Addendum III: Plan for Attorney Disciplinary Enforcement

Section 1. Definitions.

1.1 “The Court” means the United States Court of Appeals for the Tenth Circuit.

1.2 “Another Court” means any court of the United States, the District of Columbia, or any state, territory, or commonwealth of the United States.

1.3 “Serious Crime” means any felony or any lesser crime involving false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit such a lesser crime.

1.4 “Disciplinary Panel” means a panel of judges specially constituted to consider an attorney disciplinary matter.

1.5 “Attorney” means any attorney admitted to practice or who has appeared before this court.

Section 2. Grounds for Discipline.

An attorney may be disciplined by this court as a result of:

2.1 conviction in another court of a Serious Crime;

2.2 disbarment or suspension or reprimand by another court, with or without the attorney’s consent, or the resignation from the bar of another court while an investigation into allegations of misconduct is pending;

2.3 any act or omission which violates the federal laws or federal statutes or Federal Rules of Appellate Procedure, the rules of this court, orders or other instructions of this court, or the Code of Professional Responsibility adopted by the highest court of any state to which the attorney is admitted to practice.

Section 3. Disciplinary Sanctions.

3.1 Discipline may consist of (a) disbarment, (b) suspension from practice before the court for a definite or indefinite period, (c) reprimand, (d) monetary sanction, (e) removal from the roster of attorneys eligible for appointment as court-appointed counsel, or (f) any other sanction that the court may deem appropriate.

3.2 The identical discipline imposed by another court may be appropriate for discipline imposed as a result of that other court’s suspension or disbarment or reprimand of an attorney. However, any discipline imposed by another court will not limit the range of disciplinary sanctions available to the Disciplinary Panel or a panel of the court of appeals.

3.3 A monetary sanction imposed on disciplinary grounds is the personal responsibility of the attorney disciplined, and may not be reimbursed by a client directly or indirectly. Notice to that effect is to be sent to the client by the Clerk whenever a monetary sanction is imposed.

3.4 Proceedings for the award of damages, costs, expenses, or attorney’s fees under 28 U.S.C. § 1927, Fed. R. App. P. 38, or 10th Cir. R. 46.5(C)(4) are not covered by this Plan.

Section 4. Discipline Imposed by a Panel of the Court or by a Disciplinary Panel.

4.1 A panel of the court may impose in a case pending before it any sanction other than suspension or disbarment in accordance with Section 4.2.

4.2 Before imposing a sanction, a panel of the court will notify the attorney of the alleged conduct which may justify sanction and afford the attorney an opportunity to be heard, in writing or in person at the option of the panel.

4.3 Any matter of attorney discipline in which suspension or disbarment may be considered an appropriate sanction will be referred to a Disciplinary Panel or, in the case of an uncontested matter, to the Chief Judge or Chief Judge’s designee. The Disciplinary Panel consists of three circuit judges appointed by the Chief Judge. The judge most senior in service on the court will be designated and serve as chair. If any member of the Disciplinary Panel is unable to hear a particular matter, the Chief Judge will designate another active circuit judge as a member of the panel to hear that matter.

4.4 The Disciplinary Panel may at any time appoint counsel to investigate or to prosecute a disciplinary matter. Generally, the court will appoint as disciplinary counsel the disciplinary agency of the highest court of the state in which the attorney maintains his or her principal office. If no such disciplinary agency exists or such disciplinary agency declines appointment or such appointment is clearly inappropriate, this court will appoint as disciplinary counsel one or more members of the bar of this court to investigate allegations of misconduct or to prosecute disciplinary proceedings.

4.5 The Disciplinary Panel may designate a special master for purposes of conducting an evidentiary hearing. The special master may establish whatever procedural and evidentiary rules are appropriate. At the conclusion of the evidentiary hearing, the special master must promptly make a report of findings to the Disciplinary Panel.

Section 5. Duties of Clerk.

5.1 Upon being informed that an attorney admitted to practice before this court has been either convicted of any Serious Crime or subjected to discipline by another court, the Clerk will determine whether a copy of the judgment of conviction or disciplinary judgment or order has been forwarded to this court. If not, the Clerk will promptly obtain a copy of the judgment of conviction or disciplinary judgment or order and file it with this court.

5.2 Whenever any person is disbarred, suspended, or reprimanded, on consent or otherwise, or otherwise disciplined by this court and is shown on the records of the court to be admitted to practice in any other jurisdiction or before any other court, the Clerk will, within ten days of that disbarment, suspension, reprimand, or imposition of discipline, transmit to the disciplinary authorities in such other jurisdiction or for such other court, a certified copy of the judgment or order of disbarment, suspension, censure, reprimand or discipline, as well as the last known office address of the attorney.

5.3 The Clerk shall refer to the Disciplinary Panel or the Chief Judge or the Chief Judge’s designee all information received concerning disbarments, suspensions, resignations during the pendency of misconduct investigations, and other conduct sufficient to cast doubt upon the continuing qualification of a member of the bar to practice before it.

Section 6. Initiation of Disciplinary Proceedings.

6.1 Upon the receipt of a copy of a judgment, order, or other court document demonstrating that an attorney has been convicted of a Serious Crime, has been either suspended or disbarred or reprimanded by another court, or has resigned from the bar of another court during the pendency of a misconduct investigation, the Clerk shall issue an order directing the attorney to show cause why the court should not impose upon the attorney the discipline described in Section 3. With the order to show cause, the Clerk also may send a copy of the judgment of conviction or disciplinary judgment, order, or other court document indicating the form of disciplinary action.

6.2 When misconduct or allegations of misconduct concerning the appellate process which, if substantiated, would warrant discipline on the part of an attorney comes to the attention of the Clerk or a judge, whether by complaint, grievance, or otherwise, the Clerk shall issue an order to show cause why discipline should not be imposed by this court. The order will set forth the alleged conduct which is the subject of the proceeding and the reason the conduct may justify such discipline. If the Disciplinary Panel determines that cause does not exist for disciplinary action, the proceeding will be dismissed with appropriate notice.

6.3 All orders to show cause under this section will require the attorney to respond within twenty (20) days. In the response to the order to show cause, the attorney must include a declaration of the other bars to which the attorney is admitted.

Section 7. Uncontested Proceedings.

7.1 If an attorney acquiesces to the imposition of discipline by failing to timely respond to an order to show cause, the Clerk will issue an order imposing discipline as indicated in the order to show cause.

7.2 Any attorney who is the subject of an investigation by this court into allegations of misconduct may consent to disbarment by filing with the Clerk’s Office an affidavit stating that the attorney desires to consent to disbarment.

Section 8. Contested Proceedings.

All contested matters, except those before a panel under Section 4.1, will be referred to a Disciplinary Panel.

8.1 If an attorney’s response to an order to show cause specifically requests to be heard in person in defense or in mitigation, the Disciplinary Panel may set the matter for a hearing before a special master. If an evidentiary hearing is held before the special master, findings of fact must be promptly prepared and forwarded to the Disciplinary Panel and the attorney. Exceptions to the special master’s findings may be filed within ten (10) days of the date the findings are transmitted by the special master to the Disciplinary Panel. After the Disciplinary Panel has resolved any timely exceptions, it may then make a decision.

8.2 If an attorney’s response to an order to show cause does not specifically request to be heard in person, the Disciplinary Panel may then direct entry of an order imposing discipline or take other appropriate action.

8.3 A certified copy of a judgment of conviction for any crime will be prima facie evidence of the commission of that crime in any disciplinary proceeding instituted against an attorney based upon the conviction. If the conviction is subsequently reversed or vacated, any discipline imposed on the basis thereof will be promptly reviewed by the Disciplinary Panel, the Chief Judge or the Chief Judge’s designee upon submission of a certified copy of the relevant mandate.

8.4 A certified copy of a disciplinary judgment or order demonstrating that a member of the bar has been disbarred or suspended or reprimanded by another court will be prima facie evidence that the conduct for which the discipline was imposed in fact occurred.

8.5 An attorney to whom an order to show cause is issued pursuant to Section 6 may be represented by counsel at all hearings.

8.6 The Disciplinary Panel may compel by subpoena the attendance of witnesses, including the attorney whose conduct is the subject of the proceeding, and the production of pertinent documents. If a hearing is held, the Disciplinary Panel may compel by subpoena the attendance of any witness and the production of any document reasonably designated by the disciplinary counsel and the attorney as relevant for adequate prosecution or defense or mitigation.

8.7 If disciplinary action is imposed by this court on an attorney who has entered an appearance in a representational capacity in any type of proceeding in this court, the Disciplinary Panel may require the attorney to:

(a) promptly notify all clients who are represented by the attorney in this court of the nature of the disciplinary action imposed; and

(b) furnish sufficient evidence of compliance with (a).

Section 9. Suspension During Pendency of a Disciplinary Proceeding.

9.1 Upon a sufficient showing that an attorney has been convicted of a Serious Crime, disbarred, suspended or reprimanded, the Disciplinary Panel may summarily suspend the attorney’s privilege to practice before this court pending the determination of appropriate discipline.

9.2 The court or the Disciplinary Panel, after notice and an opportunity to be heard, may suspend an attorney’s privilege to practice before this court during the course of any disciplinary investigation and proceeding.

Section 10. Reinstatement.

10.1 An attorney suspended for six months or less is automatically reinstated at the end of the period of suspension upon the filing of an affidavit of compliance with the provisions of the disciplinary order. An attorney suspended for more than six months or disbarred may not resume practice until reinstated by order of the court.

10.2 An attorney who has been disbarred may not apply for reinstatement until the expiration of five years from the effective date of the disbarment.

10.3 No petition for reinstatement may be filed within one year following an adverse determination on the attorney’s petition for reinstatement.

10.4 Any attorney who has been disbarred by a district court must provide proof of reinstatement to that court or demonstrate the futility of making an application to the district court.

10.5 The Clerk refers petitions for reinstatement to the Disciplinary Panel. If the Disciplinary Panel is satisfied that reinstatement is appropriate based upon the findings of another court or otherwise, it will grant the petition. If the Disciplinary Panel is not so satisfied, the Disciplinary Panel may schedule a hearing by a special master on the petition. At the hearing, the petitioner has the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency, and learning in the law required for admission to practice before this court and that his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice, or contrary to the public interest. The special master must submit a report and recommendation to the Disciplinary Panel who will act upon the petition.

10.6 Reinstatement may be on such terms and conditions as the Disciplinary Panel directs. If the attorney has been disbarred or suspended for five years or more, this may include certification by the bar examiners of a state or other jurisdiction of the attorney’s successful completion of an examination for admission to practice.

10.7 A condition precedent to reinstatement under this rule is payment of the prevailing attorney admission fee. That requirement is in addition to any other terms and conditions imposed by the Disciplinary Panel.

Section 11. Service of Papers and Other Notices.

11.1 Service of an order to show cause instituting formal disciplinary proceedings will be made by personal service or by certified mail addressed to the attorney at the last known office address as shown on the records or in the most recent pleading or other document filed by the attorney in the course of any proceeding before this court. Service also will be deemed complete if the notice is addressed to counsel for the attorney.

Section 12. Payment of Fees and Costs.

12.1 At the conclusion of any disciplinary investigation or prosecution, if any, under these rules, disciplinary counsel may make application to this court for an order awarding reasonable attorney’s fees and reimbursing costs expended in the course of such disciplinary investigation or prosecution. The court may require the attorney to pay such reasonable attorney’s fees and costs.

Section 13. Access to Disciplinary Information.

13.1 Subject to 13.3 of this plan, orders to show cause why discipline should not be imposed, orders imposing discipline, records created by the Disciplinary Panel, are public records and are accessible to the public in the same manner as other records of the court.

13.2 Subject to 13.3 of this plan, hearings before the special master are open to the public.

13.3 The court or the Disciplinary Panel may, upon application and for good cause, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement the order.