Local Rule Rule 705: Disciplinary Proceedings

RULE 705. DISCIPLINARY PROCEEDINGS

1. Attorney Misconduct

a) Allegations of Misconduct

If allegations of misconduct which, if substantiated, would warrant discipline of an attorney, come to the attention of a judge of this Court, the judge may refer the matter to the Court's Disciplinary and Admissions Committee. Upon referral, the Disciplinary and Admissions Committee may either (1) conduct its own investigation or (2) it may decline to take action and instead refer the matter to either the Maryland Attorney Grievance Commission, or the state bar authority serving as the basis for the attorney-respondent's membership in this Court's Bar. If after its initial review, the Disciplinary and Admissions Committee finds that further investigation is necessary, it may recommend to the Court the appointment of an attorney-investigator as provided for in L.R. 705.1.b. If the Disciplinary and Admissions Committee finds no reasonable basis for additional investigation, it may recommend to the Court either (1) the initiation of formal proceedings under L.R. 705.1.c or (2) the imposition of a warning, conditional diversion agreement, or additional conditions as permitted by L.R. 705.1.h. If the Disciplinary and Admissions Committee finds no basis for discipline, it may dismiss the matter and advise the attorney-respondent by letter.

b) Appointment of Attorney-Investigator

The Court, upon the recommendation of the Disciplinary and Admissions Committee, may appoint one or more members of the Bar of the Court as attorney-investigators to conduct the investigation. Notice of any such appointment shall be given to the attorney-respondent, and the attorney-respondent may move to disqualify any appointed attorney-investigator within fourteen (14) days of mailing the notice of appointment to the attorney-respondent's address on file with the Clerk's Office. After the conclusion of the investigation, the attorney-investigator(s) shall submit to the Disciplinary and Admissions Committee a report and recommendation that a formal proceeding be held or that the matter be disposed of by dismissal, warning, deferral, or otherwise. Upon review of the attorney-investigator's report and recommendation, the Disciplinary and Admissions Committee shall recommend to the Court whether to (1) initiate formal proceedings under L.R. 705.1.c; (2) impose a warning, conditional diversion agreement, or additional conditions as permitted by L.R. 705.1.h.; or (3) dismiss the matter and advise the attorney-respondent and attorney-investigator by letter.

c) Initiation of Formal Proceedings

If formal disciplinary proceedings are to be initiated, the Court shall issue an order requiring the attorney-respondent to show cause within thirty (30) days after service of the order why the attorney-respondent should not be disciplined. A copy of the attorney-investigator's report and recommendation shall accompany the show cause order. A copy of any exhibits to the report and recommendation shall be made available to the attorney-respondent upon request.

d) Disciplinary Hearing

If the attorney-respondent's answer to the show cause order raises any issue of material fact to which the attorney-respondent wishes to be heard or if the attorney-respondent wishes to be heard in mitigation, a disciplinary hearing shall be held and, insofar as possible and necessary, the attorney-investigator may be assigned to prosecute the case. If no attorney-investigator has been previously appointed in this matter, and an attorney-investigator is necessary in this case, the Court will appoint an attorney-investigator as provided by L.R. 705.1.b.

e) Recommendation and Final Action

i) Following the disciplinary hearing, the presiding judge or panel of judges shall prepare a report and recommendation of appropriate remedy and/or sanction as provided in L.R. 705.1.h for consideration by the Disciplinary and Admissions Committee. The Disciplinary and Admissions Committee shall then recommend final action on the disciplinary matter for consideration by the Court. The Court will determine final action in the matter, and the Chief Judge will issue an appropriate order on behalf of the Court.

ii) If no hearing is held, the Disciplinary and Admissions Committee shall recommend an appropriate remedy and/or sanction to the Court, as provided in L.R. 705.1.h. The Court will review the Committee's recommendation and determine final action in the matter. The Chief Judge will then issue an appropriate order on behalf of the Court.

f) Confidentiality

Proceedings under L.R. 705.1 shall be confidential unless otherwise ordered in a final order in a disciplinary proceeding, except that any opinion and order entered by the Court disbarring, suspending, or publicly reprimanding an attorney-respondent shall be placed on the public record, along with any panel's report and recommendation and exhibits, but only if said exhibits are expressly incorporated into the final order. An attorney-investigator's report and supporting materials shall not be publicly disclosed without prior approval by the Disciplinary and Admissions Committee.

g) Disbarment by Consent While Under Disciplinary Investigation or Prosecution

i) An attorney-respondent may consent to disbarment while a disciplinary investigation or proceeding is pending against that attorney by delivering to the Clerk an affidavit stating that the attorney-respondent desires to consent to disbarment and that: (1) the attorney-respondent's consent is freely and voluntarily rendered; (2) the attorney-respondent is not being subjected to coercion or duress; (3) the attorney-respondent is fully aware of the implications of so consenting; (4) the attorney-respondent is aware that there is presently pending an investigation or proceeding involving allegations that there exists grounds for the attorney-respondent's discipline, the nature of which the attorney-respondent shall specifically set forth; (5) the attorney-respondent acknowledges that the material facts so alleged are true, unless such acknowledgment would involve the admission of a crime; and (6) the attorney-respondent so consents because the attorney-respondent knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, the attorney-respondent could not provide a sufficient defense.

ii) Upon receipt of the required affidavit, the Clerk shall promptly refer the affidavit to the Disciplinary and Admissions Committee to review the petition and to determine if a hearing is necessary. If the Disciplinary and Admissions Committee finds good cause that disbarment by consent is appropriate without a hearing, the Court shall enter an order disbarring the attorney-respondent.

iii) The order disbarring the attorney-respondent by consent, and the required affidavit, shall be a matter of public record.

h) Available Sanctions and Remedies for Misconduct

i) Regardless of an attorney-respondent's consent to the sanction, the Court may impose upon the attorney-respondent the following sanctions: disbarment, suspension, or public or private reprimand for professional conduct.

ii) At any point in a disciplinary proceeding, the Court may, upon recommendation of the Disciplinary and Admissions Committee, choose to terminate the disciplinary proceeding and either issue a warning or authorize entering into a conditional diversion agreement with the attorney-respondent. Neither a warning nor a conditional diversion agreement constitutes discipline by this Court.

iii) Regardless of an attorney-respondent's consent, the Court may impose one or more of the following conditions on an attorney-respondent in lieu of, or in addition to, either disciplinary sanctions, a warning, or a conditional diversion agreement: (1) demonstration through the report of a health care professional or other proper evidence that the attorney-respondent is mentally and physically competent to resume the practice of law; (2) engagement of an attorney who is satisfactory to the Disciplinary and Admissions Committee to monitor an attorney-respondent's legal practice; (3) proof that former clients have been reimbursed for any part of fees paid in advance for legal services not completed; (4) satisfaction of any judgment providing reimbursement for any claim that arose out of the attorney-respondent's practice of law; (5) restitution to any client of any sum found to be due to the client; (6) limitations on the nature or extent of the attorney-respondent's future practice of law in this Court; (7) payment of costs assessed by the Court; (8) issuance of an apology; or (9) participation in a program tailored to individual circumstances that provides the attorney-respondent with law office management assistance, lawyer assistance, treatment for alcohol or substance abuse, psychological counseling, or specified courses in legal ethics, professional responsibility, or continuing education. For good cause shown, the Court may impose additional reasonable conditions not explicitly provided for in this paragraph.

iv) The Court retains the authority to require an attorney-respondent to perform conditions, even if the attorney-respondent has not been formally disciplined, if it appears that the conditions would benefit the attorney-respondent's practice and possibly prevent foreseeable acts that may warrant discipline.

v) Any conditions this Court imposes on an attorney-respondent shall not constitute reportable disciplinary sanctions unless ordered by the Court or accompanied by a sanction of disbarment, suspension, or public reprimand.

i) Expedited Disciplinary or Remedial Action

i) Upon receipt of information that an active member of the Bar is engaging in professional misconduct and poses an immediate threat of causing (1) death or substantial bodily harm to another; (2) substantial injury to the financial interest or property of another; or (3) substantial harm to the administration of justice, including a failure to respond to disciplinary investigation-related inquiries or court orders, the Disciplinary and Admissions Committee may recommend the Court immediately suspend the attorney-respondent pending a disciplinary investigation under L.R. 705.1.

ii) If the Court accepts the Disciplinary and Admissions Committee's recommendation, then the Court shall issue an order (1) immediately suspending the attorney-respondent's membership in the Bar pending an investigation under L.R. 705.1 and (2) giving the attorney-respondent thirty (30) days to show cause why the suspension should not continue until the Court issues a final order in the disciplinary proceeding.

iii) If the attorney-respondent does not file a timely response to the initial suspension order, then the suspension shall continue until the Court issues a final order in the disciplinary proceeding.

iv) If the attorney-respondent files a timely response, the Disciplinary and Admissions Committee shall recommend to the Court whether the suspension shall continue through the end of the disciplinary proceeding. The Court shall then issue an order either terminating the suspension or reinstating or continuing the suspension of the attorney-respondent pending completion of the disciplinary proceeding.

j) Referrals and Complaints from Outside the Court

i) Upon receipt of a complaint from the public, a current or former litigant, or Maryland Bar Counsel (or a similar state bar authority if located outside of the District) concerning alleged incapacity or professional misconduct in this Court by an active member of this Court's Bar, the Chair of the Disciplinary and Admissions Committee shall make an initial investigation and ensure that the complaint is not facially frivolous or unfounded. In evaluating the complaint, the Chair of the Disciplinary and Admissions Committee may contact the attorney-respondent and obtain an informal response to the allegations, as well as contact the complainant for additional information.

ii) If the Chair of the Disciplinary and Admissions Committee concludes that the complaint is either frivolous, unfounded, or fails to allege facts which, if true, would demonstrate either professional misconduct or incapacity, the Chair may dismiss the complaint and notify the complainant, the attorney named in the complaint, state bar authority, and the Disciplinary and Admissions Committee of the dismissal. Otherwise, the Chair shall refer the complaint to the Disciplinary and Admissions Committee for further review and investigation as provided under L.R. 705.1.a. The Chair shall also advise the referring state bar authority of the referral to the Disciplinary and Admissions Committee.

iii) Nothing in this subsection shall permit the Chair of the Disciplinary and Admissions Committee to dismiss a Committee referral by a judge of this Court without the referring judge's consent. Any referral by a judge of this Court shall be referred for investigation as provided under L.R. 705.1.a.

2. Criminal Convictions

a) Serious Crimes

i) Definition. For purposes of this Rule, the term "serious crime" shall include any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction where the finding of guilt or judgment was entered, involved 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 any of the above.

ii) Suspension. Upon receipt of a finding of guilt or certified copy of a judgment of conviction demonstrating that any attorney admitted to practice before the Court has been found guilty or 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, the Court shall enter an order immediately suspending the attorney, whether the finding of guilt or 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. Such order shall direct the attorney-respondent to show cause within thirty (30) days why disbarment or some lesser punishment should not be imposed. A copy of such order shall immediately be served upon the attorney-respondent.

iii) Imposition of Discipline. After the show cause period has ended, the Court's Disciplinary and Admissions Committee will review the finding of guilt or conviction, as well as any response. If the attorney-respondent's response includes a request for a hearing, the matter shall be assigned for a prompt hearing as provided for in L.R. 705.1.d. Absent such a request, the Disciplinary and Admissions Committee may (a) appoint an attorney-investigator pursuant to L.R. 705.1.b; (b) conduct a disciplinary hearing pursuant to L.R. 705.1.d; or (c) recommend final action to the full bench, which may include any disciplinary sanction or condition available under L.R. 705.1.h.

iv) Lifting of Discipline. In the event that an attorney-respondent's underlying finding of guilt or conviction is reversed or vacated and that attorney-respondent has had imposed disciplinary sanction or condition imposed under the provisions of this Rule, the attorney-respondent will not be reinstated immediately but must apply for reinstatement under L.R. 705.4.

v) Attorney's Duty to Disclose. Upon a finding of guilt or conviction of a serious crime in any court of the United States or the District of Columbia, or in a court of any state, territory, commonwealth, or possession of the United States, any attorney admitted to practice before this Court shall promptly inform the Clerk of such finding of guilt or conviction and provide a copy of the finding, conviction, or order within thirty (30) days after the entry thereof.

b) Other Crimes

The Disciplinary and Admissions Committee may, pursuant to L.R. 705.1, initiate a disciplinary proceeding against any attorney who has been convicted of any crime other than a serious crime.

3. Action Taken by Other Courts

a) Attorney's Duty to Disclose

Upon being subjected to public discipline, transferred to disability inactive status, or enjoined from the practice of law 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, any attorney admitted to practice before this Court shall promptly inform the Clerk of such action and provide a copy of the order or document imposing discipline or other non-disciplinary action affecting licensure within thirty (30) days after the imposition of discipline or other action.

b) Notification to Attorney

Upon the receipt of a copy of a judgment or order demonstrating that an attorney admitted to practice before this Court has been disbarred, suspended, publicly reprimanded, transferred to disability inactive status, or enjoined from the practice of law by another court, this Court shall forthwith issue a notice directed to the attorney-respondent containing:

i. a copy of the judgment or order from the other court;

ii. an order immediately suspending the attorney-respondent, in the event the discipline imposed by the other court consists of suspension or disbarment, an order transferring the attorney to disability inactive status, in the event the attorney-respondent has been transferred to disability inactive status, or an order enjoining the attorney-respondent from the practice before this Court, in the event the attorney-respondent has been enjoined from the practice of law; and

iii. an order directing the attorney-respondent to show cause within thirty (30) days after service of the order why identical action by this Court would be unwarranted.

c) Stay

In the event the discipline, transfer, or injunction imposed in the other jurisdiction has been stayed, any reciprocal action imposed by this Court shall be deferred until such stay expires.

d) Imposition of Identical Discipline or Other Action

This Court shall impose identical discipline or other action to that imposed by the other court unless the attorney-respondent demonstrates, or this Court finds, upon the face of the record upon which the discipline, transfer, or injunction in another jurisdiction is predicated, it clearly appears:

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

ii. 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 of the other court on that subject; or

iii. the imposition of the same discipline or other action by this Court would result in grave injustice; or

iv. the misconduct established is deemed by this Court to warrant substantially different discipline or injunctive action.

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

e) Treatment of Disciplinary or Other Sanctions in Other Jurisdictions

For the purposes of this subsection, this Court shall treat public censures imposed by another court as identical to a public reprimand imposed by this Court. This Court shall treat any injunctive action based on an attorney's physical or mental condition as identical to transfer to disability inactive status. This Court shall not impose reciprocal discipline for another court's imposition of any level of discipline other than disbarment, suspension, or public reprimand.

4. Reinstatement

a) When Court Order Required

An attorney suspended for ninety (90) days 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 ninety (90) days, disbarred, or transferred to disability inactive status may not resume practice until reinstated by order of this Court, pursuant to a petition for reinstatement filed by the attorney.

b) Time of Petition Following Disciplinary or Other Action Taken for an Indefinite Period

An attorney who has been disbarred after hearing or by consent may not apply for reinstatement until the expiration of at least five (5) years from the effective date of the disbarment. In the case of reciprocal discipline or other action, an attorney who has been indefinitely suspended or transferred to disability inactive status may only apply for reinstatement upon proof that the attorney has been reinstated by the court in which the attorney was disciplined or transferred to disability inactive status.

c) Hearing on Petition

i) Petitions for reinstatement shall be filed with the Clerk. Upon receipt of the petition, the Clerk shall promptly refer the petition to the Court's Disciplinary and Admissions Committee for review and determination whether a hearing is necessary. If the Disciplinary and Admissions Committee finds good cause that reinstatement is appropriate without a hearing, then the Court, if in agreement, may grant the petition for reinstatement. If the Disciplinary and Admissions Committee determines on the basis of the papers filed that reinstatement is not appropriate and a hearing is not necessary, then the Court, if in agreement, may deny the petition for reinstatement.

ii) Otherwise, the Chief Judge shall assign the matter for prompt hearing. The judge or judges assigned to the matter shall, within thirty (30) days after referral, schedule a hearing at which the petitioner shall have the burden of demonstrating by clear and convincing evidence the petitioner has the moral qualifications, competency, and learning in the law required for admission to practice law before this Court and the 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.

d) Appointment of Attorney-Investigator

The Court may, pursuant to L.R. 705.1.b, appoint an attorney-investigator to investigate whether the petition for reinstatement should be granted and to participate in the reinstatement hearing.

e) 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 Court may enter an order of reinstatement, provided the order may make reinstatement conditional upon the payment of all or part of the costs of the proceedings, upon the making of partial or complete restitution to parties harmed by the petitioner whose conduct led to the suspension or disbarment, or upon any of the conditions identified in L.R. 705.1.h. If the petitioner has been suspended, disbarred, or transferred to disability inactive status for five (5) years or more, reinstatement may be conditioned 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 petitioner's successful completion of an examination for admission to practice subsequent to the date of suspension, disbarment, or transfer to disability inactive status.

f) Successive Petitions

No petition for reinstatement shall be filed within one (1) year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person.

5. Dissemination of Information

a) To Other Courts

Whenever this Court has either criminally convicted, disbarred, suspended, publicly reprimanded, or transferred to disability inactive status an active member of this Court's Bar, and the attorney is an active member of the bar of any other jurisdiction or court, the Clerk shall, within fourteen (14) days of the conviction, disbarment, suspension, public reprimand, or transfer to disability inactive status, transmit to the disciplinary authority in such other jurisdiction or court, a certificate of the conviction or a certified copy of the judgment or order of disbarment, suspension, or public reprimand, or transfer to disability inactive status, as well as to the last known office and residence addresses of the defendant or respondent. This provision shall not apply to discipline or other action imposed under L.R. 705.3 when this Court only imposes discipline or other action identical to the discipline or other action imposed by another court or bar authority.

b) To the American Bar Association

Unless otherwise directed in a final order of the Court, the Clerk shall promptly notify the National Lawyer Regulatory Data Bank operated by the American Bar Association of any order disbarring, suspending, publicly reprimanding, or transferring to disability inactive status any attorney-respondent admitted to practice before this Court.

6. Definitions

a) "Court"

For purposes of L.R. 705, whenever an action or order is issued or taken by "the Court," the action or order shall first be reviewed and approved by a majority of the district judges, present and voting, sitting en banc. Any subsequent order shall be signed by the Chief Judge on behalf of the Court.

b) "Judge" and "Clerk"

For purposes of L.R. 705, "judge" includes district judges, magistrate judges, and bankruptcy judges of this Court, and "Clerk" includes the Clerk of Court and any deputy clerk of the District Court.

c) "Hearing"

Whenever a hearing is required under L.R. 705 or otherwise authorized by the Court in connection with an attorney's application for membership or continued membership in this Court's Bar, the hearing shall be before one (1) or more judges of the Court. If the hearing is predicated upon the complaint of a judge of this Court, the hearing shall be conducted before a panel of three (3) other judges of this Court appointed by the Chief Judge or, if there are less than three (3) judges eligible to serve or the Chief Judge is the complainant, the panel shall be appointed by the Chief Judge of the Fourth Circuit Court of Appeals. At least one district judge shall serve on each panel.

d) "Attorney-Respondent"

For purposes of L.R. 705, the term "attorney-respondent" shall refer to any attorney referred to the Disciplinary and Admissions Committee or otherwise subject to a pending investigation, disciplinary sanction, or other non-disciplinary action affecting licensure.

e) Service of Papers on Attorney-Respondent

Unless otherwise ordered, the Clerk shall serve all orders initiating a case under L.R. 705 to an attorney-respondent by certified mail at the attorney-respondent's last known address on file with the Clerk's Office. All subsequent orders and papers shall be served by regular mail either to the attorney-respondent's address most recently stated in a document filed by the attorney-respondent in the case, or to the attorney-respondent's last known address on file with the Clerk's Office. Service in all cases is complete upon mailing consistent with this subsection. In the event counsel represents an attorney-respondent, service will be made on the attorney-respondent as well as counsel.