RULE 3.1. GENERALLY.
A. Initiation of Disciplinary Process. The board or district inquiry committees may consider on their own motions alleged grounds for disciplinary action or disability proceedings. All complaints other than those upon motion by the board or district inquiry committees must be in writing, signed by the complainant, filed with disciplinary counsel, and assigned to the appropriate inquiry committee for appropriate future action.
B. Initial Consideration. Disciplinary counsel shall evaluate complaints received. If the lawyer is not subject to the jurisdiction of the court, counsel shall refer the matter to the appropriate entity in the jurisdiction in which the lawyer is admitted.
C. Dismissal of Complaint. Subject to this section, a complaint may be summarily dismissed by disciplinary counsel if the alleged facts, if true, are not grounds for disciplinary action or disability.
At least every 30 days, counsel shall submit to the inquiry committee to which the complaint is assigned a list of all complaints considered subject to summary dismissal. The list must include a summary of reasons for each dismissal. Upon review of the reported complaints, any committee member may, within 14 days of the date the list was mailed, request that the committee further consider a particular complaint.
If the committee concludes summary dismissal of a particular complaint may be inappropriate, the committee shall direct that counsel conduct additional investigation.
The committee shall review the recommendation and additional investigation for purposes of determining whether dismissal is appropriate. Counsel shall issue a letter of summary dismissal if a request for further consideration is not received within 14 days of the date the list of complaints was mailed or if the committee, following further consideration, notifies counsel that additional investigation is not required and summary dismissal is appropriate.
If dismissal of a complaint is recommended by disciplinary counsel following investigation, the recommendation and accompanying investigative report must be submitted to the inquiry committee for consideration.
An inquiry committee may direct disciplinary counsel to issue an advisory letter in accordance with Rule 2.5C.After summary dismissal or dismissal of a complaint, counsel shall promptly notify the lawyer and complainant of the action and the reasons for the action and furnish a copy of the complaint to the lawyer.The lawyer is not required to respond to a complaint subject to summary dismissal. There is no appeal from a summary dismissal.
D. Investigation and District Inquiry Committee Procedures.
(1) Complaints not summarily dismissed must be promptly investigated by counsel Failure to timely complete an investigation does not prejudice the complaint.
(2) A copy of the complaint must be served on the lawyer.
(3) The lawyer, within twenty days of service of the complaint, shall serve a written response to the allegations in the complaint upon counsel. An extension may be granted by counsel only upon a showing of good cause. Failure to make a timely response may be deemed an admission that the factual allegations of the complaint are true for purposes of proceedings before the district inquiry committee.
At any time the complaint is under consideration by the district inquiry committee or counsel, the lawyer may be referred to the lawyer assistance program for screening for possible participation in the lawyer assistance program. Screening for possible participation in the lawyer assistance program may also be initiated by the lawyer at any time the complaint is under consideration by the district inquiry committee or counsel.
(4) Concurrent with submission of the lawyer's written response under section D(3), the lawyer shall serve a copy of the response, including all attachments, upon the complainant. The lawyer shall provide to counsel proof of service of the response upon the complainant. Any subsequent written reply to the lawyer's response by the complainant must be provided to the lawyer within a reasonable time after receipt by counsel.
(5) Within 60 days of receiving the complaint or a request for investigation, whichever occurs later, counsel shall file a written report with the chair containing a summary of the investigation and conclusions, the response received from the lawyer, and relevant documents.An extension may be granted by the chair only upon a showing of good cause. Counsel shall serve the written report upon the lawyer and the complainant at the time the report is filed with the chair.
(6) Notice of the opportunity to appear before the district inquiry committee must be provided to the complainant unless the complaint is subject to summary dismissal under Rule 3.1C, unless there is a diversion from discipline.
(7) Notice of the opportunity to appear before the district inquiry committee must be provided to the lawyer before entry of any discipline by the district inquiry committee, before diversion from discipline, or before referral for formal proceedings.
(8) Counsel shall promptly notify the complainant and lawyer in writing of the disposition of the complaint and the reasons for the inquiry committee's decision. The complainant, lawyer, or counsel may appeal any disposition, except a determination that there is probable cause or a diversion from discipline, to the board by filing a written request for review with counsel within 30 days of mailing of notice. The person appealing the inquiry committee's decision must show that the committee acted arbitrarily, capriciously, or unreasonably. Upon receipt of the written request, counsel shall refer the file to the board which shall consider the merits of the appeal. The determination of the board may be the subject of a petition for leave to appeal to the court, but leave will not be granted unless the person seeking leave to appeal shows that the board acted arbitrarily, capriciously, or unreasonably. A petition for leave to appeal must be submitted within 30 days of mailing of notice of the board's determination.
E. Formal Proceedings.
(1) The board shall begin a formal disciplinary proceeding within 60 days of referral of a matter to the board for formal proceedings or within 60 days of the board's determination that there is probable cause to believe a lawyer committed misconduct warranting public discipline. Counsel shall initiate the proceeding by filing with the board and serving upon the lawyer a petition that is sufficiently clear and specific to inform the lawyer of the alleged misconduct. The time within which formal proceedings must be instituted may be extended for good cause. Upon receiving the petition the chair of the board shall assign the matter to a hearing panel.
At any time after assignment to the hearing panel, the hearing panel may refer the lawyer to the lawyer assistance program for screening for possible participation in the lawyer assistance program. Screening for possible participation in the lawyer assistance program may also be initiated by the lawyer at any time after the matter is assigned to the hearing panel. The hearing panel shall proceed with its consideration of the matter during the screening process.
(2) The lawyer shall serve an answer upon counsel and the assigned hearing panel within 20 days after the service of the petition, unless the time is extended by the chair of the hearing panel. In the event the lawyer fails to timely answer, the charges are admitted.
(3) If there are any material issues of fact raised by the pleadings or if the lawyer requests the opportunity to be heard in mitigation, the hearing panel shall give 25 days written notice of the hearing to the lawyer, complainant, and counsel, stating the date and place of hearing. The hearing must be held in a judicial district in which the lawyer resides, is employed, or maintains an office. The notice of hearing must advise that the lawyer is entitled to be represented by counsel, to cross-examine witnesses, and to present evidence. The hearing must be recorded. The hearing panel may request that a transcript be made.
(4) Disciplinary counsel and the respondent may submit proposed findings, conclusions, and recommendations for sanction or order of dismissal to the hearing panel.
(5) All documents in a proceeding under this rule must be filed in accordance with Rule 5(d) of the North Dakota Rules of Civil Procedure, except the filing shall be made with the secretary, with copies served upon the assigned hearing panel.
F. Review by the Court.
(1) Within 60 days of the close of the hearing record, the hearing panel shall file with the secretary its order of dismissal, consent probation or reprimand. A copy of the panel's order must be served upon counsel, the complainant, and the lawyer. Counsel, the complainant, or the lawyer may seek court review of the panel's decision. A written petition for review, stating the reasons for the requested review, must be filed with the clerk within 20 days of service of the panel's order. The petition must contain a clear statement of the reasons petitioner believes the panel's decision is arbitrary, capricious, or unreasonable. The court may provide for oral arguments or the submission of briefs.
(2) Within 60 days of the close of the hearing record, the hearing panel shall submit to the court a report containing its findings and recommendations on each matter heard other than those resulting in dismissal , consent probation, or reprimand. The hearing panel's report shall contain mitigating or aggravating circumstances affecting the nature or degree of discipline recommended. A copy of the report submitted to the court must be served upon counsel, complainant, and the lawyer. Within 20 days of service of the report, the lawyer and counsel may file objections to the report. Within 50 days after service of the report, the lawyer and counsel may file briefs limited to objections timely filed under this rule. Oral arguments may be requested by the lawyer or counsel, or may be set upon the court's own motion. Briefing and oral argument will be as provided in the North Dakota Rules of Appellate Procedure.
G. Reserved Authority. Nothing in these rules prevents the court from instituting disability or disciplinary proceedings, diversion from discipline, or participation in the lawyer assistance program on its own initiative.
[Adopted effective January 1, 1995. Amended effective July 1, 1999; August 1, 2001; January 16, 2002; August 1, 2004; March 1, 2012; March 1, 2017.]