Local Rule Rule 83.3: Attorneys: Rules of Disciplinary Enforcement

Rule 83.3 Attorneys: Rules of Disciplinary Enforcement

(a) Standards of Professional Conduct This Court adopts as its standard for professional conduct the Maine Rules of Professional Conduct adopted by the Supreme Judicial Court of Maine, as amended from time to time by that Court.

(b) Consent to Jurisdiction Any attorney admitted, applying for admission, or who is permitted to appear and practice before this Court confers disciplinary jurisdiction on the Court for any alleged misconduct of that attorney.

(c) Attorney Duty to Inform Any attorney admitted or permitted to practice before this Court must promptly inform the Clerk in writing if the attorney:

(1) is convicted of a crime in any court;

(2) is suspended from practice, disbarred, put on probation, or subject to any other sort of disciplinary action by any authority governing the practice of law;

(3) is found to be incapacitated by any court or bar; or

(4) consents to disbarment or resigns from the bar while an investigation into allegations of misconduct or incapacity is pending.

(d) Disciplinary Proceedings

(1) Special Counsel. Except as otherwise provided in this rule, when the Court learns of allegations of misconduct or incapacity which, if substantiated, would warrant discipline or other corrective action against an attorney applying to or admitted to practice before this Court, the Chief Judge may appoint special counsel with the powers and obligations described in subsection (e) and refer the matter to the special counsel.

(2) Formal Proceedings; Initiation and Response

(A) After investigation, special counsel may initiate formal disciplinary proceedings by promptly filing a complaint with the Court.

(B) Upon the filing of a complaint, the Clerk must issue a summons and deliver the summons and a copy of the complaint to the Marshal to be served according to subsection (k).

(C) The respondent-attorney must file an answer to the complaint within 21 days of service.

(D) If the respondent-attorney's answer raises any issue of fact, or the respondent-attorney wishes to be heard in mitigation, the Court will set the matter for a prompt hearing before one or more judges. If the proceeding is based on a complaint from a judge of this Court, the complaining judge may not conduct the hearing; if no judge of this Court is eligible to serve, the hearing may be conducted by a district judge of this circuit appointed by the Chief Judge of the Court of Appeals.

Nothing in this rule prohibits the Court from taking other action it deems appropriate, including referring any matter to another judge of this Court for making determinations in accordance with these rules.

(e) Appointment of Special Counsel

(1) This Court may appoint special counsel at any stage in any proceeding under these rules. The term "special counsel" refers to any attorney appointed by the Court to perform the investigative or prosecutorial functions of this rule.

(2) Special counsel must investigate a matter referred to them and may prosecute a formal disciplinary proceeding. If special counsel concludes after investigation that a formal proceeding should not be initiated against the respondent-attorney, special counsel must file a recommended disposition and statement of reasons with the Court. The recommendation may include dismissal, stay, deferral, proceedings under the Maine Bar Rules, or other appropriate action.

(3) Special counsel, once appointed, may not resign without the Court's permission.

(4) When appointing special counsel under these rules, this Court may select any attorney or attorneys who are members of the bar of the Court.

(5) For good cause, the respondent-attorney may move to disqualify special counsel.

(f) Discipline of Attorneys Convicted of Crimes

(1) Conviction of a Serious Crime

(A) When this Court receives a copy of a judgment of conviction showing that an attorney admitted to practice before the Court has been convicted in any court of a serious crime as defined in subsection (n), the Court will enter an order immediately suspending that attorney until there is a final disposition in a disciplinary proceeding based on that conviction. The attorney will be suspended whether the conviction resulted from a plea of guilty or nolo contendere or from any verdict, and regardless of the pendency of any appeal.

(i) A copy of the order of suspension must immediately be served on the attorney as provided in subsection (k).

(ii) The Court may set aside the order of suspension for good cause, when it appears in the interest of justice to do so.

(B) Upon receiving such a record of conviction, the Court will also refer the matter to special counsel for the institution of a disciplinary proceeding before one or more judges of the Court.

(i) The sole question in that disciplinary proceeding will be what final discipline should be imposed based on the conduct that resulted in the conviction.

(ii) The disciplinary proceeding may not proceed to a final hearing until all appeals from the conviction are concluded.

(C) An attorney suspended under this subsection will be reinstated immediately after filing documentation that the underlying conviction of a serious crime has been reversed. This reinstatement will not terminate any disciplinary proceeding pending against the attorney. The Court will determine the disposition of that disciplinary proceeding based on all the available evidence relating both to culpability and to appropriate discipline.

(2) Conviction of Any Other Crime. When this Court receives a copy of a judgment of conviction showing that an attorney admitted to practice before the Court has been convicted in any court of a crime that is not a serious crime as defined in subsection (n), the Court may refer the matter to special counsel for whatever action special counsel may deem warranted. However, the Court may choose not to refer matters regarding convictions for minor offenses.

(3) Establishing Misconduct. In a disciplinary proceeding against an attorney based on a criminal conviction, a certified copy of the attorney's judgment of conviction for that crime is conclusive evidence that the attorney committed the crime.

(g) Action Taken by Other Courts or Tribunals

(1) Reciprocal Suspension for Administrative Suspension by the Maine Board of Overseers of the Bar

(A) Upon receiving notice that an attorney admitted to practice or practicing before this Court is administratively suspended by the Maine Board of Overseers of the Bar under the Maine Bar Rules, the Court will immediately administratively suspend the attorney from practice in this Court for 14 days. The Court will promptly notify the attorney that:

(i) the attorney has been administratively suspended for a period of 14 days;

(ii) the attorney must provide proof of reinstatement by the Maine Board of Overseers of the Bar, or assert an additional basis to practice in this Court as permitted by Rule 83.1(c), within those 14 days; and

(iii) if no reply is made within 14 days, the Court will suspend the attorney from practice in this Court.

(B) If the Court receives notice during the 14-day suspension period from the Maine Board of Overseers of the Bar that the attorney has been reinstated, the Court will promptly reinstate the attorney to the bar of this Court.

(2) Disbarment or Suspension

(A) After receiving a copy of a judgment or order by any court of disbarment or suspension, for reasons other than incapacity, this Court may enter an order immediately suspending that attorney from practice in this Court.

(B) After suspending an attorney under this subsection, the Court will promptly send the attorney a notice containing:

(i) a copy of the suspension order entered by this Court;

(ii) a copy of the judgment or order from the other court or tribunal; and

(iii) an order to show cause directing the attorney to inform this Court of any reason under subsection (g)(4) that the Court should not impose reciprocal discipline, within 14 days after the order is served on the attorney.

(C) If the Court does not immediately suspend the attorney under this subsection, it may issue an order directing the attorney to show cause why this Court should not impose some other specified discipline that the Court deems appropriate.

(3) Incapacity; Other Disciplinary Action. After receiving a copy of a judgment or order of any court finding incapacity or imposing discipline other than suspension or disbarment, this Court may promptly send the attorney a notice containing:

(A) a copy of the judgment or order from the other court or tribunal; and

(B) an order to show cause directing the attorney to inform this Court of any reason under subsection (g)(4) that the Court should not impose reciprocal discipline or finding of incapacity, within 14 days after the notice is served on the attorney.

(4) Reciprocal Discipline Absent Objection. After the expiration of 14 days from service of a notice under subsection (g)(2) or (g)(3), this Court may impose the reciprocal discipline or make the same finding of incapacity as the original tribunal. However, this Court may instead enter any other order it considers appropriate if the respondent-attorney demonstrates, or this Court otherwise finds that:

(A) the record in the other jurisdiction clearly shows that:

(i) the procedure so lacked notice or opportunity to be heard that it deprived the respondent-attorney of due process; or

(ii) the proof of misconduct or incapacity was so infirm that this Court cannot, consistent with its duty, accept the conclusion on that subject as final;

(B) this Court imposing the same discipline or finding would result in grave injustice; or

(C) the conduct at issue warrants substantially different action from this Court.

(5) Establishing Misconduct or Incapacity. Except as provided in subsection (g)(4), a final adjudication in another jurisdiction that an attorney is incapacitated or has committed misconduct conclusively establishes the misconduct or incapacity in any proceeding under this rule.

(6) Stay of Action. If an action imposed in another jurisdiction has been stayed or suspended, any reciprocal action taken by this Court may be deferred until that stay expires.

(h) Resignation or Disbarment on Consent in Other Courts Any attorney admitted to practice before this Court who consents to disbarment or resigns from the bar of any court while under investigation for alleged misconduct or incapacity may not practice before this Court upon such disbarment or resignation.

(i) Consent to Discipline in this Court

(1) Conditional Offer of Discipline. Any attorney admitted to practice before this Court who is the subject of an investigation or proceeding involving allegations of misconduct or incapacity may offer the Court a conditional admission to the alleged misconduct or incapacity in exchange for a stated form of discipline, such as disbarment, suspension, or surrender of the right to practice in this Court.

(2) Affidavit Required. A lawyer who wishes to offer a conditional admission to misconduct or incapacity must provide an affidavit that the attorney:

(A) desires to consent to discipline;

(B) freely and voluntarily consents, is not being subjected to coercion or duress, and is fully aware of the implications of consenting;

(C) is aware of the pending investigation or proceeding involving allegations of misconduct or incapacity, the nature of which the attorney must specifically describe;

(D) acknowledges that the material facts alleged are true or could be proven and that sufficient evidence exists to support a finding of misconduct or incapacity and the imposition of the stated discipline; and

(E) consents because the attorney knows that if formal proceedings were held the attorney could not successfully contest the allegations.

(3) Court Approval Required. After receiving the required affidavit, the Court may approve or reject the admission and stated form of discipline offered under subsection (i)(1).

(A) If the Court rejects the offer:

(i) the Court will proceed with a disciplinary hearing; and

(ii) the offered admission is withdrawn and may not be used against the respondent-attorney in subsequent hearings.

(B) If the Court approves the offer, it will enter an order disciplining the attorney.

(j) Reinstatement

(1) After Suspension, Disbarment, or Surrender

(A) An attorney suspended for six months or less will be automatically reinstated at the end of the period of suspension if:

(i) the attorney files an affidavit with the Court showing that they complied with the underlying order of suspension; and

(ii) the attorney retakes the attorney's oath.

(B) An attorney who was suspended for more than 6 months, disbarred, or who surrendered the right to practice, must move for reinstatement to practice in this Court. The attorney may not resume practice until the attorney has been reinstated by order of this Court and has retaken the attorney's oath.

(2) Time of Reinstatement Following Disbarment or Surrender. A person who was disbarred after a hearing or by consent, or who surrendered the right to practice in this Court, may not move for reinstatement until at least 5 years after the effective date of the disbarment or surrender.

(3) Motion for Reinstatement

(A) Screening and Initial Action. An attorney who has been suspended for more than 6 months, disbarred, or who surrendered the right to practice in this Court may file a motion for reinstatement with the Chief Judge of the Court. The Chief Judge will screen the motion to determine, in the Chief Judge's discretion, whether the motion warrants a hearing. The Chief Judge may order that additional information be produced in connection with the motion.

(i) If the Chief Judge determines that a hearing is not warranted, the Chief Judge may rule on the merits of the motion based on its contents and any further information that was produced.

(ii) If the Chief Judge orders a hearing, the Chief Judge will refer the motion to special counsel and assign the matter for hearing as provided in subsection (j)(3)(B) before one or more judges of this Court. If the disciplinary or other proceeding that led to the suspension, disbarment, or surrender was based on a complaint by a judge of this Court, the hearing must be conducted by one or more other district judges of this Court, or if there are none eligible to serve, by a district judge of this Circuit appointed by the Chief Judge of the Court of Appeals.

(B) Hearing

(i) After referral, the judge assigned to the matter will hold a hearing within 30 days.

(ii) At the hearing, the movant has the burden of demonstrating by clear and convincing evidence that the movant:

(a) no longer has any incapacity or now possesses the moral qualifications, competency, and learning in the law required for admission to practice law before this Court; and

(b) resuming the practice of law will not harm the integrity and standing of the bar, the administration of justice, or the public interest.

(iii) The movant has the right to be represented by counsel and to cross-examine witnesses and present evidence in support of the motion for reinstatement.

(iv) Special counsel will conduct any cross-examination of the movant's witnesses and submit evidence, if any, in opposition to the motion.

(4) Reinstatement Decision

(A) If the Court finds the movant unfit to resume the practice of law, it will deny the motion and may impose the costs of the proceedings, or a portion of them, on the movant.

(B) If the Court finds the movant fit to resume the practice of law, it will enter an order of reinstatement. That order may include whatever conditions the Court considers necessary to protect the public interest, and may condition the reinstatement on the movant:

(i) paying all or part of the costs of the proceedings; and

(ii) making partial or complete restitution to parties harmed by the movant's conduct that led to the suspension or disbarment.

(5) Successive Motions. If a motion to reinstate a person is denied, another motion to reinstate that person may not be filed for at least one year after the denial.

(k) Service

(1) Summons and Complaint; Order of Suspension. The Marshal must serve the summons and complaint that initiates a disciplinary proceeding, or an order of suspension, according to Federal Rule of Civil Procedure 4(c)(3) or, if the Marshal cannot make such service, by registered or certified mail addressed to the respondent-attorney at the attorney's last-known address.

(2) Other Papers. Any other paper or notice required by this rule may be served by addressing it to the respondent-attorney or to counsel for the respondent-attorney at their last-known address.

(3) Courtesy Copy. Regardless of mode of service, a courtesy copy of each paper or notice required to be served must also be sent to the respondent-attorney's last-known email address.

(l) Duties of the Clerk

(1) After learning that an attorney admitted to practice before this Court has been convicted of any crime, the Clerk will promptly obtain a copy of the judgment from the court in which the conviction occurred and file the judgment with this Court.

(2) After learning that an attorney admitted to practice before this Court has been disciplined or found incapacitated by any authority governing the practice of law, the Clerk will obtain a copy of the relevant judgment or order and file it with this Court.

(3) Whenever this Court disbars, suspends, censures, disbars on consent, or convicts of any crime a person who is a member of the bar of any other court, the Clerk will transmit a copy of the disciplinary judgment or order to that other court, along with the last-known office and residence addresses of the person disciplined.

(4) The Clerk will promptly notify the National Discipline Data Bank operated by the American Bar Association of any order issued by this Court imposing public discipline on an attorney admitted to practice before this Court.

(m) Applicability of Other Rules to Proceedings Under This Rule Except as otherwise provided in this rule, the Federal Rules of Civil Procedure do not apply to attorney disciplinary proceedings. In addition, the Federal Rules of Evidence, other than Rules 501 and 502, do not apply to disciplinary proceedings.

(n) Definitions As used in this rule:

(1) "any court" means any court of the United States, the District of Columbia, or of any state, territory, commonwealth, possession of the United States, or any foreign or other duly authorized tribunal.

(2) "serious crime" means the commission of, or the attempt, conspiracy, or solicitation of another to commit:

(A) any felony;

(B) any crime that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; or

(C) any crime of which a necessary element involves interference with the administration of justice, false swearing, fraud, misrepresentation, deceit, bribery, extortion, misappropriation, or theft. The necessary elements of the crime are determined by the statutory or common law definitions in the jurisdiction where the judgment was entered.

(o) Public Records Absent a Court order to the contrary, disciplinary proceedings, including disciplinary and reinstatement orders, are a matter of public record. However, the affidavit required under subsection (i)(2) may not be publicly disclosed or made available for any other proceeding without an order from this Court.

(p) Construction of this Rule This rule does not deny the Court any other powers necessary to maintain control over proceedings conducted before it.