Local Rule 83.6.5: DISCIPLINARY PROCEEDINGS

RULE 83.6.5 DISCIPLINARY PROCEEDINGS

(a) Procedure Generally. The following procedures shall be employed in matters of alleged attorney misconduct.

(b) Screening and Referral. All complaints of alleged attorney misconduct shall be screened in the first instance by the judicial officer who presided over the case or matter, if any, in which the misconduct occurred. If that judicial officer is unavailable, or if the proper judicial officer cannot be readily determined, the clerk shall randomly assign the complaint to a district judge other than the presiding judge for screening. Any judicial officer may refer any matter of potential attorney misconduct to the presiding judge, as set forth below, for review and possible further action. If the allegations of attorney misconduct are reasonably plausible and potentially serious, the matter should be referred to the presiding judge.

(c) Presiding Judge.

(1) Generally. After screening and referral, allegations of attorney misconduct shall be handled by the presiding judge.

(2) Assignment of Presiding Judge. The presiding judge shall not be the judicial officer who referred the matter for review or a judicial officer assigned to the case or matter, if any, in which the matter arose. For cases arising in the Eastern Division, the Miscellaneous Business Docket Judge shall be the presiding judge. For cases arising in the Central Division, the presiding judge shall be the judge assigned to the Western Division. For cases arising in the Western Division, the presiding judge shall be the judge assigned to the Central Division. If the presiding judge is disqualified under this rule, or recuses himself or herself, the matter will be referred to the chief judge or, if he or she is disqualified, to the next active district judge in order of seniority. Once a matter has been assigned to a particular judge as the presiding judge, that judge shall remain the presiding judge for that matter unless it is reassigned under L.R. 40.1(I).

(d) Initial Review and Action by Presiding Judge. The presiding judge shall conduct an initial de novo review of the matter and shall take one or more of the following actions.

(1) No Action. The presiding judge may direct that no further action be taken, if he or she concludes that the allegations do not describe a disciplinary violation or otherwise are plainly without merit.

(2) Request for Explanation. The presiding judge may provide written notice to the attorney specifying the alleged misconduct and affording the attorney an opportunity to explain, either on the record or in writing, why he or she believes that formal disciplinary proceedings should not be commenced. If the presiding judge is satisfied with the explanation, he or she may direct that no further action be taken, or take such other steps consistent with these rules as may be appropriate.

(3) Resolution by Consent. The presiding judge may take any action, or enter any order, consistent with these rules to permit a resolution of any disciplinary matter by settlement or consent.

(4) Review by Special Counsel. The presiding judge may appoint special counsel to conduct an investigation, to make a report to the court, and to perform any other duty set forth in the order of appointment. If the matter proceeds to a formal disciplinary proceeding, the presiding judge may direct that special counsel may continue to act and may present evidence, examine witnesses, and otherwise participate in the proceeding.

(5) Temporary Suspension. The presiding judge may suspend the attorney on a temporary basis pursuant to L.R. 83.6.6.

(6) Commencement of Formal Proceedings. The presiding judge may initiate formal proceedings against the attorney, as set forth below.

(7) Other Action. The presiding judge may take any other action that is authorized by law, not inconsistent with these rules, and reasonably necessary to the exercise of his or her authority under these rules.

(e) Referrals to Other Authorities.

(1) State Bar Disciplinary Authorities. The presiding judge may refer the matter to a state bar disciplinary authority with a request that the authority report its actions to the court.

(2) Federal Authorities. In the case of an attorney for the United States or any department of agency of the United States, the presiding judge may refer the matter to the Department of Justice Office of Professional Responsibility, or to any other federal office or agency with supervisory or disciplinary authority over the attorney, with a request that the office or agency report its actions to the court.

(3) Effect of Referral. The presiding judge may continue to conduct any review, investigation, or proceeding, and impose any discipline, notwithstanding the referral of a matter to an outside authority. In the alternative, the presiding judge may, in the interests of justice, stay or suspend any such review, investigation, or proceeding pending resolution of same or a related matter by another authority.

(4) Notification to Clerk. The presiding judge shall notify the clerk of any referral to an outside authority, who shall keep a record of all such referrals.

(f) Notice and Opportunity to Be Heard. No discipline shall be imposed against an attorney pursuant to these rules without notice and an opportunity to be heard as to both the finding of misconduct and the form of the discipline.

(g) Discovery. The presiding judge shall order such discovery as may be reasonably necessary to ensure that the proceeding is fair to all parties. The presiding judge may, in his or her discretion, order such additional discovery as may be appropriate under the circumstances.

(h) Requirement of Cooperation. Any attorney who is the subject of an investigation or review, or a witness in such a matter, shall cooperate and shall reasonably and promptly respond to inquiries from the court and its agents; provided, however, that an attorney may make a valid assertion of his or her constitutional rights, any applicable privilege, or any other right provided by law. Any failure to cooperate under this rule may itself result in disciplinary action.

(i) Formal Disciplinary Proceedings.

(1) Show Cause Order. A formal disciplinary proceeding against an attorney shall commence by the issuance of a show-cause order by the presiding judge. The show-cause order shall direct the attorney to appear and show cause why disciplinary action should not be taken against the attorney for reasons stated in the order.

(2) Service of Notice. The order may be served upon the attorney by mailing a copy to him or her at the address provided by the attorney pursuant to these local rules or by any other means reasonably calculated to provide notice to the attorney.

(3) Special Counsel. If special counsel has not already been appointed, the presiding judge may appoint such counsel to present evidence and examine witnesses at any hearing and otherwise to participate in the proceeding.

(4) Written Response. The attorney shall file a written response to the show-cause order within 28 days after service. If the attorney requests a hearing to resolve any disputed issue of material fact raised in the response, or if the attorney does not dispute the misconduct but wishes to be heard on the issue of the appropriate form of discipline, the presiding judge shall set the matter for hearing.

(5) Hearing. The presiding judge shall hold a hearing as necessary and appropriate to resolve any disputed issues of material fact, to determine whether any attorney misconduct occurred, and to determine the appropriate form of discipline. The respondent attorney may be represented by counsel and may, upon reasonable request, present evidence and cross-examine witnesses. The presiding judge shall make any factual findings on the record in open court or in a written order.

(6) Standard of Proof. Any factual predicate must be proved according to the standard of proof applied in attorney discipline matters in the courts of the Commonwealth of Massachusetts.

(7) Public Proceeding. Unless the presiding judge orders otherwise for good cause shown, any such hearing shall be open to the public.

(8) Findings. The presiding judge shall issue a written order setting forth his or her conclusions and the reasons therefor and the final disposition of the matter, including any discipline imposed on the attorney. Any order imposing attorney discipline shall be entered as a final judgment under Fed. R. Civ. P. 54.

(j) Reference to Magistrate Judge. The presiding judge may refer an attorney disciplinary matter to a magistrate judge.

(1) Disqualification. The designated magistrate judge shall not be the judicial officer who referred the matter for review or a judicial officer assigned to the case or matter, if any, in which the matter arose.

(2) Preliminary Stage. If the matter is at the preliminary or informal stage, the magistrate judge may review the matter, make a report and recommendation to the court, or perform any other duty specified in the order of referral.

(3) Formal Disciplinary Proceedings. If the matter has proceeded to formal disciplinary proceedings, the magistrate judge shall make a written report and recommendation to the presiding judge, including proposed factual findings.

(4) Objections and District Judge Review. Any objections to a report and recommendation, and any review by the presiding judge, shall proceed in accordance with the requirements of 28 U.S.C. § 636(b)(1).

(k) Participation of Victims in Proceedings. The court shall give due regard to the victims or potential victims of any attorney misconduct in the conduct of any proceedings and the issuance of any disciplinary order. The court shall endeavor to provide notice of any hearing to such persons and permit them to be heard as appropriate. The court shall also consider whether an order of restitution is appropriate in any disciplinary order.

(l) Appeal.

(1) Generally. An appeal from a judgment or order entered under this rule may be taken in accordance with the Federal Rules of Appellate Procedure and other applicable federal law.

(2) Appeal by Court. An appeal may be taken on behalf of the court by the special counsel who handled the proceeding, or by special counsel appointed for that purpose, if the court, by a majority vote of the full court, so directs. Any district judge, bankruptcy judge, or magistrate judge may request that the full court consider taking an appeal in a particular matter. The court may delay entry of judgment or take such other steps as may be reasonably necessary to preserve the right of appeal while the matter is under consideration.

Effective January 1, 2015.