Local Rule 83.6: Attorney Discipline — D. Del.

RULE 83.6. Attorney Discipline.

(a) Attorneys Convicted of Crimes.

(1) Upon the filing of a certified copy of a judgment of conviction demonstrating that any attorney admitted to practice before the Court has been convicted of a serious crime in any Court of the United States or the District of Columbia, or of any state, territory, commonwealth or possession of the United States:

(A) The Court shall enter an order immediately suspending that attorney from the practice of law before the Court. A copy of such order shall be served upon the attorney.

(B) A certified copy of a judgment of conviction shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against the attorney based upon the conviction, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of any appeal.

(C) The term "serious crime" shall include any felony and any lesser crime, a necessary element of which involves 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 a "serious crime." The elements of the crime of conviction shall be determined by the statutory or common law definition of such in the jurisdiction where the judgment was entered.

(D) The Court shall, in addition to suspending that attorney, also refer the matter to counsel for the institution of a disciplinary proceeding before the Court. The sole issue to be determined shall be the extent of the final discipline to be imposed as a result of the conduct resulting in the conviction, provided that a disciplinary proceeding so instituted will not be brought to final hearing until all appeals from the conviction are concluded.

(2) Upon the filing of a certified copy of a judgment of conviction of an attorney for a crime not constituting a "serious crime", the Court may refer the matter to counsel for whatever action counsel may deem warranted, including the institution of a disciplinary proceeding before the Court; provided, however, that the Court may, in its discretion, make no reference with respect to convictions for minor offenses.

(3) An attorney suspended under the provisions of this Rule will be reinstated immediately upon the filing of a certificate demonstrating that the underlying conviction has been reversed. The reinstatement, however, will not terminate any disciplinary proceeding then pending against the attorney, the disposition of which shall be determined by the Court on the basis of all available evidence pertaining to both guilt and the extent of discipline to be imposed.

(b) Discipline Imposed by Other Courts.

(1) When another jurisdiction imposes discipline against an attorney admitted to practice in this Court, the same discipline is automatically effective in this Court without further action by this Court and shall remain in effect in this Court unless and until this Court issues an order that renders the discipline ineffective or imposes different discipline pursuant to these rules.

(2) Any attorney admitted to practice before this Court shall, upon being subjected to public discipline by any other Court of the United States or the District of Columbia, or by a Court of any state, territory, commonwealth or possession of the United States, promptly inform the Clerk of such action.

(3) Upon the filing of a certified or exemplified copy of a judgment or order demonstrating that any attorney admitted to practice before this Court has been disciplined by another Court or upon becoming informed of such a judgment or order, this Court shall forthwith issue a notice directed to the attorney containing:

(A) A copy of the judgment or order from the other Court; and

(B) An order to show cause directing that the attorney inform this Court within 30 days after service of that order upon the attorney, personally or by mail, of any claim by the attorney predicated upon the grounds set forth in (5) hereof that the imposition of the identical discipline by the Court would be unwarranted and the reasons therefor.

(4) In the event the discipline imposed in the other jurisdiction has been stayed, any reciprocal discipline imposed in this Court shall be deferred until such stay expires.

(5) Upon expiration of 30 days from service of the notice issued pursuant to the provisions of (3) above, this Court shall maintain the imposition of the identical discipline unless the Court finds that:

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

(B) There was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this Court could not, consistent with its duty, accept as final the conclusion on that subject; or

(D) The misconduct established is deemed by this Court to warrant substantially different discipline.

To the extent the Court finds any of the above, it shall enter such other order as it deems appropriate.

(6) In all other respects, a final adjudication in another Court that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this Court.

(7) This Court may at any stage appoint counsel to prosecute the disciplinary proceedings.

(c) Disbarment on Consent or Resignation in Other Courts. Any attorney admitted to practice before the Court who has been disbarred on consent or who has resigned for disciplinary reasons from the bar of any other Court of the United States or the District of Columbia, or from the bar of any state, territory, commonwealth or possession of the United States, shall promptly inform the Clerk of such. Upon the filing of a certified copy of the judgment or order accepting such disbarment on consent or resignation, the attorney shall cease to be permitted to practice before the Court and shall be stricken from the roll of attorneys admitted to practice before the Court.

(d) Standards for Professional Conduct. Subject to such modifications as may be required or permitted by federal statute, court rule, or decision, all attorneys admitted or authorized to practice before this Court, including attorneys admitted on motion or otherwise, shall be governed by the Model Rules of Professional Conduct of the American Bar Association ("Model Rules"), as amended from time to time.

(e) Disciplinary proceedings.

(1) Professional Misconduct Complaint. Where the Rules do not already provide a procedure, the Chief Judge of this Court shall evaluate information coming to the Court's attention, by complaint or from other sources, alleging misconduct by, or in the incapacity of, a lawyer subject to the jurisdiction of this Court (herein, the "respondent"). The Chief Judge or another Judge of the Court shall determine as a threshold matter whether the information, if true, would constitute misconduct or incapacity such as to warrant investigation. If an investigation is warranted, the Chief Judge or another Judge of the Court may appoint counsel from the Bar of this Court to conduct a confidential investigation of the matter. Complaints, and any files based on them, shall be treated as confidential unless otherwise ordered for good cause shown.

(2) Investigation and Recommendation. If the Court appoints counsel pursuant to paragraph (e)(1), such counsel shall conduct an investigation as directed by the Court. As part of the investigation, at a time deemed appropriate by counsel, counsel shall notify the respondent in writing of the substance of the matter and afford the respondent an opportunity to be heard. At the conclusion of the investigation, counsel shall prepare a confidential report and recommendation for the Court. The report and recommendation shall set forth the results of counsel's investigation and shall state whether cause exists to find that a violation of the Model Rules has occurred. If counsel recommends that cause does not exist to find a violation of the Model Rules, and the Court accepts counsel's recommendation, the complaint shall be dismissed.

(3) Show Cause Hearing. If counsel recommends that cause exists to find a violation of the Model Rules, and the Court accepts counsel's recommendation, then the Court shall issue a confidential order for the respondent to show cause within 30 days after service of that order upon respondent, personally or by mail, why the respondent should not be disciplined. For good cause shown, the time to show cause may be extended. The respondent shall be provided a copy of counsel's recommendation and may submit a written response to counsel's recommendation in advance of the show cause hearing. The show cause hearing shall be conducted by one or more Judges of the Court, as determined by the Chief Judge, and may include the Chief Judge. If the hearing results from an allegation of misconduct brought by a Judge of this Court, that Judge shall not participate in the show cause hearing. The show cause proceedings shall be confidential, unless the attorney subject to discipline requests that the proceedings be public.

(4) Sanctions. After a show cause hearing, the Court may impose such sanctions as the circumstances warrant, including private admonition, public reprimand, suspension, or disbarment.

(f) Disbarment on Consent While under Disciplinary Investigation or Prosecution.

(1) 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 consent to disbarment, but only by delivering to this Court an affidavit stating that the attorney desires to consent to disbarment and that the attorney:

(A) Is not being subjected to coercion or duress and is fully aware of the implications of so consenting, which consent is freely and voluntarily rendered;

(B) Is aware that there is a presently pending investigation or proceeding involving specifically identified allegations of the misconduct;

(C) Acknowledges that the material facts so alleged are true; and so consents because the attorney knows that, if charges were predicated upon the matters under investigation or if the proceeding were prosecuted, the attorney could not successfully maintain a defense.

(2) Upon receipt of the required affidavit, this Court shall enter an order disbarring the attorney.

(3) The order disbarring the attorney on consent shall be a matter of public record. However, the affidavit required under the provisions of this Rule shall not be publicly disclosed or made available for use in any other proceeding except upon order of this Court.

(g) Reinstatement.

(1) After Disbarment or Suspension. An attorney suspended for 3 months or less shall be automatically reinstated at the end of the period of suspension upon the filing with the Court of an affidavit of compliance with the provisions of the order. An attorney suspended for more than 3 months or disbarred may not resume practice until reinstated by order of this Court.

(2) Time of Application Following Disbarment. A person who has been disbarred after hearing or by consent may not apply for reinstatement until the expiration of at least 5 years from the effective date of the disbarment.

(3) Hearing on Application. Petitions for reinstatement by a disbarred or suspended attorney under this Rule shall be filed with the Chief Judge of this Court. Upon receipt of the petition, the Chief Judge shall promptly refer the petition to counsel and shall assign the matter for prompt hearing before 1 or more Judges of this Court provided, however, that if the disciplinary proceeding was predicated upon the complaint of a Judge of this Court, the hearing shall be conducted before a panel of three other Judges of this Court appointed by the Chief Judge or, if there are less than 3 Judges eligible to serve, or the Chief Judge was the complainant, by the Chief Judge of the Court of Appeals for this Circuit. The Judge or Judges assigned to the matter shall, within 30 days after referral, schedule a hearing at which the petitioner shall have the burden of demonstrating, by clear and convincing evidence, that petitioner has the moral qualifications, competency and learning in the law required for admission to practice law before this Court and that petitioner's 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 subversive of the public interest.

(4) Duty of Counsel. In all proceedings upon a petition for reinstatement, cross examination of the witnesses of the respondent-attorney and the submission of evidence, if any, in opposition to the petition shall be conducted by counsel.

(5) Deposit for Costs of Proceeding. Petitions for reinstatement under this Rule shall be accompanied by an advance cost deposit in an amount to be set from time to time by the Court to cover anticipated costs of the reinstatement proceeding.

(6) Conditions of Reinstatement. If the petitioner is found unfit to resume the practice of law, the petition shall be dismissed. If the petitioner is found fit to resume the practice of law, the judgment shall reinstate him or her provided that the judgment may make reinstatement conditional upon the payment of all or part of the costs of the proceedings, and upon the making of partial or complete restitution to parties harmed by the petitioner whose conduct led to the suspension or disbarment. Provided further, that if the respondent-attorney has been suspended or disbarred for 5 years or more, reinstatement may be conditioned, in the discretion of the Judge or Judges before whom the matter is heard and upon the furnishing of proof of competency and learning in the law, which proof 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 subsequent to the date of suspension or disbarment.

(h) Successive Petitions. No petition for reinstatement under this Rule shall be filed within 1 year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person.

(i) Attorneys Specially Admitted. Whenever an attorney applies to be admitted or is admitted to this Court for purposes of a particular proceeding (pro hac vice), the attorney shall be deemed thereby to have conferred disciplinary jurisdiction upon this Court for any alleged misconduct of that attorney arising in the course of or in the preparation for such proceeding.

(j) Service of Papers and Other Notices. Service of an order to show cause instituting a formal disciplinary proceeding shall be made by personal service or by registered or certified mail addressed to the respondent-attorney at the address shown on the records of this Court. Unless stated otherwise, service of any other papers or notices required by these Rules shall be deemed to have been made if such service is made by method permissible under the Rules of the Court.

(k) Appointment of Counsel. Whenever counsel is to be appointed pursuant to these Rules to investigate allegations of misconduct or prosecute disciplinary proceedings or in conjunction with a reinstatement petition filed by a disciplined attorney, this Court shall appoint as counsel one or more members of the Bar of this Court. Counsel, once appointed, may not resign unless permission to do so is given by this Court.

(l) Duties of the Clerk.

(1) Upon being informed that an attorney admitted to practice before this Court has been convicted of any crime, the Clerk shall determine whether the clerk of the court in which such conviction occurred has forwarded a certificate of such conviction to this Court. If a certificate has not been so forwarded, the Clerk shall promptly obtain a certificate and file it with this Court.

(2) Upon being informed that an attorney admitted to practice before this Court has been subjected to discipline by another court, the Clerk shall determine whether a certified or exemplified copy of the disciplinary judgment or order has been filed with this Court and, if not, the Clerk shall promptly obtain a certified or exemplified copy of the disciplinary judgment or order and file it with this Court.

(3) Whenever it appears that any attorney who has been convicted of any crime or disbarred or suspended, or censured or disbarred on consent by this Court, is admitted to practice law in any other jurisdiction or before any other Court, the Clerk shall, within 14 days of that conviction, disbarment, suspension, censure, or disbarment on consent, transmit to the disciplinary authority in such other jurisdiction, or for such other Court, a certificate of the conviction or a certified or exemplified copy of the judgment or order of disbarment, suspension, censure, or disbarment on consent, as well as the last known office and residence address of the defendant or respondent.

(4) The Clerk, likewise, shall promptly notify the National Discipline Data Bank operated by the American Bar Association of any order imposing public discipline upon any attorney admitted to practice before this Court.

(m) Jurisdiction. Nothing contained in these Rules shall be construed to deny to this Court such powers as are necessary for the Court to maintain control over proceedings conducted before it, such as proceedings for contempt under Title 18 of the United States Code or under Rule 42 of the Federal Rules of Criminal Procedure.

(n) Pre-existing Proceedings. If any formal disciplinary proceeding is pending before this Court on the effective date of these Rules, it shall be concluded under the procedure existing prior to the effective date of these Rules.

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