Model Rules for Lawyer Disciplinary Enforcement
Requirement. Every lawyer admitted to practice before this court shall pay to the clerk of this court [state bar] an annual fee for each fiscal year beginning [date] to be set by the court [state bar] from time to time. The fee shall be used to defray the costs of disciplinary administration and enforcement under these rules, other components of the system of lawyer regulation under other rules established by the court, and for those other purposes the court shall from time to time designate. The annual fee until further order of the court shall be:
After Date of Admission to Practice Law Annual Fee Up to five years: $ Five years or more: $ Exemption of Judges. Full-time judges shall be exempt from the payment of the fee during the time they serve in office.
Suspension for Nonpayment. Unless excused on grounds of financial hardship pursuant to procedures to be established by the board, any lawyer who fails to timely pay the fee required under paragraph A shall be summarily suspended, provided that a notice of delinquency, addressed to the lawyer's last known business address, has been forwarded to the lawyer by certified mail, return receipt requested, at least [thirty] days prior to such suspension.
Reinstatement after Payment. Any lawyer suspended under paragraph C shall be reinstated without further order if, within [five] years of the effective date of the suspension for nonpayment, the lawyer makes payment of all arrears and a penalty of 20% of the amount due from the date of the last payment to the date of the request for reinstatement. Any lawyer who fails to make these complete payments within five years of the effective date of the suspension for nonpayment may, in the discretion of the court, be required to petition for reinstatement under Rule 25.
Registration Statement. To facilitate the collection of the annual fee provided for in paragraph A and the regulation of lawyers, each lawyer required by this rule to pay an annual fee shall, on or before [date] of every year, commencing [date] file with the clerk of this court a registration statement, on a form prescribed by this court, setting forth the lawyer's residence and office addresses, other jurisdictions in which the lawyer is admitted to practice, the imposition of any public sanction or transfer to or from inactive status in any other jurisdiction, and such other information as this court may from time to time direct. Each lawyer shall file with the clerk of this court a supplemental statement of any change in the information previously submitted within [thirty] days of the change. All persons first becoming subject to these rules by admission to the practice of law before the courts of this state after [date] shall file the statement required by this rule at the time of admission, but no annual fee shall be payable until [date] next following such date of admission.
Receipt Demonstrating Filing of Registration Statement. Within [thirty] days of the receipt of a statement or supplement thereto filed by the lawyer in accordance with paragraph E, the clerk of this court shall acknowledge receipt on a form prescribed by the court in order to enable the lawyer on request to demonstrate compliance with the requirements of paragraphs A and E.
Suspension for Failure to File Registration Statements. Any lawyer who fails to file the statement or supplement in accordance with paragraph E shall be summarily suspended, provided a notice of delinquency has been forwarded to the lawyer by certified mail, return receipt requested, addressed to the lawyer's last known business address at least [thirty] days prior to the suspension. The lawyer shall remain suspended until compliance is demonstrated, whereupon the lawyer shall be reinstated without further order.
Application for Transfer to Inactive Status. A lawyer who has retired or is not engaged in practice shall advise the clerk of this court in writing that the lawyer desires to assume inactive status and discontinue the practice of law. Upon the filing of the notice, the lawyer shall no longer be eligible to practice law. A lawyer who is retired or on inactive status shall not be obligated to pay the annual fee imposed by this rule upon active practitioners. A lawyer on inactive status shall be removed from the roll of those classified as active until and unless the lawyer requests and is granted reinstatement to the active rolls.
Reinstatement from Inactive Status. Any lawyer on inactive status under paragraph H shall be reinstated without further order if the lawyer makes application within five years of the effective date of transfer to inactive status. Any lawyer who fails to make application for reinstatement within five years of the effective date of transfer to inactive status may, in the discretion of the court, be required to petition for reinstatement under Rule 25.
Any lawyer who is under an order of discipline in any other jurisdiction shall be required to petition for reinstatement under Rule 25.
Commentary
In some jurisdictions, statutory provisions vest ultimate authority and control over disciplinary agency budgets with the legislature. Within state constitutional constraints, the court should assert its inherent power to regulate the profession to provide for adequate funding of the disciplinary system. Lawyer discipline and other regulatory functions such as client protection funds, mandatory fee arbitration, voluntary arbitration, mediation, lawyer practice assistance, and lawyer substance abuse counseling should be funded by fees assessed on lawyers admitted to practice in the state. Funds collected by this assessment and disbursements made for lawyer discipline and other regulatory activities (such as mandatory fee arbitration, client protection funds, and lawyer practice assistance) should be controlled exclusively by the highest court in the jurisdiction. The court may choose to exercise these functions through a unified bar. Inadequate funding is the major cause of inadequate enforcement. The availability of adequate funds for personnel and expenses will enable an agency to perform all essential duties and not just unavoidable tasks.
The profession recognizes that the creation and maintenance of an effective structure for discipline and disability proceedings is one of its primary responsibilities.
The level of funding for the agency will determine whether it can hire experienced, full-time lawyers as counsel, or whether it can rely upon volunteers, part-time participants and clerks. Adequate funding will enable the agency to unravel a complex or obscure fact situation with which it might not otherwise be able to cope. The level of funding will determine how promptly allegations can be resolved, thereby affecting the length of time the lawyer remains uncertain about his future, the extent to which clients are exposed to further harm, and the amount of public confidence in the system.
Disciplinary counsel should have sufficient staff and resources to: (1) fully investigate complaints by such means as sending investigators into the field to interview witnesses and examine records and evidence; and (2) regularly monitor sources of public information such as news reports and court decisions likely to contain information about lawyer misconduct.
There should be adequate funding and staffing for the disciplinary agency so that: (a) disciplinary matters are screened, investigated, prosecuted and adjudicated promptly; (b) the work load per staff person permits careful and thorough performance of duties; (c) professional and support staff are compensated at a level sufficient to attract and retain competent personnel; (d) sufficient office and data processing equipment exist to efficiently and quickly process the work load and manage the agency; (e) adequate office space exists to provide a productive working environment; and (f) staff and volunteers are adequately trained in disciplinary law and procedure. There is a significant need for constant updating with respect to enforcement practices, procedure, and disciplinary law.
There should be adequate funding and staffing for client protection funds, random audit, mandatory fee arbitration, voluntary arbitration, mediation, lawyer practice assistance, lawyer substance abuse counseling, and all other programs of the comprehensive lawyer regulatory system established by Rule 1.
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