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July 16, 2020

Rule 4

Model Rules for Lawyer Disciplinary Enforcement

  1. Appointment. The court shall appoint a lawyer admitted to practice in the state to serve as disciplinary counsel. Neither the chief disciplinary counsel nor full-time staff disciplinary counsel shall engage in private practice. No official of the [state bar] shall serve as disciplinary counsel or investigator.

  2. Powers and Duties. Disciplinary counsel shall perform all prosecutorial functions and have the following powers and duties:

    (1) To evaluate all information coming to the attention of the agency to determine whether it concerns a lawyer subject to the jurisdiction of the agency because it relates to misconduct by the lawyer or to the incapacity of the lawyer;
    (2) To investigate all information coming to the attention of the agency which, if true, would be grounds for discipline or transfer to disability inactive status and investigate all facts pertaining to petitions for reinstatement or readmission;
    (3) To dismiss or recommend probation, informal admonition, a stay, the filing of formal charges, or the petitioning for transfer to disability inactive status with respect to each matter brought to the attention of the agency;
    (4) To prosecute before hearing committees, the board, and the court discipline, reinstatement and readmission proceedings, and proceedings for transfer to or from disability inactive status;
    (5) To employ and supervise staff needed for the performance of prosecutorial functions [and, when circumstances necessitate their use, appoint and supervise volunteer assistant counsel];
    (6) To notify promptly the complainant and the respondent of the status and the disposition of each matter, including but not limited to providing to the complainant:

    (a) a copy of any notice, motion, or order sent to respondent;
    (b) a copy of any written communication from the respondent to the disciplinary counsel relating to the matter except information that is subject to the privilege of one other than the complainant;
    (c) a concise written statement of the facts and reasons a matter has been dismissed prior to a hearing and a copy of the written guidelines for dismissal issued pursuant to Rule 4(B)(7), provided that the complainant shall be given a reasonable opportunity to rebut statements of the respondent before the complaint is dismissed; and
    (d) a notice of the date, time, and location of the hearing;

    (7) To issue written guidelines for use by the central intake office and disciplinary counsel to determine which matters shall be dismissed for failing to allege facts that, if true, would constitute grounds for disciplinary action.
    (8) To notify each jurisdiction in which a lawyer is admitted of a transfer to or from disability inactive status, reinstatement, readmission, or any public discipline imposed in this state;
    (9) To seek reciprocal discipline when informed of any public discipline imposed in any other jurisdiction;
    (10) To forward a certified copy of the judgment of conviction to the disciplinary agency in each jurisdiction in which a lawyer is admitted when the lawyer is convicted of a serious crime (as hereinafter defined) in this state;
    (11) To maintain permanent records of discipline and disability matters, subject to the expunction requirements of Rule 4(B)(12), and compile statistics to aid in the administration of the system, including but not limited to a single log of all complaints received, investigative files, statistical summaries of docket processing and case dispositions, transcripts of all proceedings (or the reporter's notes if not transcribed), and other records as the board or court requires to be maintained. Statistical summaries shall contain, at a minimum:

    (a) time records for all counsel and investigators, tracked by case or other task including time spent on non-disciplinary functions;
    (b) the number of pending cases at each stage in the disciplinary process for each counsel and for the agency;
    (c) the number of new cases assigned to each counsel during the year and the total for the agency;
    (d) the number of cases carried over from the prior year for each counsel and the total for the agency;
    (e) the number of cases closed by each counsel during the year and the total for the agency;
    (f) the number of cases of special difficulty or complexity at each stage in the proceedings; and
    (g) the ratio of staff turnover.

    (12) To expunge (i.e. destroy) after [three] years all records or other evidence of the existence of complaints terminated by dismissals or referrals to other component agencies pursuant to Rule 1(B)(4), except that upon disciplinary counsel's application, notice to respondent, and a showing of good cause, the board may permit disciplinary counsel to retain such records for one additional period of time not to exceed [three] years.

    (i) Notice to Respondent. If the respondent was contacted by the agency concerning the complaint, or the agency otherwise knows that the respondent is aware of the existence of the complaint, the respondent shall be given prompt written notice of the expunction.
    (ii) Effect of Expunction. After a file has been expunged, any agency response to an inquiry requiring a reference to the matter shall state that there is no record of such matter. The respondent may answer any inquiry requiring a reference to an expunged matter by stating that no complaint was made.

    (13) To make referrals to the Alternatives to Discipline Program pursuant to Rule 11(G), to the central intake office or to any of the component agencies of the comprehensive system of lawyer regulation established by Rule 1; and
    (14) To prepare an annual budget for the disciplinary counsel's office and submit it to the court for approval and to make reasonable and necessary expenditures pursuant to the approved budget to perform the duties of the office;

  3. Advisory Opinions Prohibited. Disciplinary counsel shall not render advisory opinions, either orally or in writing.

  4. Ex Parte Communication with Disciplinary Counsel.

    (1) Members of a hearing committee, the board, or the court shall not communicate ex parte with disciplinary counsel regarding a pending or impending investigation or disciplinary matter except as explicitly provided for by law or for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits provided that:

    (a) it is reasonable to believe that no party will gain a procedural or tactical advantage as a result of the ex parte communication; and
    (b) provision is promptly made to notify all other parties of the substance of the ex parte communication and an opportunity to respond is allowed.

    (2) A violation of this rule shall be a ground for lawyer or judicial discipline, as appropriate, and cause for removal from the hearing committee or the board.

  5. Disqualification. In addition to complying with the Rules of Professional Conduct regarding successive government and private employment (Model Rule of Professional Conduct 1.11), a former disciplinary counsel shall not personally represent a lawyer in any proceeding as provided in these Rules for a period of one year following completion of the disciplinary counsel's service.

The court should appoint a permanent, full-time disciplinary counsel. The court should consider recommendations from many sources, including the board, state bar, civic groups, and other interested parties. The power to appoint should not be restricted by limiting the pool of potential candidates only to nominees from specific sources. Alternatively, instead of appointing disciplinary counsel directly, the court may wish to appoint a Commission on Lawyer Regulation, which would have the responsibility of appointing disciplinary counsel, as discussed in the Commentary to Rule 1.

Volunteers should be avoided if possible. They cannot devote the same time and attention to processing complaints as paid counsel, nor can they investigate complicated matters as thoroughly as one professionally trained to do so.

Disciplinary counsel may be allowed a reasonable amount of time for transition from private practice following appointment to phase out his or her private practice.

Since the court has the responsibility for the efficient operation of the agency, the court should appoint the board and disciplinary counsel. However, the court should not allow itself to become involved in the internal personnel management of the agency. The board and disciplinary counsel should have full authority to hire and fire their respective staffs.

Vesting all prosecutorial responsibility in disciplinary counsel is necessary if there is to be a separation of prosecutorial and adjudicative functions within a unitary agency.

Disciplinary counsel has the responsibility for investigating and prosecuting all matters.

Disciplinary counsel must therefore have the authority to hire, compensate, and fire the staff necessary to carry out that responsibility in conformity with the applicable limits established by the board in the budget it has approved for the operation of the agency. All personnel assigned prosecutorial functions, whether lawyer or nonlawyer, full-time, part-time, or volunteer, should be appointed by and responsible to counsel. Full-time lawyer personnel hired by counsel should not be permitted to engage in the private practice of law.

Members of the public who come to the agency seeking its services are entitled to be advised of the disposition of their complaints. Fairness requires that no recommendation adverse to the respondent be made without providing an opportunity to be heard.

The clerk of the court in which the lawyer is convicted should send a certified copy of the judgment of conviction to counsel for the agency of the state in which the lawyer is admitted to practice. The certified copy of the judgment should be filed with the court to support the proposed order for immediate interim suspension.

Meaningful statistics can most effectively be recorded by using uniform terminology. The following terms are adopted to identify available sanctions in disciplinary matters: disbarment, suspension, reprimand, admonition, probation, and discipline by consent. The term adopted to indicate removal from practice on grounds of disability is transfer to disability inactive status.

Once a reasonable period of time has elapsed following the dismissal of a matter, there is little justification for retaining the records indefinitely and thereby subjecting the lawyer to whatever implications may be drawn from the fact that the complaint was made. The mere existence of these records suggests that they may have some significance despite the dismissal. Many lawyers believe that dismissed complaints are consulted whenever new complaints are received, and that if a lawyer has had prior complaints filed against him or her, a new complaint is given greater credibility than it otherwise would be despite the dismissals. The perception is that complaints once filed will always constitute a threat lawyers are helpless to fully combat.

These concerns about the improper inferences that might be drawn from records of dismissed complaints should be accommodated to the extent reasonable in the agency's record retention policy. In formulating that policy, it is important to note the rationale for the retention of records pertaining to dismissed complaints. Complaints are not always dismissed because they are unwarranted or because evidence is obtained which demonstrates that they are invalid. There are situations in which complaints are dismissed because there is inadequate proof available at the time to substantiate the allegations which, if true, reflect serious misconduct. Occasionally, additional proof substantiating an earlier complaint is provided in conjunction with a subsequent complaint. Obviously, if the records of the prior complaint are then no longer available, the subsequently provided evidence is of little use in substantiating the first.

The later submission of additional evidence substantiating previously dismissed complaints happens only occasionally and most often within a reasonable period of time following the earlier complaint. The possibility that such evidence relevant to an earlier complaint may later be forthcoming does not therefore justify the retention of all dismissed complaints forever. An accommodation between those who favor the immediate expungement of dismissed matters and those who advocate a policy of permanent record retention is appropriate.

Subparagraph (12) provides that records of dismissed complaints be destroyed after the expiration of a reasonable period of time. A period of three years is suggested but, since there is no need for national uniformity in this regard, that reference is bracketed to permit each jurisdiction to make its own determination. Following the expiration of that period of time, all records relating to a complaint terminated by dismissal are to be expunged from the files of the agency.

The expunction accommodates those who are concerned that the mere existence of a record of a dismissed complaint will unfairly stigmatize the lawyer. The provisions permitting the retention of the records of a dismissed complaint for a reasonable period of time following the dismissal accommodate those who believe that such records should be retained so that they are available if further evidence substantiating the earlier complaint is later received. The availability of these records for a limited period of time also enables the agency to better evaluate its caseload to plan for its future financial, personnel and other resource needs.

Since no policy concerning the retention of records can possibly take into account the many potential variations involved in specific matters that might justify a deviation from the general practice, Subparagraph (12) incorporates a provision permitting disciplinary counsel to apply, upon notice to the lawyer concerned and an opportunity to be heard, for an extension of the period of time the records of a specific dismissed complaint will be retained. Subparagraph (12) itself limits the period for which such an extension can be granted to an additional number of years bracketed to permit each jurisdiction to make its own determination.

It is important that the respondent be given notice that a dismissed complaint has been expunged so that he or she may accurately respond to inquiries which require disclosure of the status of the matter.

Once a record has been expunged, the agency's response to inquiries concerning that record must emphasize that no inferences adverse to the respondent are to be drawn. The purpose of the expunction is to negate such inferences when there has been a finding that the evidence was insufficient to warrant a finding adverse to the lawyer. To allow the same inference to be drawn from the fact that a record once existed and was later expunged is to defeat the purpose of the expunction.

Time standards and case load standards are needed at all stages of the proceedings and should be sophisticated enough to account for differences and complexity among cases. Effective management requires not only realistic standards but also adequate record keeping so that performance can be measured against standards. In even the smallest disciplinary office this will require the use of at least one personal computer or more to track data such as: (1) elapsed time at each stage of a case; (2) staff hours spent at each stage of each case; (3) case load per counsel at each stage of the process; and (4) all of the foregoing further categorized by complexity of the case and other relevant criteria.

Disciplinary counsel in some jurisdictions has provided advisory opinions to members of the bar as a service. This practice presents several serious problems. First, it diverts scarce resources from the investigation and prosecution of cases. Second, disciplinary counsel will not take as much time to investigate the facts in the request as would be given to investigate a disciplinary matter. Yet, giving the opinion may create a defense to a later disciplinary charge, complicating the matter with issues such as whether respondent disclosed all relevant facts in the request for the opinion. Advisory opinions are more appropriately given by state bar ethics committees or lawyers who practice professional responsibility law.

If Model Rule of Professional Conduct 1.11(a)(1) and (2) are complied with, a lawyer in the firm of a former disciplinary counsel is not imputedly disqualified.



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