Local Rule RULE 83.3: DISCIPLINARY ENFORCEMENT

RULE 83.3 DISCIPLINARY ENFORCEMENT

(a) Disciplinary Proceedings

(1) When misconduct or allegations of misconduct which, if substantiated, would warrant discipline on the part of an attorney admitted to practice before this Court shall come to the attention of a District Judge or Magistrate Judge, whether by complaint or otherwise, and the applicable procedure is not otherwise mandated by these Rules, the judge should refer the matter to counsel under SDIL-LR 83.3(a)(2) for investigation and the prosecution of a formal disciplinary proceeding or the formulation of such other recommendation as may be appropriate.

(2) Appointment of Counsel. Whenever counsel is to be appointed pursuant to these Rules to investigate allegations of misconduct or prosecute disciplinary proceedings, this Court shall appoint as counsel the disciplinary agency of the Supreme Court of Illinois, unless the disciplinary agency of another court has jurisdiction. If the disciplinary agency declines appointment, or such appointment is inappropriate, this Court may appoint as counsel one or more members of the bar of this Court to investigate allegations of misconduct or to prosecute disciplinary proceedings under these Rules. The respondent-attorney may move to disqualify an attorney so appointed upon a showing of good cause. Counsel, once appointed, may not withdraw unless permission to do so is given by this Court.

(3) Should counsel conclude after investigation and review that a formal disciplinary proceeding should not be initiated against the respondent, counsel shall file with the Court a recommendation for disposition of the matter, whether by dismissal, admonition, deferral, or otherwise, setting forth the reasons for their recommendation.

(4) To initiate formal disciplinary proceedings, counsel shall move for an Order of this Court, upon a showing of probable cause, requiring the respondent-attorney to show cause within 30 days after service of that order upon that attorney, personally or by mail, why the respondent-attorney should not be disciplined. Except as otherwise provided in these Rules or unless otherwise ordered by a judge, the proceedings and filings in every disciplinary case in this Court shall be matters of public record.

(5) Upon the respondent-attorney's answer to the order to show cause, if any issue of fact is raised or the respondent-attorney wishes to be heard in mitigation, this Court shall set the matter for prompt hearing before one or more judges of this Court, provided, however, that if the disciplinary proceeding is predicated upon the complaint of a judge of this Court, the hearing shall be conducted before one or more other judges of this Court appointed by the Chief Judge.

(6) Criminal Contempt. Notwithstanding any other provision of these Rules, a District Judge may summarily punish a person who commits criminal contempt in its presence if they saw or heard the contemptuous conduct and so certifies; a Magistrate Judge may summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the Clerk of Court. (See Fed. R. Crim. P. 42(b); 28 U.S.C. § 1784.) If the misconduct has occurred outside the actual presence of the Court or where time is not of the essence, the provisions of Fed. R. Crim. P. 42(a) may be applied.

(7) 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 respondent-attorney at the address shown in the most recent registration on file. 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 respondent-attorney at the address shown on the most recent registration on file or to the respondent's attorney at the address indicated in the most recent pleading or other document filed in the course of any proceeding.

(8) Payment of Fees and Costs. At the conclusion of any disciplinary investigation and prosecution, if any, under these rules, counsel may apply to this Court for an order awarding reasonable fees and reimbursing costs expended in the course of such disciplinary action or prosecution. Any such order shall be submitted to the Chief Judge, who may order payment of such amounts from the funds collected pursuant to Rule 83.1(k), as he/she/they may deem reasonable and just under the circumstances of each case.

(b) Attorneys Convicted of Crimes

(1) Duty to Notify An attorney admitted to practice in this Court, who has been convicted in any court of any crime, has a duty to notify the Clerk of Court in writing within 30 days of the entry of the judgment of conviction. The Clerk of Court shall file a certified copy of the judgment or conviction upon receipt. This duty applies whether the conviction resulted from a plea of guilty or nolo contendere, from a verdict after trial or otherwise, regardless of the pendency of any appeal.

(2) Automatic Suspension Upon the filing with the Court 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," as hereinafter defined, in any court of the United States, the District of Columbia, or any state, territory, commonwealth, or possession of the United States, the Court shall immediately enter an order suspending that attorney, whether the conviction resulted from a plea of guilty or nolo contendere, from a verdict after trial or otherwise, regardless of the pendency of any appeal. A copy of such order shall immediately be served upon the attorney. Upon good cause shown, the Court may set aside such order when it appears to be in the interest of justice to do so.

(A) Definition of "Serious Crime"

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 the crime in the jurisdiction where the judgment was entered, 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.

(B) Executive Committee to Institute Disciplinary Proceedings Upon the filing of a certified copy of a judgment of conviction of an attorney for a Serious Crime, the Court shall, in addition to suspending that attorney in accordance with the provisions of this Rule, also refer the matter to counsel for the institution of a disciplinary proceeding before the Court in which the sole issue to be determined shall be the extent of the final discipline to be imposed for 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.

(3) Proceedings Where Attorney Convicted of Offense That Does Not Qualify as Serious Crime 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 in accordance with SDIL-LR 83.3(a), provided, however, that the Court may in its discretion make no reference with respect to convictions for minor offenses.

(4) Judgment of Conviction as Evidence A certified copy of a judgment of conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that attorney based upon the conviction.

(5) Reinstatement Where Conviction Reversed An attorney suspended under the provisions of this Rule will be reinstated immediately upon the filing of proof demonstrating that the underlying conviction of a Serious Crime has been reversed, but the reinstatement will not terminate any disciplinary proceeding brought in accordance with SDIL-LR 83.3(a) 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.

(c) Discipline Imposed by Other Court or State Bar Licensing or Disciplinary Agency

(1) Duty to Notify Any attorney admitted to practice before this Court shall, upon being subjected to public discipline by any other court or state bar licensing or disciplinary agency of the United States, the District of Columbia, or any state, territory, commonwealth, or possession of the United States, promptly inform the Clerk of Court.

This notice obligation applies equally to any public discipline imposed as a result of an attorney consenting to such discipline, including voluntary resignation from the bar of any other court of the United States or the District of Columbia, or any state, territory, commonwealth, or possession of the United States while an investigation into allegations of misconduct is pending.

The Court may also initiate an investigation upon information from any other reliable source which indicates an attorney has been publicly disciplined in another jurisdiction.

Failure to notify the Clerk of Court may result in additional sanctions.

(2) Rule to Show Cause Upon the filing of a certified copy of a judgment or order demonstrating that an attorney admitted to practice before this Court has been (1) publicly disciplined by another court or state bar licensing or disciplinary agency, (2) publicly disciplined on consent by another court or state bar licensing or disciplinary agency, or (3) voluntarily resigned from the bar of any other court of the United States, District of Columbia, or any state, territory, commonwealth, or possession of the United States while an investigation into allegations of misconduct is pending, this Court shall forthwith issue a notice directed to the attorney containing:

(A) a copy of the judgment or order from the other court or state bar licensing or disciplinary agency; 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 (g) below that the imposition of the identical discipline by the Court would be unwarranted and the reasons why.

(d) Effect of Stay of Imposition of Discipline in Other Court or State Bar Licensing or Disciplinary Agency In the event any public discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed by this Court shall be deferred until the stay expires.

(e) Imposition of Discipline; Exceptions Upon the expiration of 30 days from service of the notice issued pursuant to the provisions of (2) above, this Court shall impose the identical discipline unless the respondent-attorney demonstrates, or this Court finds, that upon the face of the record upon which the discipline in another jurisdiction is predicated, it clearly appears:

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

(B) that 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

(C) that the imposition of the same discipline by this Court would result in grave injustice; or

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

(1) Disciplinary Order as Evidence 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.

A certified copy of an order demonstrating public discipline on consent by another court or state bar licensing or disciplinary agency, or voluntary resignation from the bar of any other court of the United States, District of Columbia, or any state, territory, commonwealth, or possession of the United States while an investigation into allegations of misconduct is pending, may establish that the attorney should be subject to the same discipline in this Court.

(2) Appointment of Counsel for Proceedings The Court may at any stage appoint counsel to prosecute the disciplinary proceedings.

(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 discipline by this Court, but only by delivering to this Court an affidavit stating that the attorney desires to consent to such discipline and that:

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

(B) the attorney is aware that there is a pending investigation or proceeding involving allegations that there exist grounds for the attorney's discipline, the nature of which the attorney shall specifically set forth;

(C) the attorney acknowledges that the material facts so alleged are true; and

(D) the attorney so consents because the attorney knows that if the charges were predicated upon the matters under investigation, or if the proceedings were prosecuted, the attorney could not successfully defend themselves.

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

(3) The order disciplining 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) Duties of the Clerk of Court

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

(2) Upon being notified or otherwise informed that an attorney admitted to practice in this Court has been subjected to public discipline by another court or state licensing or disciplinary agency, the Clerk of Court shall determine whether a certified copy of the judgment or order has been filed with this Court, and, if not, the Clerk of Court shall promptly obtain the judgment or order.

(3) Whenever it appears that any person convicted of a crime or disbarred, suspended, censured, or publicly disciplined on consent by this Court is admitted to practice law in any other jurisdiction or before any other court, the Clerk of Court shall, within 14 days of that conviction, disbarment, suspension, censure, or other public discipline on consent, 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, censure, or public discipline on consent, as well as the last known office and residence addresses of the defendant or respondent.

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

(h) 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.

(i) ABA Model Federal Rules of Disciplinary Enforcement In instances not addressed by the Local Rules, or other applicable statutes and rules, the Court will be guided by the American Bar Association's Model Federal Rules of Disciplinary Enforcement.