Local Rule LCrR 57.27: GROUNDS AND PROCEDURES FOR DISCIPLINE

LCrR 57.27 GROUNDS AND PROCEDURES FOR DISCIPLINE

(a) SERVICE OF PROCESS.

Service of process under these Rules shall be made by certified mail addressed to the attorney (hereinafter attorney or respondent) at the last known address or at the last recorded address filed with the Clerk of the Court as required pursuant to LCrR 57.21(g). If service cannot be so made, service shall be sufficient when served on the Clerk of this Court and all time periods specified in these Rules shall run from the time of such service. If service is made by serving the Clerk, a courtesy copy shall be mailed to the respondent by first class mail at his/her last known address.

(b) ATTORNEYS CONVICTED OF CRIMES.

(1) FELONIES.

Upon presentation to the Disciplinary Panel of a certified copy of a court record demonstrating that an attorney subject to these Rules has been found guilty of a felony in any court, the attorney shall be immediately suspended from practicing before this Court by order of the Disciplinary Panel, whether the finding resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of an appeal. The Disciplinary Panel may defer entry of the order or set aside an order of suspension when it appears to the Panel in the interest of justice to do so.

Upon presentation of proof that the conviction is final, and regardless of the pendency of an appeal or other review of the conviction or of a Petition for Writ of Certiorari, the respondent shall be disbarred and the attorney's name shall be struck from the roll of members of the Bar of this Court by order of the Disciplinary Panel, unless within a period of 30 days from the date of the order, the respondent shows cause why disbarment would not be in the interest of justice.

(2) MISDEMEANORS.

An attorney subject to these Rules who shall be convicted in any court of a misdemeanor may be disciplined in such manner and to such extent as the Disciplinary Panel may determine and may upon petition of the Committee and for good cause shown, be temporarily suspended pending a final decision of the Disciplinary Panel.

Upon receipt of a certified copy of such judgment of conviction, the Committee shall obtain an order from the Disciplinary Panel requiring the respondent to show cause within 30 days after service in accordance with LCrR 57.27(a) why the attorney should not be disciplined. If the respondent files a timely Answer, the Committee shall have 30 days within which to file a response thereto if it so desires. The Committee shall serve a copy of its response, if any, upon the respondent or respondent's counsel of record by first class mail, or failing that, in accordance with LCrR 57.27(a).

Upon the filing of the respondent's Answer to the Order to Show Cause and any response thereto by the Committee, or if no answer has been filed, upon the filing of a recommendation by the Committee, the matter shall be promptly submitted to the Disciplinary Panel for its consideration. The Disciplinary Panel may, in its discretion, schedule a hearing. If a hearing is scheduled, the Chair or designated member(s) of the Committee shall appear at the hearing and offer proof or arguments pertinent to the issues. After the hearing or, if no hearing is scheduled, upon a review of the papers submitted, the Disciplinary Panel shall take such action as these Rules and justice may require. In all proceedings hereunder the certified copy of judgment of conviction shall constitute conclusive proof of the respondent's guilt of the conduct for which the respondent was convicted. The pendency of an appeal or other review of the conviction or of a petition for writ of certiorari will not constitute a ground for failing to proceed in accordance with this Rule absent extraordinary circumstances and for good cause shown.

(3) REINSTATEMENT FOLLOWING SUSPENSION.

An attorney suspended under LCrR 57.27(b)(1) or (2) will be reinstated immediately upon the filing of a certificate demonstrating that the conviction has been reversed, vacated, or set aside, but the reinstatement will not terminate any formal disciplinary proceeding then pending against the attorney, the disposition of which shall be determined by the Committee on the basis of the available evidence.

(c) DISCIPLINE IMPOSED BY OTHER COURTS.

(1) POLICY OF RECIPROCAL DISCIPLINE.

An attorney subject to these Rules who has been suspended for more than 30 days or disbarred by another court shall be automatically suspended from practice in this Court. The suspension shall be effective upon service of Temporary Suspension and Show Cause Order in accordance with these Rules. An attorney who has been suspended for 30 days or less by another court shall have the fact of that discipline noted by the Clerk on the Lawyers' Register maintained by this Court, and no further proceedings shall be had thereon, unless the Committee on Grievances shall determine that the facts underlying the discipline warrant a proceeding for the imposition of discipline by this Court. Notations on the Lawyers' Register do not constitute discipline imposed by the Court and they shall be available only to the Court and to the Committee and shall not be matters of public record.

(2) ISSUANCE OF TEMPORARY SUSPENSION AND SHOW CAUSE ORDER.

Upon receipt of a certified or exemplified copy of a judgment or order from another court suspending or disbarring an attorney subject to these Rules, the Disciplinary Panel of this Court shall issue a Temporary Suspension and Show Cause Order suspending the attorney from practice before this Court pending a final disposition under these Rules, except where it finds extraordinary circumstances. Respondent may answer and show cause within 30 days after service of the Order why the imposition of the identical discipline by the Court would be unwarranted and the reasons thereof.

(3) DUTIES OF THE CLERK.

The Clerk to the Committee thereupon shall cause to be served on the attorney the following documents: a copy of the judgment or order of discipline imposed by the other court; a certified copy of this Court's Temporary Suspension and Show Cause Order; and a copy of LCrR 57.27.

(4) PROCEDURES WHEN RESPONDENT FAILS TO ANSWER.

If respondent fails to answer to show cause within 30 days from service of the Temporary Suspension and Show Cause Order, this Court shall issue an Order vacating the Temporary Suspension and Show Cause Order and imposing the identical discipline or such other discipline it deems appropriate, unless it finds that upon the face of the record on which the discipline by the other court is predicated it clearly appears:

(i) that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(ii) that proof establishing the misconduct gives rise to a reasonable doubt that this Court could not, consistent with its duty, accept as final the conclusion of the disciplining court; or

(iii) that the imposition of the same discipline by this Court would result in grave injustice; or

(iv) that the misconduct established is deemed by this Court to warrant substantially different discipline; or

(v) that the misconduct on which the discipline was imposed by the other court does not constitute misconduct in the District of Columbia.

Where this Court determines that any of these elements exist, it shall enter such other order as it deems appropriate.

(5) PROCEDURES WHEN RESPONDENT ANSWERS.

If the respondent files a timely Answer, the Committee shall have 30 days within which to file a response and make a recommendation to the Court. Upon consideration of the papers submitted by the respondent and by the Committee, the Court shall either (1) enter an Order vacating the Temporary Suspension and Show Cause Order and imposing the identical discipline or such other discipline it might find appropriate, or (2) if the Court finds that, upon the face of the record on which the discipline in another jurisdiction is predicated it clearly appears that one or more of the factors listed in subparagraphs (4)(i)-(v) exists, it shall enter such other order as it deems appropriate.

(6) CENSURE OR REPRIMAND.

Where discipline imposed by the other court is a public censure or reprimand, the Clerk shall note the fact of that discipline on the Lawyers' Register maintained by this Court, and no further proceedings shall be had thereon. Notations on the Lawyers' Register do not constitute discipline imposed by this Court and they shall be available only to the Court and to the Committee and shall not be matters of public record.

(7) STAYS.

If the discipline imposed by another court has been stayed, any reciprocal discipline proceeding in this Court may, upon motion of the respondent, be deferred by order of this Court until the stay expires and until further order of this Court. In the absence of a stay of discipline imposed by such other court, neither a motion for reconsideration or motion for rehearing or rehearing en banc filed in the other court or petition for a writ of certiorari will be the basis for a deferral of the proceedings in this Court absent good cause shown.

(d) COMPLAINTS OF MISCONDUCT FILED IN THIS COURT.

(1) COMPLAINTS GENERALLY Any person seeking to charge an attorney subject to the Rules with any act or omission which may justify disbarment, suspension, censure, reprimand or other discipline shall do so by a clear and concise written statement of facts in support of the allegations, subscribed and under oath or affirmed under the penalty of perjury pursuant to the United States Code, Title 28, Section 1746. The Complaint shall be presented to the Committee by lodging it with the Clerk to the Committee. The Committee shall have the inherent power without any formal Complaint to inquire into misconduct of attorneys subject to these Rules.

COMMENT TO LCrR 57.27(d)(1): This rule was modified to require that written complaints of misconduct contain a clear and concise statement of facts supporting the allegations made against attorneys.

(2) COMPLAINTS BY A COURT OR A JUDGE.

Any court, judge or United States magistrate judge in the District of Columbia may refer to the Committee the name of any attorney subject to these Rules on a Complaint that such attorney has engaged in conduct, which, if substantiated, would warrant the imposition of discipline.

(3) INVESTIGATION.

Complaints received by the Committee shall be reviewed to determine if the Complaint is appropriate for action. If the Complaint is insufficient on its face to warrant investigation, the Committee may discharge the complaint and advise the complainant that no action will be taken. If the Committee decides that the Complaint or information otherwise received by the Committee requires action, the Committee is authorized to (1) investigate the matter itself; (2) refer the matter to the Office of Bar Counsel, the Board on Professional Responsibility, District of Columbia Court of Appeals; (3) informally seek information from the respondent; or (4) require a formal Answer from the respondent in accordance with subsection (d)(4). To further any investigation, the Chair, or in his absence, the Vice Chair is authorized to issue subpoenas commanding the production of books, papers, documents, records or tangible items. If following any of these actions the Committee decides no further action is warranted, the Committee may, if its investigation was based on receipt of a complaint, discharge the Complaint and so inform the complainant and the respondent. If the Committee's investigation was based on information otherwise received and the respondent was made aware by the Committee of its investigation, the Committee shall notify the respondent that it has decided that no further action is warranted. The Committee may, as part of its notice to the respondent discharging the Complaint, provide an informal, non-reportable cautionary or educational statement, which shall not be considered discipline.

(4) SERVICE OF COMPLAINT; ANSWER.

If the Committee determines that a formal Answer is required from the respondent, a copy of the Complaint as received by the Committee or as prepared by it based on information otherwise received shall be served upon the respondent and he/she shall be required to answer within 30 days after the date of service. An Answer to a Complaint shall be in writing, subscribed and under oath or affirmed under the penalty of perjury in a form prescribed by the provisions of the United States Code, Title 28, Section 1746 and shall be accompanied by a list of all courts before which the respondent is admitted to practice. Upon receipt of the Answer, the Clerk to the Committee shall mail a copy thereof to the complainant, if there is one, who may reply to the Answer within 14 days of the date of the transmittal letter from the Clerk of the Committee. A copy of any reply to the Answer to the Complaint shall be served upon the respondent. If a respondent is served with a copy of a Complaint by the Committee and fails to answer within the time allowed by these Rules, the matter shall be certified to the Disciplinary Panel for its appropriate action.

(5) SUBCOMMITTEE OF INQUIRY.

The Chair may designate three members of the Committee to sit as a Subcommittee of Inquiry and shall designate one as Chair of the Subcommittee. The Chair of the Subcommittee of Inquiry is hereby designated and appointed a Master with authority to cause subpoenas to be issued commanding the attendance of witnesses and/or parties at any hearings, as well as commanding the production of books, papers, documents, records or tangible things designated therein at such hearing. The Chair of the Subcommittee as such Master is further authorized to administer oaths to the parties and witnesses. Should any witness and/or party fail or refuse to attend or to testify under oath, the witness' or party's name may be certified to the Disciplinary Panel of the Court, whereupon the Disciplinary Panel may refer the matter to the United States Attorney or to the U.S. Department of Justice to bring formal criminal contempt charges against such witness and/or party for so refusing. If the witness or party is found guilty of contempt, the Court shall administer such punishment as may be appropriate.

(6) RIGHT TO COUNSEL IN DISCIPLINARY PROCEEDINGS.

The respondent shall be entitled to be represented by counsel who may appear in the respondent's behalf at any time during the investigation or after a Complaint has been served upon respondent.

(7) SUBMISSION OF CHARGES.

If following investigation the Subcommittee of Inquiry recommends, and a majority of the committee concurs, the Committee shall prepare charges and submit them to the Disciplinary Panel of the Court or, in its discretion with or without preparing charges refer the matter to the Office of Bar Counsel, the Board on Professional Responsibility, District of Columbia Court of Appeals with a request that that Office take whatever action it deems appropriate. If submitted to the Disciplinary Panel and the Panel orders the charges to be filed, the Clerk shall file them and issue a summons directed to the respondent, commanding respondent to answer. The summons and a copy of the charges shall be served in accordance with these Rules. The respondent shall answer the charges within 30 days after the effective date of service and shall file with the Answer a list of all courts before which the attorney is admitted to practice. If no Answer is received within 30 days or such additional time as the Disciplinary Panel may allow, the charges may be taken as admitted and the Disciplinary Panel may reprimand, censure, suspend, disbar or otherwise discipline the respondent by entering an appropriate order.

(8) HEARINGS AND ORDERS OF THE DISCIPLINARY PANEL OF THE COURT.

When the respondent has filed an Answer, the case shall be set down for hearing before the Disciplinary Panel and a member of the Committee designated by the Chair shall appear at the hearing to offer proof or arguments pertinent to the issues. If the charges are sustained by clear and convincing evidence, the Disciplinary Panel may reprimand, censure, suspend, disbar or otherwise discipline the respondent by entering an appropriate order. Any knowing violation of the order of judgment shall be deemed a contempt of court.

(e) DISBARMENT ON CONSENT.

(1) BY THIS COURT.

Any attorney admitted to practice before this Court who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may not resign from this Bar, but may consent to disbarment. The attorney must deliver to this Court an affidavit stating that the attorney desires to consent to disbarment and that:

(i) the attorney's consent is freely and voluntarily given; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of so consenting; and

(ii) the attorney is aware that there is presently pending an investigation or proceeding involving allegations that there exist grounds for the attorney's discipline the nature of which the attorney shall specifically set forth.

Upon receipt of the required affidavit, the Disciplinary Panel shall enter an order disbarring the attorney. The order disbarring the attorney on consent shall be a matter of public record, but the affidavit shall be sealed and not be publicly disclosed or made available for use in any other proceeding except upon order of this Court.

(2) BY OTHER COURTS.

Any attorney admitted to practice before this Court who shall be disbarred on consent or who shall resign from the Bar of any court of the United States or from the bar of any State, Territory, District, Commonwealth or Possession of the United States while an investigation into allegations of misconduct is pending, shall so advise this Court and submit a certified or exemplified copy of the judgment or order accepting such disbarment on consent or resignation. If no such order or judgment is submitted, the Clerk shall obtain it from the other court. The Disciplinary Panel thereupon shall enter an order disbarring the attorney and directing that the attorney's name be stricken from the roll of attorneys admitted to practice before this Court unless the attorney shows why it would not be in the interest of justice to do so. A certified or exemplified copy of the judgment or order accepting such disbarment on consent or resignation is conclusive proof of such disbarment on consent or resignation.

COMMENT TO LCrR 57.27: LCrR 57.27 outlines the grounds and procedures for discipline of: attorneys convicted of crimes; attorneys disciplined by other courts; attorneys who are the subject of complaint of misconduct filed in this Court; and attorneys disbarred on consent.

Section (a) governs service of process in disciplinary proceedings. It makes clear that the primary method of service is by mail and the alternative method is by service on the Clerk of the Court.

Section (b) provides for immediate suspension upon proof of a felony conviction. The Disciplinary Panel may defer or set aside entry of the order in the interest of justice. This provision is to be invoked only in extraordinary circumstances. The Rule further provides for disbarment upon final conviction, regardless of the pendency of an appeal or other review, unless respondent shows cause within 30 days why disbarment would not be in the interest of justice.

With respect to misdemeanors, the Rule essentially maintains the show cause procedures in effect under former Rule 4-3(i)(b). With respect to both felonies and misdemeanors, the Rule makes clear that the pendency of an appeal or other review of conviction or of a petition for writ of certiorari does not affect the imposition of discipline. This provision was added to solve the recurring problem of a year or more delay attendant on petitions for certiorari, during which time the attorney might be permitted to practice before this Court.

Subsection (b)(3) has been added to provide for reinstatement after suspension upon proof that the underlying conviction has been reversed, vacated or set aside.

Section (c) governs discipline imposed by other courts and is a significant change from former Rule 4-3(II). The Rule provides that an attorney subject to these Rules who is suspended or disbarred by another court shall be suspended from practice in this court during the pendency of disciplinary proceedings. The procedures adopted are consistent with the practice in the United States Supreme Court, many United States Court of Appeals and a number of other district courts. By providing the attorney an opportunity to show cause why reciprocal discipline should not be imposed, the Rule satisfies the due process requirements of the relevant Supreme Court cases. See, e.g. In Re Ruffalo, 390 U.S. 544 (1968); Theard v. United States, 354 U.S. 278(1957); Selling v. Radford, 243 U.S. 46 (1917). The Rule corrects the inadequacies of the former show cause procedures that permitted a respondent to continue to practice during the pendency of disciplinary proceedings. The revised procedure, requiring immediate temporary suspension followed by a Show Cause Order, shifts the burden of going forward to the respondent to show cause why identical reciprocal discipline should not be imposed.

The provision for suspension eliminates the procedure of noting short-term suspensions imposed by other courts on this Court's records, rather than imposing reciprocal discipline (former Rule 4-3(i)(e)). Those procedures were unworkable and caused inequities. Under the procedures, censures and reprimands will be noted, but reciprocal discipline proceeding will be followed in the case of all suspension or disbarments.

Subsection (c)(7) makes clear that if discipline imposed by another court has been stayed, reciprocal discipline in this Court may be deferred. However, in the absence of a stay, neither a motion for reconsideration nor a motion for rehearing or rehearing en banc nor a petition for writ of certiorari serves to defer disciplinary proceedings in this Court absent good cause shown.

Section (d) sets forth in one section all the procedures relating to Complaints filed in this Court. Subsection (d)(1) specifies that the Committee has the inherent power to inquire into misconduct of attorneys subject to these Rules, without formal Complaint. Subsection (d)(3) was amended to clarify that the Committee on Grievances may include an informal, non-reportable cautionary or educational statement as part of a notice discharging a Complaint without further actions.

Subsection (d)(7) provides that if a respondent fails to respond after a formal complaint is filed, the Disciplinary Panel has the power to take the allegations as admitted and impose appropriate discipline. Subsection (d)(8) sets forth the clear and convincing standard of proof for the imposition of discipline.

Section (e) governs disbarment on consent. It makes clear that there can be disbarment on consent in this Court or reciprocal disbarment for disbarment on consent by another court. It changes the former Rule by providing that an attorney under investigation or subject to pending proceedings involving allegations of misconduct may not resign from the Bar of this Court, but may only consent to disbarment.

Revised subsection (e)(1) governing disbarment on consent by this Court makes two substantive changes. First it permits the attorney affidavit, which is the predicate for disbarment on consent, to be filed under seal. Second, it eliminates the former requirement that an affidavit filed by an attorney seeking disbarment on consent contain an acknowledgment that the material facts alleged are true. This revision was adopted because it was felt that it was in the public interest to encourage consent disbarments.

With respect to disbarment on consent or resignation in other courts, subsection (e)(2) is changed only to the extent of providing the attorney an opportunity to show cause why such disbarment would not be in the interest of justice.

COMMENT TO LCrR 57.27(c)(1): Typically, an order of suspension entered by the District of Columbia Court of Appeals by its terms is effective 30 days from the date of its entry. The Disciplinary Panel of this Court signs its Temporary Suspension and Show Cause Order after the effective date of suspension order in the other court.

Since a respondent has 30 days within which to answer an order to show cause in this Court, a short-term suspension by another court has often expired and a respondent automatically reinstated in the other court before the time an answer is due in this Court. Thus, no useful purpose is served by initiating reciprocal disciplinary proceedings in cases involving suspensions of 30 days or less.