Model Rules for Lawyer Disciplinary Enforcement
Grounds for Discipline. It shall be a ground for discipline for a lawyer to:
(1) violate or attempt to violate the [State Rules of Professional Conduct], or any other rules of this jurisdiction regarding professional conduct of lawyers;
(2) engage in conduct violating applicable rules of professional conduct of another jurisdiction;
(3) willfully violate a valid order of the court or the board imposing discipline, willfully fail to appear before disciplinary counsel for admonition pursuant to Rule 10(A)(5), willfully fail to comply with a subpoena validly issued under Rule 14, or knowingly fail to respond to a lawful demand from a disciplinary authority, except that this rule does not require disclosure of information otherwise protected by applicable rules relating to confidentiality.
Lesser Misconduct. Lesser misconduct is conduct that does not warrant a sanction restricting the respondent's license to practice law. Conduct shall not be considered lesser misconduct if any of the following considerations apply:
(1) the misconduct involves the misappropriation of funds;
(2) the misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3) the respondent has been publicly disciplined in the last three years;
(4) the misconduct is of the same nature as misconduct for which the respondent has been disciplined in the last five years;
(5) the misconduct involves dishonesty, deceit, fraud, or misrepresentation by the respondent;
(6) the misconduct constitutes a "serious crime' as defined in Rule 19(C); or
(7) the misconduct is part of a pattern of similar misconduct.
Commentary
When a lawyer is admitted to practice, he or she becomes subject to rules of conduct in effect in that jurisdiction. A violation of those rules triggers the jurisdiction of the agency. This does not mean that every violation necessarily requires the imposition of a sanction, but merely that the agency can investigate the matter.
The agency's jurisdiction to investigate and to take whatever action is deemed to be appropriate is triggered by discipline imposed in another state. The imposition of discipline in one jurisdiction does not mean that every other jurisdiction in which the lawyer is admitted must necessarily impose discipline, but the burden is on the respondent to demonstrate that the imposition of the same discipline is inappropriate. See Rule 22.
All lawyers have an affirmative duty to cooperate, including keeping disciplinary counsel advised of current address for service of process, cooperating with disciplinary investigations, and appearing at disciplinary hearings.
This rule establishes the proper policy for the relationship of the disciplinary system to the bar. Respondents are entitled to due process in disciplinary proceedings and are protected by fifth amendment rights against self-incrimination. However, disciplinary proceedings are not criminal proceedings; respondents are not entitled to "stonewall." Although this rule is subject to all applicable constitutional, statutory, and common law privileges, a lawyer relying on any such privileges should do so openly and not use any alleged right of nondisclosure as a justification for failure to comply with this rule.
To be considered misconduct under these Rules, conduct is a ground for discipline as defined in Rule 9(A). In determining whether misconduct should be treated as "lesser" for purposes of Rule 18(H) (Hearings on Lesser Misconduct), disciplinary counsel should be guided by Rules 9 and 10.
It should be noted that Rule 9(A)(1) incorporates by reference Rule 8.1(b) of the Model Rules of Professional Conduct, which states that a lawyer must not "... knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority ...."
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