RULE 3.5. ADDITIONAL PROCEDURE.

A. Nature of Proceedings. Disability and disciplinary proceedings are neither civil nor criminal but are quasi-judicial proceedings.

B. Other Rules Apply. Except as otherwise provided in these rules and insofar as appropriate, the North Dakota Rules of Civil Procedure and North Dakota Rules of Evidence apply in disability and discipline proceedings.

C. Standard of Proof. Disposition of informal and formal charges of misconduct, petitions for reinstatement, and petitions for transfer to and from disability inactive or incapacitated status must be supported by clear and convincing evidence.

D. Burden of Proof. Counsel has the burden of proof in proceedings seeking discipline or transfer to disability inactive or incapacitated status. The lawyer has the burden of proof in proceedings seeking reinstatement or transfer from disability inactive or incapacitated status.

E. Prehearing Conference. Following the filing of a petition for discipline, a petition for transfer to disability inactive or incapacitated status, or a petition for reinstatement or readmission, the hearing panel chair shall schedule at least one prehearing conference to be held as soon as practicable after the time for a response has elapsed. The scheduling order must specify issues that should be considered during the prehearing conference. The prehearing conference should be arranged and conducted in a manner to ensure optimal use of resources.

F. Related Litigation. Except as authorized in Rules 4.1 and 5.1, a disability or disciplinary matter may not be delayed because of pending criminal or civil litigation, unless the board in its discretion authorizes a stay for good cause shown.

G. No Abatement. Restitution by the lawyer; unwillingness of a complainant to pursue a complaint; settlement of the complaint; or compromise between a complainant and the lawyer does not in itself abate any proceeding before the court,hearing panel, or district inquiry committee.

H. Time Limitations. Except as otherwise provided in these rules, time is directory and not jurisdictional. Failure to observe prescribed time intervals may result in discipline against the violator but does not abate any proceeding.

I. Organizational Members. If a complaint is filed against counsel, a member of a district inquiry committee, or a member of the board, the matter must proceed in accordance with these rules except that:

(1) If the lawyer is counsel, the board shall appoint a special substitute temporary counsel to present the case; or

(2) If the lawyer is a member of a district inquiry committee, the complaint must be referred to another district inquiry committee; or

(3) If the lawyer is a member of the board and the remaining members decline to act, the chief justice shall appoint a special board of not less than three persons for the case.

[Amended effective March 1, 2017. Amended effective July 1, 1999. Adopted effective January 1, 1995.]