Local Rule General L.R. 83.4: Attorney Discipline

General L.R. 83.4. Attorney Discipline

(a) Discipline. When alleged attorney misconduct is brought to the attention of the Court, whether by a Judge, any lawyer admitted to practice before the Court, any officer or employee of the Court, or otherwise, the Court may, in its discretion, dispose of the matter through the use of its inherent, statutory, or other powers; refer the matter to an appropriate State Bar agency for investigation and disposition; refer the matter to the Local Grievance Committee as hereinafter defined; or take any other action the Court deems appropriate. These procedures are not mutually exclusive.

(b) Grievance Committee. The Judges of this Court may appoint a standing Committee of not less than five (5) members of the Bar to address alleged attorney misconduct. A majority of the Committee shall constitute a quorum.

(1) Purpose and Function. The purpose and function of such appointed Committee shall be to conduct, upon referral by the Court, investigations, inquiries, and hearings, where appropriate, of alleged misconduct of any member of the Bar of this Court; and to submit written findings and recommendations to the Court thereafter. Members of a Grievance Committee, while serving in their official capacities, shall be considered to be representatives of and acting under the powers and immunities of the Court, and shall enjoy such immunities while acting in good faith in such capacity.

(2) Powers of Committee. The Committee shall be vested with such powers as are necessary to conduct the proper and expeditious disposition of any matter referred by the Court, including the power to compel the attendance of witnesses, to take or cause to be taken the deposition of any witnesses, to secure the production of documentary evidence, and to administer oaths and those powers described elsewhere in these Rules.

(c) Disciplinary Proceedings.

(1) Preliminary Investigation. Upon referral of a disciplinary matter, the Committee shall conduct a preliminary investigation to determine whether a formal disciplinary proceeding should be initiated. If no such finding is made, the Committee shall file with the Court its written recommendations for disposition of the matter, whether by dismissal, admonition, deferral, or any other action. In cases of dismissal, the attorney who is the subject of the investigation need not be notified of the proceeding. All investigative reports, records, and recommendations generated by or on behalf of the Committee under such circumstances shall remain strictly confidential. Such reports, records, and recommendations shall be kept with the Clerk in a sealed electronic file to be opened only upon written order of the Court and shall be destroyed five (5) years after final disposition of the matter.

(2) Probable Cause, Show Cause Order. Upon a finding that probable cause exists, the Committee shall file with the Court a written report of its investigation, stating with specificity the facts supporting its conclusions, and shall apply to the Court for issuance of an order requiring the attorney to show cause within 30 days after service of that order why the attorney should not be disciplined. The Court may, upon concurrence by a majority of its members, issue an appropriate show cause order. Such issued show cause order shall be accompanied by a copy of the Committee's written report for service upon the attorney. Such written report shall otherwise remain confidential.

(3) Rescission of Show Cause Order, Hearing. The Committee shall act on the attorney's response either by recommending the Court rescind its Order To Show Cause or by conducting a confidential hearing on the matter, affording the attorney an opportunity to be represented by counsel, to present witnesses and other evidence, and to confront and cross-examine witnesses in a proceeding guided by the spirit of the Federal Rules of Evidence. A record shall be made of all proceedings. Unless he or she asserts a privilege or right properly available under applicable Federal or State law, the attorney may be called as a witness by the Committee to make specific and complete disclosure of all matters material to the charge of misconduct.

(4) Recommendations. Upon completion of the proceeding, the Committee shall make its confidential written report and recommendation to the Court. The Committee shall include findings of fact as to the charges and recommendations regarding whether or not the accused attorney should be found guilty of misconduct justifying disciplinary actions by the Court, and recommendations as to the disciplinary measures to be applied by the Court. A record of the proceedings, which shall include an appropriate index, a transcript of the proceedings, all pleadings, and all evidentiary exhibits, shall accompany the report. A copy of the report and recommendation shall also be furnished to the attorney.

(5) Actions by Court. The Court, by majority vote of its Judges, shall take such further action as it deems appropriate.

(d) Conviction of Crime.

(1) Suspension. Upon the filing with this Court of a certified copy of a judgment of conviction demonstrating an attorney has been convicted in a Court of competent jurisdiction of a felony or a misdemeanor involving moral turpitude, the Court shall enter an order suspending the attorney, unless a majority of the Judges of the Court deem such a suspension contrary to the interests of justice. The suspension shall remain in effect until further order of the Court.

(2) Proceedings. The Court may also institute such proceedings, to include Grievance Committee proceedings, to determine the extent of final discipline to be imposed upon the attorney, provided the final proceedings shall not occur until all appeals from the conviction are concluded.

(3) Reinstatement, Proceedings Then Pending. A suspension hereunder shall be terminated immediately upon the filing of a certificate demonstrating that the underlying conviction of a serious crime has been reversed. However, reinstatement shall not terminate any disciplinary proceedings then pending against the attorney, the disposition of which shall be determined by the Court utilizing the procedures herein.

(e) Discipline Imposed by Other Courts.

(1) Notification to Clerk. An attorney admitted to practice before this Court shall, upon being suspended, disbarred, or subjected to any form of public discipline by any other Court, promptly inform the Clerk of Court of such action. This Court, acting by a majority of its Judges, may refer this matter to a Grievance Committee or issue its order to the attorney to show cause, within thirty (30) days, why he or she should not be disciplined by this Court.

(2) Conclusiveness of Final Adjudication. A final adjudication in another Court that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purpose of a disciplinary proceeding in this Court, unless the attorney clearly demonstrates to the Court's satisfaction that, upon the face of the record upon which the discipline in another jurisdiction is predicated:

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

(B) There was such infirmity of proof establishing 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.

(3) Actions by Court. The Court, acting upon the attorney's response to the Show Cause Order or upon the report and recommendation of a Grievance Committee, if appointed, may take such further disciplinary action, as a majority of the Judges deem appropriate under the circumstances.

(f) Disbarment on Consent or Resignation in Other Courts.

(1) Notification to Clerk. Any attorney admitted to practice before the Court shall, upon being disbarred on consent or resigning from any other Bar while an investigation into allegations of misconduct is pending, promptly inform the Clerk of Court of such disbarment on consent or resignation.

(2) Removal from Roll of Attorneys. An attorney admitted to practice before this Court who shall be disbarred on consent or resign from any other Bar while an investigation into allegations of misconduct is pending shall, upon filing with this Court of a certified copy of the judgment or order accepting such disbarment on consent or resignation, cease to be permitted to practice before this Court and be stricken from the roll of attorneys admitted to practice before this Court.

(g) Disbarment on Consent While Under Disciplinary Investigation or Prosecution, or Otherwise.

(1) Consent. Any attorney who desires to consent to disbarment by this Court for any reason, to include those related to allegations of misconduct, may consent to disbarment, but only upon delivery of an affidavit to this Court in such form and content as may be required to satisfy the Court that the consent to disbarment is:

(A) Freely and voluntarily rendered without coercion or duress and that the attorney is fully aware of the implications of so consenting; and

(B) For reasons recited within the affidavit, which the attorney acknowledges are true and form the basis for disbarment.

(2) Entry of Order of Disbarment. Upon receipt of the required affidavit, this Court shall enter its order of disbarment. However, the affidavit required pursuant to 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.

(h) Incompetence or Incapacity.

(1) When it appears that an attorney, for whatever reason, is failing to perform at an adequate level of competence necessary to protect his/her client's interests, the Court shall be empowered to take such remedial action as it deems appropriate to insure the attorney's maintenance of an adequate level of competency, to include, but not be restricted to:

(A) Appropriate referral of the affected attorney to such entities or parties as may assist the attorney in achieving necessary levels of competency;

(B) Limiting or restricting the attorney's practice before the Court; or

(C) Suspension from practice until compliance with competency levels is insured.

(2) Action by the Court relating to matters of attorney competency shall be taken by a majority vote of the Judges thereof after consideration of such response from the attorney, as the Court may deem appropriate.

(i) Reinstatement.

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

(2) Time of Application Following Disbarment. An attorney who has been disbarred after hearing or consent may not apply for reinstatement until the expiration of at least five (5) years from the effective date of 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. The Chief Judge may submit the petition to the Court or may, in his/her discretion, refer the petition to the Grievance Committee which shall, within thirty (30) days of the referral, schedule a hearing at which the petitioner shall have the burden of establishing by clear and convincing evidence that he or she has the moral qualifications, competency, and learning in the law required for admission to practice before this Court and that his/her resumption of the practice of law will not be detrimental to the integrity and standing of the Bar or the administration of justice, or subversive of the public interest. Upon completion of the hearing, the Committee shall make a full report to the Court. The Committee shall include its findings of fact as to the petitioner's fitness to resume the practice of law and its recommendations as to whether or not the petitioner should be reinstated.

(4) Conditions of Reinstatement. If, after consideration of the Committee's report and recommendation, the Court finds that the petitioner is unfit to resume the practice of law, the petition shall be dismissed. If, after consideration of the Committee's report and recommendation, the Court finds that the petitioner is fit to resume the practice of law, the Court shall reinstate the petitioner, provided that the judgment may make reinstatement conditional upon the payment of all or part of the costs of the proceedings, and on the making of partial or complete restitution to all parties harmed by the conduct that led to the suspension or disbarment. Provided further, that if the petitioner has been suspended or disbarred for five (5) years or more, reinstatement may be conditioned, in the discretion of the Court, 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. Provided further, that reinstatement may be subject to any conditions that the Court in its discretion deems appropriate.

(5) Successive Petitions. No petition for reinstatement under this Rule 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.

(6) Deposit for Costs of Proceedings. Petitions for reinstatement under this Rule shall be accompanied by a deposit in an amount to be set from time to time by the Court, in consultation with the Grievance Committee, to cover anticipated costs of the reinstatement proceeding.

(7) Oath and Fee Upon Reinstatement. Any attorney disbarred or suspended from practice in this Court and subsequently readmitted shall take the oath, pay the fee then prescribed, and sign the roll of attorneys for this District.

(j) Attorneys Specially Admitted Subject to Discipline. 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 arising in the course of, or in the preparation for, such a proceeding which is a violation of this Court's Local Rules and/or the Rules of Professional Conduct adopted by this Court as provided in these Rules.

(k) Appointment of Counsel. Whenever, at the direction of the Court or upon request of the Grievance Committee, counsel is to be appointed pursuant to these Rules to investigate or assist in the investigation of misconduct, to prosecute or assist in the prosecution of disciplinary proceedings, or to assist in the disposition of a reinstatement petition filed by a disciplined attorney, this Court, by a majority vote of its active Judges, may appoint as counsel any active member of the Bar of this Court, or may, in its discretion, appoint the disciplinary agency of the highest Court of the state wherein the Court sits, or other disciplinary agency having jurisdiction.

(l) Service of Paper 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 affected attorney at the address shown on the roll of attorneys admitted to practice before this Court. Service of any other papers or notices required by these Rules shall be deemed to have been made if such paper or notice is addressed to the attorney at the address shown on the roll of attorneys admitted to practice before this Court; or to counsel or the respondent's attorney at the address indicated in the most recent pleading, document, or other paper filed by them in the course of any proceeding.

(m) 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 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 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 person, who has been convicted of any crime, or disbarred, suspended, 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 fourteen (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 addresses of the disciplined attorney.

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

(n) Retained Powers. Nothing contained in this Rule shall be construed to deny the Court its inherent power to maintain control over the proceedings conducted before it or to deny the Court those powers derived from statute, rules of procedure, or other rules of court.

(o) Sanctions. The Court may impose appropriate sanctions on any party or attorney who fails to comply with a Local Rule. The Local Rules are intended to be enforced primarily upon the Court's own initiative. A party should not file a motion seeking sanctions for alleged non-compliance with a Local Rule unless the alleged violation is egregious or unfairly prejudicial.