Rule Changes to Incorporate Lawyer Assistance Program and Diversion from Discipline
Proposed Amendments to the Rules for Lawyer Discipline
Rule 1.0 TERMS
As used in these rules:
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E. "Diversion from discipline" means a stay of proceedings before the district inquiry committee, the board, or the court, conditioned on participation in the lawyer assistance program.
F. "Lawyer assistance program" means a program established by the association to aid in preventing and alleviating problems that may adversely influence a lawyer's performance.
E G. "Secretary" means secretary of the disciplinary board.
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RULE 2.4 DISTRICT INQUIRY COMMITTEES
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E. Powers and Duties. Each district inquiry committee shall:
(1) Through members designated by its chair or by using the services of counsel, investigate all information about a lawyer which, if true, would be grounds for discipline or transfer to disability inactive or incapacitated status, and provide a report of the investigation to counsel for distribution to the district inquiry committee;
(2) Review investigative reports and recommendations;
(3) Act on each complaint by dismissal, by approval of diversion
from discipline, by issuance of an admonition or consent
probation or both, by directing participation in a lawyer
assistance program in conjunction with an admonition or consent
probation, or by directing counsel to file a petition with the
board initiating formal disciplinary or disability proceedings
(4) Dismiss a complaint after a lawyer's completion of all conditions of diversion from discipline; and
(5) Discontinue diversion from discipline if a lawyer does not complete all conditions of that diversion.
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RULE 3.1 GENERALLY
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C. Summary Dismissal. A complaint must be summarily dismissed by the district inquiry committee if the alleged facts, if true, are not grounds for disciplinary action or disability. After summary dismissal of a complaint, the chair or vice-chair, as appropriate, shall promptly notify the lawyer and complainant of the action and furnish a copy of the complaint to the lawyer. The lawyer is not required to respond to the complaint. 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 a member of the district inquiry committee or counsel.
(2) Upon assignment of the investigator, 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 the assigned investigator. An extension may be granted by the chair only upon a showing of good cause. Failure to make a timely response is 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, the district inquiry committee 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 the complaint is under consideration by the district inquiry committee.
(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 the assigned investigator 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 the investigator.
(5) Within 60 days of assignment, absent an extension from the chair, the investigator 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.
(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, or unless in the chair's opinion the complainant poses a threat of harm to the committee.
(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. 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.
(9) The report required under section D(5) must be filed with the secretary upon disposition of the matter by the district inquiry committee.
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 file the original with 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
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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.
RULE 3.4 THREAT OF PUBLIC HARM
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B. Immediate Interim Suspension. At any stage of any proceeding, the court may enter an interim order immediately suspending the lawyer pending final disposition of the proceeding predicated upon the conduct causing the harm or may order such other action as deemed appropriate. In the case of an interim suspension, the court may appoint a trustee under Rule 6.4 to protect the interests of clients. In the case of an interim suspension, the court may order that a lawyer participate in the lawyer assistance program.
RULE 4.3 PROBATION
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B. Conditions. The conditions of the probation must be stipulated in writing. Conditions may include participation in the lawyer assistance program. Only the court may impose conditions of probation which limit the lawyer's right to practice law in this jurisdiction.
RULE 6.1 RECORDS
A. Confidentiality. Before the filing of the petition with the board by counsel, all proceedings involving an allegation of misconduct or disability of a lawyer and all associated records, including the complaint, investigative report, and recommendation, are confidential, except that the pendency, subject matter, status of an investigation, and final disposition, if any, may be disclosed by the chair of the board if:
(1) The lawyer has waived confidentiality;
(2) The proceedings are based upon conviction of a crime:
(3) The proceedings are based upon allegations that have become generally known to the public; or
(4) It involves matters alleging any form of disability and the court enters an order transferring the lawyer to disability inactive or incapacitated status.
All officials and employees of the board, hearing panels, or
district inquiry committees in the proceedings shall
themselves so as to maintain the confidentiality of the
proceedings. This rule does not deny access to relevant
information to authorized agencies investigating qualifications
for admission to practice, to the client protection fund operated
by the associated investigating the validity of a client's claim,
to law enforcement agencies investigating qualifications for
government employment, or to any judicial nominating committee.
Upon the filing of a formal petition with the board, counsel
shall inform the appropriate local prosecutor, by mailing a copy
of the petition to the local prosecutor, if counsel determines
the facts alleged in the petition may constitute a criminal
The confidentiality established by this rule does not apply to the dissemination or exchange of information concerning any proceedings involving an allegation of misconduct or disability between district inquiry committees or between district inquiry committees and the board.
This rule does not require the disclosure of any records concerning a lawyer's screening for or participation in the lawyer assistance program.
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RULE 6.6 DIVERSION FROM DISCIPLINE
A. Lawyer Assistance Program Committee. A lawyer assistance program committee is established pursuant to Administrative Rule ___.
B. Cases Appropriate for Diversion from Discipline. The purpose of diversion from discipline is to protect the public by improving the professional competence of and providing educational, remedial, and rehabilitative programs to members of the association through:
1. The early identification of lawyers who have violated the North Dakota Rules of Professional Conduct in ways which do not raise questions about the lawyer's moral fitness or integrity, but about the lawyer's practice administration or organization, health, or competence.
2. The prevention of similar ethical violations by identified lawyers by altering the circumstances which caused the violation.
3. The improvement of the quality and speed of formal disciplinary proceedings against those lawyers whose conduct warrants formal proceedings by reducing recidivism and reallocating disciplinary system time toward more serious disciplinary matters.
Cases involving poor administration, poor practice skills, alcohol or drug addiction or abuse, or other deficiencies in professional capabilities are often best suited for diversion from discipline.
In considering a case for diversion from discipline, the reviewing entity shall determine whether, under all of the circumstances, diversion from discipline can reasonably be expected to treat, educate, or alter the respondent's behavior or otherwise address the underlying problem so as to minimize the risks that the respondent will commit the same or similar acts of misconduct in the future. Such circumstances include the nature of the violation; the duty involved; whether the respondent was involved in self-dealing, dishonest conduct, or a breach of fiduciary duty; whether harm resulted; and the absence or presence of aggravating or mitigating factors.
C. Intake and Screening. Referral to the lawyer assistance program can be initiated by any person involved in discipline, including a lawyer against whom a complaint has been filed. The lawyer assistance program will conduct appropriate intake and screening to determine whether a lawyer who has been referred to the program would benefit from the lawyer assistance program.
D. Individualized Assistance Plan. If, after intake and screening, the lawyer assistance program committee determines that a lawyer would benefit from the program, the committee will select a person with expertise in the apparent problem area who will work with the lawyer to be assisted in developing an individualized assistance plan. The individualized assistance plan shall be approved by the committee. An individualized assistance plan might include, e.g., completion of an office management training program, mentoring in office management skills, completion of an addiction treatment program, an agreement for random testing for drugs and alcohol, or an agreement to obtain appropriate professional counseling.
E. Approval of Individualized Assistance Plan. If participation in the lawyer assistance plan is to be a condition of diversion from the discipline system, the assistance plan must be approved by the entity currently considering the complaint against the lawyer, whether it is a district inquiry committee, the disciplinary board, or the Supreme Court. The lawyer assistance program committee shall be responsible for monitoring compliance with the individualized assistance plan and reporting compliance or non-compliance to the entity that approved the plan.
F. Costs of Individualized Assistance Plan. A lawyer participating in the lawyer assistance program is responsible for all costs associated with compliance with the lawyer's individualized assistance plan.
G. Confidentiality and Immunity. Information regarding a lawyer's participation in a lawyer assistance program is confidential under Administrative Rule ___, section 4.
Immunity of persons involved in the lawyer assistance program is governed by Administrative Rule ___, section 5.
6.6 6.7 EFFECTIVE
These rules, as amended, become effective on
1999_________ . Any matter then pending with respect to which a
formal hearing has been commenced shall be concluded under the
procedure existing prior to the effective date of these rules.
6.7 6.8 TITLE AND CITATION
These rules are titled "North Dakota Rules for Lawyer Discipline" and may be cited as "N.D.R. Lawyer Discipl."
PROPOSED AMENDMENTS TO ADMISSION TO PRACTICE R.8
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RULE 8. CONDITIONAL ADMISSION/LICENSE
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B. The Board may recommend specific conditions of admission or licensure, including, but not limited to, requiring alcohol or drug treatment, medical care, psychological or psychiatric care, professional office practice or management counseling, practice supervision, participation in the lawyer assistance program, and/or professional audits or reports. The Board may recommend persons to supervise the applicant and may recommend that cooperation with such supervisors be a condition. All costs related to any condition are the responsibility of the applicant. The Board shall recommend a specific duration for the conditions.
PROPOSED AMENDMENTS TO N.D.STDS IMPOSING LAWYER SANCTIONS 2.7
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2.7 Other Sanctions and Remedies. Other sanctions and remedies which may be imposed include:
(b) assessment of costs,
(c) limitation upon practice,
(d) appointment of a receiver,
(e) requirement that the lawyer take the bar examination or professional responsibility examination,
(f) requirement that the lawyer attend continuing education
(g)requirement that the lawyer participate in a lawyer assistance program, and
(g) other requirements that the state's highest court or disciplinary board deems consistent with the purposes of lawyer sanctions.
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