Proposed Amendments to Rules for Lawyer Discipline
PART II - ORGANIZATION
RULE 2.1 THE DISCIPLINARY BOARD.
A. Appointment. The board consists of ten members: seven lawyer members, one from each judicial district of North Dakota, and three public members from the state at large. Board members each serve for a term of three years and until a successor is appointed and qualifies. Terms must be staggered so that no more than three lawyer members and one public member are appointed for full three-year terms in any one year. Except when filling an unexpired term, a member may not serve for more than two consecutive three-year terms. Past members may serve on hearing bodies. Vacancies must be filled by appointment by the court.
B. Nominations. Each lawyer member is appointed by the court from a list of three practicing lawyers submitted by the association's governing board. Each public member is appointed by the court from a list of three nominees submitted by a committee consisting of the president of the association, the attorney general, and the chair of the judicial conference.
C. Election of Officers. At the first meeting of the board in each calendar year, the members of the board shall elect a chair and vice-chair. The chair, and in the chair's absence the vice-chair, performs the duties normally associated with that office and presides over all meetings of the full board.
D. Secretary. The clerk of the court is the ex officio secretary of the board. The secretary shall maintain permanent records of disability and discipline matters, subject to the expunction requirements of these rules, and compile statistics to aid in the administration of the system, including a single log of all complaints received, investigative files, statistical summaries of docket processing and case dispositions, transcripts of all proceedings (or the reporter's notes if not transcribed), and other records as the board or the court requires to be maintained. Counsel appointed under these rules shall cooperate with the secretary, and assist the secretary in the performance of the obligations of that office. The secretary may, with the board's approval, delegate recordkeeping obligations to counsel to avoid duplication and promote efficiency.
E. Quorum. Six members are a quorum. The board may act only with the concurrence of a majority of the entire board except as to administrative matters, which only require a simple majority of a quorum.
F. Compensation. Members receive no compensation for their services, but are reimbursed for reasonable and necessary expenses incurred in the performance of their duties. The salaries of counsel and staff, their expenses, administrative costs, and the expenses of the members of the board and of hearing bodies are paid
by the board out of funds appropriated, deposited , or dedicated for its those purposes.
G. Abstention. A board member shall refrain from taking part in any proceedings in which a judge, similarly situated, would be required to abstain.
H. Powers and Duties. The board shall:
(1) Upon receiving an appeal of a district inquiry committee disposition, approve, modify or disapprove the disposition, or remand to the district inquiry committee for further proceedings;
(2) Conduct hearings, either en banc or by referral to a hearing body, on formal charges of misconduct, petitions for reinstatement, and petitions for transfer to and from disability inactive or incapacitated status, and submit findings and recommendations together with the record of the hearing to the court;
(3) Review the findings and recommendations of each hearing body, together with the record of the proceedings before the hearing body. Upon completion of its review the board may adopt or modify the hearing body's findings and recommendations and forward those, together with the record of the proceedings before the hearing body, to the court; or the board may remand the matter to the hearing body with directions for further proceedings;
(4) Act on each formal disciplinary proceeding, either by dismissing the petition, issuing a reprimand, imposing probation, or, if appropriate, recommending imposition of other sanctions;
(5) Appoint counsel to perform investigative and prosecutorial functions and authorize counsel to appoint assistants and staff necessary to perform those functions. The board may appoint substitute temporary counsel whenever counsel is disqualified or as the board otherwise deems appropriate;
(6) Appoint and supervise any necessary staff, separate from the investigative and prosecutorial staff, to assist the board in its adjudicative functions;
(7)(5) Inform the public about the existence and operation of the disability and disciplinary system, the disposition of each matter in which public discipline has been imposed, when a lawyer has been transferred to or from disability inactive or incapacitated status, or when a lawyer has been reinstated or readmitted;
(8)(6) Delegate, in its discretion, to the chair or vice-chair power to act for the board on administrative and procedural matters;
(9)(7) Annually review the operation of the disability and disciplinary system with the court, counsel, and district inquiry committees; and
(10) (8) Propose amendments to these rules for adoption by the court.
[Adopted effective January 1, 1995; Amended on an emergency basis effective July 16, 1998.]
RULE 2.2 OPERATIONS COMMITTEE
A. Appointment. The operations committee consists of three members: one former or current board member appointed by the court from a list of three nominations submitted by the disciplinary board, one appointed by the court from a list of three nominations submitted by the association's board of governors, and one former or current commission member appointed by the court from a list of three nominations submitted by the judicial conduct commission. The state court administrator or designee serves as an ex officio, non-voting member. Committee members each serve for a term of three-years and until a successor is appointed and qualifies. Terms must be staggered so that no more than one member is appointed for a full three-year term in any one year. Except when filling an unexpired term, a member may not serve for more than two consecutive three-year terms.
B. Election of Chair. At the first meeting of the committee in each calendar year, the members of the committee shall elect a chair and vice chair. The chair, and in the chair's absence the vice-chair, performs the duties normally associated with the office and presides over all meetings of the full committee.
C. Secretary. The executive director of the association is the ex officio secretary to the committee. The secretary shall maintain permanent financial and non-disciplinary case administrative records regarding the lawyer disciplinary system and disciplinary personnel. The secretary shall regularly provide financial statements to the committee.
D. Compensation. Members receive no compensation for their services, but are reimbursed for reasonable and necessary expenses incurred in the performance of their duties. Costs associated with the administrative duties of the secretary are paid by the board from funds appropriated, deposited, or dedicated for its purposes.
E. Powers and Duties. The committee is responsible for the fiscal management of the lawyer disciplinary system, including all issues related to personnel management. The committee shall adopt rules for internal operations and procedures.
[Adopted on an emergency basis effective July 16, 1998.]
2.2 2.3 HEARING BODIES.
A. Appointment. When the board refers a matter to a hearing body, other than the board en banc, the chair of the board shall appoint a hearing body to conduct the hearing, make findings, and recommend action to the board. A hearing body may consist of a three-member panel of two lawyers and one public member appointed from current or former board members, or may be a hearing officer designated from among sitting or retired state-court judges.
B. Powers and Duties. Each hearing body shall:
(1) Conduct hearings on matters referred by the board; and
(2) Submit findings and recommendations, together with the record of the hearing, to the board.
C. Abstention. A member of the hearing body shall refrain from taking part in any proceedings in which a judge, similarly situated, would be required to disqualify.
[Adopted effective January 1, 1995; Amended on an emergency basis effective July 16, 1998.]
2.3 2.4 DISTRICT INQUIRY COMMITTEES.
A. Disciplinary Districts. The state is divided into disciplinary districts:
(1) Eastern District. The Eastern District includes the following counties: Barnes, Benson, Cass, Cavalier, Dickey, Eddy, Foster, Grand Forks, Griggs, Kidder, LaMoure, Logan, McIntosh, Nelson, Pembina, Pierce, Ramsey, Ransom, Richland, Rolette, Sargent, Steele, Stutsman, Towner, Traill, Walsh, and Wells.
(2) Western District. The Western District includes the following counties: Adams, Billings, Bottineau, Bowman, Burleigh, Burke, Divide, Dunn, Emmons, Golden Valley, Grant, Hettinger, McHenry, McKenzie, McLean, Mercer, Morton, Mountrail, Oliver, Renville, Sheridan, Sioux, Slope, Stark, Ward, and Williams.
B. Appointment - Special Members. The association president shall appoint a nine-member district inquiry committee, consisting of six lawyers and three public members, within each disciplinary district. Upon the request of an inquiry committee chair, the association president may appoint not more than three special members to an inquiry committee for purposes of conducting investigations of complaints and preparing and presenting investigative reports. A special member need not be a resident of or practice law in the disciplinary district for the inquiry committee to which the member is appointed. A special member is appointed for a term of three months but, the association president may extend the term for up to an additional nine months. A special member may not vote on the disposition of a complaint under section E(3).
C. Terms of Office. All terms are for three years and a member of a district inquiry committee may not serve for more than two consecutive three-year terms. Terms must be staggered so that no more than two lawyer members and one public member are appointed for full three-year terms in any one year. A member who has served two consecutive three-year terms may not be reappointed before the expiration of at least one year.
D. Chair. At the first meeting of each district inquiry committee in each calendar year, the members of the committee shall elect a chair who shall preside at all meetings, perform the usual duties of a chair, and be responsible for preparation of a report of the meeting to file with the board. A vice-chair shall be similarly elected to act in the absence of the chair.
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; and
(3) Act on each complaint by dismissal, by issuance of an admonition or consent probation or both, or by directing counsel to file a petition with the board initiating formal disciplinary or disability proceedings.
F. Failure to complete reports or investigation. Failure of the investigator designated under section E(1) to complete reports in a timely fashion may result in reassignment of the investigation and removal, unless counsel is the investigator, of the investigator from the district inquiry committee by the association president. Failure of an investigator to timely complete an investigation under Rule 3.1D does not prejudice the complaint.
G. Compensation. All expenses of the district inquiry committees incurred in connection with the enforcement of these rules must be paid from association funds.
[Adopted effective January 1, 1995; amended on an emergency basis effective May 28, 1997; amended on an emergency basis effective July 16, 1998.]
2.4 2.5 DISCIPLINARY COUNSEL.
Qualifications of Counsel.
(1) Counsel and substitute temporary counsel must be admitted to the practice of law in North Dakota; and
(2) With the exception of substitute temporary counsel, counsel may not engage in the private practice of law.
B. Powers and Duties. Counsel shall:
(1) Upon referral by a district inquiry committee, investigate all information about a lawyer which, if true, would be grounds for discipline or transfer to disability inactive or incapacitated status and prepare an investigative report and recommendations for the district inquiry committee's disposition;
(2) Advise the board and the district inquiry committees on legal issues relating to lawyer discipline and disability;
(3) Prosecute disciplinary, disability, and reinstatement proceedings before hearing bodies, the board, and the court;
Employ and superviseSupervise staff needed for the performance of investigative and prosecutorial functions, as authorized by the boardoperations committee and within limits of appropriations andfunds available;
(5) Promptly notify the complainant and the lawyer of the disposition of each matter;
(6) Notify each jurisdiction in which a lawyer is admitted of a transfer to or from disability inactive or incapacitated status, a reinstatement, or any public discipline imposed in this state;
(7) When a lawyer is convicted in this state of a serious crime in Rule 4.1C, forward a certified copy of the judgment of conviction to the disciplinary agency in each jurisdiction in which the lawyer is admitted; and
(8) Provide regular reports on all complaints filed with the secretary to the district inquiry committees and the board at their scheduled meetings.
[Adopted effective January 1, 1995; amended on an emergency basis effective July 16, 1998.]