Disciplinary Enforcement Rule V: Disciplinary Proceedings

A. When misconduct or allegations of misconduct on the part of an attorney admitted to practice before this Court shall come to the attention of a Judge or officer of this Court, whether by complaint or otherwise, and the applicable procedure is not otherwise mandated by these rules, the Judge or officer shall refer the matter to the Chief Judge for initial review. If the Chief Judge determines that misconduct is alleged which, if substantiated, would warrant discipline by this Court, the Chief Judge shall refer the matter to a disciplinary panel; if not, the Chief Judge may dismiss the matter. A disciplinary panel shall consist of three judges of this Court, whether active or senior, appointed by the Chief Judge. The Chief Judge may serve as a member of the disciplinary panel. In the absence of the Chief Judge, the active judge most senior in service on the Court serves as chair. If no active judge is on the disciplinary panel, the Chief Judge shall appoint the chair. The disciplinary panel may at any time appoint counsel to investigate or to prosecute any disciplinary matter. In a matter in which the Chief Judge is recused, references to "Chief Judge" shall mean the senior active judge who is not recused.

B. If the disciplinary panel determines that cause may exist for disciplinary action, the disciplinary panel will direct the Clerk of the Court to issue an order to the attorney in question to show cause why (1) specified discipline should not be imposed or (2) discipline to be determined later should not be imposed. The order shall be served on the attorney personally or by certified or registered mail, shall notify the attorney of the alleged conduct and the reason the conduct may justify disciplinary action, and shall direct that 5 copies of a response, including any supporting evidence or request for a hearing, be filed within 30 days of service of the order or such other time as the order may specify. The Clerk shall also append a copy of these rules to the order. In any response to the order, the attorney must also (a) include an affidavit listing the other bars to which the attorney is admitted, (b) note which if any of the facts alleged are controverted, and (c) specify the basis on which any controverted facts are disputed. If the disciplinary panel determines on initial investigation and review that cause does not exist for disciplinary action, the disciplinary panel may dismiss the matter.

C. If the attorney fails to timely respond to an order to show cause, or if the attorney's timely response to the order to show cause does not specifically request to be heard in person, the disciplinary panel may direct entry of an order imposing discipline or take any other appropriate action. If the attorney specifically requests to be heard in person, either in defense or in mitigation, the disciplinary panel shall set the matter for such hearing as is appropriate under the circumstances. The disciplinary panel may itself order a hearing whether or not one is requested. Following such a hearing and the receipt of any findings or recommendation that may be required and any further submissions that the disciplinary panel may invite, the disciplinary panel may direct entry of an order imposing discipline or take any other appropriate action.

D. If a hearing is ordered, the disciplinary panel may conduct the hearing itself or designate a special master (including but not limited to a district judge or magistrate judge serving within the circuit) for purposes of conducting any hearing. The disciplinary panel (or the special master, subject to the instruction of the disciplinary panel) may in its discretion adopt appropriate procedural and evidentiary rules for any such hearing. At the conclusion of a hearing held before a special master, the special master shall promptly make a report of findings and--if directed by the disciplinary panel--recommendations to the disciplinary panel. A copy of the report and any recommendations shall be made available to the attorney under investigation. The disciplinary panel may reject or adopt the findings and/or recommendations of the special master in whole or part.

E. Any attorney may file a petition for rehearing by the disciplinary panel or a combined petition for rehearing by the disciplinary panel and suggestion for rehearing en banc by the active judges of the Court. Similarly, the attorney may seek a stay of any disciplinary order entered by the disciplinary panel, the stay to be sought from the disciplinary panel in the first instance and thereafter if desired by the attorney from the Court en banc. The procedures for any such petition will be in accordance with the Federal Rules of Appellate Procedure and the Local Rules of this Court. If en banc review is granted, any senior judge shall be eligible to be a member of the en banc Court, at that judge's election, in the circumstances specified in 28 U.S.C. § 46(c).

F. At any time, the disciplinary panel may in its discretion refer a disciplinary matter pending before it to an appropriate state bar association or state disciplinary board. In such a case, the disciplinary panel is free to dismiss the matter or hold its own proceedings in abeyance pending the completion of the state disciplinary proceedings. Nothing in these rules prevents any disciplinary panel, Judge, or officer of this Court from bringing disciplinary matters to the attention of the appropriate state disciplinary authorities.

G. The provisions of this Rule shall govern disciplinary proceedings addressed to misconduct as defined in Rule IV, and shall also apply to any proceedings under Rule I (Attorneys Convicted of Crimes), Rule II (Discipline Imposed by Other Courts), and Rule VII (Reinstatement) to the extent not inconsistent with the express provisions of those rules.