N.D.R. Lawyer Discipl.RULE 3.5. ADDITIONAL PROCEDURE.
1 A. Nature of Proceedings. Disability and disciplinary proceedings are neither
2 civil nor criminal but are quasi-judicial proceedings.
3 B. Other Rules Apply. Except as otherwise provided in these rules and insofar
4 as appropriate, the North Dakota Rules of Civil Procedure and North Dakota Rules
5 of Evidence apply in disability and discipline proceedings.
6 C. Standard of Proof. Disposition of informal and formal charges of
7 misconduct, petitions for reinstatement, and petitions for transfer to and from
8 disability inactive or incapacitated status must be supported by clear and convincing
10 D. Burden of Proof. Counsel has the burden of proof in proceedings seeking
11 discipline or transfer to disability inactive or incapacitated status. The lawyer has the
12 burden of proof in proceedings seeking reinstatement or transfer from disability
13 inactive or incapacitated status.
14 E. Prehearing Conference.
At the discretion of the hearing panel or upon
request of either party, a prehearing conference may be ordered for any purpose
available under Rule 16 of the North Dakota Rules of Civil Procedure. Following the
17 filing of a petition for discipline, a petition for transfer to disability inactive or
18 incapacitated status, or a petition for reinstatement or readmission, the hearing panel
19 chair shall schedule at least one prehearing conference to be held as soon as
20 practicable after
the petition is filed the time for a response has elapsed. The
21 scheduling order must specify issues that should be considered during the prehearing
22 conference. The prehearing conference should be arranged and conducted in a manner
23 to ensure optimal use of resources.
24 F. Related Litigation. Except as authorized in Rules 4.1 and 5.1, a disability or
25 disciplinary matter may not be delayed because of pending criminal or civil litigation,
26 unless the board in its discretion authorizes a stay for good cause shown.
27 G. No Abatement. Restitution by the lawyer; unwillingness of a complainant
28 to pursue a complaint; settlement of the complaint; or compromise between a
29 complainant and the lawyer does not in itself abate any proceeding before the court,
30 hearing panel, or district inquiry committee.
31 H. Time Limitations. Except as otherwise provided in these rules, time is
32 directory and not jurisdictional. Failure to observe prescribed time intervals may result
33 in discipline against the violator but does not abate any proceeding.
34 I. Organizational Members. If a complaint is filed against counsel, a member
35 of a district inquiry committee, or a member of the board, the matter must proceed
36 in accordance with these rules except that:
37 (1) If the lawyer is counsel, the board shall appoint a special substitute
38 temporary counsel to present the case; or
39 (2) If the lawyer is a member of a district inquiry committee, the complaint
40 must be referred to another district inquiry committee; or
41 (3) If the lawyer is a member of the board and the remaining members
42 decline to act, the chief justice shall appoint a special board of not less than three
43 persons for the case.
44 [Amended effective March 1, 2017. Amended effective July 1, 1999. Adopted 45 effective January 1, 1995.]