Opinion
Opinion delivered January 8, 1998
By Per Curiam dated July 16, 1990, this Court adopted revised rules of procedures entitled "Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law". At that time the court expressed its desire to review The Model Rules For Lawyer Disciplinary Enforcement adopted by the American Bar Association to ascertain the merit and suitability of those model rules for possible incorporation into the lawyer disciplinary process in this State. The Supreme Court Committee on Professional Conduct subsequently undertook a comprehensive and exhaustive review and study of all aspects of the lawyer regulatory system.
The Committee has now completed that laborious task and has presented the Court a petition recommending a substantial revision of the existing "Procedures". The Court carefully considered the proposed revisions and caused some modifications and changes to be made. The Court now approves and adopts the revised "Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law", a copy of which is appended to this order and made a part hereof by reference, to become effective on January 15, 1998.
We again express the gratitude of this Court to the past and present membership of the Committee and to its staff for their dedicated and conscientious endeavor in this project and for their devoted and inestimable service to the public, bar and bench in discharging the duties and responsibilities attendant to the matters assigned to the Committee.
It is so ordered.
IN THE SUPREME COURT OF THE STATE OF ARKANSAS
IN RE: COMMITTEE ON PROFESSIONAL CONDUCT RECOMMENDATION FOR ADOPTION OF REVISED PROCEDURES REGULATING PROFESSIONAL CONDUCT OF ATTORNEY AT LAW
PETITION
Comes now the Arkansas Supreme Court Committee on Professional Conduct (hereafter Committee), by and through its Executive Director, James A. Neal, and petitions the Court as follows:
1. Following the Court's adoption of the present Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (hereafter Procedures) by Per Curiam dated July 16, 1990, and consonant with the Court's expression of its desire to have the merits and suitability of the American Bar Association's Model Rules For Lawyer Disciplinary Enforcement examined for possible incorporation in the lawyer regulatory process of this State, the Committee set about the lengthy task of conducting a comprehensive review and study of the complete body of the procedural rules relating to the lawyer disciplinary system. In addition to the Court's request for a study of The Model Rules For Lawyer Disciplinary Enforcement, the Committee's experience in administering the lawyer regulatory system strongly suggested the need for substantial revision of the existing Procedures, both from a practical and a philosophical perspective.
2. The Committee examined the procedural rules of numerous jurisdictions' lawyer disciplinary programs, consulted the several works produced by the American Bar Association relating to regulation of the legal professions, reviewed the applicable case law of this and other jurisdictions, and considered a number of factors that are unique to the structure and methodology of the lawyer regulatory system in place in Arkansas.
3. After the examination, analysis and consideration of numerous proposed revisions, comparisons of alternative positions, and engaging in extensive modifications the Committee produced a proposed revision of the Procedures which contained some substantial changes in the existing Procedures. The Committee strived to create a comprehensive body of procedural rules which would aid the Court in the regulation of the legal profession, and would promote and enhance the Committee's ability to discharge its duties and responsibilities to the public and the legal profession in a fair, efficient and economic manner.
4. The draft of the Committee's proposed revision of the Procedures was submitted to the Court for consideration. Following extensive review and deliberation, including a number of discussions with the Committee's staff, the Court offered a number of modifications and changes to the Committee's proposed revision. The Court's modifications have been incorporated into the Committee's proposed revision of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, a copy of which is attached hereto.
5. The Committee respectfully and earnestly requests that the attached Procedures be favorably considered and adopted by the Court to become effective on January 15, 1998, or as soon thereafter as the Court deems appropriate.
WHEREFORE, Petitioner prays that the Court, pursuant to its constitutional and inherent authority, adopt and promulgate the revised Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law attached hereto.
Respectfully submitted, Arkansas Supreme Court Committee on Professional Conduct
By: (signed) _____________________________ JAMES A. NEAL Executive Director
PROCEDURES OF THE ARKANSAS SUPREME COURT REGULATING PROFESSIONAL CONDUCT OF ATTORNEYS AT LAW
SECTION 1. SCOPE
A. PURPOSE. These Procedures are promulgated for the purposes of regulating the professional conduct of attorneys at law and shall apply to complaints filed and formal complaints instituted against attorneys after the effective date of these procedures, and within the purview of the jurisdiction and the authority of the Supreme Court Committee on Professional Conduct. From the effective date hereof, these Procedures shall apply to transfers to inactive status, to reinstatements, and to the extent that limitations and special requirements pertain, to attorneys presently suspended, disbarred or who have surrendered their law licenses. Every attorney now or hereafter licensed to practice law in the State of Arkansas shall be a member of the Bar of this State and subject to these Procedures. The jurisdiction of the Supreme Court Committee on Professional Conduct shall extend to lawyers in active, inactive or suspended status.
B. RULES OF PROFESSIONAL CONDUCT ADOPTED. The court has adopted the Model Rules of Professional Conduct of the American Bar Association, as amended, as the standard of professional conduct of attorneys at law. An attorney who violates any provision of the Model Rules, or these Procedures, shall be subject to the provisions herein.
C. NATURE OF PROCEEDINGS. Disciplinary proceedings are neither civil nor criminal but are sui generis.
D. REPEALER. To the extent that former rules or existing provisions of the Arkansas Code Annotated are in conflict with these Procedures, they are hereby overruled and superseded. These Procedures shall not be deemed exclusive of, but supplemental to those provisions of the Arkansas Code Annotated that are not in conflict herewith.
E. DEFINITIONS. As used in these Procedures, unless the context otherwise requires:
(1) "CLERK" means the Clerk of the Arkansas Supreme Court;
(2) "COMMITTEE" means the Supreme Court Committee on Professional Conduct; to the extent that the context of any of the provisions of these Procedures requires and as may be necessary to the performance of the duties and the acts imposed by these Procedures and the policies and directives established by the Supreme Court Committee on Professional Conduct, the meaning of Committee shall include the office of the Executive Director.
(3) "COMPLAINANT" means the person(s) initiating a complaint, or the Committee when acting at its own instance or on behalf of another in initiating a complaint;
(4) "COMPLAINT" means an inquiry, allegation, or information of whatever nature and in whatever form received by or coming to the attention of the Committee and concerning the conduct of a person subject to the jurisdiction of the Committee;
(5) "FORMAL COMPLAINT" means a complaint directed to an attorney by the Committee, setting forth the alleged violation(s) of the Model Rules and informing the attorney of the right to file a written response;
(6) "MODEL RULES" means the Model Rules of Professional Conduct of the American Bar Association, as amended, and any statutory provisions, or rules adopted by the Arkansas Supreme Court regulating the professional conduct of attorneys at law;
(7) "RESPONDENT" or "RESPONDENT ATTORNEY" means an attorney against whom a formal complaint has been initiated whether or not the attorney has failed to file a written response.
(8) "SERIOUS CRIME" means any felony or any lesser crime that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft or an attempt, conspiracy or solicitation of another to commit a "serious crime."
(9) "SUBSTANTIAL" when used for the purposes of these procedures in reference to degree or extent, means beyond mere suspicion or conjecture and of sufficient force and character to compel a conclusion one way or another with reasonable and material certainty and precision.
(10) "UNAVOIDABLE CIRCUMSTANCES" means circumstances not attributable to negligence, carelessness, fault, or the lack of diligence on the part of the respondent attorney.
SECTION 2. COMMITTEE
A. COMPOSITION/TERM OF OFFICE. The Committee shall consist of seven members appointed by the Arkansas Supreme Court to assist in enforcing these Procedures. The present Committee members shall continue to serve their present terms. Five members of the Committee shall be lawyers, one from each Congressional District and one from the State at large, and shall be appointed for seven-year terms. The other two members shall not be lawyers, shall be selected from the State at large, and shall be appointed for seven-year terms. Committee members shall serve until their successors are appointed and certified. The Committee shall elect one of its members as Chairperson and another as Secretary. The Committee, consistent with the provisions herein, may adopt such internal, operating rules and policies as may be necessary to facilitate the performance of its duties, responsibilities, and administrative functions.
B. QUORUM. A majority of the Committee shall constitute a quorum.
C. AUTHORITY/POWERS.
(1) The Committee shall have, and is hereby granted, authority to investigate all complaints alleging violation of the Model Rules that may be brought to its attention and impose any sanctions deemed appropriate as provided in Section 5 (Procedure) and Section 7 (Sanctions).
(2) The Committee is hereby authorized to take action by written ballot subject to the requirements and limitations set out in Section 5 of these Procedures.
(3) The Committee is authorized to conduct hearings at either:
(a) The request of the Committee; or
(b) The request of the respondent attorney after written ballots are taken.
(4) The Committee is authorized to hold meetings to conduct the business of the Committee which consists of, but is not limited to, the election of officers, the determination of pending complaints, and such administrative matters as required.
(5) The seal heretofore adopted by the Committee shall be the official seal for its use in the performance of the duties imposed by these Procedures.
(6) The Committee shall have the authority to issue summonses for any person(s), or subpoenas for any witness(es), including the production of documents, books, records, or other evidence, in the same manner as is provided for civil process pursuant to the Arkansas Rules of Civil Procedure, requiring the presence of any person, or the attendance of any witness before the Committee for the purpose of testimony, or in furtherance of an investigation. Such process shall be issued under the seal of the Committee provided for in subsection C(5) of this Section and be signed by the Chairperson, Secretary, or by the Executive Director. Any subpoenas issued herein shall clearly indicate that the subpoenas are issued in connection with a confidential investigation under these Procedures and that it is regarded as contempt of the Supreme Court for a person subpoenaed to breach the confidentiality of the investigation. If found to be in contempt of the Supreme Court under these Procedures, a person may be punished by incarceration, imposition of a fine, or both. In addition, it shall be grounds for discipline under these Procedures for a subpoenaed attorney to breach the confidentiality of the investigation. It shall not be regarded as a breach of confidentiality for a person subpoenaed to seek or consult with legal counsel in regard to the subpoena, nor shall the confidentiality apply to subpoenas issued in connection with a public hearing.
(7) The Committee may seek immunity from criminal prosecution for a reluctant witness, using the procedure of Ark. Code Ann. 16-43-601 to 606 (1987).
(8) The Committee shall have the authority to employ an Executive Director who will not be a member of the Committee, and shall not have a vote on any matter presented to the Committee for decision. The Committee may employ a special Executive Director in any case in which the Executive Director is unable to act.
(9) The Committee shall maintain a permanent office under the supervision of the Executive Director for the conduct of its business and the maintenance of the various records of the Committee.
(10) When so requested by a Federal Judge under the Uniform Federal Rules of Disciplinary Enforcement adopted by the United States District Courts of Arkansas on May 1, 1980, or successor rules, the Committee may act as the disciplinary agency and the Executive Director as counsel in a federal disciplinary action. Any additional expense incurred in the processing of a federal complaint will be paid from the funds arising from the assessments levied pursuant to the Uniform Federal Rules and available for that purpose. When final action is taken under a federal complaint, a report of that action will be made to the Federal Judge who referred the matter, and the Committee may also furnish to the Federal Judge any other information from its files necessary to fulfill its duties as disciplinary agency.
D. IMMUNITY. The Committee, its individual members, Executive Director and employees and agents of the Committee are absolutely immune from suit or action for their activities in discharge of their duties hereunder to the full extent of judicial immunity in Arkansas.
E. EXPENSES. From the funds established and appropriated by the Arkansas Supreme Court and in accordance with budgetary limitations, members of the Committee shall be entitled to receive their travel and hotel expenses, reimbursement for postage, stationery, communications, an attendance allowance, and other incidental expenses including stenographic bills and court costs chargeable against them. All such items shall be paid by the Clerk by check on such funds. Accounts must be itemized and certified by the Chairperson, Secretary, or the Executive Director of the Committee as true and correct.
F. ALTERNATE COMMITTEE.
(1) An Alternate Supreme Court Committee on Professional Conduct shall be established and its members shall be appointed in the manner, composition, and terms of service as provided for the Committee. The present Alternate Committee members shall continue to serve their current terms.
(2) Upon notice by the Committee Chairperson, Secretary, or Executive Director, members of the Alternate Committee shall serve, individually or collectively as the situation requires, in those instances in which members of the Committee consider themselves disqualified from participation in a matter before the Committee. Alternate Committee members serving as replacements for less than the full Committee shall be selected so as to maintain the appropriate lawyer/non-lawyer composition. Except for exigent circumstances or upon waiver by a respondent attorney, an Alternate Committee member shall be selected to serve in place of any disqualified or unavailable regular Committee member at all public hearings pursuant to Section 5J of these Procedures. Alternate Committee members need not be selected for determination of formal complaints by written ballots unless a quorum of the Committee is unable to participate.
(3) When serving pursuant to Section 2F(2), Alternate Committee members shall possess the authority, powers, immunities and entitlements as provided for the Committee by these Procedures, and which are necessary and appropriate for the discharge of their duties and function.
SECTION 3. EXECUTIVE DIRECTOR
A. GENERAL. The Executive Director shall be an attorney actively licensed to practice law in the State of Arkansas, shall serve at the will of the Court, and shall devote full time and effort to promptly and efficiently perform the duties stated in subsection B of this Section, and such other duties as directed by the Committee.
B. DUTIES.
(1) It shall be the duty of the Executive Director to receive all complaints against any member of the Bar.
(2) Upon a determination by the Executive Director that a complaint sets out allegations falling within the purview of the Committee, and those allegations are supported by sufficient evidence, the Executive Director shall provide any assistance needed in the preparation of the complainant's affidavit, and shall process a formal complaint pursuant to the procedures of the Court and the Committee. At such time as a formal complaint is directed to an attorney for response, the Executive Director shall assign the case a docket control number.
(3) If a complaint does not set forth sufficient grounds to reasonably support preparation of a formal complaint but contains information indicative of a misunderstanding or controversy between an attorney and a client or a third party who may be aggrieved by the conduct or circumstances, and the best interests of the integrity of the profession and the valid concerns of the complainant would be served by reconciliation or communication between the parties, the Executive Director may, at the request of the complainant or in the judgment of the Executive Director, contact the attorney by telephone or letter advising the attorney of the nature of the complaint. The aforementioned procedure will not be considered a formal complaint.
(4) (a) A complainant, who is not satisfied with the Executive Director's determination that the allegations of the complaint fall outside the purview of the Committee or that the allegations are not supported by sufficient evidence to file a formal complaint, may request a review of that determination.
(i) The request for review will be made to the Executive Director in writing within twenty (20) days from the date of the letter notifying the complainant of the determination of the lack of a basis for filing a formal complaint.
(ii) The written request will set out in general terms the complainant's grounds for objection to the Executive Director's decision.
(b) (i) Upon receipt of a request for review, the Executive Director will acknowledge in writing the request, and shall forward the complaint information to the Chairperson of the Alternate Committee on Professional Conduct for review.
(ii) The Chairperson of the Alternate Committee shall forward copies of the Complaint provided by the Executive Director to three members of the Alternate Committee, one of whom will be a nonlawyer, directing that they review the Executive Director's disposition of the matter.
(iii) The reviewing members, by majority vote, may approve the Executive Director's disposition of the matter, direct that an affidavit of formal complaint be prepared, or, request further investigation of the matter by the Executive Director. Votes may be taken by written ballots on forms supplied by the Executive Director or by telephone. The result of the vote will be made known to the Chairperson of the Alternate Committee by a member of the three member reviewing body.
(iv) The Alternate Committee Chairperson shall notify the Executive Director in writing of the results of the review. The Executive Director shall then notify the complainant in writing of the results of the review and dismiss the complaint, initiate a formal complaint, or request additional information as appropriate.
(v) There shall be no further review or appeal of the Alternate Committee's final decision.
(5) The Executive Director may attend and, at the request of the Committee, act as counsel in presenting testimony and other evidence at any hearing conducted by the Committee.
(6) The Executive Director shall have power to administer oaths in all matters incident to the duties imposed by these Procedures and such power and authority shall be coextensive with the State.
(7) The Executive Director shall be responsible for the administration of the business office and the security of the records. As authorized by and upon such terms as the Committee shall direct, the Executive Director may employ such personnel, including temporary employees, and retain independent counsel, as may be required to perform the administrative, investigative or legal functions of the Committee.
C. STAFF ATTORNEYS.
(1) Staff Attorneys may be employed by the Executive Director to assist in the discharge of his or her duties and shall be actively licensed to practice law in the State of Arkansas.
(2) Staff Attorneys shall serve at the direction of the Executive Director and may perform all duties and possess all authority of the Executive Director as the Executive Director may delegate except for the final determination of sufficiency of formal complaints, and the authority and responsibilities provided in Sections 2C(6) and 3B(6).
(3) In the event of the temporary inability of the Executive Director to fully discharge the duties of office, or when a vacancy exists in that office, the Committee Chairperson may appoint the Senior Staff Attorney as acting Executive Director.
D. COMPENSATION/EXPENSES. The Executive Director will be paid such reasonable salary and expenses as deemed necessary and appropriate by the Committee. Employee salaries, benefits and expenses of the office shall be payable from funds allotted to the Committee by, and subject to the approval of, the Arkansas Supreme Court.
SECTION 4. CONFIDENTIALITY/RECORDS
A. COMMUNICATIONS CONFIDENTIAL. Subject to the exceptions listed in subsections B and C of this Section:
(1) All communications, complaints, formal complaints, testimony, and evidence filed with, given to or given before the Committee, or filed with or given to any of its employees and agents during the performance of their duties, that are based upon a complaint charging an attorney with violation of the Model Rules, shall be absolutely privileged; and
(2) All actions and activities arising from or in connection with an alleged violation of the Model Rules by an attorney licensed to practice law in this State are absolutely privileged.
B. EXCEPTIONS.
(1) Except for disbarment actions, proceedings under these Procedures are not subject to the Arkansas Rules of Civil Procedure regarding discovery except those relating to depositions and subpoenas.
(2) The records of public hearings conducted by the Committee pursuant to subsection J of Section 5 of these Procedures are public information.
(3) In the case of a disbarment action, the Committee is authorized to release any information that the Committee deems necessary for that purpose.
(4) The Committee is authorized to release information:
(a) For statistical data purposes;
(b) To a corresponding lawyer disciplinary authority or an authorized agency or body of a foreign jurisdiction engaged in the regulation of the practice of law;
(c) To the State Board of Law Examiners;
(d) To the Committee on the Unauthorized Practice of Law;
(e) To the Arkansas Client Security Fund Committee;
(f) To the Commission on Judicial Discipline and Disability;
(g) To any other committee, commission, agency or body within the State empowered to investigate, regulate or adjudicate matters incident to the legal profession when such information will assist in the performance of those duties;
(h) To any agency, body, or office of the federal government or this State charged with responsibility for investigation and evaluation of a lawyer's qualifications for appointment to a governmental position of trust and responsibility; or,
(i) Pursuant to the provisions of Section 5E and Section 6C of these Procedures.
(5) Any attorney against whom a formal complaint is pending may have disclosure of all information in the possession of the Committee concerning that complaint including any record of prior complaint about that attorney.
(6) The attorney about whom a complaint is made may waive, in writing, the confidentiality of the information.
(7) In all cases, the complainant shall be provided with a copy of the respondent attorney's affidavit of response and afforded an opportunity to reply.
C. SANCTIONS MADE PUBLIC. When a letter of caution, reprimand, or suspension becomes final under these Procedures, or when the Committee decides to initiate disbarment proceedings, a copy of such shall be forwarded to the Clerk and shall be maintained as a public record by the Clerk.
SECTION 5. PROCEDURE
A. GENERAL. The Committee shall investigate and adjudicate all complaints alleging violation of the Model Rules that may be brought to its attention in the form of an affidavit, or in respect of which any member of the Committee may have information, and shall give the attorney involved an opportunity to explain or refute the charge. The Committee shall accept and treat as a formal complaint any writing signed by a judge of a court of record in this State regardless of whether such signature is verified.
B. STANDARD OF PROOF. Formal charges of misconduct, petitions for reinstatement, and petitions for transfer to or from inactive status shall be established by a preponderance of the evidence.
C. BURDEN OF PROOF. The burden of proof in proceedings seeking discipline or involuntary transfer to inactive status is on the Executive Director. The burden of proof in proceedings seeking reinstatement or transfer from involuntary or voluntary inactive status is on the attorney seeking such action.
D. LIMITATIONS ON ACTIONS. The institution of disciplinary actions pursuant to these Procedures shall be exempt from all statutes of limitation.
E. NOTICE TO ATTORNEY. At the direction of the Committee or upon a determination by the Executive Director that a complaint should be processed as a formal complaint, the Executive Director shall:
(1) Furnish to the attorney complained against a copy of the formal complaint and advise the attorney that he or she may file a written response in affidavit form with any supporting evidence desired. The attorney's mailing address on record with the Clerk shall constitute the address for service by mail. Attorneys shall be responsible for informing the Clerk in writing and within a reasonable time of any change of such address. Certified mailing of the formal complaint to said address shall be deemed a waiver of confidentiality for purposes of Section 5E(2)(c).
(2) Service may be effected on a respondent attorney by:
(a) Mailing a copy of the formal complaint to attorney's address of record by certified, restricted delivery, return receipt mail; or,
(b) Personal service as provided by the Arkansas Rules of Civil Procedure; or,
(c) When reasonable attempts to accomplish service by Section 5E(2)(a) or Section 5E(2)(b) have been unsuccessful, then a warning order, in such form as prescribed by the Committee, shall be published weekly for two consecutive weeks in a newspaper of general circulation within this State or within the locale of the attorney's address of record. In addition, a copy of the formal complaint and warning order shall be sent to the respondent attorney's address of record by regular mail.
(3) An attorney's failure to provide an accurate, current mailing address as required by Section 5E(1), or the failure or refusal to receipt certified mailing of a formal complaint, shall be deemed a waiver of confidentiality for the purposes of the issuance of a warning order.
(4) Unless good cause is shown for an attorney's non-receipt of a certified mailing of a formal complaint, the attorney shall be liable for the actual costs and expenses for service or the attempted service of a formal complaint, to include all expenses associated with the effectuation of service. Such sums will be due and payable to the Committee before any response to a formal complaint will be accepted or considered by the Committee.
(5) After service has been effected by any of the aforementioned means, subsequent mailings by the Committee to the respondent attorney may be by regular mail to the attorney's address of record, address at which service was accomplished, or to such address as may have been furnished by the attorney, as the appropriate circumstance may dictate, except that notices of hearings and letters of caution, reprimand, suspension or initiation of disbarment proceedings shall also be sent by certified, return receipt mail.
(6) Service on a non-resident attorney may be accomplished pursuant to Section 5E(2)(a), (b) or (c), or in any manner prescribed by the law of the jurisdiction to which the service is directed.
F. TIME AND MANNER OF RESPONSE
(1) Upon service of a formal complaint, pursuant to Section 5E(2)(a) or Section 5E(2)(b), or the date of the first publication pursuant to Section 5E(2)(c), the attorney shall have twenty (20) days in which to file a written response consisting of an original and eight (8) copies with the Executive Director, except when service is upon a non-resident of this State, in which event the attorney shall have thirty (30) days within which to file a response. In the event that the Executive Director has not received a response within twenty (20) days or within thirty (30) days, as the appropriate case may be, following the date of service, and an extension of time has not been granted, the Executive Director shall proceed to issue ballots as provided in subsection G of this Section.
(2) The Executive Director is authorized to grant, at the request of an attorney, an extension of reasonable length for the filing of a response. Subsequent requests for extensions must be in written form and will be ruled on by the Chairperson of the Committee.
(3) The Executive Director shall provide a copy of the attorney's response to the complainant within ten (10) days of receiving it and advise that the complainant has seven (7) days in which to rebut or refute any allegations or information contained in the attorney's response. The Executive Director may include any rebuttal made by the complainant as a part of the material submitted to the Committee for decision and any such rebuttal shall be provided to the respondent attorney for informational purposes only, with no response required. If rebuttal to be submitted to the Committee contains allegations of violation of the Model Rules not previously alleged, it shall be in the form of a supplemental affidavit of complaint and the respondent attorney shall be provided a copy and permitted surrebuttal in the manner prescribed in subsection F(1) of this Section, except the time for doing so shall be ten (10) days.
(4) The calculation of the time limitations specified in Section 5F shall commence on the day following service upon the respondent. If the due date of a response or surrebuttal falls on a Saturday, Sunday, or legal holiday, the due date will be extended to the next regular business day.
G. VOTE BY BALLOT.
(1) At such time as the Executive Director has received from the attorney a written response or the attorney has failed to respond within the period provided in subsection F of this Section, the Executive Director shall cause to be prepared seven copies of the complainant's affidavit, the response, rebuttal, exhibits, and prior sanctions imposed on the attorney, if any, and such other information, memoranda, and recommendations which the Executive Director may deem relevant and shall send a copy thereof to each member of the Committee.
(2) Each ballot shall contain appropriate spaces for:
(a) The signature of the Committee member;
(b) The date;
(c) The member's vote on the action to be taken on the formal complaint; and,
(d) A place for the members to state which Section(s) of Model Rules are found to be violated.
H. RESULTS OF BALLOT VOTE.
(1) In the event a majority of the Committee votes to take no disciplinary action against a respondent attorney, the Executive Director shall so notify the complainant and the respondent attorney. The Executive Director shall file a monthly report of such cases by number only, as a public record in the office of the Clerk.
(2) If the vote is to warn, an appropriate letter shall be sent to the respondent and the complainant. The Executive Director shall file a monthly report of such cases by number only, as a public record in the office of the Clerk.
(3) If a majority of the Committee returns written ballots to caution, reprimand, or suspend the attorney, the attorney shall be notified of the findings and decision of the Committee, and be advised that he or she has a right, upon written request within twenty (20) days of service as defined by Section 5E(2), to a hearing before the Committee as provided in subsection J of this Section. The attorney shall also be advised that in the absence of a request for a hearing, such findings and order of the Committee will be entered in the files of the Committee and will be filed as a public record in the office of the Clerk.
(4) If a majority of the Committee returns written ballots expressing a desire to cause a respondent attorney, complainant, or other person to appear for the purposes of eliciting testimony, production of records and documents, provision of additional information or evidence, or for any other relevant purposes involved with a matter pending before the Committee, a hearing will be scheduled and summonses or subpoenas may issue as required. Such evidentiary hearing shall not be public and no adjudicative decision will be pronounced or rendered at that time. The Committee, upon written ballot or voice vote, subsequently shall notify the respondent attorney of the decision and notify the complainant if no disciplinary action was warranted. Otherwise, the provisions of Section 5H(3) shall apply. Any recorded testimony, records, documents, exhibits or other evidence adduced at an evidentiary hearing may be received and made part of the record at a subsequent public hearing.
(5) If a majority of the Committee votes by paper ballot to initiate disbarment proceedings, the Committee shall proceed as set out in subsection K of this Section and there shall be no hearing before the Committee.
I. FAILURE TO RESPOND.
(1) An attorney's failure to provide, in the prescribed time and manner, a written response to a formal complaint served in compliance with Section 5E(2) shall constitute separate and distinct grounds for the imposition of sanctions notwithstanding the merits of the underlying, substantive allegations of the complaint; or,
(2) May be considered for enhancement of sanctions imposed upon a finding of violation of the Model Rules.
(3) The separate imposition or the enhancement of sanctions for failure to respond may be accomplished by the Committee's notation of such failure in the appropriate sanction letter or order and shall not require any separate or additional notice to the respondent attorney.
(4) Failure to respond to a formal complaint shall constitute an admission of the factual allegations of the complaint and shall extinguish a respondent's right to a de novo hearing.
(a) Provided, however, that a respondent attorney, within the time specified in Section 5H(3), may file with the Executive Director an original and eight (8) copies of a petition for reconsideration, stating, on oath, compelling and cogent evidence of unavoidable circumstances sufficient to excuse or justify the failure to respond. Otherwise, the Committee's decision shall be final and will be filed of record with the Clerk.
(b) Upon the filing of a petition for reconsideration, the Executive Director shall provide each member of the Committee a copy of the petition for vote by written ballot consistent with provisions of Section 5G.
(c) If a majority of the Committee upon a finding of clear and convincing evidence, votes to grant the petition for reconsideration, the Committee may:
(i) Permit the attorney to submit a belated affidavit of response to the substantive allegations of the formal complaint and the matter shall proceed as though the response had been made timely; and/or
(ii) Set aside any sanction imposed solely on the basis of the attorney's failure to respond.
(d) If the petition for reconsideration is denied, the Committee's original decision and imposition of sanctions become final and will be filed of record with the Clerk. Appeal from the Committee's denial of reconsideration and the imposition of sanctions may be taken in the time and manner prescribed by the applicable provisions of Sections 5(L)(1) and (5). Provided, however, that such appeal cannot attack the substantive allegations of the complaint and shall be limited to the Committee's denial of reconsideration.
J. PUBLIC HEARING. If a hearing is requested:
(1) The Committee will be so notified, and the written ballots if any, will be destroyed. The prior findings and decision shall be for naught and the Committee will hear the complaint de novo under the rules for public hearings.
(2) The Executive Director shall set a date for the hearing and shall notify the respondent attorney and the complainant of the hearing date.
(3) Once a hearing is set, the granting of any request for a continuance shall be at the discretion of the Committee Chairperson.
(4) All pleadings filed before the Committee shall be captioned "Before the Supreme Court Committee on Professional Conduct" and be styled "In re __________" to reflect the name of the respondent attorney.
(5) At the end of the hearing, the Committee shall hold an executive session to deliberate upon any disciplinary action to be taken. The findings and decision of the Committee shall be announced immediately. The votes of the individual members shall be announced if the decision is not unanimous.
(6) If a majority of the Committee votes to caution, reprimand, or suspend an attorney, the Executive Director shall notify the complainant of the specific action taken against the attorney and file a copy of the letter of caution, reprimand, or suspension as a public record in the office of the Clerk.
(7) If a majority of the Committee votes to disbar, the Committee may retain independent counsel and file an action for disbarment in the Circuit Court of proper venue as provided in subsection K of this Section.
K. ACTIONS FOR DISBARMENT.
(1) An action for disbarment shall be filed with the Clerk of the Circuit Court of the county in which the attorney resides, or maintains an office, individually or in association with others; or the alleged violation(s) occurred; or in Pulaski County, Arkansas, in the case of a non-resident attorney having no office within the State and the alleged violation(s) occurred outside the State. An action for disbarment in which venue is established solely upon the alleged conduct or violation(s) by the attorney, and the conduct or violation(s) occurred in more than one county, may be brought in any county in which any part of the alleged conduct or violation(s) occurred. When jurisdiction and venue are established, the Circuit Court may hear all allegations of violation(s) of the Model Rules by the attorney notwithstanding the situs of the alleged conduct. In disbarment suits, the action shall proceed as an action between the Executive Director and the respondent. Proceedings in the Circuit Court shall be held in compliance with the Arkansas Rules of Civil Procedure and trial shall be had before the Circuit Judge without a jury.
(2) If the Circuit Judge finds that the attorney has violated the Model Rules, he or she shall caution, reprimand, suspend, or disbar such attorney as the evidence may warrant. If the Judge finds that the complaint of the Committee is not sustained by the evidence, the proceedings shall be dismissed.
L. APPEAL.
(1) A respondent attorney aggrieved by an action of the Committee taken subsequent to a hearing, may appeal to the Arkansas Supreme Court by filing a Notice of Appeal with the Executive Director within thirty (30) days after the filing of the Committee action with the Clerk. In appeals directly from the Committee, the action shall proceed as an action between the Executive Director and the respondent. The Committee may stay the effective date of any action pending appeal to the Arkansas Supreme Court.
(2) Either the Committee or the respondent attorney may appeal to the Arkansas Supreme Court from the action taken by the Circuit Judge. The Circuit Judge may stay the effective date of any action pending appeal to the Arkansas Supreme Court.
(3) Appeals from any action by the Committee after hearing shall be heard de novo on the record and the Arkansas Supreme Court shall pronounce such judgment as in its opinion should have been pronounced below.
(4) Appeals from any judgment of a Circuit Court in a disbarment proceeding shall be heard in accordance with the rules governing appeals of civil cases.
(5) Notice of appeal and perfection of appeal shall be in accordance with applicable Arkansas Code provisions and Rules of the Arkansas Supreme Court governing appeals in civil matters. If no appeal be perfected within the time allowed and in the manner provided, the order of the Judge or the action of the Committee shall be final and binding on all parties.
M. DOCTOR-PATIENT PRIVILEGE WAIVED. Raising the defense of mental or physical disability by one who is the subject of a disciplinary proceeding shall constitute a waiver of the doctor-patient privilege.
N. IMMUNITY FOR DISCIPLINARY PROCEEDINGS. Except for perjury and false swearing, complainants, respondents and witnesses are absolutely immune from suit or action for all communications with the Committee and all statements made within the disciplinary proceeding.
SECTION 6. CRIMINAL ACTIVITY
A. REPORTING CRIMINAL CONVICTIONS. All prosecuting attorneys and judges participating in or presiding over a hearing in which an attorney is convicted of, pleads guilty to, or pleads nolo contendere to, a crime which is a Class A misdemeanor or greater offense, shall have the duty to report such conviction or plea to the Executive Director.
B. PROCEDURES UPON CONVICTION.
(1) When a complaint against an attorney is based on a conviction of a felony or a crime which also violates Rule 8.4(b) of the Model Rules of Professional Conduct, the Committee shall institute an action of disbarment.
(2) Actions for disbarment based on the conviction of a crime shall proceed in accordance with the procedures in subsection K of Section 5 of these procedures.
(3) A certified copy of the judgment of conviction shall be conclusive evidence of the attorney's guilt.
(4) The attorney may not offer evidence inconsistent with the essential elements of the crime for which he or she was convicted.
C. NOTIFICATION OF POSSIBLE CRIMINAL ACTIVITY. When, in connection with its investigation or hearing on a complaint filed against an attorney, the Committee is presented with any substantial evidence of criminal conduct by any party which would constitute a felony or Class A misdemeanor under Arkansas law, or the federal equivalent if the conduct is not within the State's jurisdiction, the Committee will instruct the Executive Director to notify the appropriate prosecutorial authority.
SECTION 7. SANCTIONS
A. GROUNDS FOR DISCIPLINE. It shall be grounds for discipline for a lawyer to:
(1) Violate or attempt to violate the Model Rules of Professional Conduct, or any other rules of this jurisdiction regarding professional conduct of lawyers; or
(2) Engage in conduct violating applicable rules of professional conduct of another jurisdiction in which the attorney is licensed or practices.
B. SERIOUS MISCONDUCT. Serious misconduct is conduct in violation of the Model Rules that would warrant a sanction terminating or restricting the lawyer's license to practice law. Conduct will be considered serious misconduct if any of the following considerations apply:
(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer;
(4) The misconduct is part of a pattern of similar misconduct;
(5) The lawyer's prior record of public sanctions demonstrates a substantial disregard of the lawyer's professional duties and responsibilities; or,
(6) The misconduct constitutes a "Serious Crime" as defined in these Procedures.
C. LESSER MISCONDUCT. Lesser misconduct is conduct in violation of the Model Rules that would not warrant a sanction terminating or restricting the lawyer's license to practice law.
D. TYPES OF SANCTIONS. Misconduct shall be grounds for one or more of the following sanctions:
(1) DISBARMENT: The termination of the lawyer's privilege to practice law and removal of the lawyer's name from the list of licensed attorneys.
(2) SUSPENSION: A limitation for a fixed period of time on the lawyer's privilege to engage in the practice of law.
(3) INTERIM SUSPENSION: A temporary suspension for an indeterminate period of time of the lawyer's privilege to engage in the practice of law pending the final adjudication of a disciplinary matter.
(4) REPRIMAND OR CAUTION: A public censure issued against the lawyer.
(5) WARNING: A non-public censure issued against the lawyer.
(6) PROBATION: Written conditions imposed for a fixed period of time, and with the lawyer's consent, permitting the lawyer to engage in the practice of law under the supervision of another lawyer.
E. IMPOSITION OF SANCTIONS. When the Committee finds that an attorney has violated any provision of the Model Rules, the Committee is authorized:
(1) To cause a complaint for disbarment to be prepared and filed against the lawyer in accordance with Section 5K. Disbarment proceedings are appropriate when mandated by Section 6B of the Procedures or upon a finding of "serious misconduct" for which a lesser sanction would be inappropriate. Actions for disbarment address the overall fitness of a lawyer to hold a license to practice law. The Committee's written notice to institute a disbarment proceeding need not state specific findings as to the misconduct or Model Rule violations.
(2) To suspend the lawyer's privilege to practice law for a fixed period of time not in excess of two (2) years. Suspension is appropriate when the Committee finds that the lawyer has engaged in "serious misconduct", and consonant with the pertinent factors enunciated in Section 7F, the nature and degree of such misconduct do not warrant disbarment.
(3) To temporarily suspend the lawyer's privilege to practice law pending final adjudication and disposition of a disciplinary matter. Interim suspension shall be appropriate in the following situations:
a. Immediately on decision to initiate disbarment;
b. Immediately upon conviction of a felony notwithstanding pending post-conviction actions; and,
c. When the Committee is in receipt of sufficient evidence demonstrating that the lawyer has engaged or is engaging in misconduct involving:
(i) Misappropriation of funds or property;
(ii) Abandonment of the practice of law; or,
(iii) Substantial threat of serious harm to the public or to the lawyer's clients.
(4) To issue the lawyer a letter of reprimand. A reprimand is appropriate when the Committee finds that a lawyer has engaged in "lesser misconduct" that, by application of the factors enunciated in Section 7F, warrants a sanction more severe than a caution. Additionally, in certain very limited circumstances, the Committee may find that a reprimand is appropriate for conduct otherwise falling within the definition of "serious misconduct" when application of the aforementioned factors substantially demonstrates clear and compelling grounds for sanctions less severe than restriction of the privilege to practice law.
(5) To issue the lawyer a letter of caution. A caution is appropriate when the Committee finds that a lawyer has engaged in "lesser misconduct" and application of the aforementioned factors does not warrant a reprimand.
(6) To issue a letter of warning. Prior to the preparation of an affidavit of complaint, or subsequent to a lawyer's affidavit of response but before the Committee has issued a formal letter of disposition in a pending matter, the Executive Director, with the written consent of the attorney and with the approval of and at the direction of the Chairperson of the Committee, is authorized to issue a non-public letter of warning against the lawyer. Only in cases of "lesser misconduct" of a minor nature, when there is little or no injury to a client, the public, the legal system or the profession, and when there is little likelihood of repetition by the lawyer, should a warning be imposed. A warning is not a sanction available to the Committee when issuing a formal letter of disposition following public adjudication of the disciplinary matter.
(7) To impose probationary conditions. Prior to or subsequent to the filing of a formal complaint, the Committee may, with the written consent of the lawyer, place the lawyer on probation for a period not exceeding two (2) years. Probation shall be used only in cases where there is little likelihood that the lawyer will harm the public during the period of rehabilitation and the conditions of probation can be adequately supervised. Probation may be utilized concurrently with imposition of other sanctions not restricting the privilege to practice law or may follow a period of suspension. The probationary conditions shall be in writing and acknowledged, in writing, by the lawyer. A lawyer amenable to probation shall be responsible for obtaining the agreement of another lawyer, acceptable to the Committee, to supervise, monitor, and assist the lawyer as required to fulfill the conditions of probation. Assent to undertake supervision shall be acknowledged in writing to the Committee. Probation shall be terminated upon the filing of an affidavit by the lawyer showing compliance with the conditions and an affidavit by the supervising lawyer stating probation is no longer necessary and summarizing the basis for that statement. Willful or unjustified non-compliance with the conditions of probation will terminate the probation and subject the lawyer to further disciplinary action, to include imposition of a more severe sanction which could have been imposed originally but for the agreement to probation. An attorney subjected to such further disciplinary action may only offer evidence or argument relating to the willful or unjustified nature of the non-compliance. Unsuccessful rehabilitation or incompletion of the probation conditions will subject the lawyer to further disciplinary proceedings consistent with these Procedures. Except as necessary to the Committee's discharge of its responsibilities, terms and conditions of probation and reports related thereto which involve the lawyer's mental, physical or psychological condition shall be confidential.
F. FACTORS TO BE CONSIDERED IN IMPOSING SANCTIONS. In addition to any other considerations permitted by these Procedures, the Committee, in imposing any sanctions, shall consider:
(1) The nature and degree of the misconduct for which the lawyer is being sanctioned.
(2) The seriousness and circumstances surrounding the misconduct.
(3) The loss or damage to clients.
(4) The damage to the profession.
(5) The assurance that those who seek legal services in the future will be protected from the type of misconduct found.
(6) The profit to the lawyer.
(7) The avoidance of repetition.
(8) Whether the misconduct was deliberate, intentional or negligent.
(9) The deterrent effect on others.
(10) The maintenance of respect for the legal profession.
(11) The conduct of the lawyer during the course of the Committee action.
(12) The lawyer's prior disciplinary record, to include warnings.
(13) Matters offered by the lawyer in mitigation or extenuation except that a claim of disability or impairment resulting from the use of alcohol or drugs may not be considered unless the lawyer demonstrates that he or she is successfully pursuing in good faith a program of recovery.
G. CONTEMPT. The following shall be regarded as contempt of the Arkansas Supreme Court:
(1) Willful disobedience of any Committee order, summons or subpoena;
(2) The refusal to testify on matters not privileged by law;
(3) Knowingly to testify falsely before the Committee;
(4) Engaging in the practice of law during a period of suspension;
(5) Engaging in the practice of law after a disbarment or surrender of license; or,
(6) Violation of these Procedures by any person.
H. VOLUNTARY SURRENDER OF LICENSE.
(1) With the consent of the attorney and approval of the Arkansas Supreme Court, the attorney, in lieu of formal disbarment proceedings, may surrender his or her license upon the conditions agreed to by the Committee and the attorney.
(2) No petition to the Supreme Court for voluntary surrender of license by an attorney shall be granted until referred to the Committee on Professional Conduct and the recommendations of the Committee are received by the Supreme Court.
I. DUTY OF SANCTIONED ATTORNEY. In every case in which an attorney is disbarred, suspended, or surrenders his or her license, the attorney shall, within twenty (20) days of the disbarment, suspension or surrender:
(1) Notify all of his or her clients in writing and any counsel of record in pending matters, that he or she has been disbarred, or suspended, or surrendered his or her license;
(2) In the absence of co-counsel, notify all clients to make arrangements for other representation, calling attention to any urgency in seeking the substitution of another attorney;
(3) Deliver to all clients being represented in pending matters any papers or property to which they are entitled, or notify them or co-counsel of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers and other property;
(4) Refund any part of the fees paid in advance that have not been earned;
(5) File with the Court, agency or tribunal before which any litigation is pending a copy of the notice to the opposing counsel, or adverse parties if no opposing counsel;
(6) Keep and maintain a record of the steps taken to accomplish the foregoing;
(7) File with the Clerk and the Committee a list of all other state, federal and administrative jurisdictions to which he or she is licensed or admitted to practice. Upon such filing, the Clerk shall notify those entitled of the disbarment, suspension or surrender.
(8) The attorney shall, within thirty (30) days of disbarment, suspension or surrender of license, file an affidavit with the Committee that he or she has fully complied with the provisions of the order and completely performed the foregoing or provide a full explanation of the reasons for his or her non-compliance. Such affidavit shall also set forth the address where communications may thereafter be directed to the respondent.
(9) Failure to comply with these Procedures shall subject the attorney to contempt of the Arkansas Supreme Court.
J. EMPLOYMENT OF CERTAIN DISCIPLINED ATTORNEYS.
(1) When attorneys have been placed on inactive status, suspended, disbarred, or have surrendered their licenses, they are ineligible to practice law within this jurisdiction until readmitted or reinstated.
(2) While on suspension or inactive status, an attorney shall not be employed in any capacity whatsoever with a lawyer, law firm or lawyer professional association. Employment is construed as the provision of any services or labor for the benefit of the law practice of the employing lawyer or lawyers, whether compensated or not, and irrespective of the location where the services or labor may be performed.
(3) An attorney who has been disbarred or has surrendered his or her law license may be employed by a lawyer, law firm or lawyer professional association to perform such services only as may be ethically performed by other lay persons employed in the law offices. Provided, however, that the following conditions apply:
(a) Notice of such employment along with a full job description will be provided to the Executive Director before employment commences;
(b) Information reports verified by the employee and the employer will be submitted to the Executive Director semi-annually and will contain a statement by the employing attorney that no aspect of the employee's work for the period involved the unlicensed practice of law; and,
(c) The employed former lawyer shall have no direct contact with any client or receive, disburse, or otherwise handle trust funds or property.
K. REINSTATEMENT.
(1) Following any period of suspension from the practice of law, an attorney desiring reinstatement shall file with the Executive Director a verified petition requesting reinstatement.
(2) The petition for reinstatement shall be accompanied by proof of payment of an application fee of $100.00 to the Clerk.
(3) The petition for reinstatement shall set out the following:
(a) That the attorney has fully and promptly complied with the requirements of subsection I of this Section.
(b) That the attorney has refrained from practicing law during the period of suspension;
(c) That the attorney's license fee is current or has been tendered to the Clerk; and
(d) That the attorney has fully complied with any requirements imposed by the Committee as conditions for reinstatement.
(4) Any knowing misstatement of fact may constitute grounds for contempt, denial or revocation of reinstatement.
(5) Failure to comply with the provisions of subsections I(7) and (8) of this Section shall preclude consideration for reinstatement.
(6) No attorney shall be reinstated to the practice of law in this State until the Arkansas Supreme Court has received an affirmative vote by a majority of the Committee.
L. READMISSION TO THE BAR
(1) No attorney who has been disbarred or surrendered his or her law license in this State shall thereafter be readmitted to the Bar of Arkansas except upon application made to the State Board of Law Examiners in accordance with the Rules Governing Admission To The Bar, or any successor rules, and the approval of the Arkansas Supreme Court.
(2) Provided, however, that application for readmission to the Bar of Arkansas shall not be allowed in any of the following circumstances:
(a) Less than five (5) years have elapsed since the effective date of the disbarment or surrender;
(b) The disbarment or surrender resulted from conviction of a felony criminal offense other than commission of a felony offense for which the culpable mental state was that of negligence or recklessness; or
(c) Any of the grounds found to be the basis of a disbarment or any grounds presented in a voluntary surrender of law license are of the character and nature of conduct that reflects adversely on the individual's honesty or trustworthiness, whether or not the conviction of any criminal offense occurred.
M. DISBARMENT RECIPROCAL.
(1) The disbarment or suspension of any person from the practice of law in any other state shall operate as a disbarment or suspension of such person from the practice of law in this State under any license issued to such person by the Arkansas Supreme Court prior to his or her disbarment or suspension in such other state.
(2) Upon presentation of a certified order or other proper document of a tribunal or a corresponding disciplinary authority of another jurisdiction evidencing disbarment or suspension, the Committee by summary proceeding shall cause a like sanction to be imposed and shall notify the Clerk of such action. Notice of the Committee's action shall be sent to the attorney's mailing address of record with the Clerk.
N. INACTIVE STATUS.
(1) Temporary Transfer to Inactive Status. The Committee is authorized to temporarily transfer an attorney to inactive status in the event that:
(a) The attorney has been judicially declared incompetent; or
(b) The attorney has been involuntarily committed due to incapacity or disability; or
(c) The attorney has alleged incapacity during the course of a disciplinary proceeding against him or her; or
(d) The attorney is found by the Committee to be culpable of habitual drunkenness or drug use substantially affecting the attorney's fitness to practice law; or
(e) The attorney is found by the Committee to have appeared in Court while under the influence of alcohol or drugs; or
(f) The attorney is found by the Committee to be unfit to practice law due to mental infirmity whether or not he or she has been judicially declared incompetent; or
(g) Without cause, the attorney requests to be transferred to a voluntary inactive status.
(2) All trial judges have the duty to, and shall report to the Committee any attorney appearing before them who, in the trial judge's opinion, is under the influence of alcohol or drugs.
(3) The Committee may vote by ballot as provided in subsection G of Section 5 of these Procedures, on the issue of temporary transfer to inactive status or reinstatement due to an event described in subsections (1)(a), (b), (c) or (g) of this Section.
(4) All other temporary transfers of an attorney to inactive status shall be made only after hearings initiated by the Executive Director or others and conducted in the same manner, where applicable, as provided in subsection J of Section 5 of these Procedures. Provided further, however, the Committee may in its sound discretion hold a closed hearing and seal the record thereof.
(5) For good cause shown, the Committee may order the attorney to submit to a medical, psychiatric or psychological examination by a Committee-appointed expert.
(6) No attorney shall be entitled to practice in Arkansas while on inactive status in this State. Upon a transfer to inactive status the attorney, or his or her counsel as may be appropriate, shall comply with subsection I of Section 7 of these Procedures.
(7) The Committee may reinstate an attorney to active status upon a showing that any disability has been removed and the attorney is fit to resume the practice of law.
(8) Reinstatement shall be accomplished in accordance with the provisions of subsection K of this Section.
(9) The filing of a petition for reinstatement shall be deemed a waiver of the doctor-patient privilege regarding the disability.
SECTION 8. SPECIAL PROVISIONS.
A. COSTS, FINES, AND RESTITUTION. In addition to the Committee's authority set forth in Section 7 of these Procedures, the Committee in any case where a disciplinary sanction is imposed, may:
(1) Assess the respondent attorney the costs of the proceedings, including the costs of investigations, witness fees, service of process, and a court reporter's services;
(2) Impose a fine of not more than $1,000.00; and,
(3) Order restitution to persons financially injured by the conduct.
B. PROCEDURE FOR INTERIM SUSPENSION.
(1) An action for the interim suspension of a lawyer is initiated, adjudicated and imposed in the following manner:
(a) Pursuant to Section 7E(3)(a), an interim suspension may be imposed immediately upon the Committee's decision to institute disbarment action on any formal complaint pending before it;
(b) Pursuant to Section 7E(3)(b), an interim suspension may be imposed upon presentation to the Committee of a file marked copy of a judgment of a court of proper jurisdiction reflecting that the attorney has been convicted of, pleaded guilty to, or entered a nolo contendere plea to a felony;
(c) Pursuant to Section 7E(3)(c), the Committee may impose an interim suspension upon presentation of a verified petition by the Executive Director containing sufficient evidence to demonstrate that the attorney poses a substantial threat of serious harm to the public or to the lawyer's clients.
(2) The attorney shall be given immediate notice of interim suspension consistent with the provisions of Section 5E. Within seven (7) days of notice of the imposition of interim suspension, the attorney may submit an affidavit in rebuttal of the evidence before the Committee and a request for the dissolution or modification of the interim suspension. An original and eight (8) copies of the rebuttal and request will be submitted to the Executive Director which shall be forthwith disseminated by mail or facsimile transmission to the Committee for its reconsideration and expeditious action. Upon receipt of the Committee's decision, the Executive Director shall promptly notify the attorney pursuant to Section 5E(2).
(3) An attorney suspended pursuant to Section 7E(3) shall comply with the requirements of Section 7I. The imposition of an interim suspension does not abate any pending disciplinary actions against the attorney.
(4) An interim suspension imposed pursuant to Section 7E(3)(c) shall be dissolved upon the following conditions:
(a) The alleged misconduct did not result in a decision to initiate disbarment or in action by the Committee pursuant to Sections 5(E)(1), 5(F), and 5(H)(3); and
(b) Ninety (90) days have elapsed from the denial of a request to dissolve or modify the suspension; and,
(c) The attorney complied with the requirements of Section 7I.
C. DISCIPLINE BY CONSENT.
(1) An attorney against whom a formal complaint has been served may at any stage of the proceedings prior to the pronouncement of a decision following a public hearing before the Committee, tender a conditional acknowledgement and admission of violation of the Model Rules alleged, or to particular provisions of Model Rules so alleged, in exchange for a stated disciplinary sanction in accordance with the following:
(a) With service of a complaint the attorney will be advised that if a negotiated disposition by consent is contemplated that the respondent attorney should contact the Executive Director to undertake good faith discussion of a proposed disposition. Upon a proposed disposition acceptable to the respondent and to the Executive Director, the respondent shall execute and submit a consent to discipline on a document prepared by the Executive Director setting out the necessary factual circumstances, admission of violation of the Model Rules, and the proposed sanction.
(b) The consent to discipline, along with copies of the formal complaint, and the recommendations of the Executive Director, shall be presented to the Alternate Committee for their votes by written ballot to accept or reject the proposed disposition. The respondent will be notified immediately in writing of the decision. Rejection will result in the continuation of the formal complaint process. The Alternate Committee's acceptance of the consent to discipline will cause a letter of sanction from the Chairperson of the Committee to be filed of record with the Clerk.
(c) If after request for a de novo hearing but prior to commencement of such hearing, a respondent attorney decides to seek consent to discipline in exchange for a stated sanction the attorney shall immediately contact the Executive Director for assistance in the preparation of the appropriate documents. The proposed consent to discipline will be presented to the Committee for action consonant with the applicable provisions of the preceding subsection. If the tender of a consent to discipline is made without reasonably sufficient time in which to present the matter to the Committee prior to the hearing, the respondent may offer the proposal to the Committee at the commencement of the proceeding. If accepted, the necessary elements of the consent to discipline and the agreed sanction shall be duly recorded and reported of record.
(2) No appeal can be taken from a disciplinary sanction entered by consent.
(3) The provisions of this subsection are not applicable to the voluntary surrender of a law license.