QUESTION 1:
DOES YOUR OFFICE ROUTINELY (OR EVER) DEFER
PROSECUTION OF THE DISCIPLINARY MATTER WHILE A
CIVIL/CRIMINAL/OTHER MATTER IS FORMALLY PENDING?
IF SO (OR NOT) WHY SO (OR NOT)?
Alabama
Rule 14 states that disciplinary proceedings shall not be deferred or abated
because of substantial similarity to the material allegations of pending
criminal or civil litigation involving the respondent, unless authorized by the
disciplinary board, in its discretion, for good cause shown. We do seek
authorization from time to time depending on the particular civil/criminal
matter and the alleged ethical conduct.
Alaska
Yes,
under
Alaska
Bar
Rule
20
(available
at: http://www.courts.alaska.gov/bar.htm#20), we routinely request deferrals
so that we can evaluate whatever fact-finding has occurred in the proceeding.
Arizona
Yes, we do from time to time defer prosecution. If we wish to defer we must
seek court approval pursuant to Rule 48(f) Ariz. R. Sup. Ct. Related Pending
Litigation. “The processing of a discipline matter shall not be delayed
because of substantial similarity to the material allegations of pending
criminal or civil litigation, unless the presiding disciplinary judge, in the
exercise of discretion, authorizes a stay for good cause shown.”
We typically request to defer if the circumstances of the parallel civil or
criminal litigation appear to be better resolved by the court prior to moving
forward in a discipline case.
Arkansas
Frequently defer so we can get the court outcome and take advantage of
usually well-developed and free discovery materials.
California
Yes, sometimes, if the issues in the civil matter include issues we would need
to prove at a disciplinary trial. If the issues are not particularly complex, or if
we already have access to the evidence and could prove up the disciplinary
case, we would probably go forward with the disciplinary case and not wait
for the civil case. For example, if we received a disciplinary complaint
alleging that an attorney had misappropriated funds belonging to a client, we
would go forward with the disciplinary case even if a civil case was pending
based on the same alleged misconduct.
However, if the evidence was extensive or difficult to obtain, or if the issues
were particularly complicated, we would probably abate the disciplinary
matter pending the outcome of the civil matter. For example, if we received
a disciplinary complaint alleging that an attorney was involved in a
complicated scheme to defraud that involved complex issues and evidence,
we would probably abate the disciplinary matter pending the outcome of the
civil matter.
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Note that in California, our burden of proof in disciplinary matters is clear
and convincing evidence, while the burden in most civil cases is
preponderance of the evidence, with some exceptions. So, even if we await
the outcome of a civil case, that outcome is not dispositive of the disciplinary
case. However, the findings in the civil case can be persuasive if supported
by the evidence. Finally, please note that pursuant to California Business
and Professions Code section 6049.2, transcripts of witness testimony in a
prior contested civil or special proceeding is admissible in State Bar
disciplinary matters of the respondent attorney was a party in the prior matter
or the prior matter was prosecuted or defended on behalf of the respondent
attorney and if there was a full opportunity to cross examine the witness in
the prior proceeding. The witness does not have to be unavailable in the
disciplinary proceeding.
Colorado
Colorado has a rule that allows Regulation Counsel to defer. Pursuant to
C.R.C.P. 251.32(g), “[d]isciplinary proceedings involving complaints with
material allegations which are substantially similar to those made against
the respondent in pending civil litigation may in the discretion of the
committee, the Presiding Disciplinary Judge, or a Hearing Board be deferred
until the conclusion of such litigation.”
If the office concludes the material allegations made in the civil litigation and
the request for investigation are substantially similar, we will request the
Attorney Regulation Committee, the PDJ or hearing board place this matter
into abeyance until the conclusion of the civil litigation.
We also have to conclude, however, that placing the matter in abeyance
would not place the public at additional risk, would not jeopardize evidence
critical to the investigation, and would not unnecessarily delay completion of
the investigation. Thus, it just doesn’t happen as often as respondent’s
counsel would like. In addition, if we believe that we may be used as a
wedge in the civil litigation or if there is no hurry, we may also defer.
Connecticut
Not as a rule or standard practice. We would consider each case on its own
merits but because a civil malpractice case and an attorney disciplinary
matter involve different allegations and different burdens of proof, the
default would be not to stay the disciplinary proceeding.
Delaware
Yes. Prosecution is deferred when there are issues raised that could and/or
may be addressed by the Court.
D.C.
Yes, because our investigation may benefit from discovery or the outcome of
the trial.
Florida
We have a Board Policy:
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15.55
Deferral of Disciplinary Investigation During Civil, Criminal,
and Administrative Proceedings
(a)
Generally. As a general rule, disciplinary investigations should be
conducted with dispatch. However, there are instances in which the
disciplinary process should subjugate itself to other tribunals.
The Supreme Court of Florida has ruled that the disciplinary process and
proceedings are not to be used as a substitute for civil proceedings and
remedies. See The Florida Bar v. Della-Donna, 583 So. 2d 307 (Fla.
1989). This holding rationally applies in administrative and criminal
proceedings as well.
The authority of the board of governors to defer or suspend disciplinary
investigations is provided in rule 3-7.4(e), Rules Regulating The Florida
Bar. This policy is enacted in order to define those instances when
suspension
of
disciplinary
proceedings
is
appropriate.
(b)
Deferral. When an inquiry or disciplinary complaint is filed, bar
counsel or intake counsel shall analyze the complaint and determine if the
issues raised may be addressed by the court or administrative tribunal in the
underlying case. If so, then bar counsel, with the concurrence of the chief
branch discipline counsel, or intake counsel, with the concurrence of the
director of the Clients' Security Fund, Intake, and ACAP Department, may
defer investigation of the disciplinary complaint until such time as the
underlying case is concluded.
The designated reviewer shall be given written notice of a decision to defer
an investigation. The designated reviewer shall have 30 days from the notice
in which to object, in writing, to the decision to defer the investigation. If the
designated reviewer does not object within the 30 days, the decision to defer
the
investigation
shall
be
deemed
approved.
If the designated reviewer timely objects to the decision to defer the
investigation, the matter shall be presented to the executive committee or the
board of governors for resolution.
If the decision to defer the investigation is approved, bar counsel shall give
written notice to the respondent and the complainant. The notice shall
include:
(1)
advice that the bar’s investigation will be deferred pending the
outcome of the civil, criminal, or administrative prosecution of the
respondent; and
(2) advice that it is the responsibility of the complainant to advise the bar
that the issue was not addressed by the presiding court or other tribunal or
that there was a finding by the court or tribunal of unethical conduct.
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Georgia
We do defer occasionally. It generally depends on how closely connected
the issues are, and whether there’s a possibility that the answer in our case
and the answer in the civil case could diverge. So, if there’s a motion to
disqualify in the civil case, and an allegation of a conflict in the disciplinary
matter, we might wait for the court to rule before deciding what to do.
Guam
We have no formal policy. It seems that our Ethics Committee would
consider each matter on a case-by-case basis, although we would tend to err
on the side of waiting until the civil matter was completed before moving
forward with the disciplinary matter. Note, however, that if a basis exists
supporting a request to our Supreme Court for an order of immediate
summary suspension in order to protect the public from harm we would take
action in that regard, independent of the underlying “stayed” ethics matter.
Hawaii
We do defer most civil actions despite a rule that says we should not.
However, in most instances, the complainant is just trying to use ODC to get
a decision against the respondent to use in the civil matter for issue
preclusion. We do not want that to happen, also they are trying to use ODC
for discovery and we simply do not have the resources to pursue the case for
them. In most instances, the civil case is complex and would cost a fortune
for ODC to pursue. We close the investigation and advise the complainant to
let us know when there is a final decision which finds that the attorney did
something wrong. If the court makes such a finding, the complainant always
lets us know.
Idaho
Yes. Reasons include (1) we don’t want the opponent to have the opportunity
to obtain discovery thru the disciplinary case, when they are involved in
discovery in the civil case, (2) to allow the lawyer to defend the civil claim,
without fear of an admission in a disciplinary investigation and (3) to take
advantage of discovery in the civil case, thereby reducing our investigation
costs and burden
Illinois
Not typically defer, but decided on a case by case basis, e.g., considerations staleness of evidence, reluctance of witnesses to participate after civil
decision, ethical violation v. purely malpractice issues, etc.
Iowa
No, we do not defer prosecution of a disciplinary matter while a civil
malpractice case is pending. Since the burden of proof is different in that
matter, it can't be used to substantiate any of our disciplinary violations.
Likewise, all of our materials are confidential so cannot be shared with the
plaintiffs in the malpractice action. A violation of our disciplinary rules does
not provide a cause of action.
Indiana
We would typically not defer prosecution of discipline simply because of a
pending malpractice case. Although we would recognize that the
grievant/client would want to use the discipline case as some sort of proof or
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leverage in the malpractice case, we would probably factor that into our
prosecution decision only minimally.
Kansas
Yes, routinely. SCR 214 allows the practice except in exceptional
circumstances (what those circumstances are has yet to be litigated), and it is
discretionary. For example, in a complex civil suit, the litigation may resolve
the issue at hand and so a stay is appropriate from a resources perspective. If
it is a serious matter, such as conversion/criminal misconduct, we may go
forward.
Kentucky
In Kentucky, we have a specific rule (SCR 3.180(2)) that allows either our
office or the respondent to file a motion with the Inquiry Commission, our
probable cause panel, to defer any “pending civil or criminal litigation
involving the Respondent or proposed Respondent involving substantially
similar material allegations to that or those in the disciplinary
proceedings.” The respondent has to provide quarterly reports to the Inquiry
Commission.
Louisiana
Our rules for disciplinary enforcement are found in Supreme Court Rule XIX
(patterned after the ABA Model Rules for Lawyer Disciplinary Enforcement)
and under section 18G provides:
G. Related Pending Litigation.
Upon a showing of good cause to the board or to the hearing committee chair
assigned to the matter after formal charges have been filed and prior to the
hearing on the formal charges, the processing of a disciplinary matter may be
stayed because of substantial similarity to the material allegations of pending
criminal or civil litigation or disciplinary action.
Our rule speaks to circumstances where formal charges have been filed. It
does not directly speak to matters in the investigative state. As a policy, the
office typically will administratively stay investigations where there are
pending civil or criminal cases that have as their object the discovery of facts
that are common to those present in the disciplinary complaint. Our goal is
not to 'interfere' with civil/criminal cases and frankly, we do not want to
encourage the use of the disciplinary process as a discovery tool. As regards
criminal cases, we do not want to do anything that may 'obstruct' the
prosecution function nor infringe upon the respondent/defendant's
constitutional rights. Nevertheless, where the nature of the allegations
present are similar in the disciplinary arena as well as in the civil/criminal
cases, and where the respondent's conduct reflects an ongoing threat of harm
to the public, we will often proceed with our investigation (including
prosecution) if to do otherwise would unnecessarily place the public at
risk. A good example is where a lawyer has converted client funds or forged
settlements without client knowledge. While those facts routinely give rise
to both civil and criminal proceedings, left unattended the respondent may
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well continue his unethical/illegal behavior causing further harm to others.
Maine
Maryland
Massachusetts
Yes, we sometimes do defer if the claim or dispute is exactly the
same. More often than not, however, we go forward because our process is
usually faster than civil process.
Generally, we defer so that we could obtain any discovery in the civil case.
We do defer prosecutions in appropriate cases. Or sometimes the
respondents make the request for deferral (in which case, we often oppose,
sometimes successfully, sometimes not.) The rule is Supreme Judicial Court
Rule 4:0l, section 11:
Section 11. Matters Involving Related Pending Civil, Criminal, or
Administrative Proceedings.
The investigation or prosecution of complaints involving material
allegations which are substantially similar to the material allegations of
pending criminal, civil, administrative, or bar disciplinary proceedings in
this or another jurisdiction shall not be deferred unless the Board or a
single member designated by the Chair, in its discretion, or the court, for
good cause shown, shall authorize such deferment, as to which either the
court or the Board may impose conditions.
The acquittal of the Respondent-lawyer on criminal charges, or a verdict,
judgment, or ruling in the lawyer's favor in civil, administrative, or bar
disciplinary proceedings shall not require abatement of a disciplinary
investigation predicated upon the same or substantially similar material
allegations.
Michigan
Sometimes we do. It is really very discretionary and is determined on a case
by case basis.
Minnesota
We will generally defer and inform the complainant that he/she is free to
bring the matter before the presiding judge for resolution (particularly if the
allegation concerns procedural issues (noncompliance with discovery, failure
to provide adequate notice, whether communications constitute notice or
response, etc.) or statutory interpretation or even fraud (ex: husband’s
attorney in dissolution case is understating income) if the matters are most
appropriately determined, at least in the first instance, by the presiding judge.
We would likely similarly defer in a malpractice case, but I’m unaware of a
situation in which that scenario has arisen with a complaint filed while a
malpractice action is pending. With respect to straight malpractice
complaints (negligence, poor quality representation, etc.) we will generally
dismiss the complaint and refer to the complainant to the civil court system.
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Mississippi
We routinely hold in abeyance matters that are also the subject of underlying
litigation. This is typically not related to a malpractice case, but rather the
subject of a complaint also being a subject of litigation. Our operating
premise is to avoid inadvertently inserting the bar in the litigation and
affecting the outcome.
Missouri
No official policy to defer a discipline case if we are aware a legal
malpractice case is pending between complainant and respondent. The
decision whether to put a disciplinary complaint on “Held” status is an ad
hoc one – up to the chief disciplinary counsel. The stage of the civil
litigation would make a difference, as would the nature of the misconduct. If
the alleged misconduct involves safekeeping property issues, for example,
we would likely proceed. But if a civil case has a trial date in the next few
months and is likely to produce findings of fact that we can assert via
offensive non-mutual collateral estoppel, we might defer.
Montana
Fairly routinely this office will hold an investigation in abeyance pending the
outcome of a post-conviction proceeding challenging a conviction on
ineffective assistance of counsel grounds. In MT these proceedings are held
post-appeal and before the trial judge, who is in the best position to rule on
IAC claims. Rarely, if ever, does the judge find ineffective assistance under
Strickland. If there is such a finding, MT ODC would incorporate it into the
investigation into incompetence claims.
Not familiar with any instance wherein Montana ODC deferred investigation
of a civil malpractice claim pending a separate civil suit, but again a
negligent error or omission is not per se incompetence.
In the event of an attorney charged with a serious misdemeanor or felony
(and not a DUI unless 4th offense=felony), MT ODC awaits for a conviction
and then reports that conviction directly to the MT Supreme Court which can
impose a discretionary interim suspension pending formal disciplinary
process. As the conviction is by definition beyond reasonable doubt, the
contested hearing upon formal complaint is focused on the appropriate
sanction.
Nebraska
We have the authority to proceed if a disciplinary case has a companion civil
or criminal case. If a criminal case is filed we generally wait for that process
to proceed, with the possible exception of federal cases since it often takes
years for an indictment. Even if we wait for the criminal case to go forward,
we seek a temporary suspension if warranted by the facts and if we have the
necessary evidence. With a companion civil case, we generally proceed with
a disciplinary prosecution unless there is some advantage that would be
gained by the delay. It seems that civil cases take years and years to get
resolved, and then often result in a settlement that adds little to the
disciplinary prosecution.
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Nevada
New Hampshire
We routinely defer. Mostly a resource issue. If the issues and facts are being
fleshed out in an adversarial process, we can piggy back from there.
New Jersey
Yes, we generally defer prosecution of the disciplinary matter while the civil
matter is pending. However, if we are close to finalizing the investigation
prior to the filing of the civil matter, we may continue the investigation until
completed.
New Mexico
Our Supreme Court has instructed us that we are not to stay any matters. In
theory, a respondent can petition the Court for a stay and the Court can order
a stay, but neither our Office nor the Board can grant a stay or stay matters of
its own accord.
New York
Second Judicial Dist.: If, during the course of an investigation, we learn that
there is a civil case pending against the attorney where the allegations
mirror those raised in the complaint of professional misconduct, we close the
file, pending the outcome of that litigation, and direct the complainant and
respondent attorney to inform us of the outcome of that litigation. We do this
because it is possible that the trial will reveal evidence we did not have, and
we prefer to defer the fact-finding to the court. By waiting, we avoid having
a situation where the facts as found in the litigated matter, and the facts as
found in the disciplinary matter, differ, and also, we consolidate resources. If
there is a finding after trial that the attorney has engaged in conduct that
violates a Rule, we wait for the time to appeal has expired or the judgment of
the trial court is affirmed. If warranted, we seek the Court's permission to
prosecute a disciplinary proceeding (i.e., bring formal charges) based on the
findings of fact in the trial. We charge the attorney with that conduct, and
move for summary judgment on the charge. This office is unaware of any
case where we halted an actual Disciplinary Proceeding mid-stream because
we just learned that a civil case was pending. If the civil case results
in settlement, we can re-open the investigation, if warranted.
As for criminal cases, if we learn about an indictment before we have opened
an investigation, we send a letter to the attorney, advising that we have
opened a sua sponte investigation, concerning his/her professional conduct,
"based upon the allegations contained in the within accusatory instrument
filed against you in the .... Court ... (copy enclosed). Inasmuch as this matter
is the subject of pending criminal proceedings, it is not necessary for you to
submit an answer to the above allegations at this time. " The attorney is
directed to the relevant Judiciary Law and court rules that state that they are
required to notify the Court upon conviction of a crime.
8
If, however, we are already investigating a matter and have admissions, or
uncontroverted evidence of professional misconduct, or if the attorney has
failed to cooperate in the investigation, we would move to suspend the
attorney, and for permission to bring a disciplinary proceeding, based on the
evidence we have, and/or a failure to cooperate. We would then move
forward with the disciplinary proceeding, if authorized. We have found that
if we wait for the criminal prosecution, we can have a file open for years, or
the attorney takes a plea to something that we cannot charge, and/or we are
left with a stale case, etc.
North Carolina
We rarely defer a grievance to await a civil result, but may do so in
circumstances where the truth of matters alleged by the parties may be
resolved at trial. If the facts are clear, there is no reason to defer.
North Dakota
North Dakota Rule for Lawyer Discipline 3.5(F) provides: “Except as
authorized in Rules 4.1 [relating to “serious crimes”] and 5.1 [relating to
incapacity / inability to defend], 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.”
The board rarely exercises its discretion to authorize a stay, pending criminal
or civil litigation.
Ohio
We generally do not investigate grievances if we know there is a civil
malpractice case pending. In civil claims, we tell the grievant that they may
re-file the grievance after the malpractice case and related appeals are
concluded. As a caveat to that, if it is obvious that the allegations do not
constitute ethical violations, we will say something like “If anything, you
have a claim for legal malpractice. This, however, must be addressed
through the court system, which it appears you have already done.”
In criminal cases, it depends. Sometimes, we will gather related information
while the criminal action is pending. Sometimes, we wait for the criminal
action to conclude. Either way, we will follow the criminal case closely so
that we know when it concludes.
Oklahoma
Yes, we occasionally do defer prosecution, but it must be stayed by our
Professional Responsibility Commission (which acts as our grand jury) OR
by the Presiding Master of the appointed Trial Panel. Our applicable rule,
Rule 5.6 re: pending civil litigation or criminal charges is linked here:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=100606
This is done on a case by case application and depends, of course, on how
close the issues in the underlying matter relate to the ethical violation(s) we
would prosecute (more so in civil litigation). With regard to criminal cases,
we normally wait until they have pled for two reasons (1) due process
9
concerns and (2) limited resources – it is much easier for us to prosecute a
summary discipline based on criminal conviction than it would be to have to
file and try substantially the same allegations set forth in the criminal case.
Oregon
Pennsylvania
We have a rule that covers this:
Rule 211. Matters involving related pending civil or criminal litigation.
(a)
Processing of complaints involving material allegations which are
substantially similar to the material allegations of pending criminal or civil
litigation shall not be deferred unless the Board in its discretion, for good
cause shown, authorizes such deferment. In the event a deferment of
disciplinary investigation or proceeding is authorized by the Board as the
result of pending related litigation, the respondent-attorney shall make all
reasonable efforts to obtain the prompt trial and disposition of such pending
litigation. In the event the respondent-attorney fails to take reasonable steps
to assure prompt disposition of the litigation, the investigation and
subsequent disciplinary proceedings indicated shall be conducted promptly.
However, if there are issues which are clearly civil in nature and properly
before the court, we will dismiss and advise the complainant to refile the
complaint if the court finds any violation. An example would be a complaint
about the behavior of the opposing party’s counsel. if it is a disqualification
matter, we wait for the court to decide.
Rhode Island
Our rules provide that “the processing of complaints involving material
allegations which are substantially similar to the material allegations of
pending criminal or civil litigation shall not be deferred unless the Board in
its discretion, for good cause shown, decides otherwise.” Article III, Rule 9
of the Supreme Court Rules of Disciplinary Procedure. That being said, it
rarely arises in the civil context. That being said, we resist being used as a
discovery tool in malpractice matters, and unless the respondent has a history
with us, we might not even “charge” a single instance of malpractice that
would require an abatement of our proceedings.
South Carolina
Sometimes we hold the disciplinary case in abeyance pending the resolution
of the civil matter, but usually only when the same issue is pending in the
civil court (such as a motion to disqualify counsel for conflict; discovery
abuse; etc.) Occasionally, the office will hold off on the discipline case if the
parties or the lawyers are using the grievance process to obstruct the civil
case or if the underlying facts are so complicated that we would benefit from
their discovery & trial. We always hold off on our case if an appeal is
pending that will determine the ethical issues.
South Dakota
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Tennessee
Our rules permit deferral with approval of the Board. We sometimes defer
matter pending the disposition of the criminal matter.
Texas
Very rarely do we defer when civil litigation is pending. Texas rules require
we set disciplinary cases for trial within 180 days. Also, Texas Rules of
Disciplinary Procedure 15.02 states “the processing of a grievance…is not,
except for good cause shown, to be delayed or abated because of substantial
similarity to the material allegations in pending civil or criminal litigation.
USVI
Yes. We can stay a proceeding, but are not required to. The rule is: A
grievance may be stayed in the following circumstances: (1) There is a
pending civil or criminal action in a court of record, or an administrative
proceeding, involving the Grievant and Respondent and substantially the
same issues as those raised by the grievance (related proceeding); or (2) For
good cause.
In practice, the office would stay a disciplinary proceeding if there is a
criminal case & the 5th amendment will be implicated and the respondent is
not in default. However, the office will also seek interim suspension if the
facts were egregious.
If there is a civil case, the office stays the matter if it is complex, no serious
misconduct is apparent, or if the disciplinary case was filed in bad faith or to
obtain a procedural advantage. The office will also stay a disciplinary case if
the civil case was filed in order to sort out a fee/trust account issue (i.e., they
are asking the court how trust money should be disbursed) since this may be
an appropriate response from someone who is dealing with competing claims
to property held in trust.
However, the office will not stay the disciplinary proceeding if the
respondent sued the grievant to retaliate for filing a grievance, or in order to
get a stay (which happens a lot in the USVI).
The office will rarely stay a case when a respondent is in default. This has
resulted in contradictory results (i.e., respondent prevails in small claims suit
to recover fees, but is disciplined for charging an unreasonable fee and is
ordered to make restitution). The office does not take issue with the
inconsistent results when the respondent fails to defend the disciplinary case.
Utah
We do place cases in abeyance while a civil case is pending so long as the
facts are substantially the same. Utah’s rule is as follows:
Rule 15-510(b)(9) Continuance of disciplinary proceedings. A disciplinary
proceeding may be held in abeyance by the Committee prior to the filing of a
formal complaint when the allegations or the informal complaint contain
matters of substantial similarity to the material allegations of pending
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criminal or civil litigation in which the respondent is involved.
Vermont
Rule 16(G) of Administrative Order 9 says that a disciplinary case shall not
be delayed because of a substantial similarity to the allegations of a pending
civil or criminal case unless the Board or a hearing panel authorizes a
stay. In practice, there have been times when the office has waited. If a civil
case is well down the road, and the final judgment will resolve an issue at
issue in the disciplinary case, it seems to make sense. Also, most complaints
received from inmates raise issues that are better resolved in the context of a
PCR, so we request that they re-file if they win their appeal/PCR.
Virginia
We will defer prosecution during the pendency of civil matters when the
circumstances warrant. For example, since we cannot conduct formal
discovery during the pendency of a disciplinary case, if the issues in the two
matters are the same, and depositions are to be taken, or sworn courtroom
testimony is be given in the civil case, we will wait to receive
transcriptions. Similarly, although the burdens of proof are usually different,
we will often await a Judge’s ruling on the issues and provide that to our
tribunal as additional information obtained during the investigation.
Washington
Yes, routinely. Our procedural rules allow for this, we have a State Supreme
Court case approving of the practice, and we believe it is prudent to avoid
inappropriate entanglement between the civil and disciplinary systems.
West Virginia
We will still investigate the alleged violation in the mist of the civil litigation
but usually wait or stay the matter after we have gotten all the information
we can get until there is a resolution. There are some matters that may go on
for years and we don’t wait years.
Wisconsin
Yes we do, but it may not be "routine." In most criminal cases, the office
does not want to mess with their process and ability to plead the Fifth, etc., at
the trial court level. Once convicted, we proceed with our case, even if the
respondent is appealing the criminal conviction. In civil cases, it
depends. Again, this office is sensitive to attempts to affect pending
litigation by trying to use our process to leverage a disqualification or other
result.
Wyoming
We routinely defer investigation/prosecution of the disciplinary matter until
the civil matter has concluded. This policy stems from a desire not to allow a
disciplinary proceeding to be a factor in the underlying civil case.
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QUESTION 2:
DOES THE NATURE OF THE CHARGED ETHICS OFFENSE
MATTER?
Alabama
Yes. For example, if we’re looking at theft of client funds, we need to move
as quickly as possible to prevent future theft by seeking immediate suspension
of the lawyer’s law license and a restraining preventing the lawyer from
maintaining/operating a trust account. Likewise, some of the charged
criminal offenses which involve possible substance abuse may dictate a more
prompt resolution of all the matters, possible suspension, and probably
intervention.
Alaska
Normally, it doesn't. However, if the lawyer is posing a present danger we
would undoubtedly proceed with the matter and request an
interim suspension.
Arizona
NO
Arkansas
Usually not. We look at these on a case-by-case basis. In civil litigation
pending cases, we rarely see emergency circumstances that would justify an
interim suspension effort. In all but a few criminal cases, we generally afford
the presumption of innocence until shown otherwise or until there is a plea
entered or a trial verdict and/or conviction, and to avoid 5th Amendment
issues.
California
Yes. See answer to Q #1
Colorado
Absolutely. If it is a serious allegation where suspension or disbarment is
likely we will not defer.
Connecticut
Delaware
D.C.
No. The claims are different and arguably irrelevant.
Yes. Prosecution is not deferred in matters referred to ODC by the Court or
where the alleged violations include Rule 8.4 violations, candor to the Court
or misappropriation.
Yes – if the offense involves misappropriation we would act.
Florida
We do have an exception for trust account misappropriation cases
Georgia
Yes. For example, if there’s civil litigation for conversion of trust funds, this
office would not wait for the outcome in the civil case if we have adequate
proof in the disciplinary case to proceed.
Guam
No, not likely, since in the context of a serious allegation we would pursue
summary suspension, as mentioned in #1 above.
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Hawaii
Yes, if the violation can be proven without wasting resources and the
violation is serious, we will proceed. Theft of funds is a clear example.
Idaho
Yes, we are less inclined to defer if the conduct seems egregious and
potentially serious.
Illinois
Not really, however if we have a situation where the public is in danger, we
would probably move for an interim suspension
Iowa
NO
Indiana
Yes. We would be more reluctant to pursue a discipline case if the only
allegation relates to some isolated incident of “neglect” or other “minor”
violation. This would be true whether or not a malpractice action is pending.
Kansas
Yes, if it is a serious or obvious charge, we will go forward.
Kentucky
We always defer disciplinary proceedings involving a criminal case against
the respondent. We routinely do so in civil cases, but not all the time. It does
depend on the ethics rules alleged to be violated and the type of
case. However, the main reason we defer it or not, is the likelihood that the
civil case will help us in the prosecution of the disciplinary case, for example
if depositions are taken or will be taken then we will wait and see what the
witnesses or the respondent has to say. Nine times out of ten, the civil case
will settle and there will be no trial, so discovery is very helpful.
Louisiana
Yes, the nature of the allegations is a key to proper use of the ODC's
discretion.
Maine
Maryland
Massachusetts
Michigan
Yes, the more serious we usually don’t defer.
Sometimes - we would look into the matter such as allegations of fraud,
misuse of funds, misrepresentation, a fee issue.
Yes. First of all, we almost always defer if criminal charges are pending
except sometimes in money cases that we can investigate ourselves more
easily and as well as an ADA can and where we are concerned about ongoing
harm. In the general run of criminal cases, we don’t even seek board
permission to defer—we just put the files in a “held” status. In civil cases, it
depends how complicated and disputed the facts are. If it is just a
straightforward neglect-type case, for example, and the issue is only damages,
we might not defer. Apart from criminal cases, we probably have a dozen or
so cases deferred at any given time.
Yes. In serious misconduct cases, however, we will not defer.
14
Minnesota
Perhaps. We may move forward on something along the lines of
misappropriation or in a situation where there appears to be a need to act
immediately to protect the public, but generally if the issue is pending, or able
to be brought, before the presiding court (which may be in the best position to
analyze the conduct in light of all the case facts), then we’ll defer. For
obvious reasons, we typically do not want to be in a position where we
effectively intervene in an ongoing case and our findings are subsequently
contradicted by the presiding court. This is not to say that we will always
agree with the determinations of a presiding court in a pending matter (and we
may later disagree and make contrary findings and/or draw contrary
conclusions), simply that generally they will be better positioned to take a first
look at the issue.
Mississippi
Typically, no, unless it is a trust account violation, at which time we will press
forward regardless of any other matters that are ongoing.
Missouri
See answer to #1
Montana
Certainly, it’s a case by case judgment call. If the allegation involves
dishonesty to a tribunal, and not just IAC or incompetence claims, that would
factor into the analysis.
Nebraska
Yes
Nevada
New Hampshire Yes. If the respondent appeared to be a threat to the public, we would not
defer prosecution. For example, we would consider proceeding with an
interim suspension.
New Jersey
NO
New Mexico
NO
New York
Second Judicial Dist: Yes, see answer to #1
North Carolina
Yes. If serious misconduct is alleged and proof exists, it would be extremely
unusual to delay going to a hearing.
North Dakota
The determination would be made on a case by case basis
Ohio
Generally no
Oklahoma
Yes, if it involves conduct posing a substantial threat of harm or actual harm
to the public, we will proceed notwithstanding potential civil or criminal
litigation.
15
See the docket sheet for OBA v. Merritt:
http://www.oscn.net/applications/oscn/GetCaseInformation.asp?submitted=tru
e&viewtype=caseGeneral&casemasterID=107136&db=Appellate
OBA v. Taylor:
http://www.oscn.net/applications/oscn/GetCaseInformation.asp?submitted=tru
e&viewtype=caseGeneral&casemasterID=106271&db=Appellate
Oregon
Pennsylvania
YES
Rhode Island
See answer to Q #1
South Carolina
No. However, we have very liberal interim suspension rules so if the lawyer
presents a threat to the public or to clients, is arrested for a serious crime, or
has stolen money, we will petition for interim suspension which will be
pending until our case is resolved.
South Dakota
Tennessee
Not necessarily. We review each on a case by case basis.
Texas
Yes, it can be a factor.
USVI
Yes. If the public is at risk, this office will not stay a case even if a lawsuit is
pending or if there are related criminal proceedings.
Utah
The nature of the charges does not really matter, however if we have a
situation where the public is in danger, we would probably move for an
Interim Suspension and then put the case in abeyance.
Vermont
Yes. If the attorney is a party to the civil or criminal case, we are far less
likely to defer. If the attorney is an advocate, we’re more likely to defer.
Virginia
Possibly. If the underlying misconduct is fraudulent, criminal, deliberately
wrongful, or involves trust account defalcations, and there is a parallel civil
malpractice claim for example, we will not wait to go forward.
Washington
West Virginia
The seriousness of the alleged or apparent misconduct may matter. If the
lawyer's continued practice poses a serious risk to the public, we will not
defer and oppose any request for deferral.
NO
16
Wisconsin
Yes, an ethics charge that is unrelated factually or is minor can often be
resolved without any interference with the underlying litigation or prejudice
to anyone's rights in the underlying litigation.
Wyoming
Yes. If the charged ethics offense involves misappropriation of funds or some
other matter involving injury to a client or third party, we may pursue the
disciplinary matter while the civil suit is pending.
17
QUESTION 3:
DOES THE TYPE OF CASE (CRIMINAL, MALPRACTICE, DQ)
MATTER?
Alabama
Yes. We evaluate each matter in an effort to discern if any delay in the
disciplinary proceeding will compromise our case, may create additional
injury or possibly further unethical conduct, or if the “ends of justice”
dictate our timetable.
Alaska
No. We've pretty much deferred anything in which additional fact-finding
would help us.
Arizona
NO
Arkansas
Malpractice/negligence, generally no unless we see a pattern of such
conduct. Disciplinary cases, only if we see a pattern or there is good
evidence of abandonment of the law practice. Criminal – see response to
Q #2.
California
No. In the example given above, where we receive a complaint that an
attorney has misappropriated funds belonging to a client, we would go
forward with the disciplinary case even if a criminal case was pending or
potentially pending. An example: this office obtained a disbarment
recommendation in just such a case. In that matter, on the same day we
filed disciplinary charges against an attorney based on a misappropriation
of over $275,000 from an elderly client, criminal charges including three
felony violations were filed against the attorney based on the same
underlying misconduct. The criminal matter is still pending, awaiting
trial.
Colorado
Absolutely. If the allegations are serious and the evidence is strong we
will not defer. However, if it is a criminal matter, we are more likely to
place into abeyance until the matter is concluded.
Connecticut
NO
Delaware
YES
D.C.
No – it is more a matter of the misconduct involved and the benefit derived
from the trial.
Florida
No, only if it was a trust account misappropriation case
Georgia
It could. This office is generally inclined to let a criminal case against the
lawyer proceed ahead of our case as long as the criminal case is moving
quickly
18
Guam
Probably not
Hawaii
Criminal matters go to the Supreme Court, we do not pursue malpractice
that is mere negligence.
Idaho
Yes, this office almost always defers in criminal cases because of 5th
Amendment rights. DQ – this office prefers to allow the court to decide.
Malpractice, we exercise more deferral discretion.
Illinois
Criminal-do not want to interfere in the criminal process, but if the case
involves an ongoing harm to the public, may file for an interim suspension
Iowa
NO
Indiana
If the lawyer is charged with a crime, this office typically defers
prosecution during the pendency of the criminal case. We do this
primarily because it is so easy to prove the disciplinary violation after
there’s a criminal conviction. However, this is not always how we
proceed. If it appears that the criminal case may not be resolved quickly,
our office may go ahead and expedite the discipline. We might also
expedite the discipline litigation if there is ongoing harm. For example, if
the criminal case deals with theft of client funds, we would be more
unlikely to defer discipline. The decision is usually based on the amount
of evidence at hand, not whether there is some other type of case pending
(although, criminal cases tend to take precedence).
Kansas
Yes, in some criminal matters (misdemeanors, no current threat) we may
stay the matter pending a conviction. However, if the attorney is a current
threat, we may seek an interim suspension (SCR 203).
Kentucky
See answer to #2
Louisiana
Typically, criminal cases provide a more compelling reason to defer
investigation or prosecution of a parallel disciplinary case as it may
interfere with the criminal justice process, present constitutional concerns
for the respondent, and at least under Louisiana's rule a conviction/plea
may provide a simpler discipline process as the underlying facts have
already been proved beyond a reasonable doubt.
Maine
Yes, often it does. Especially with malpractice
Maryland
NO
Massachusetts
See answer to #2
19
Michigan
Yes. If a criminal defendant is appealing a conviction on the basis of
ineffective assistance of counsel, we will typically defer but, again, if it is
utterly blatant, we may not. Ditto with civil cases.
Minnesota
To a certain extent. By operation of rule, we are not permitted to
investigate allegations of incompetent representation alleged by a criminal
defendant against their court-appointed counsel.
Complaints by Criminal Defendants. No investigation shall commence
on a complaint by or on behalf of a party represented by court appointed
counsel, insofar as the complaint against the court appointed attorney
alleges incompetent representation by the attorney in the pending matter.
Any such complaint shall be summarily dismissed without prejudice. The
Director's dismissal shall inform the complainant that the complaint may
be sent to the chief district judge or trial court judge involved in the
pending matter. The judge may, at any time, refer the matter to the Director
for investigation. The Director may communicate with the appropriate
court regarding the complaint and its disposition.
Rule 8(b), Rules on Lawyers Professional Responsibility (RLPR). Such
dismissals are not subject to appeal. See Rule 8(e), RLPR. We will also
dismiss (subject to appeal) complaints by criminal defendants alleging
inadequate representation against their counsel (who are not courtappointed counsel). These complainants are also told that if there is a court
finding of ineffective assistance of counsel, they may resubmit their
complaint.
On disqualification “requests”/allegations in pending matters, we will
generally inform the complainant that the matter is more appropriately
reviewed by the presiding court (again, at least in the first instance).
Mississippi
No. Surprisingly, we are not typically in the loop as to whether a
malpractice matter is pending. It is worth noting that our rules of
professional conduct state that a finding of a violation of the rules is not
proof of malpractice. For criminal cases where a lawyer is accused of a
crime, we will seek an interim suspension depending upon the
circumstances.
Missouri
Yes. If we are aware an attorney is being criminally prosecuted, we open
an “Inquiry” file. The office then monitors the criminal case until it is
disposed by plea, jury conviction, or dismissal. An information is filed
directly with the Supreme Court if there is a plea of guilty or jury
conviction of any felony and most misdemeanors.
Montana
It is a set policy in criminal post-conviction proceedings, with room for
exception in the event of an egregious and clear case of bungling a
20
matter. This office recently tried a case (unsuccessfully) upon a direct
appeal decision granting withdrawal of a guilty plea based on
involuntariness. The concurring opinion criticized the trial attorney for
being unprepared on top of the involuntariness grounds. MT followed up
with a formal complaint without the benefit of a judicial finding of actual
IAC, but the Commission found a lack of clear and convincing evidence of
incompetence and recommended the Court dismiss the complaint.
Nebraska
YES
Nevada
New Hampshire
Yes. If it involved serious cases of fraud, dishonesty, stealing client fund,
the office would probably move forward on our own.
New Jersey
NO
New Mexico
NO
New York
Second Judicial Dist: Yes, see answer to #1
North Carolina
Yes. If a lawyer is charged with a criminal offense that is not related to the
defendant’s law practice, it is not unusual to defer. If it an offense we
allege and prove even without a conviction, such as embezzlement, we
don’t defer.
North Dakota
The determination would be made on a case by case basis
Ohio
Oklahoma
Generally no
Again, threat to the public is primary concern, regardless of type of case.
Oregon
Pennsylvania
NO
Rhode Island
We usually defer acting on a criminal matter that doesn’t involve the
misappropriation of client funds. For example, we would wait till there
was a conviction on a shop lifting charge, or charge of public corruption,
until the criminal process has completed. If the attorney is arrested for
misappropriation, we would pursue an interim suspension pending
resolution of the criminal charge.
South Carolina
No, the determination is case by case
South Dakota
21
Tennessee
Not necessarily. We review each on a case by case basis.
Texas
Yes, parallel criminal prosecution of the respondent can make it difficult to
proceed in a disciplinary case – access to witnesses and evidence may be
limited in situations where the DA would rather us not put their witnesses
under oath, etc. We defer more often in criminal cases than when there is
civil litigation pending.
USVI
Criminal cases get more thought from this office. So do pending family
court matters. This office generally tries to stay out of both types cases if
possible. In contrast, if a malpractice case is pending, this office will speed
up its case and try to “get there first” since we don’t have a lot of
precedential case law, and we are always interested in the development of
our common law re: an attorney’s ethical obligations.
A recent example – our trial court found no malpractice in a case filed by a
pro se prisoner where an attorney did not file a notice of appeal for this
person who was sentenced to life in prison basically because there was no
evidence that the appeal would have been successful. In contrast, in the
disciplinary case, this office proved loads of misconduct and obtained a
finding that there was an actual and serious, injury because the right to
appeal was valuable in-and-of-itself regardless of whether the appeal
would have been successful.
Utah
If there has been a criminal conviction, we put the case in abeyance until
the appeal time has run or appeal is over. However, we would move for an
Interim Suspension immediately if the person is convicted of a felony.
Vermont
Yes. We are far, far more likely to defer in a malpractice case than one in
which the attorney has been charged with a crime.
Virginia
Only with certainty if the parallel proceeding is criminal. We routinely
await the outcome as a felony conviction shifts the burden to the
respondent to show cause why he/she should not be suspended or
revoked. Our Clerk’s office has asked that we defer these matters since
from their perspective, they do not want to run 2 cases – one disciplinary
case before the Board, and one Show Cause before the Board after the
conviction is handed down.
Washington
NO
West Virginia
NO
22
Wisconsin
No, not per se. Criminal matters in which the lawyer is the defendant will
involve some unfairness and cause us to wait till the criminal process is
completed.
Wyoming
See answer to Q #2
23
QUESTION 4:
DOES THE OFFICE SHARE EVIDENCE (RESPONSES OF
RESPONDENT-ATTORNEYS, COMPLAINING WITNESSES,
TRANSCRIPTS, STATEMENTS, ETC.) WITH PARTIES OR
LAWYERS IN THE CIVIL/CRIMINAL MATTERS?
IF SO,
VOLUNTARILY, OR BY SUBPOENA?
Alabama
More so in criminal than civil, as allowed by Rule 30(c) of our Rules of
Disciplinary Procedure. With this rule in play, we are more inclined to
voluntarily share information on the criminal matters, and usually suggest a
subpoena be issued for the civil matters.
Alaska
A lawyer complainant would be entitled to receive a response from a lawyer
respondent if one was made, but, unless formal charges have been filed, the
lawyer complainant would be bound by the confidentiality rules not to disclose
what had been sent.
Arizona
Depends. Rule 53, Ariz. R. Sup. Ct. relates to our complainants. If the
complainant is also a party to the litigation they would potentially have access
to all information from the lawyer, depending on the status of our investigation
(is it public yet) and assuming no protective order was in place. If others want
access to information they can obtain it once the file becomes public, again
assuming that there is no protective order. If anyone wants access to
information/documentation that is considered not to be part of the public record
they would likely have to seek a subpoena.
Arkansas
Unless our proceeding has gone to the public hearing stage, in civil litigation,
no; In criminal cases, generally yes if subpoenaed by a prosecuting agency.
California
As prosecutors, we have an obligation under Brady to disclose to the attorney
being prosecuted any potentially exculpatory evidence, which we do. As a
practical matter, we basically turn over to the attorney being prosecuted a copy
of our entire file except attorney work product. We also share evidence with
complaining witnesses and other witnesses to the extent necessary to investigate
and prosecute our disciplinary case. Further, pursuant to California Business
and Professions Code section 6044.5, when an investigation or formal
disciplinary proceeding concerns alleged misconduct which may subject the
attorney to criminal prosecution or disciplinary charges in another jurisdiction,
the State Bar has a duty to disclose information and documents to the
appropriate law enforcement and/or disciplinary agencies. Other than as set
forth here, my understanding is that we would not voluntarily share evidence
other than if subpoenaed.
Colorado
We routinely would move to quash subpoenas if we felt that we were being
used as a discovery tool. In criminal matters, we would. In civil matters, we
would not share unless the disciplinary matter is already public (after the filing
of a formal complaint) and thus the information is public. We do not give
24
transcripts of depositions, etc. They would have to order them and pay the
court reporter who took the deposition.
Connecticut
NO
Delaware
NO
D.C.
NO
Florida
If we uncover evidence that a lawyer has committed a felony we share with law
enforcement and we have an exception in our confidentiality rules so providing
(i)
Evidence of Crime. The confidential nature of these proceedings shall
not preclude the giving of any information or testimony to authorities
authorized to investigate alleged criminal activity.
Georgia
For civil cases, if we can do so without problems under our confidentiality
rules, we can do so voluntarily. Otherwise, only by subpoena, and if then we
may have to move for protective orders because of our confidentiality
rules. With criminal cases, our rules allow us to share otherwise confidential
information with prosecutors.
Guam
No, we would not share anything from our confidential process with the parties
or lawyers in other matter(s), but we would surely like to have their evidence,
which is a big part of why we would stay our matter and watch the goings-on in
the other arenas.
Hawaii
No, we do not share responses with civil or criminal parties or attorneys.
Idaho
Depends whether they are the grievant, if so, yes. Otherwise, by rule we would
only share with consent of attorney or subpoena and I generally move to quash
those. See #1 above, this is primary reason to defer, to avoid these issues.
Illinois
If the matter is of public record, we share; standing order to cooperate with law
enforcement; civil matter, parties need to seek permission of the IL Sup. Ct.
Iowa
Unlike a civil case, if there is a criminal case pending against the attorney for
the same conduct as will be the subject of the disciplinary action we might table
a matter until the next board meeting to see what the outcome is. Or, we may
wait a bit before filing a formal charge with our grievance commission if we
know that the criminal matter is or will be shortly resolved. Our rule allow for
automatic admissibility of certain convictions, which can greatly streamline the
disciplinary process. So from a time/efficiency perspective, it could be of
benefit to wait. That being said, if the attorney's conduct is such that it is likely
to lead to a suspension or revocation, in such cases we might seek an immediate
interim suspension for harm to halt their practice of law pending the outcome of
the criminal and disciplinary matters. The most common occurrence of this
would be for a theft matter, where a lawyer is stealing funds from a trust
25
account.
Indiana
Our investigations of attorney discipline matters are confidential until such time
as a formal Verified Complaint is filed with our Supreme Court. (We are a
voluntary bar state. Our cases are administered by the Supreme Court and not
by the Bar Association or a hearing Board.) Thus, we would normally provide
no investigative material. However, once the formal discipline case is filed—
once a Verified Complaint is filed with the Supreme Court—any pleadings
become a matter of public record (unless sealed by order of the Court).
Depositions taken after the case is filed would, most likely, not be shared with
third persons unless a deposition was filed as an exhibit. We would resist, via a
Motion to Quash, any subpoena issued for any part of our file that was not part
of the public record in a discipline case.
Kansas
We do not share evidence in a civil case pursuant to our confidentiality rules.
In fact, unable to either confirm or deny the existence of an ongoing
investigations. Parties can attempt to subpoena the office pursuant to SCR but
it has never happened. Our rules (SCR 222) allow us to share information with
law enforcement, except for work product materials.
Kentucky
We don’t usually share evidence with the parties in the underlying case,
because (a) we usually don’t have much to share or they already have it and (b)
we are bound by a strict confidentiality rule in Kentucky. If we are subpoenaed
we usually call the attorney requesting the information and work with them
under the confidentiality rule’s exceptions to get the information they want, if
we have it.
Louisiana
As a general rule, the ODC in Louisiana does not share investigative
information with parties in a civil or criminal case as we do not want to be seen
as a 'supplemental/alternative discovery device'. Having said that, our general
policy in all disciplinary investigations is to share a respondent's reply to a
complaint with the complainant in an effort to clarify positions of the parties
and crystallize the issues. Moreover, where the ODC discovers information or
facts that reflect serious criminal conduct by a respondent, at my discretion that
information may be shared with appropriate law enforcement officials.
Maine
If the filings by our office our public, we share of refer the person to the
respective Clerk to obtain a copy. Different with court transcripts which they
have to pay a fee to the reporter for. If not public filings we do not share due to
confidentiality mandated by our court rules.
Maryland
No, our investigations are private and confidential and if subpoenaed we would
resist access to our investigations unless otherwise ordered by a
court. However, when we file public charges, anything in the public records,
such as evidence or depositions transcripts which were introduced are available
to anyone.
26
Massachusetts We usually send copies of respondents’ answers to complainants and vice
versa. We wouldn’t usually share transcripts or statements with complainants;
they would have to seek authorization from our court. During a formal
prosecution, hearing exhibits are public (meaning the Board would provide
them to someone who asked) unless impounded. Bar counsel is permitted to
share voluntarily with law enforcement (DAs, AG or US Attorney in criminal
cases) if they have an investigation ongoing of the same lawyer.
Michigan
We don’t share. Until a public disciplinary charge is filed, our proceedings our
confidential and cannot be subpoenaed by attorneys in state court proceedings
(we have to comply with federal subpoenas however).
Minnesota
No. See Rule 20(a)(2) and Rule 20(c), RLPR. The rule generally prohibits
such disclosures unless/until the matter becomes public. If the complainant is a
client, the attorney is required to send a copy of his/her response to the
complaint and his/her responses to investigative inquiries. See Rule 20(a)(5),
RLPR.
RULE 20. CONFIDENTIALITY; EXPUNCTION
(a) General Rule. The files, records, and proceedings of the District
Committees, the Board, and the Director, as they may relate to or arise out of
any complaint or charge of unprofessional conduct against or investigation of a
lawyer, shall be deemed confidential and shall not be disclosed, except:
(1) As between the Committees, Board and Director in furtherance of
their duties;
(2) After probable cause has been determined under Rule 9(j)(1)(ii) or
(iv) or proceedings before a referee or this Court have been commenced
under these Rules;
(3) As between the Director and a lawyer admission or disciplinary
authority of another jurisdiction in which the lawyer affected is admitted
to practice or seeks to practice;
(4) Upon request of the lawyer affected, the file maintained by the
Director shall be produced including any district committee report;
however, the Director’s work product shall not be required to be
produced, nor shall a member of the District Ethics Committee or the
Board, the Director, or the Director’s staff be subject to deposition or
compelled testimony, except upon a showing to the court issuing the
subpoena of extraordinary circumstance and compelling need. In any
event, the mental impressions, conclusions, opinions and legal theories
of the Director and the Director’s staff shall remain protected.
(5) If the complainant is, or at the time of the actions complained of was,
the lawyer’s client, the lawyer shall furnish to the complainant copies of
the lawyer’s written responses to investigation requests by the Director
and District Ethics Committee, except that, insofar as a response does
not relate to the client’s complaint or involves information as to which
another client has a privilege, portions may be deleted;
27
(6) Where permitted by this Court; or
(7) Where required or permitted by these Rules.
(8) Nothing in this rule shall be construed to require the disclosure of the
mental processes or communications of the Committee or Board
members made in furtherance of their duties.
(9) As between the Director and the Client Security Board in furtherance
of their duties to investigate and consider claims of client loss allegedly
caused by the intentional dishonesty of a lawyer.
(10) As between the Director and the Board on Judicial Standards or its
executive secretary in furtherance of their duties to investigate and
consider conduct of a judge that occurred prior to the judge assuming
judicial office.
(11) As between the Director and the Board of Law Examiners in
furtherance of their duties under these rules.
(b) Special Matters. The following may be disclosed by the Director:
(1) The fact that a matter is or is not being investigated or considered by
the Committee, Director, or Panel;
(2) With the affected lawyer’s consent, the fact that the Director has
determined that discipline is not warranted;
(3) The fact that the Director has issued an admonition;
(4) The Panel’s disposition under these Rules;
(5) The fact that stipulated probation has been approved under Rule
8(d)(3) or 8(e);
(6) The fact that the terms of a conditional admission agreement have
been modified or extended under Rule 8(d)(5);
(7) Information to other members of the lawyer’s firm necessary for
protection of the firm’s clients or appropriate for exercise of
responsibilities under Rules 5.1 and 5.2, Rules of Professional Conduct.
Notwithstanding any other provision of this Rule, the records of matters in
which it has been determined that discipline is not warranted shall not be
disclosed to any person, office or agency except to the lawyer and as between
Committees, Board, Director, Referee or this Court in furtherance of their duties
under these Rules.
(c) Records after Determination of Probable Cause or Commencement of
Referee or Court Proceedings. Except as ordered by the referee or this Court
and except for work product, after probable cause has been determined under
Rule 9(j)(1)(ii) or (iv) or proceedings before a referee or this Court have been
commenced under these Rules, the files, records, and proceedings of the District
Committee, the Board, and the Director relating to the matter are not
confidential.
(d) Referee or Court Proceedings. Except as ordered by the referee or this
Court, the files, records, and proceedings before a referee or this Court under
these Rules are not confidential.
(e) Expunction of Records. The Director shall expunge records relating to
dismissed complaints as follows:
(1) Destruction Schedule. All records or other evidence of a dismissed
28
complaint shall be destroyed three years after the dismissal;
(2) Retention of Records. Upon application by the Director to a Panel
Chair chosen in rotation, for good cause shown and with notice to the
respondent and opportunity to be heard, records which should otherwise
be expunged under this Rule may be retained for such additional time
not exceeding three years as the Panel Chair deems appropriate.
(f) Advisory Opinions, Overdraft Notification Program Files, and
Probation Files. The files, notes, and records maintained by the Director
relating to advisory opinions, trust account overdraft notification, and
monitoring of lawyers on probation shall be deemed confidential and shall not
be disclosed except:
(1) in the course of disciplinary proceedings arising out of the facts or
circumstances of the advisory opinion, overdraft notification, or
probation; or
(2) upon consent of the lawyer who requested the advisory opinion or
was the subject of the overdraft notification or probation.
Mississippi
It depends. Confidentiality can prohibit sharing, but typically the complainant
can get copies of their documents to share with a lawyer on a malpractice
matter. We do share with law enforcement and do not require a subpoena. In
all other instances, we would require a subpoena. Not something this office
deals with on a regular basis.
Missouri
Our rule allows us to share confidential records with law enforcement
authorities when the records relate to possible criminal conduct. We require
that the request be in writing. The chief disciplinary counsel has discretion to
grant or deny the request, but typically grants it. We do not have discretion to
share confidential records in civil matters.
Montana
We do not share evidence with other parties, and confidentiality provisions
would preclude it pre-formal complaint.
Nebraska
No. The records of the disciplinary office are confidential pursuant to Court
Rule and may be released only with permission of the Court. There has never
been an effort to subpoena our records.
Nevada
New
Hampshire
New Jersey
NO
We can under some circumstances refer matters and share information with law
enforcement authorities. We do not share information with parties in civil
matters because all of our investigations are confidential until the filing of a
complaint or other charging document.
29
New Mexico
If charges have been filed, we will share voluntarily and by subpoena virtually
everything in our files provided that the respondent attorney gets copies of
whatever we give to anyone else. We don’t give anyone our internal work
product (notes, etc.) and if the other matter is a criminal case, normally we will
try to make sure that the respondent attorney has the opportunity to request that
we obtain a use immunity order from the Supreme Court before we release
anything that could be considered a statement by the respondent attorney and
thereby potentially burden his/her Fifth Amendment Rights. Our rules require
we get the use immunity order from the Court instead of the respondent. If
charges have not been filed, we will resist any request for documents, including
those by subpoena, based upon our confidentiality rules. We will move to
quash the subpoena if necessary if it is served pre-charges by our office.
New York
Second Judicial Dist.: Pursuant to NYS Judiciary Law §90.10, "[A]ll papers,
records and documents . . . upon any complaint, inquiry, investigation or
proceeding relating to the conduct or discipline of an attorney or attorneys, shall
be sealed and deemed private and confidential. However, upon good cause
being shown, the justices of the appellate division having jurisdiction are
empowered, in their discretion, by written order, to permit to be divulged all or
any part of such papers, records and documents. In the discretion of the
... presiding justice, ... such order may be made either with or without notice to
the persons or attorneys to be affected thereby ... ." In practice, we share
except with law enforcement only, pursuant to a "share" order, as described
above.
North
Carolina
By rule, we may share our evidence with law enforcement. We do not share
information from a confidential grievance investigation with parties to civil
litigation, even if one of the parties was the complainant. If a request is made
for information relating to a lawyer who has been publicly disciplined, the
information that was used at the disciplinary trial is public and may be made
available. If the information from our investigation is not considered public, we
resist the request unless the lawyer agrees that we can share the information.
North Dakota
At the Inquiry Committee (probable cause panel) level, the proceedings are
confidential; thus, we do not, at that stage, share evidence. The exception is
that, by rule, the response of the respondent-attorney is provided to the
complainant.
Once a formal petition for discipline is filed, the proceedings are public. At that
point, we would provide public information, as requested, without a
subpoena. We would not, however produce the investigative report, work
product from the Inquiry Committee level, or work product of Disciplinary
Counsel.
Ohio
In civil matters, no. In criminal matters where the respondent is the defendant,
it depends on the situation.
30
Oklahoma
Yes, we routinely ask complaining witnesses to review/respond to the written
response of the Respondent (unless the respondent claims privileged
information - if so, we’ll review whether the response contains privileged
information and redact, if necessary). We also interview witnesses about
statements made by Respondent in depositions, etc., and have the authority to
provide law enforcement with any relevant information contained in our
investigative files pursuant to Rule 5.8(d), RGDP:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=100608
Oregon
Pennsylvania
Most likely no instances where we shared (or were required to share)
information in our file in a civil proceeding. In a criminal matter, if we find
evidence of a crime, we are supposed to report it. So, if the prosecutor asks for
it, we provide it.
Rhode Island
We share evidence in criminal matters. In civil matters everything is
confidential until the filing of formal charges in our office. The shield of
confidentiality does not include the complainant and his/her attorney.
South
Carolina
We will if the chair of the commission grants permissive disclosure (we can
request or a part can request) here is a link to our rule on
disclosure http://www.sccourts.org/courtReg/displayRule.cfm?ruleID=413.0&s
ubRuleID=RULE%2012&ruleType=APP
South Dakota
Tennessee
Our rules permit us to share information with the authorities with the consent of
the Board. Prosecutors or authorities sometimes provided us with evidence but
sometimes refuse.
Texas
Yes, we generally cooperate but request that any documents be produced
pursuant to subpoena.
USVI
This office has an obligation to share everything with the grievant and the
Respondent. So, effectively, they can pass whatever they want along to their
attorneys, etc.
Utah
We do not. The files are confidential for the Respondent’s protection. In order
to provide the information, we need an order from the court or for the
Respondent to agree to the disclosure.
Vermont
No. It has rarely happened, but a few years ago the issue arose in this
fashion: we disbarred a lawyer who had stolen more than a $1,000,000. He
31
was a real estate lawyer who ran what was really a pyramid scheme at the
height of refinance mania. When the market collapsed, so did his scheme. He
was sued by several banks, clients, and others. They wanted access to our files,
including depositions we’d taken of him. They also wanted to depose
disciplinary counsel. We resisted, and filed several motions to quash. We
never got a court ruling. Instead, the Attorney General got involved on our
behalf and convinced the plaintiffs’ attorneys that they didn’t want to set the
precedent of using this office as a stalking horse for litigation.
Virginia
Washington
West Virginia
That depends. Our proceedings are confidential until either a public order of
discipline is entered, or until 21 days after service upon the respondent of either
Charges of Misconduct (the pleading filed to initial proceedings before out
lower level tribunal) or Certification (the pleading filed to initiate proceedings
before our Disciplinary Board) at which point the case is posted to the public
hearing docket. We do not routinely provide responses and other
correspondence, but will do so if the situation warrants (i.e., it is being
requested by a reputable person for a valid purpose, a FOIA or subpoena is
issued.)
Not typically if the matter is not public, though we have discretion to do so.
The normal language in our opening letter regarding a complaint indicates that a
response should be sent to the complainant. However, most of our complaints
are from the clients of the attorneys which there should not be any issue
there. However, when it appears that the complainant has filed against a
respondent attorney where there is an active case or possible confidential
information, we advise the respondent attorney to supply the response only to
us for determination as to if the complainant will get a copy. If we don’t want
to provide it to the complainant, we advise the complainant that we received the
response and that we are not providing it to them.
There is no written rule that states that we have to provide the response to the
complainant, but we generally do to get additional information. Disciplinary
counsel is the investigator in the matter and we do most of our investigations
through written correspondence.
Wisconsin
We would not share voluntarily and would seek relief from a subpoena.
Wyoming
Except in the sorts of cases encompassed by the answer to No. 2, we do not
share evidence.
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QUESTION 5:
DO YOU EVER OPPOSE DISCLOSURE OF INFORMATION? IF
SO, HOW AND HOW VIGOROUSLY (MOVING TO QUASH
SUBPOENAS, MOVING FOR PROTECTIVE ORDERS)?
Alabama
We have, in the past, opposed disclosure, depending on the purpose for
which the information is sought, whether there is another readily available
source of the sought after information, and whether the probative value of
the information sought is outweighed by the need to prevent
disclosure. Our general vehicle of opposition is a motion to quash, since
most efforts to obtain the information are made via subpoena.
Alaska
Yes, we would oppose a subpoena for the production of confidential
disciplinary file materials.
Arizona
Yes, we have on occasion opposed disclosure. It doesn’t happen that often
and it really depends on the specific circumstances and that nature of the
information being sought.
Arkansas
Yes, we oppose, and as vigorously as we believe is called for in the
situation. For example, a respondent in a disbarment case was attempting
to get the hearing judge to order this office to allow the respondent to
depose disciplinary counsel. Oppose.
California
Yes, sometimes. Sometimes in the course of our disciplinary prosecutions,
a respondent attorney seeks information that is not relevant, in which case
we move to quash the subpoena and might seek a protective order. Or,
sometimes, a respondent attorney subpoenas State Bar attorneys or other
staff as witnesses during the disciplinary prosecution. If the subpoenaed
attorneys or staff do not have personal knowledge of any facts relevant to
the disciplinary prosecution, we move to quash the subpoenas and might
seek a protective order. Finally, we sometimes receive subpoenas from
parties in civil or criminal cases. Sometimes our Office of General
Counsel moves to quash subpoenas, etc. However, in California, once a
disciplinary case is filed, it becomes public, so the records on file in the
disciplinary proceeding are available to the public.
Colorado
Depends, but almost always if they were trying to obtain the testimony of
one of our lawyers or investigators.
Connecticut
YES
Delaware
Yes, unless exculpatory or required to be disclosed by DLRDP 12(h). ODC
has filed motions to quash subpoenas.
D.C.
YES
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Florida
We would only turn over confidential material that is not exempted by rule
upon Order of the Supreme Court
Georgia
See answer to #4
Guam
Our office has not had to deal with this issue, but the sense is that we
would generally refuse to give anything to anyone without an order from
our Supreme Court authorizing the disclosure.
Hawaii
We definitely protect the confidentiality of our files and responses by
opposing motions to quash and we move for protective orders.
Idaho
Yes, this office moves to quash, identify the rules and the administration of
justice exception and if the Court believes the information is relevant to the
case, invite the Court to review in camera and if Court decides to disclose,
suggest the terms of a protective order.
Illinois
Yes - we will file motions to quash
Iowa
If we received a subpoena for our file seeking its use in a civil or criminal
matter, we would most likely resist and move to quash. If it were a
situation of law enforcement seeking the material, however, there is a
provision that would allow release.
Indiana
In part, see the answer provided to Question (4). There doesn’t seem to be
a history of anyone ever successfully subpoenaing any part of one of our
files in a discipline case that wasn’t already part of the public record.
Kansas
Has yet to happen, but we would resist, and wait for a court directive
before releasing any information.
Kentucky
See Answer to #4
Louisiana
Yes, on occasion this office receives subpoenas for the presentation of our
investigative files which we routinely oppose thru a motion to quash. We
take the position (supported by the confidentiality provisions of Supreme
Court Rule XIX, section 16) that before the filing of formal charges and
service on respondent, investigations are confidential. Further, our court's
jurisprudence in similar circumstances has held that we are not subject to
the provisions of Louisiana's Public Records Request Act (the state
counterpart to the Freedom of Information Act).
Maine
Maryland
We do always oppose if it’s not a public matter yet. We do so by letter or
more formally, by either Motion to Quash or for protection
See answer to #4
34
Massachusetts
This issue doesn’t come up very much. We have occasionally been
subpoenaed to produce information that is not public but the person issuing
the subpoena (usually a lawyer) tends to accept our statement that we are
not permitted to disclose and that they would have to obtain the court’s
OK.
Michigan
Yes, we always oppose subpoenas in state cases, first we will try calling
the issuing attorney and, if that doesn’t work, filing a motion.
Minnesota
Yes, we have a policy that if file information is subpoenaed, we’ll
oppose/move to quash the subpoena. The general exception is when the
subpoena comes from a federal law enforcement agency, in which case we
will typically inform the respondent-attorney of the existence of the
subpoena and give them the opportunity to oppose the subpoena on their
own.
Mississippi
In the few instances we have received such requests where confidentiality
(as set forth in our rules of discipline) prohibited disclosure, we will
oppose and our court has historically backed us in this regard.
Missouri
This situation rarely arises, although we would move to quash or file for a
protective order to protect confidential records.
Montana
We have only been sued for disclosure once before, by a newspaper
seeking information about a disciplined attorney, and we won. It sparked a
rule change however removing confidentiality post-complaint, so our
contested hearings and imposed discipline are now open to the public. We
are not a state agency, so our files are not subject to FOIA requests or the
like. The only publicly filed documents are generally the Complaint,
Answer, commission findings, and court decision.
Nebraska
See answer to #4
Nevada
New Hampshire
We have rarely opposed disclosure of information
New Jersey
YES
New Mexico
If we are still in the investigative stage we will oppose disclosure and
vigorously move to quash. If charges are filed and the matter is public
record, we will then generally produce everything contained in our public
record file and our charges file except for our work product.
New York
Second Judicial Dist.: - Not to law enforcement
35
North Carolina
Anytime confidential information is requested by subpoena, we object to
the production. It then becomes the burden of the one subpoenaing the
information to show the court why it should be released.
North Dakota
We vigorously oppose production of confidential information (e.g.,
investigator’s report, work product) from the Inquiry Committee level. We
have well developed case law on the subject and can usually resist
production without a protective order or motion to quash. Public
information from formal proceedings is routinely provided, upon request.
Ohio
All of our investigations are confidential until we file a complaint. If
information was requested from us, particularly in a civil matter, we would
oppose it as vigorously as we needed to, i.e., we would probably try to
address with a letter, but would file motions if necessary.
Oklahoma
Yes, we move to quash subpoenas if they are improper. Even if a
subpoena appears to be appropriate, if the Respondent attorney objects
thereto, we will often move to allow the court with jurisdiction over the
civil litigation to review our files/ information in camera to determine
whether the information sought is relevant.
Oregon
Pennsylvania
If a party in a civil proceeding seeks anything in our files, we vigorously
oppose the subpoena. In criminal matters, we decide on a case-by-case
basis.
Rhode Island
We always oppose disclosure of our work product. We move to quash
subpoenas, if necessary, to maintain the confidentiality of our
proceedings. But, we do provide the Respondent with the evidence we
have against him/her.
South Carolina
We do oppose in some circumstances. We move to quash all subpoenas if it is production we don’t oppose we suggest that the party withdraw its
subpoena and proceed with a Rule 12 request for permissive disclosure.
South Dakota
Tennessee
We oppose discovery of such information unless the Board approved
disclosure. In other words, if the Board did not approve disclosure and a
subpoena was served, we would file a motion to quash.
Texas
We resist and move to quash any attempt to depose our grievance
committee members and members of our commission for lawyer discipline
and any attempt to gain our work product or privileged communications
with our commission.
36
USVI
Yes. This office often resists providing information to the grievant in
particular, such as the respondent’s bank records or other confidential info.
We have access to sealed documents, which are sometimes provided to the
office as a “courtesy” to assist with the investigation. Although disclosure
to all parties is required by my rules, we have had any attempts to try to
compel production.
Utah
We have filed motions to quash. Once there is a court order directing that
we provide the information, we will.
Vermont
Vigorously
Virginia
Again this depends. If it is sensitive information that is not being sought
for any reasonably articulated purpose, or pertains to our internal attorney
processes, we will oppose with a Motion to Quash. We recently had a
respondent subpoena one of our investigators to testify concerning his
investigation and the Attorney General successfully moved to quash. On
the other hand, one of our attorneys was subpoenaed to testify and the
Motion to Quash was granted in part and denied in part.
Washington
Yes, we oppose vigorously and will move to quash subpoenas.
West Virginia
Unaware of any subpoena or protective orders being filed in regards to our
cases, but our cases are confidential until the matter is closed or charges
are filed under our rules.
Wisconsin
Yes, and yes.
Wyoming
We have typically declined to disclose information. All disciplinary files
are confidential by rule. During my tenure as Bar Counsel (2+ years), no
one has pushed it.
37
QUESTION 6:
AT THE OUTSET OF A CASE, WHEN SOMEONE FILES A
GRIEVANCE WITH YOUR OFFICE, AND THE RESPONDENTATTORNEY PROVIDES A WRITTEN RESPONSE, DO YOU
ROUTINELY (OR EVER) SHARE THE RESPONDENTATTORNEY’S RESPONSE WITH THE PERSON WHO FILED
THE GRIEVANCE?
Alabama
Yes, in almost every investigation, the complainant will receive a copy of
the respondent’s response.
Alaska
Yes, except in a case where a third party complains about the lawyer and
the lawyer indicates that his/her response requires the disclosure of his/her
client's confidential information.
Arizona
Yes. We are required to do so pursuant to Rule 53, Ariz. R. Sup. Ct.,
absent a protective order.
Arkansas
Fairly often, as part of our “informal” and early investigative process,
usually try to get the complainant to see that there is a good explanation for
what happened, or to refute claims made by a complainant, or to try to
refute claims made by the respondent attorney. We have had successes in
all three areas, but probably more often in setting up/papering a file to then
“staff close” without going to a formal complaint against the respondent
attorney.
California
No. However, we often give the complaining witness a summary of the
respondent attorney’s response. In fact, pursuant to California Business
and Professions Code section 6093.5, we are required to provide the
complaining witness with a summary of the respondent attorney’s response
if the response was the basis for the dismissal for the complaint.
Colorado
Almost always (98% of the time). If there are atty/client issues we will
redact (like when a 3rd party or opposing party is the complainant) or ask
the respondent attorney to send two responses one with 1.6 disclosures and
one without. We always caution respondents about the 1.6 issues when we
are concerned about sending info to the complainant.
Connecticut
Yes, our rules require it.
Delaware
Generally, yes
D.C.
Virtually always
Florida
We always share the lawyer's response with complainant and invite a
rebuttal
38
Georgia
Virtually always. There have only been one or two instances where the
lawyer has asked us not to share certain information with the complainant
and we’ve agreed.
Guam
It is not customary to do so, but there have been occasions (allegations of
unreasonable attorney fees) where the Respondent has provided extensive
details of the work they claim to have done (and extra effort they claim to
have devoted to the former client’s matter) that this office has determined
the best course of action would be to provide the complainant/former client
of respondent with a copy of respondent’s response, asking the
complainant to comment on the claims in the response. If appropriate, we
will redact extraneous language from the response.
Hawaii
Yes, we share all responses with complainants and respondents
Idaho
Yes, see answers to 1 and 4
Illinois
Yes, unless the response addresses mental health issues or is an attempt to
use the IL ARDC as a discovery tool - then we do not have an exchange of
documents between the complainant and the respondent.
Iowa
No, not usually. About the closest would be if an investigator would write
the complainant back and inquire about something the respondent has
mentioned. But they do not get a copy of the attorney's written response.
Indiana
NO
Kansas
2 ways matters come into the system: In 30-35% of the matters, a
grievance alleging serious allegations is docketed for investigation, and
internal policy dictates that we share the response with the complainant,
unless the contents are inflammatory, etc. In 60-65% of the matters, less
serious, we do not provide the response unless the complainant makes a
request.
Kentucky
We have a policy in our office, which is not part of the Supreme Court’s
rules, to send the response to the Complainant for any supplemental
comments he/she would like to make. We usually send those out within a
day of getting the response and give the Complainant five days to send us
his/her response.
Louisiana
YES
Maine
Yes, we almost always share. If it’s a non-client of the respondent, we
require R to also file a redacted version of her/his response.
39
Maryland
Yes, unless for some reason it would be imprudent to do so. For example,
this office will often send the respondent a letter returning his/her response
and requesting a new one when that initial response is not wholly
responding to the grievance but rather containes vitriolic or other matters
which, to pass on to the complainant, would only fuel the fire and have us
in the letter writing back and forth.
Massachusetts
YES
Michigan
Almost always unless the responding attorney requests non-disclosure and
the request is reasonable – i.e., embarrassing personal information (e.g.
emotional issues), or makes a reasonable claim that the grievance was filed
as an alternative discovery tool in litigation. In the latter situation, we will
sometimes tell the responding attorney to separately supplement the
answer by sending in a separate letter providing further information the
attorney desires to be kept confidential from the complainant.
Minnesota
If the complainant is the attorney’s client, then the attorney is required to
provide the client-complainant with a copy of his/her response to the
complaint and his/her responses to investigative requests (insofar as they
pertain to the subject matter of the complaint). See Rule 20(a)(5), RLPR.
If the complainant is a non-client, then the complainant is permitted the
opportunity to respond to the lawyer’s response to the complaint – such
“opportunity to respond” is typically afforded by providing the
complainant with a copy of the response and asking for their response to
the response. If the circumstances dictate—where, for instance, the
attorney’s response contains privileged information that the complainant
would not otherwise be entitled to, the “opportunity to respond” can be the
opportunity to respond to our summation of the respondent-attorney’s
response. See Rule 6(d), RLPR.
RULE 6. COMPLAINTS
(a) Investigation. All complaints of lawyers’ alleged unprofessional
conduct or allegations of disability shall be investigated pursuant to these
Rules. No District Committee investigator shall investigate a matter in
which disqualification would be required of a judge under Canon 3 of the
Code of Judicial Conduct. No employee of the office of Lawyers
Professional Responsibility shall be assigned to a matter if the employee’s
activities outside the Office are such that a judge with similar activities
would be disqualified under Canon 3 of the Code of Judicial Conduct.
(b) Notification: Referral. If a complaint of a lawyer’s alleged
unprofessional conduct is submitted to a District Committee, the District
Chair promptly shall notify the Director of its pendency. If a complaint is
submitted to the Director, it shall be referred for investigation to the
40
District Committee of the district where the lawyer’s principal office is
located or in exceptional circumstances to such other District Committee as
the Director reasonably selects, unless the Director determines to
investigate it without referral or that discipline is not warranted.
(c) Copies of Investigator’s Report. Upon the request of the lawyer being
investigated, the Director shall provide a copy of the investigator’s report,
whether that investigation was undertaken by the District Committee or the
Director’s Office.
(d) Opportunity to respond to statements. The District Committee or the
Director’s Office shall afford the complainant an opportunity to reply to
the lawyer’s response to the complaint.
Mississippi
Always. Lawyers in Mississippi are required to provide a copy of their
response to the complainant.
Missouri
We routinely send the attorney’s response to the Complainant for reply, but
will make an exception if the response merits an exception, e.g., contains
personal information re the Respondent’s mental health.
Montana
99.9% of the time the attorney’s response is forwarded to the complainant
(we actually have the attorney submit two copies of the response) for their
reply. If the attorney is adverse counsel to the complainant in a pending
case, we will withhold it to preserve confidential and privileged matters
divulged in the response.
Nebraska
Our general practice is to share the attorney's response with the
complaining party, although this is not mandated by the Rules.
Nevada
New Hampshire
We always share the response
New Jersey
YES
New Mexico
No. We hope to obtain as full, complete and forthcoming response as
possible and do not want the attorney to tailor the response because he/she
is concerned about the complainant reading the response. In the past, we
have taken the position that because everything we do is confidential precharges, we cannot release anything unless it is necessary to conduct a
meaningful investigation. The response does not normally need to be
released to anyone to conduct a meaningful investigation.
41
New York
Second Judicial Dist: We always share their response with the
complainant. In fact, our opening letter to the attorney instructs them to
provide an original and a copy of their response, so that we can send it to
the complaint, who has an opportunity to rebut the answer. Any rebuttal is
sent to the attorney, who has an opportunity to supplement his or her
answer.
North Carolina
Unless the responding lawyer objects to release of the response, it is left to
the discretion of the lawyer on our staff conducting the investigation
whether or not to send the complainant a copy of the response. That
decision usually hinges on whether a copy of the response will help the
complainant understand why the grievance was dismissed. If public
discipline is imposed, the complainant gets a copy of the discipline, but not
necessarily a copy of the response.
North Dakota
Rule 3.1, N.D.R. Lawyer Discipl., requires that a copy of the response of
the respondent-attorney be provided to the complainant.
Ohio
Yes. We generally share the response with the grievant; however, our
rules also provide that the respondent can request that the response be
confidential. In that case, we will summarize the response for the
grievant.
Oklahoma
YES
Oregon
Pennsylvania
We routinely ask for the complainant’s position regarding a respondent’s
position. However, we do not always merely send the response to the
complainant. For example, if there is scandalous or inflammatory material
in the lawyer’s response, we summarize it to the complainant.
Rhode Island
The grievant always receives a copy of the respondent’s answer, unless a
portion of the answer is provided with a request that it remain confidential
and then only the non-confidential portion is provided. That happens when
the answer to the complaint provides information that might “set the
complainant off” such as information relating to mental illness.
South Carolina
No. We would only produce that if the chair of the commission granted
permissive disclosure. Of course, we often do have to reveal information
provided by the lawyer to the complainant to complete our investigation
(for example, something like the lawyer says he delivered your file to you
on March 18 at a meeting in your office, is that correct?)
South Dakota
42
Tennessee
YES
Texas
Always. Rule 2.10 states “… the respondent shall deliver the response (to
the grievance) to the office of the Chief Disciplinary Counsel and the
complainant within thirty days after receipt of the notice (of grievance).”
If the respondent does not send the response, we will send the response.
USVI
In every case the Respondent is required to provide the response to the
grievant. This office is also required to “ensure” that everything is
provided to the parties.
Utah
Yes we do. We also tell the complainant that the file is confidential and
that the information in the file should not be given out or made public.
Vermont
No. I suppose we could, but we don’t. Instead, we follow-up with the
complainant (if necessary) by way of interview.
Virginia
We routinely send the respondent’s response to the complainant for
comment, asking for same within 10 days. We often are asked to extend
that timeframe and do so.
Washington
Yes, we always share the response unless there is a specific request to
withhold it supported by a showing of good cause.
Yes, that is the normal procedure but we at times will not provide it to the
complainant for different reasons.
West Virginia
Wisconsin
Yes, routinely, but not in cases where release would prejudice another
proceeding; then, we are authorized by rule to provide only a summary of
the response. Alternately, we would not request the respondent attorney's
response until the underlying proceeding was completed.
Wyoming
We routinely share the respondent’s response with the person who filed the
grievance.
43
QUESTION 7:
IF A RESPONDENT-ATTORNEY ASSERTS HIS/HER 5TH
AMENDMENT PRIVILEGE IN A DISCIPLINARY PROCEEDING,
DOES YOUR JURISDICTION ALLOW AN ADVERSE
INFERENCE TO BE DRAWN FROM THE ASSERTION?
Alabama
YES
Alaska
This happened for the first time in a recent hearing. Special bar counsel had
been assigned because of a conflict (the complainant was the partner of a
board member). It will be interesting to see how the hearing panel
rules. Since it's a potential disbarment case, I'm sure we'll get some
direction from the supreme court when it gets there.
Arizona
YES
Arkansas
Not sure this situation has arisen in the past 12 years. If it did, we would
consider asking for that adverse inference to be noted by the fact-finder, but
not sure of the ruling we would get. We try to avoid getting in these “5A”
situations by deferring on criminal cases as long as we can.
California
In a disciplinary matter in California, an attorney does not have a privilege
not to be called to testify, but an attorney may invoke the 5th Amendment and
refuse to answer specific questions on the grounds that answering the
question may subject the attorney to criminal prosecution. The attorney
invoking the 5th Amendment bears the burden of showing that proffered
evidence might tend to incriminate, and it is up to the court to decide. No
adverse inference may be drawn from a proper invocation of the 5th
Amendment privilege, and an attorney may not be disciplined solely based
on invoking the privilege. However, the court is permitted to draw
inferences against an attorney who refuses to answer proper questions after
his/her claim against self-incrimination under the 5th Amendment was denied
and he/she was ordered to answer. If an attorney improperly invokes the 5th
Amendment and refuses to testify at all or refuses to answer questions after
his/her claim under the 5th Amendment was denied and he/she was ordered to
answer, those facts may be considered as aggravation.
Colorado
YES
Connecticut
We don’t have a rule on this but at the hearing level we have drawn adverse
inferences on facts in dispute when the lawyer asserts the 5th.
Delaware
D.C.
Delaware has never addressed this issue.
Our Court in DC has never addressed the issue.
44
Florida
Although we don't have bar case law, there is Florida civil case law that
permits an inference
Georgia
YES
Guam
Our office has not had to deal with this, but we use the ABA’s MRPC as they
existed in 2002, so we would argue that the jurisdictions that use the same
rules and that allow such an adverse inference should be mirrored. We
would also watch the statute of limitations regarding respondent’s alleged
crimes, as the 5th Amendment privilege assertion is likely stale after the SOL
has run. If there were a need for summary suspension, we would pursue it,
but otherwise we may wait until after the SOL has run, mooting the privilege,
and thus cutting much more strongly against R if he/she were to refuse to
cooperate.)
Hawaii
We have no ruling on the privilege but in a couple of very old cases, the 5th
was asserted and no adverse inference was drawn.
Idaho
Not sure, the issue has not arisen in the past 10 years, but the presumption is
that we would follow what I understand is the majority rule that answers the
question
Illinois
YES
Iowa
We have no specific rule governing this. What little case law we have seems
to suggest that we would not be able to draw an adverse inference.
Indiana
This is a difficult question to answer, primarily because we have no ruling in
a disciplinary case that directly addresses the issue. There is case law, in
Indiana, that in civil proceedings an adverse inference may be drawn from
the assertion of one’s 5th Amendment right against self-incrimination. It’s not
clear, however, whether this line of thought would apply in a disciplinary
matter. Disciplinary proceedings in Indiana are sui generis—they’re their
own animal, neither completely civil nor completely criminal in nature. So
without a ruling from our Supreme Court saying that an adverse inference
can be drawn from the assertion of one’s 5th Amendment right in a
disciplinary case, we would have to fall back and argue that our state’s civil
case law allows such an inference to be drawn. Then we would wait to see
how our Court would rule on this argument.
Kansas
No – not much experience with this in Kansas. SCR 223 and the case law
indicates that a respondent does not have to cooperate if his cooperation
involves criminal liability.
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Kentucky
As for the Fifth Amendment question, that has never come up in Kentucky,
because we wait until the criminal matter has been completed before we
proceed with the prosecution of the disciplinary proceeding.
Louisiana
The position of the ODC is that if a respondent asserts a 5th amendment
privilege, an adverse inference should be drawn. It seems that our court has
not yet had the opportunity to speak to the issue specifically but it is this
office’s belief that they would follow the lead of most jurisdictions across the
country where such an inference is routinely drawn. Indeed, where the
respondent asserts a 5th amendment privilege in 'bad faith' (such as where all
pending charges were resolved and he faced no further possibility of
jeopardy), our Court has held that his refusal to respond to ODC's inquiry
was a failure to cooperate under Rule 8.1(c) and was an independent grounds
for discipline.
Maine
YES
Maryland
Massachusetts
Yes, our case law permits an adverse inference to be made.
YES
Michigan
Undecided, see Matter of Baun, 395 Mich. 28, 232 N.W.2d 621 (1975)
Minnesota
We would take the position that an adverse inference can be drawn, but the
MN Supreme Court hasn’t necessarily addressed it head-on. Not an attorney
discipline case, but a bar admission case from 1991 that seems to show the
Court was willing to at least make some inference from an applicant’s
assertion of Fifth Amendment rights (although the burden of proof in an
admission case is on the applicant, so it may not apply to attorney discipline
cases). See quoted language of Bellino, below the succeeding paragraph.
In cases in which an attorney comes to our office and wants to stipulate to
discipline for criminal conduct before resolution or initiation of the criminal
proceedings (and typically only in such cases), we may finesse the stipulation
to state that the respondent attorney understands that the facts in the petition
will be deemed admitted (as opposed to the standard language used which
basically states the respondent-attorney unconditionally admits the facts as
alleged). In effect, the finessed stipulation amounts to a nolo contendere
plea, which we usually will not permit under other circumstances.
Petition of Bellino, 478 N.W.2d 507, 509 (Minn. 1991):
It is well established that an applicant for admission to practice law in the
State of Minnesota bears the burden of establishing good character and
fitness to the satisfaction of the Board of Law Examiners. E.g., In re Petition
of Brown, 467 N.W.2d 622, 624 (Minn.1991); Minnesota Rules of the
Supreme Court for Admission to the Bar, Rule IIA(2) (1991). The character
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and fitness standards adopted by the Board list factors to be considered in
assigning weight and significance to prior conduct. See In re Zbiegien, 433
N.W.2d 871, 875 (Minn.1988) (factors listed); see also In re Petition of
Brown, 467 N.W.2d at 624. At no time during the hearing did Bellino ever
attempt to satisfy his burden of establishing good moral character. His only
response to questions concerning the charges was invocation of his fifth
amendment rights. Certainly, Bellino was entitled to exercise his
constitutional rights, but the declination to respond to questions can hardly be
said to have advanced his burden of establishing good moral character and
fitness in the face of the uncontroverted evidence of his misconduct.
Moreover, his argument that he need not respond to questions concerning his
misconduct rests on the contention that the military requires higher moral
standards than does society generally and that there is no civilian counterpart
for the charges against him. Although it is probably accurate to say that only
the military couches a charge of misconduct punishable by imprisonment in
terms of “conduct unbecoming an officer and a gentleman,” the admitted
conduct underlying most of those charges would support a conviction of
criminal sexual conduct pursuant to the Minnesota Criminal Code had they
been committed by a civilian. Regardless, however, whether it constitutes
criminal misconduct, Bellino's admitted sexual assaults of clients do not
constitute evidence of good character.
Mississippi
YES
Missouri
Probably. We have a 1939 court of appeals case that says a lawyer’s refusal
to testify at his disciplinary hearing is “taken as a strong circumstance against
him.” I am not aware of a more modern Supreme Court case where that has
been raised as an issue.
Montana
I don’t believe this has ever come up, as we await a conviction in the event of
criminal charges. I would certainly ask for an inference in that event, but
there is no specific rule that would impose one.
Nebraska
We do not have case law directly on point and the issue is not addressed in
the Rules.
Nevada
New Hampshire
Issue has never been encountered
New Jersey
We can ask the hearing panel to draw an adverse inference from the
respondent's assertion of Fifth Amendment rights.
New Mexico
Rule 17-304(E) provides that if an attorney is likely to or asserts the 5th, our
office can seek a use immunity order from the Supreme Court allowing the
attorney to respond but preventing the response from being used against the
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attorney in later criminal proceedings. The prosecuting authority is notified
of the application and can join or oppose. Because of this, we do not get to
the adverse inference issue. If someone refused despite the use immunity
order, an argument could be made that we can use it as an adverse inference
but it does not seem that Court has ever ruled on that issue in a disciplinary
matter in NM.
New York
Second Judicial Dist.: YES
North Carolina
YES
North Dakota
We do not have any case law on this subject. On one occasion, a respondentattorney asserted his 5th Amendment privilege as part of an unsuccessful
effort to secure a continuance while criminal proceedings were pending. The
issue became moot when the criminal matter was plea bargained before the
disciplinary hearing was held.
Ohio
We do not have any disciplinary case law that actually says an adverse
inference can be drawn, but in motions, closing briefs, etc., we will cite nondisciplinary case law advocating that an adverse inference be drawn.
Oklahoma
Our case law is silent as to whether the assertion may be used to draw an
adverse inference. An attorney may also, at trial, assert Rule 6.11(d),
RGDP, and refuse to testify regarding matters that are privileged or that
would be grounds for discipline:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=100621
Oregon
Pennsylvania
It seems that no one has ever asserted the 5th Amendment in a PA
disciplinary proceeding. With regard to an adverse inference, I would
certainly seek one. As I recall. in civil litigation, a party would be entitled to
one. Also, and perhaps more importantly, I believe there is disciplinary case
law from other jurisdictions supporting a request for an adverse inference.
Rhode Island
YES
South Carolina
YES
South Dakota
Tennessee
Texas
It seems the issue has not been addressed by our Supreme Court
Yes – Texas Rules of Evidence allow the adverse inference
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USVI
TBD—this is pending before a panel right now, but the office intends to
withdraw its request for an adverse inference since it seems that the Supreme
Court precedent is that it is impermissible. Plus, in this case, there is
independent proof of the misconduct, and we don’t really need the inference.
Utah
YES
Vermont
No settled law. Happened once in a case about 10 years ago. The office was
prosecuting a respondent who stole more than $20 million at the same time
as the feds were prosecuting him. He invoked the fifth during a deposition
and announced an intent to do the same at a subsequent hearing. We briefed
the issue for the panel. The briefs were extraordinarily long. In the end, the
panel issued a one-line ruling that said that his invocation of the 5th was no
reason not to postpone the hearing until the end of the criminal case. He
agreed to disbarment shortly thereafter. The sense is that the panel and our
Supreme Court would not allow an adverse inference to be drawn. Rather,
they’d hold that a lawyer may invoke the 5th, but will be sanctioned if the
evidence offered by this office clearly and convincingly establishes a
violation.
Virginia
TBD
Washington
YES
West Virginia
No, if it involves a criminal proceeding and they assert their 5th Amendment
right, we usually stay the matter pending resolution of the criminal
matter. We don’t have to follow what has happened in the criminal matter
but when there is a criminal conviction, we usually can proceed under
different rules to have a disciplinary sanction. Unaware of any assertion of
the 5th Amendment right regarding a civil matter.
Wisconsin
YES
Wyoming
NO
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