommended that the board have at least nine members. A multiple of three is necessary to preserve a ratio of two-thirds lawyers and one-third public members. A three-member board may be simply too small to enable volunteers to cope with the workload. A six-member board is not recommended because an even-numbered membership makes possible a tie vote. At least one-third [or a higher proportion] of all adjudicators should be nonlawyers.

The members of the board should be appointed by the court since the agency is created to assist the court in carrying out its discipline and disability functions. The court may appoint a roster of alternates to be available if a board member becomes incapacitated or disqualified. A roster of alternates avoids the necessity of selecting a particular individual to sit for a particular case, which may raise claims of unfairness.

Board members should not be appointed for more than two consecutive terms. Absence of periodic rotation restricts the number of individuals who can participate and may perpetuate outmoded practice and procedures. The terms of the members should not be so long that the disciplinary function is inaccessible and unresponsive to changes in the lawyer community.

Terms should not be longer than three years. Periodic rotation of the members requires that terms be set in multiples of three. A six-year term would allow a member to serve for twelve consecutive years, which may inhibit responsiveness to the changes in legal practice in the community.

The board members should elect their own chair and vice-chair, both of whom should be lawyers since they will preside over appeals and rule on motions and evidence.

If Model Rule of Professional Conduct 1.12(c)(1) and (2) are complied with, a lawyer in the firm of a former board member is not imputedly disqualified.

The court and the board should cooperate in the administration of the system. In performing the duties imposed by the system, the board's staff should perform record keeping functions, docket matters to be heard by the board, prepare reports and financial documents, and perform similar administrative tasks. Although it is the court's responsibility to promulgate the rules governing the structure, the court should give great weight to the board's recommendations.

Recommendations to the court pertaining to the operation of the system generally should be distinguished from ex parte communications about individual cases.

To ensure there is adequate oversight, the court may wish to have the administrative arm of the court review the budget and provide comments to the court and disciplinary counsel. The board and disciplinary counsel should periodically file reports concerning their operations with the court.

Hearing committees are appointed by the board but function independently. The board should appoint at least three hearing committees, since two hearing committees may be disqualified because of the participation by their chairs in the review of recommendations of counsel for disposition of a matter after investigation.

Lawyer population and the size of the state may require the state to be divided into disciplinary districts. If that becomes necessary, at least three hearing committees should be appointed per district.

The presiding officer of the hearing committee should be a lawyer since the presiding officer rules on motions and objections. The composition of the hearing committee, membership rotation, and the length of terms of the members should be determined by weighing the same factors applied to board members. Hearing committee members should be assigned to each committee permanently, not ad hoc. Hearing committees should be scheduled in advance to meet at fixed intervals and in rotation, not ad hoc. This greatly reduces the administrative burden of scheduling meetings and systematizes the work flow for both the board and counsel.

The board may prepare and forward its own findings and recommendations and administer reprimands. The report and recommendation of the board is advisory only. The court may modify the findings and may increase or decrease the discipline recommended.

The public interest is served by wide publication of the availability of a process for investigating and disposing of substantial allegations of misconduct. Care should be taken in doing so, to avoid encouraging frivolous or unfounded complaints.

Increasing the public's awareness of the discipline and disability process can be accomplished in many ways. The agency can prepare a short fact sheet or pamphlet, describing what it does and how it does it, explaining where and how to get information. The rules governing the agency's operations should be readily available. Public information about the system and cases within it should be easily accessible on request.

Public confidence in the discipline and disability process will be increased as the profession acknowledges the existence of lawyer misconduct, and shows the public what the agency is doing about it.



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Center for Professional Responsibility