Model Rules for Lawyer Disciplinary Enforcement
Board Approval of Tendered Admission. A lawyer against whom formal charges have been made may tender to disciplinary counsel a conditional admission to the petition or to a particular count thereof in exchange for a stated form of discipline. The tendered conditional admission shall be approved or rejected by the board [considering the recommendation of the hearing committee if the matter has already been assigned for hearing, and] subject to final approval or rejection by the court if the stated form of discipline included disbarment, suspension or transfer to disability inactive status pursuant to Rule 11(F). If the stated form of discipline is rejected by the [adjudicative body] [board], the admission shall be withdrawn and cannot be used against the respondent in any subsequent proceedings.
Review of Discipline by Consent. The extent of discipline to be imposed is subject to review. If an agreement providing for admonition or probation is reached prior to the filing of formal changes, the agreement must be approved by the chair of a hearing committee [board].
Discontinuance of Jurisdiction. Approval of the discipline proposed by the board and, if required, by the court, shall divest the hearing committee of further jurisdiction and no report need be prepared in such cases. The final order of discipline shall be predicated upon the petition and the conditional admission tendered.
Affidavit of Consent. A lawyer who consents to a stated form of discipline shall present to the board an affidavit stating that he or she consents to the discipline and that:
(1) The consent is freely and voluntarily rendered; the lawyer is not being subjected to coercion or duress; the lawyer is fully aware of the implications of submitting the consent;
(2) The lawyer is aware that there is presently pending an investigation into, or proceeding involving, allegations that there exist grounds for discipline, the nature of which shall be specifically set forth;
(3) The lawyer acknowledges that the material facts so alleged are true; and
(4) The lawyer consents because the lawyer knows that if charges predicated upon the matters under investigation were filed, or if the pending proceeding were prosecuted, the lawyer could not successfully defend against them.Order of Discipline. The board shall file the affidavit with the court. If the discipline by consent is a reprimand, the board shall enter the order. In all other instances in which proposed discipline has been approved, the court shall enter the order disciplining the lawyer on consent. Whether the sanction is made public shall be governed by Rule 10(D).
Commentary
If an agreement provides for reprimand, suspension or disbarment, or if any agreement is reached after formal charges have been filed, the agreement must be approved by a panel of the board. Members of the panel are disqualified from any future consideration of the matter in the event the stipulated discipline is for any reason not imposed. If the stipulated discipline provides for suspension or disbarment, it must also be approved by the court.
Acceptance of stipulated discipline by a lawyer who has been guilty of misconduct and desires to avoid the trauma and expense of a proceeding is in the interest of the public and the agency. The public is immediately protected from further misconduct by the lawyer, who otherwise might continue to practice until a formal proceeding is concluded. The agency is relieved of the time-consuming and expensive necessity of prosecuting a formal proceeding.
The respondent should be required to admit the charges before discipline is stipulated, so that evidence of guilt will be available if the respondent later claims that he or she was not, in fact, guilty. Petitions for reinstatement are often filed years after discipline has been imposed, and if there is no admission it may be difficult for the agency to establish the misconduct because relevant evidence and witnesses may no longer be available.
Discipline by consent which results in the lawyer withdrawing from the practice of law should be recorded and treated as disbarment, not as resignation. An agreement made when the charges are before the board shall be reviewed by the court. In the event that proposed stipulated discipline is disapproved by the reviewing entity, or the matter is returned to formal proceedings for any reason, the respondent's admission of the charges cannot be used against the respondent.
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