Model Rules for Lawyer Disciplinary Enforcement
Appointment. The board shall appoint three or more hearing committees [within each disciplinary district]. Each hearing committee shall consist of two members of the bar of this state and one public member. A lawyer member of each hearing committee shall be appointed chair by the board. No official of the [state bar] shall have the right to appoint any members or serve in an ex officio capacity.
Terms of Office. The chair and other members of the hearing committee shall serve for fixed, staggered terms. One member shall be appointed for an initial term of one year, another member for an initial term of two years and the third member for an initial term of three years. Thereafter all regular terms shall be three years and no member shall serve for more than two consecutive three-year terms. A member whose term has expired may continue to serve on any case that was commenced before the expiration of the member's term. A member who has served two consecutive three-year terms may not be reappointed before the expiration of at least one year. The members shall not be subject to removal by the board during their terms of office except for cause.
Quorum. Except in hearings alleging lesser misconduct as defined in Rule 9(B) and conducted under Rule 18(H), three members shall constitute a quorum. The committee shall act only with the concurrence of two. The chair of the board may appoint alternate members to a hearing committee as necessary to meet the requirements of this subsection.
Powers and Duties. Hearing committees shall have the following powers and duties:
(1) To conduct hearings into formal charges of misconduct, petitions for reinstatement or readmission, and petitions for transfer to and from disability inactive status upon assignment; and
(2) To submit to the board written findings of fact, conclusions of law, and recommendations, together with the record of the hearing.Powers and Duties of Hearing Committee Chair. Each hearing committee chair shall have the following powers and duties:
(1) To review dispositions by the central intake office or recommendations of disciplinary counsel following investigation for disposition of disciplinary matters, dismissals by disciplinary counsel upon a request for review by complainant, and petitions for transfer to and from disability inactive status. The hearing committee chair may approve, modify, or disapprove the recommendations of disciplinary counsel, or direct that the matter be investigated further. If the hearing committee chair modifies or disapproves the recommendation, or directs that the matter be investigated further, disciplinary counsel may appeal that action to the chair of another hearing committee designated by the board, who shall approve either disciplinary counsel's recommendation or the action of the first hearing committee chair. The decision of the second hearing committee chair shall be final within the agency.
(2) To conduct prehearing conferences regarding formal charges of misconduct, petitions for reinstatement or readmission, and petitions for transfer to and from disability inactive status; and
(3) To consider and decide prehearing motions.Abstention and Disqualification of Hearing Committee Members.
(1) Hearing committee 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 a hearing committee 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.
Commentary
If any member of a hearing committee has a conflict of interest, the entire committee is disqualified and another committee must be appointed in its place. If that is not practicable, the individual member of the committee should be replaced for that particular matter only.
The creation of hearing committees for specific cases should be avoided. Hearing committees should have fixed membership. The committees should sit on a pre-established rotating schedule and cases should be assigned on the basis of which is the next committee to sit. Each committee should have one alternate member scheduled to sit in case of illness, emergency, or conflicts of interest.
Hearing committees conduct trials of formal charges and, through their chairperson, review and approve or modify the recommendation of disciplinary counsel for disposition following investigation. Upon the chairperson's review and a decision to file a formal complaint, the case should then be referred to another hearing committee for a hearing on the merits. If the staff investigation failed to produce sufficient evidence, the reviewing chairperson would have the discretion to dismiss or send back for further investigation.
If Model Rule of Professional Conduct 1.12(c)(1) and (2) are complied with, a lawyer in the firm of a former hearing committee member is not imputedly disqualified.
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