RULE 3.1. GENERALLY.

Obsolete Date: 7/1/1999

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, and filed with the secretary.

B. Initial Consideration. The chair or, upon designation by the chair, the vice-chair of the district inquiry committee shall evaluate complaints received. If the lawyer is not subject to the jurisdiction of the court, the chair or vice-chair shall refer the matter to the appropriate entity in the jurisdiction in which the lawyer is admitted.

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 provided to the lawyer.

(3) The lawyer, within twenty days of receiving the complaint, shall submit a written response to the allegations in the complaint. 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.

(4) Before consideration by the district inquiry committee, a copy of the lawyer's written response must be provided to the complainant.

(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 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 or referral for formal proceedings.

(8) Counsel shall promptly notify the complainant and lawyer of the disposition of the complaint and the reasons. The complainant, lawyer, or counsel may appeal any disposition, except a determination that there is probable cause, 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 complainant 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) When a district inquiry committee or the board determines there is probable cause to believe a lawyer committed misconduct warranting public discipline, it shall begin formal disciplinary proceedings before the board. Within 90 days, unless for good cause shown, a formal disciplinary proceeding must be instituted by counsel 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. Upon receiving the petition the chair of the board shall assign the matter to a hearing body or to the board en banc.

(2) The lawyer shall serve an answer upon counsel and file the original with the board within 20 days after the service of the petition, unless the time is extended by the chair of the hearing body. 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 body 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.

(4) The hearing body shall in every case submit to the board within 60 days after the conclusion of its hearing a report containing findings and recommendations, together with a record of its proceedings. The hearing body may request that a transcript be made. Neither the lawyer, complainant, nor counsel may be present during deliberations on the disposition of the formal complaint by the hearing body.

F. Review by Board. Upon receiving the findings and recommendations of the hearing body, the secretary shall notify counsel and the lawyer of the right to, and time within which to, request the opportunity to present briefs and oral argument to the board. Review by the board is limited to consideration of the report from the hearing body and the record of formal proceedings, the transcript when one has been requested, and, if granted, briefs and oral argument. Within 30 days of review, the board shall file with the secretary its order dismissing the petition, imposing discipline, or its report recommending or imposing discipline.

G. Review by the Court. The board shall promptly submit to the court a report containing its findings and recommendations on each matter heard other than those resulting in remand, dismissal without appeal, consent probation without appeal, or reprimand without appeal. The board'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.

H. Reserved Authority. Nothing in these rules prevents the court from instituting disability or disciplinary proceedings on its own initiative.