N.D.R. Lawyer Discipl.RULE 3.1. GENERALLY.
1 A. Initiation of Disciplinary Process. The board or district inquiry
2 committees may consider on their own motions alleged grounds for disciplinary
3 action or disability proceedings. All complaints other than those upon motion by
4 the board or district inquiry committees must be in writing, signed by the
5 complainant, filed with
the secretary, disciplinary counsel, and assigned to the
6 appropriate inquiry committee for appropriate future action.
The secretary may
assign new complaints to another inquiry committee when it appears that the
inquiry committee to which the complaint would normally be assigned has a
disproportionately high caseload.
10 B. Initial Consideration.
The chair or, upon designation by the chair, the
vice-chair of the district inquiry committee Disciplinary counsel shall evaluate
12 complaints received. If the lawyer is not subject to the jurisdiction of the court,
chair or vice-chair counsel shall refer the matter to the appropriate entity in the
14 jurisdiction in which the lawyer is admitted.
Summary Dismissal of Complaint. A Subject to this section, a complaint
must may be summarily dismissed by the district inquiry committee disciplinary
17 counsel if the alleged facts, if true, are not grounds for disciplinary action or disability.
18 At least every 30 days, counsel shall submit to the inquiry committee to which
19 the complaint is assigned a list of all complaints considered subject to summary
20 dismissal. The list must include a summary of reasons for each dismissal. Upon review
21 of the reported complaints, any committee member may, within 14 days of the date
22 the list was mailed, request that the committee further consider a particular complaint.
23 If the committee concludes summary dismissal of a particular complaint may be
24 inappropriate, the committee shall direct that counsel conduct additional investigation.
25 The committee shall review the recommendation and additional investigation for
26 purposes of determining whether dismissal is appropriate. Counsel shall issue a letter
27 of summary dismissal if a request for further consideration is not received within 14
28 days of the date the list of complaints was mailed or if the committee, following
29 further consideration, notifies counsel that additional investigation is not required and
30 summary dismissal is appropriate.
31 If dismissal of a complaint is recommended by disciplinary counsel following
32 investigation, the recommendation and accompanying investigative report must be
33 submitted to the inquiry committee for consideration.
34 An inquiry committee may direct disciplinary counsel to issue an advisory
35 letter in accordance with Rule 2.5C.
36 After summary dismissal or dismissal of a complaint,
the chair or vice-chair,
as appropriate, counsel shall promptly notify the lawyer and complainant of the action
38 and the reasons for the action and furnish a copy of the complaint to the lawyer. The
39 lawyer is not required to respond to
the a complaint subject to summary dismissal.
40 There is no appeal from a summary dismissal.
41 D. Investigation and District Inquiry Committee Procedures.
42 (1) Complaints not summarily dismissed must be promptly investigated by
member of the district inquiry committee or counsel. Failure to timely complete an
44 investigation does not prejudice the complaint.
Upon assignment of the investigator, a A copy of the complaint must be
46 served on the lawyer.
47 (3) The lawyer, within twenty days of service of the complaint, shall serve a
48 written response to the allegations in the complaint upon
the assigned investigator
49 counsel. An extension may be granted by
the chair counsel only upon a showing of
50 good cause. Failure to make a timely response
is an may be deemed an admission that
51 the factual allegations of the complaint are true for purposes of proceedings before
52 the district inquiry committee.
53 At any time the complaint is under consideration by the district inquiry
54 committee or counsel,
the district inquiry committee may refer the lawyer may be
55 referred to the lawyer assistance program for screening for possible participation in
56 the lawyer assistance program. Screening for possible participation in the lawyer
57 assistance program may also be initiated by the lawyer at any time the complaint is
58 under consideration by the district inquiry committee or counsel.
59 (4) Concurrent with submission of the lawyer's written response under section
60 D(3), the lawyer shall serve a copy of the response, including all attachments, upon
61 the complainant. The lawyer shall provide to
the assigned investigator counsel proof
62 of service of the response upon the complainant. Any subsequent written reply to the
63 lawyer's response by the complainant must be provided to the lawyer within a
64 reasonable time after receipt by
the investigator counsel.
65 (5) Within 60 days
of assignment, absent an extension from the chair, the
investigator of receiving the complaint or a request for investigation, whichever
67 occurs later, counsel shall file a written report with the chair containing a summary
68 of the investigation and conclusions, the response received from the lawyer, and
69 relevant documents. An extension may be granted by the chair only upon a showing
70 of good cause. Counsel shall serve the written report upon the lawyer and the
71 complainant at the time the report is filed with the chair.
72 (6) Notice of the opportunity to appear before the district inquiry committee
73 must be provided to the complainant unless the complaint is subject to summary
74 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.
76 (7) Notice of the opportunity to appear before the district inquiry committee
77 must be provided to the lawyer before entry of any discipline by the district inquiry
78 committee, before diversion from discipline, or before referral for formal proceedings.
79 (8) Counsel shall promptly notify the complainant and lawyer in writing of the
80 disposition of the complaint and the reasons for the inquiry committee's decision. The
81 complainant, lawyer, or counsel may appeal any disposition, except a determination
82 that there is probable cause or a diversion from discipline, to the board by filing a
83 written request for review with counsel within 30 days of mailing of notice. The
84 person appealing the inquiry committee's decision must show that the committee acted
85 arbitrarily, capriciously, or unreasonably. Upon receipt of the written request, counsel
86 shall refer the file to the board which shall consider the merits of the appeal. The
87 determination of the board may be the subject of a petition for leave to appeal to the
88 court, but leave will not be granted unless the person seeking leave to appeal shows
89 that the board acted arbitrarily, capriciously, or unreasonably. A petition for leave to
90 appeal must be submitted within 30 days of mailing of notice of the board's
(9) The report required under section D(5) must be filed with the secretary upon
disposition of the matter by the district inquiry committee.
94 E. Formal Proceedings.
95 (1) The board shall begin a formal disciplinary proceeding within 60 days of
96 referral of a matter to the board for formal proceedings or within 60 days of the
97 board's determination that there is probable cause to believe a lawyer committed
98 misconduct warranting public discipline. Counsel shall initiate the proceeding by
99 filing with the board and serving upon the lawyer a petition that is sufficiently clear
100 and specific to inform the lawyer of the alleged misconduct. The time within which
101 formal proceedings must be instituted may be extended for good cause. Upon
102 receiving the petition the chair of the board shall assign the matter to a hearing panel.
103 At any time after assignment to the hearing panel, the hearing panel may refer
104 the lawyer to the lawyer assistance program for screening for possible participation
105 in the lawyer assistance program. Screening for possible participation in the lawyer
106 assistance program may also be initiated by the lawyer at any time after the matter is
107 assigned to the hearing panel. The hearing panel shall proceed with its consideration
108 of the matter during the screening process.
109 (2) The lawyer shall serve an answer upon counsel and the assigned hearing
110 panel within 20 days after the service of the petition, unless the time is extended by
111 the chair of the hearing panel. In the event the lawyer fails to timely answer, the
112 charges are admitted.
113 (3) If there are any material issues of fact raised by the pleadings or if the
114 lawyer requests the opportunity to be heard in mitigation, the hearing panel shall give
115 25 days written notice of the hearing to the lawyer, complainant, and counsel, stating
116 the date and place of hearing. The hearing must be held in a judicial district in which
117 the lawyer resides, is employed, or maintains an office. The notice of hearing must
118 advise that the lawyer is entitled to be represented by counsel, to cross-examine
119 witnesses, and to present evidence. The hearing must be recorded. The hearing panel
120 may request that a transcript be made.
121 (4) Disciplinary counsel and the respondent may submit proposed findings,
122 conclusions, and recommendations for sanction or order of dismissal to the hearing
124 (5) All documents in a proceeding under this rule must be filed in accordance
125 with Rule 5(d) of the North Dakota Rules of Civil Procedure, except the filing shall
126 be made with the
Secretary secretary, with copies served upon the assigned hearing
128 F. Review by the Court.
129 (1) Within 60 days of the close of the hearing record, the hearing panel shall
130 file with the secretary its order of dismissal, consent probation or reprimand. A copy
131 of the panel's order must be served upon counsel, the complainant, and the lawyer.
132 Counsel, the complainant, or the lawyer may seek court review of the panel's decision.
133 A written petition for review, stating the reasons for the requested review, must be
134 filed with the clerk within 20 days of service of the panel's order. The petition must
135 contain a clear statement of the reasons petitioner believes the panel's decision is
136 arbitrary, capricious, or unreasonable. The court may provide for oral arguments or
137 the submission of briefs.
138 (2) Within 60 days of the close of the hearing record, the hearing panel shall
139 submit to the court a report containing its findings and recommendations on each
140 matter heard other than those resulting in dismissal , consent probation, or reprimand.
141 The hearing panel's report shall contain mitigating or aggravating circumstances
142 affecting the nature or degree of discipline recommended. A copy of the report
143 submitted to the court must be served upon counsel, complainant, and the lawyer.
144 Within 20 days of service of the report, the lawyer and counsel may file objections to
145 the report. Within 50 days after service of the report, the lawyer and counsel may file
146 briefs limited to objections timely filed under this rule. Oral arguments may be
147 requested by the lawyer or counsel, or may be set upon the court's own motion.
148 Briefing and oral argument will be as provided in the North Dakota Rules of
149 Appellate Procedure.
150 G. Reserved Authority. Nothing in these rules prevents the court from
151 instituting disability or disciplinary proceedings, diversion from discipline, or
152 participation in the lawyer assistance program on its own initiative.
153 [Adopted effective January 1, 1995. Amended effective July 1, 1999; August
154 1, 2001; January 16, 2002; August 1, 2004; March 1, 2012; March 1, 2017.]