(a) WHO MAY BE ADMITTED.
Admission to and continuing membership in the bar of this Court is are limited to attorneys who are 1. active members in good standing of in the District of Columbia Bar; or 2. active members in good standing of the highest court of any state in which the attorney maintains his/her principal law office and is a member in good standing of a United States District Court that provides for reciprocal admission to members of the bar of this Court.
(b) PETITION FOR ADMISSION.
Each applicant for admission shall file with the Clerk at least 10 days prior to hearing thereon (unless for good cause shown the judge shall shorten the time) a written petition for admission on a form supplied by the Clerk stating:
(i) the provisions of the Judicial Code (Title 28 U.S.C.) which pertain to the jurisdiction of and practice in United States District Courts;
(ii) the Federal Rules of Civil or Criminal Procedure;
(iii) the Rules of the United States District Court for the District of Columbia; and
(iv) the Code of Professional Responsibility as adopted by the District of Columbia Court of Appeals except as otherwise provided by specific rule of this Court, and that he/she will faithfully adhere thereto.
(c) AFFIDAVIT OF A MEMBER OF THE BAR.
The petition shall be accompanied by an affidavit of an attorney who is a member in good standing of the bar of this Court who has known the applicant for at least one year stating when the affiant was admitted to practice in this Court and how long and under what circumstances the attorney has known the applicant and a statement of the applicant's character and experience at the bar. The affidavit shall be on a form supplied by the Clerk.
(d) HEARING ON THE PETITION.
The petition for admission shall be placed on the calendar of the Motions Judge and shall be heard on the first Monday of each month. If the first Monday is a holiday, the petition shall be heard on the following Monday. If the petition is granted, the applicant shall take the oath of office.
(e) OATH.
The oath which each applicant for admission to the bar of this Court shall take shall be as follows:
I do solemnly swear (or affirm) that I will support the Constitution of the United States; that I will respect courts of justice and judicial officers; that I will well and faithfully discharge my duties as an attorney and as an officer of the Court; and in the performance of those duties I will conduct myselfwith dignity and according to both the law and the recognized standards of ethics of our profession.
(f) ADMISSION FEE.
Each petition shall be accompanied by payment in such amount and form as determined by the Court, which the Clerk shall deposit to the credit of a fund to be used for such purposes as inure to the benefit of the members of the bench and the bar in the administration of justice which are determined to be appropriate by the Court from time to time. This fee shall be in addition to the statutory fee for administering the oath of office and issuing the certificate of admission.
(g) CLERK AS AGENT FOR SERVICE.
By being admitted to the bar of this Court or by being permitted to practice in this Court under Rule 104 and 703 or in fact practicing in this Court, the attorney shall be deemed to have designated the Clerk of the Court as agent for service of process in any disciplinary proceeding before this Court.
COMMENT TO RULE 701: This Rule is based on former Rule 4-1. In addition, this Rule clarifies the intention that continuing membership in the bar is premised on a continuing duty to meet the requirements of this Rule. Section (a) parallels revised Rule 104 regarding practice by attorneys. See Comment to Rule 104.
Section (b) is changed to require listing an office telephone number and the court and date admitted to practice when applying for admission. Subsection (b)(5) modifies the requirement to disclose conviction of a crime to eliminate the requirement to list minor traffic offenses. The oath in section (e) has been revised to conform to the shorter oath adopted by the Court on May 6, 1986. The duty to notify the Court of a change in address described in section (g) remains the same, but for the first time the Rule provides that the failure to maintain a current address with the Clerk of this Court constitutes a separate ground for discipline. The most significant change in Rule 701 is that section (h) has been added to provide an alternate method of service on the attorney in disciplinary cases when service cannot be effectuated because the attorney has not maintained a current address. The new Rule provides that the Clerk of the Court is automatically designated as agent for service of process. The provisions in sections (g) and (h) have been added to eliminate service problems as part of an overall effort to simplify the Court's disciplinary procedures.
(a) RENEWAL OF MEMBERSHIP EVERY THREE YEARS.
Each member of the bar of this Court shall renew his or her membership every three years by filing with the Clerk of the Court, on or before July 1st of every third year, a certificate in a form prescribed by the Clerk that the member is familiar with the then-current version of the Federal Rules of Civil Procedure, Federal Rules of Evidence, the Local Rules of this Court, and the Code of Professional Responsibility. If the attorney appears in criminal cases, he or she must also certify familiarity with the then-current version of the Federal Rules of Criminal Procedure and the Sentencing Guidelines. (See Rule 301(b).) Members of the bar of this Court on the effective date of this Rule shall file certificates by March 1, 1990, and by July 1 of every third calendar year thereafter. Subsequently admitted members shall file certificates by July 1st of every third calendar year after the year in which they were admitted. The Clerk shall notify members of this certification requirement at least 60 days before the date for filing such certificates and renewals.
(b) RENEWAL FEE.
Each certificate required by (a) above shall be accompanied by a payment of $25 in a form determined by the Clerk. The fee shall be $10 for the initial certificate filed by any person admitted to the bar of this Court after July 1, 1986. The Clerk shall deposit the fees received to the credit of the fund described in Rule 701(f) to be used for the purposes specified in that rule, including the defraying of expenses of maintaining a current register of members in good standing and to administer the counseling program outlined in Rule 711.
(c) FAILURE TO RENEW.
An attorney who fails to file the required certifications and pay the renewal fee shall be provisionally removed from the list of members in good standing. The name of the attorney shall be restored to the list of member in good standing upon filing of the required certificates and payment of the delinquent fee within five years after the due date. At the end of five years from the due date, the name will be permanently removed from the roll, without prejudice to an application for admission as a new member.
(a) Attorneys who are members in good standing of the bar of this Court shall be required to assist or represent the needy in civil matters before this Court whenever requested by the Court and, if necessary, without compensation and to accept appointments under the Criminal Justice Act unless exempted by rule or statute.
(b) Attorneys who are members in good standing of the bar of the District of Columbia or of any United States Court or of the highest court of any state may assist or represent the needy in civil matters before this Court without compensation, provided that such attorneys file a certificate under Rule 104(g) and comply with the provisions of Rule 706.
COMMENT TO RULE 702: Same as former Rule 4-2, rewritten for clarity and brevity and to add the provision "unless exempted by rule or statute" in section (a).
The Chief Judge shall appoint a committee on pro se litigation, which shall include representatives of the District of Columbia Bar who practice primarily in federal courts, to oversee the Civil Pro Bono Panel established herein and annually report to the Court on the operation of the Panel.
(A) Attorneys who are members in good standing of the bar of this Court are required under Rules 702(a) to assist or represent the needy in civil matters before this Court whenever requested by the Court. In light of the need for attorneys to represent indigent pro se litigants in civil matters before this Court, the Court hereby establishes a Civil Pro Bono Panel of attorneys who will be assigned to represent such litigants in such cases. Members of the bar of this Court are urged to volunteer to serve on this Panel.
(B) Attorneys who are willing to accept appointment to represent indigent pro se parties in civil actions may apply for designation to the Civil Pro Bono Panel on appropriate forms available from the Clerk of Court or his or her designee (hereinafter "the Clerk"). Each application shall set forth, among other things:
(i) that the attorney is a member in good standing of the bar of this Court or is in compliance with Rule 702(b) of the Rules of this Court;
(ii) the attorney's prior civil trial experience or trial advocacy training and any particular experience of interest in specific types of civil cases (e.g., FOIA cases, habeas corpus petitions, social security claims, section 1983 actions) to which attorneys from the Panel are likely to be appointed;
(iii) whether the attorney has the ability to consult and advise in languages other than English; and
(iv) whether the attorney will accept more than one appointed case per calendar year.
(C) A law firm may apply for designation to the Panel as a firm by completing the appropriate form available from the Clerk. In its application, the law firm shall set forth, among other things:
(i) the number of appointed cases per calendar year the firm is able to accept;
(ii) the ability of any firm attorneys to consult and advise in language other than English; and
(iii) the name of a member of the firm designated as the Panel Liaison. Where an action is assigned to a participating firm the order of appointment may be directed to the firm, and the firm's Panel Liaison may assign the action to a firm attorney who shall be a member in good standing of the bar of this Court or have complied with the requirements of Rule 702(b) of the Rules of this Court.
(D) A clinical legal education program at a law school accredited by the American Bar Association and located in the District of Columbia may apply to participate by completing the appropriate forms available from the Clerk. In the application the supervisor applying on behalf of the program shall set forth, among other things:
(i) that the supervisor is a member in good standing of the bar of this Court or has complied with the requirements of Rule 702(b) of the Rules of this Court;
(ii) the number of cases per calendar year the clinical program is able to accept;
(iii) the ability of the supervisor and students to consult and advise in languages other than English; and
(iv) any particular experience or interest in the specific types of civil cases to which attorneys from the Panel are likely to be appointed.
(E) Information on an application may be amended at any time by letter. An attorney, law firm or law school clinical program may by letter withdraw from the Panel at any time.
(A) A party appearing pro se may file an affidavit with the Court pursuant to 28 U.S.C. § 1915(a) to proceed in forma pauperis, and may apply in writing for appointment of counsel. Failure of the pro se party to make a written application for appointed counsel shall not preclude such appointment with the consent of the pro se party.
(B) If the judge assigned the case determines, pursuant to 28 U.S.C. § 1915(d), that the case should not be dismissed, the judge may then determine whether to appoint an attorney to represent such party. Such a determination should be made as soon as practicable after the action is assigned, taking into account:
(i) the nature and complexity of the action;
(ii) the potential merit of the claims as set forth in the pleading;
(iii) the inability of the pro se party to retain counsel by other means;
(iv) the degree to which the interests of justice will be served by appointment of counsel, including the benefit the Court may derive from the assistance of the appointed counsel; and
(v) any other factors deemed appropriate by the judge to serve the interests of justice.
(C) Where a pro se litigant who was ineligible for appointed counsel at the outset of the litigation subsequently becomes eligible by reason of changed circumstances, the pro se litigant may apply to the judge for appointment of counsel within a reasonable time after the change in circumstances has occurred.
(A) Whenever the assigned judge concludes that appointment of counsel is warranted, the judge shall issue an order pursuant to 28 U.S.C. § 1915(d) directing appointment of an attorney from the Civil Pro Bono Panel to represent the pro se party. The attorney shall be chosen in accordance with paragraph (B) below. If service of the summons and complaint has not yet been made, an order directing service by the Marshal for the District or by other appropriate method of service shall accompany the appointment order.
(B) When the Clerk has received the Appointment Order from the judge, he or she shall select the next attorney on the Panel list to represent the pro se party in the action. Selection by the Clerk shall be made on a random basis from the list of attorneys, law firms, and law school clinical education programs (hereinafter "appointed attorney") on the Panel, unless the assigned judge advises the Clerk to select an appointed attorney with a specific expertise. The assigned judge shall not direct the appointment of a specific attorney.
(C) Before selecting an appointed attorney to represent a pro se litigant, the Clerk shall determine whether the litigant has any other case pending before the Court and whether an attorney has been appointed in such case. Where an appointed attorney is already representing the litigant in a prior action, such attorney is encouraged but not required to represent the litigant in the new action. If the previously appointed counsel declines, the Clerk shall select another attorney, at random, in accordance with this Rule.
(D) The Clerk shall send written notice of the appointment to the appointed attorney. Copies of the Appointment Order, this Rule governing procedures for appointment, any pleadings already filed in the case, and any relevant correspondence or other documents shall accompany such notice.
(E) Upon receiving such notice, the appointed attorney shall enter a notice of appearance or seek relief from the appointment pursuant to section 7 of this Rule within 30 days of the appointment, or within such additional period permitted by the assigned judge for good cause shown.
(F) When the appointed attorney has entered his or her notice of appearance in the case, the attorney shall immediately also send written notice of the appointment, including his or her name, address, telephone number, and bar identification number to all parties in the action.
(A) Upon receiving a notice of appointment and entering an appearance in the action, the appointed attorney shall promptly communicate, orally or in writing, with the newly represented party concerning the action.
(B) The appointed attorney should discuss fully the merits of the dispute with the party, and explore with the party the possibility of resolving the dispute in other forums, including but not limited to administrative forums.
(C) If the party decides to prosecute or defend the action after consultation with the appointed attorney, the appointed attorney shall proceed to represent the party in the action, unless or until the attorney-client relationship is terminated as provided in this Rule.
(D) Once the appointed attorney accepts the case and the client, the attorney shall be free in the exercise of his or her professional judgment, but not required, to represent the client in or out of Court in any other matter that would he appropriate in the case of a retained attorney and a fee-paying client.
(E) Where an order of appointment has been directed to a participating law firm or law school clinical legal education program, the action shall remain the responsibility of the firm or of the clinical legal education program, notwithstanding the firm's or the program's assignment of the case to one of its attorneys.
(A) An appointed attorney may apply to be relieved of an order of appointment only on the following grounds:
(i) a conflict of interest precludes the attorney from representing the party in the action; or
(ii) a substantial disagreement exists between the attorney and the party on litigation strategy; or
(iii) in the attorney's opinion formed after reasonable inquiry, the claim or defense is not well grounded in fact; or is not warranted under existing law and cannot be supported by good faith argument of extension, modification, or reversal of existing law, or the party is proceeding for purposes of harassment or other improper purpose; or
(iv) because of the temporary burden of other professional commitments, the attorney lacks the time necessary to represent the party; or
(v) on such other grounds acceptable to the Court for good cause shown.
(B) An attorney seeking to be relieved from appointment for the reasons set forth in section A (i), (ii), or (iii) above shall file a Notice of Withdrawal with the Court, with proof of service upon the client, stating without identification of reasons, that "grounds for relief from appointment under Section (7)(A)(i), (ii), or (iii) exist." Such Notice will effect withdrawal without any Court action. An attorney wishing to be relieved for the reasons set forth in Section (7)(A)(iv) or (v) shall file a Motion for Withdrawal setting forth the circumstances constituting cause for withdrawal. Withdrawal on Motion will require Court approval.
(C) An application for relief from appointment must be made to the assigned judge within 30 days after the attorney's receipt of the order of appointment, or within such additional period permitted by the assigned judge for good cause shown.
(D) An application for relief from appointment shall be furnished to the client and filed under seal, and shall not be served upon or otherwise made available to the opposing party.
(E) If an application for relief from an order of appointment is granted, the judge may issue an order directing appointment of another attorney to represent the party, or such other orders as may be deemed appropriate. The judge shall have the discretion not to issue a further order of appointment, in which case the party shall be permitted to prosecute or defend the action pro se.
(A) A party for whom an attorney has been appointed shall be permitted to request the judge to discharge the attorney from the representation and to either appoint another attorney or let the party proceed pro se.
(B) When such a request is made, the judge shall forthwith issue an order discharging the appointed attorney from further representation of the party in the action. In such cases, the judge may issue a further order directing appointment of another attorney to undertake the representation, or such other orders as may be deemed appropriate. The judge shall also have the discretion not to issue a further order of appointment in such cases. Where a party requests discharge of a second appointed attorney, no additional appointments shall ordinarily be made.
(A) There being no public funds available for this purpose at this time, the appointed attorney or the law firm or law school clinical legal program with which he or she is affiliated should be prepared to advance the reasonable expenses of the litigation.
(B) The appointed attorney shall not condition the representation upon the client's advancing the cost of the litigation expenses. The appointed attorney may enter into an agreement with the client wherein the client agrees:
(i) to reimburse the attorney for litigation expenses from any monetary recovery that may be obtained through the representation, and/or
(ii) to assign to the attorney any amounts awarded to the client as litigation expenses pursuant to law, including case law, authorizing the award of such expenses.
(A) The appointed attorney shall represent the client without receiving a fee, except that in cases where it appears the client is reasonably likely to be entitled to recover attorney fees or a monetary award, the appointed attorney may:
(i) enter into a written agreement with the client, assigning to the attorney any amounts recovered by the client as attorneys' fees pursuant to laws, including case law, authorizing the award of attorneys fees; and/or
(ii) propose to the client a contingent fee arrangement providing for the payment of a reasonable fee out of any funds recovered by the client as a result of the representation. A contingent fee arrangement shall provide that the amount of any payments received by the attorney pursuant to an assignment agreement under subparagraph (i) above shall be credited against the client's fee obligations under such a contingent fee arrangement. Any such contingent fee arrangement shall be in writing, executed by both the attorney and the client, and submitted to the Court for its approval; or
(iii) seek to assist the client in retaining other counsel on a compensated basis, subject to the client's consent to such a change in representation and to the Court's approval of a request for relief from appointment under subparagraph (7)(A)(v) on the ground that the party no longer requires appointed counsel for the purpose of pursuing the claim, or, if the appointed attorney is unable to obtain such other counsel for the client, be or she shall then continue the representation to its conclusion, either without receiving a fee, or pursuant to an assignment or contingent fee arrangement as provided in subparagraphs (i) and (ii) above.
(B) In cases such as certain social security disability cases, in which the applicable statue authorizes the award of attomeys' fees to be paid out of the amounts awarded to the plaintiff, the appointed attorney shall advise the client of the possibility of such an award.
(A) An appointed attorney shall represent the party in the action in the trial court from the date he or she enters an appearance until he or she has been relieved from the appointment by the Court according to the provisions of this Rule or until a final judgment is entered in the action.
(B) If the party desires to take an appeal from a final judgment or appealable interlocutory order or if such judgment or order is appealed by another party, or if the matter is remanded to an administrative forum, the appointed attorney is encouraged but not required to represent the party on the appeal, and in any proceeding, judicial or administrative, which may ensue upon an order of remand, unless a conflict of interest would prevent such representation.
(C) If the appointed attorney elects not to represent the party on an appeal or in a proceeding upon remand, the attomey shall advise the party of all required steps to be taken in perfecting the appeal or appearing in the proceeding on remand. Upon request of the pro se party the attorney shall file the notice of appeal. Such advise shall include available sources of appointed counsel.
Nothing in this Rule shall be interpreted as preventing a judge from requesting a legal organization that is not on the Civil Pro Bono Panel to represent a pro se litigant who is proceeding in forma pauperis in this Court.
(a) PROMULGATION OF RULES.
This Court, in furtherance of its inherent power and responsibility to supervise the conduct of attorneys who are admitted to practice before it under Rule 104 or 701 of these Rules, or who are admitted for the purpose of a particular proceeding (pro hac vice), or who otherwise appear before the Court, promulgates the following Rules of Disciplinary Enforcement superseding all of its other Rules pertaining to disciplinary enforcement heretofore promulgated. These Rules shall become effective on May 1, 1987, provided, however, that any formal disciplinary proceeding then pending before this Court shall be concluded under the procedure existing prior to the effective date of these Rules.
(b) ATTORNEYS SUBJECT TO RULES.
These Rules shall apply to all attorneys admitted to membership in the bar of this Court, to all attorneys permitted to practice before this Court under Rule 104, and to all attorneys who appear before this Court or who participate in proceedings, whether admitted or not. All attorneys to whom these Rules apply shall be subject to the disciplinary jurisdiction of this Court for any alleged misconduct arising in connection with such proceeding. All such attorneys shall also be deemed thereby to have designated the Clerk of the Court as agent for service of process under these Rules governing discipline and disciplinary proceedings.
COMMENT TO RULE 703: Section (a) is based on former Rule 4-3 and incorporates the former Preamble to the Rules of Disciplinary Enforcement. Section (b) is new and was added to make clear that the Court has authority to discipline all attorneys who appear before it, whether admitted or not. Because this Rule is broader in its application than either Rule 104 or 701, it restates the provision that all attorneys subject to these Rules shall be deemed to have designated the Clerk of the Court as agent for service of process for purposes of the Disciplinary Rules.
(a) APPOINTMENT.
The Chief Judge shall appoint three judges of the Court to be known as the Disciplinary Panel and shall appoint two additional judges to serve as alternate members. The Disciplinary Panel shall have jurisdiction over all judicial proceedings involving the disbarment, suspension, censure or other discipline of attorneys subject to these Rules.
(b) POWERS OF INDIVIDUAL JUDGES.
Nothing contained in these Ruies shall be construed to deny to this Court or to any individual judge or United States Magistrate Judge thereof or to the United States Bankruptcy Judge such powers as are necessary for the Court to maintain control over proceedings conducted before it, such as proceedings for contempt under Title 18 of the United States Code or under Rule 42 of the Federal Rules of Criminal Procedure, or to deprive any judge or magistrate judge of his/her inherent power of discipline for conduct committed in the presence of the Court.
COMMENT TO RULE 704: Section (a) is the same as former Rule 4-3(V)(a), rewritten for clarity and brevity to set out the composition and purpose of the Disciplinary Panel. Section (b) is based on former Rule 4-3(X). It makes clear the power of an individual judge, Bankruptcy Judge or Magistrate, Judge to maintain control over proceedings through the contempt power or otherwise to discipline for conduct in the presence of the Court.
(a) APPOINTMENT.
There shall be established a standing committee appointed by the Court to be known as the Committee on Grievances (the "Committee") consisting of six or more members of the bar of this Court appointed for terms of three years and until their successors have been appointed. The terms of the members shall be staggered so as to provide continuity. No member of the Committee on Grievances shall serve more than two consecutive terms.
The Court shall designate a Chairman of the Committee and a Vice Chairman who shall act in the absence or disability of the Chairman. Members of the Committee shall serve without compensation except that the Court may authorize payments in lieu of expenses from fees collected by the Clerk pursuant to Rule 701(f).
(b) DUTIES.
The Committee shall be charged with receiving, investigating, considering and acting upon complaints against all attorneys subject to these Rules, Rule 703(b) relating to disbarment, suspension, censure, reprimand or other disciplinary action, and petitions for reinstatement of attorneys.
(c) CLERK.
The Clerk shall with approval of the Court, appoint a clerk to the Committee who shall have all powers vested in a Deputy Clerk of the Court. The clerk to the Committee shall assist the Committee, maintain records of its proceedings, investigations and prosecutions, and proceed as otherwise set forth in these Rules.
(d) CONFIDENTIALITY AND IMMUNITY.
All proceedings before the Committee involving allegations of misconduct of an attorney and all documents and charges presented to the Committee shall remain confidential and privileged. All formal charges prepared by the Committee and directed to be filed by the Court, attorney or grievance cases filed with the Clerk of the Court, Court orders, and subsequent pleadings, answers or responses filed therein shall be matters of public record.
All meetings and hearings of the Committee shall be held in camera and the business conducted therein shall remain confidential and privileged. The Committee's Chairman or, in the Chairman's absence or disability, the Vice Chairman shall have discretion in determining the manner and extent of cooperating with disciplinary agencies from other jurisdictions. All records and minutes of the Committee shall be maintained under seal and shall not be disclosed except by order or direction of the Chief Judge (or the designee of the Chief Judge).
When exercising the power delegated by the Court, Committee members shall be absolutely immune from suit for any conduct in connection with their duties. Complaints submitted to the Committee on Grievances pursuant to Rule 707 shall be absolutely privileged and no claim or action predicated thereon may be instituted or maintained.
COMMENT TO RULE 705: This Rule is based on parts of former Rule 4-3(V). Section (c) is new and governs the responsibilities of the Clerk to the Committee.
The most important change is section (d) which is added to describe the practice of the Committee on Grievances and the Court relating to confidentiality and disclosure of disciplinary proceedings. It clarifies existing practice by explicitly stating which proceedings are confidential and which are not. The Rule does not bar disclosure of information by order of the Chief Judge or his/her designee in connection with judicial appointments. In addition, consistent with the rules of other courts and recent case law, the Rule provides that Committee members shall be immune from suit for conduct in the course of their duties in exercising the power delegated to the Committee members by the Court.
(a) RULES OF PROFESSIONAL CONDUCT.
Violations of the Rules of Professional Conduct (as adopted by the District of Columbia Court of Appeals except as otherwise provided by specific Rule of this Court) by attorneys subject to these Rules shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship.
(b) DUTY TO NOTIFY THE COURT.
It shall be the duty of each attorney subject to these Rules to notify promptly the Clerk of this Court of:
Failure to provide the notice required by this paragraph may constitute a separate ground for discipline.
(c) CHANGES IN ADDRESS.
Notice to the Clerk of any change in the attorney's address or telephone number (see (b)(4) above) shall be filed in writing within 10 days of the change. The attorney shall also within 10 days file a praecipe reflecting such change in each case which the attorney has pending before this Court, serving a copy upon each of the attomeys in these cases.
(d) DUTIES OF THE CLERK UPON NOTIFICATION.
Upon being informed that an attorney subject to these Rules has been convicted of any crime, disciplined by any court, held in contempt by any court, disbarred by consent, or resigned from any bar pending an investigation into allegations of misconduct, the Clerk shall promptly obtain a certified or exemplified copy of such conviction, disciplinary judgment or other court order and present it to the Committee which shall proceed in accordance with these Rules.
COMMENT TO RULE 706: Section (a) is based on former Rule 4-3(IV)(b). Section (b) combines several former Rules relating to an attorney's obligations under these Rules to notify the Court of certain facts: (1) conviction of crime; (2) disbarment, suspension or public discipline; (3) citation for contempt; and (4) change in address or telephone number. The duty of notification in 706(b) regarding public discipline does not include sanctions imposed under Civil Rules otlier than contempt as specified in subsection (b)(3). Failure to provide notice may constitute grounds for disciplinary action.
Section (c) has been added to impose on the Clerk to the Grievance Committee the duty to obtain a certified or exemplified copy of such conviction, disciplinary judgment or court order.
(a) SERVICE OF PROCESS.
Service of process under these Rules shall be made by certified mail addressed to the attorney (hereinafter attorney or respondent) at the last known address or at the last recorded address filed with the Clerk of the Court as required pursuant to Rule 701(g). If service cannot be so made, service shall be sufficient when served on the Clerk of this Court and all time periods specified in these Rules shall run from the time of such service. If service is made by serving the Clerk, a courtesy copy shall be mailed to the respondent by first class mail at his/her last known address.
(b) ATTORNEYS CONVICTED OF CRIMES.
Upon presentation of proof that the conviction is final, and regardless of the pendency of an appeal or other review of the conviction or of a Petition for Writ of Certiorari, the respondent shall be disbarred and the attorney's name shall be struck from the roll of members of the bar of this Court by order of the Disciplinary Panel, unless within a period of 30 days from the date of the order, the respondent shows cause why disbarment would not be in the interest of justice.
Upon receipt of a certified copy of such judgment of conviction, the Committee shall obtain an order from the Disciplinary Panel requiring the respondent to show cause within 30 days after service in accordance with Rule 707(a) why the attorney should not be disciplined. If the respondent files a timely Answer, the Committee shall have 30 days within which to file a response thereto if it so desires. The Committee shall serve a copy of its response, if any, upon the respondent or respondent's counsel of record by first class mail or, failing that, in accordance with Rule 707(a).
Upon the filing of the respondent's Answer to the Order to Show Cause and any response thereto by the Committee, or if no answer has been filed, upon the filing of a recommendation by the Committee, the matter shall be promptly submitted to the Disciplinary Panel for its consideration. The Disciplinary Panel may, in its discretion, schedule a hearing. If a hearing is scheduled, the Chairman or designated member(s) of the Committee shall appear at the hearing and offer proof or arguments pertinent to the issues. After the hearing or, if no hearing is scheduled, upon a review of the papers submitted, the Disciplinary Panel shall take such action as these Rules and justice may require. In all proceedings hereunder the certified copy of judgment of conviction shall constitute conclusive proof of the respondent's guilt of the conduct for which the respondent was convicted. The pendency of an appeal or other review of the conviction or of a petition for writ of certiorari will not constitute a ground for failing to proceed in accordance with this Rule absent extraordinary circumstances and for good cause shown.
(c) DISCIPLINE IMPOSED BY OTHER COURTS.
COMMENT TO RULE 707(c)(I): Typically, an order of suspension entered by the District of Columbia Court of Appeals by its terms is effective 30 days from the date of its entry. The disciplinary Panel of this Court signs its Temporary Suspension and Show Cause Order after the effective date of suspension order in the other court.
Since a respondent has 30 days within which to answer an order to show cause in this Court, a short-term suspension by another court has often expired and a respondent automatically reinstated in the other court before the time an answer is due in this Court. Thus, no useful purpose is served by initiating reciprocal disciplinary proceedings in cases involving suspensions of 30 days or less.
(i) that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(ii) that proof establishing the misconduct gives rise to a reasonable doubt that this Court could not, consistent with its duty, accept as final the conclusion of the disciplining court; or
(iii) that the imposition of the same discipline by this Court would result in grave injustice; or
(iv) that the misconduct established is deemed by this Court to warrant substantially different discipline; or
(v) that the misconduct on which the discipline was imposed by the other court does not constitute misconduct in the District of Columbia.
Where this Court determines that any of these elements exist, it shall enter such other order as it deems appropriate.
(d) COMPLAINTS OF MISCONDUCT FILED IN THIS COURT.
(e) DISBARMENT ON CONSENT.
(i) the attorney's consent is freely and voluntarily given; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of so consenting; and
(ii) the attorney is aware that there is presently pending an investigation or proceeding involving allegations that there exist grounds for the attorney's discipline the nature of which the attorney shall specifically set forth.
Upon receipt of the required affidavit, the Disciplinary Panel shall enter an order disbarring the attorney. The order disbarring the attorney on consent shall he a matter of public record, but the affidavit shall be sealed and not be publicly disclosed or made available for use in any other proceeding except upon order of this Court.
COMMENT TO RULE 707: Rule 707 combines parts of several rules including former Rules 4-3(I), 4-3(II), and 4-3(III). The revised Rule outlines the grounds and procedures for discipline of: attorneys convicted of crimes; attorneys disciplined by other courts; attorneys who are the subject of complaints of misconduct filed in this Court; and attorneys disbarred on consent.
Section (a) governs service of process in disciplinary proceedings. It makes clear that the primary method of service is by mail and the alternative method is by service on the Clerk of the Court.
Section (b), based on former Rule 4-3(I), provides for immediate suspension upon proof of a felony conviction. The Disciplinary Panel may defer or set aside entry of the order in the interest of justice. This provision is to be invoked only in extraordinary circumstances. The Rule further provides for disbarment upon final conviction, regardless of the pendency of an appeal or other review, unless respondent shows cause within 30 days why disbarment would not be in the interest of justice.
With respect to misdemeanors, the Rule essentially maintains the show cause procedures currently in effect under former Rule 4-3(I)(b). With respect to both felonies and misdemeanors, the Rule makes clear that the pendency of an appeal or other review of conviction or of a petition for writ of certiorari does not affect the imposition of discipline. This provision was added to solve the recurring problem of a year or more delay attendant on petitions for certiorari, during which time the attorney might be permitted to practice before this Court.
Subsection (b)(3) has been added to provide for reinstatement after suspension upon proof that the underlying conviction has been reversed, vacated or set aside.
Section (c) governs discipline imposed by other courts and is a significant change from former Rule 4-3(II). The new Rule provides that an attorney subject to these Rules who is suspended or disbarred by another court shall be suspended from practice in this Court during the pendency of disciplinary proceedings. The procedures adopted are consistent with the practice in the United States Supreme Court, many United States Courts of Appeals and a number of other district courts. By providing the attorney an opportunity to show cause why reciprocal discipline should not be imposed, the Rule satisfies the due process requirements of the relevant Supreme Court cases. See, e.g., In Re Ruffalo, 390 U.S. 544 (1968); Theard v. United States, 354 U.S. 278 (1957); Selling v. Radford , 243 U.S. 46 (1917). The new Rule corrects the inadequacies of the former show cause procedures that permitted a respondent to continue practice during the pendency of disciplinary proceedings. The revised procedure, requiring immediate temporary suspension followed by a show cause order, shifts the burden of going forward to the respondent to show cause why identical reciprocal discipline should not be imposed.
The new provision for suspension eliminates the procedure of noting short-term suspensions imposed by other courts on this Court's records, rather than imposing reciprocal discipline (former Rule 4-3(I)(e)). Those procedures were unworkable and caused inequities. Under the new procedures, censures and reprimands will be noted, but reciprocal discipline proceedings will be followed in the case of all suspensions or disbarments.
Subsection (c)(7) has been added to make clear that if discipline imposed by another court has been stayed, reciprocal discipline in this Court may be deferred. However, in the absence of a stay, neither a motion for reconsideration nor a motion for rehearing or rehearing en banc nor a petition for writ of certiorari serves to defer disciplinary proceedings in this Court absent good cause shown.
Section (d) sets fordi in one section all the procedures relating to Complaints filed in this Court. The new Rule combines former Rules 4-3(V)(d), (e), (f), (g), (h), (i), (k), and (l). Subsection (d)(l) specifies that the Committee has the inherent power to inquire into misconduct of attorneys subject to these Rules, without formal Complaint. Subsection (d)(3) has been revised to grant to the Committee at the investigative stage as well as at the hearing stage the authority to use subpoenas commanding the production of books, papers, documents, records or tangible items. It also specifies that the Committee can act based on a Complaint or information otherwise received, and is authorized to discharge a Complaint during the investigative stage. Subsection (d)(7) clarifies existing practice by stating that if a respondent fails to respond after a formal complaint is filed, the Disciplinary Panel has the power to take the allegations as admitted and impose appropriate discipline. Subsection (d)(8) sets forth the clear and convincing standard of proof for the imposition of discipline.
Section (e), which governs disbarment on consent, combines former Rule 4-3(III) and 4-3(VI). it is revised to make clear that there can be disbarment on consent in this Court or reciprocal disbarment for disbarment on consent by another court. It changes the former Rule by providing that an attorney under investigation or subject to pending proceedings involving allegations of misconduct may not resign from the bar of this Court, but may only consent to disbarment.
Revised subsection (e)(l) governing disbarment on consent by this Court makes two substantive changes. First it permits the attorney affidavit, which is the predicate for disbarment on consent, to be filed under seal. Second, it eliminates the former requirement that an affidavit filed by an attorney seeking disbarment on consent contain an acknowledgment that the material facts alleged are true. This revision was adopted because it was felt that it was in the public interest to encourage consent disbarments.
With respect to disbarment on consent or resignation in other courts, subsection (e)(2) is changed only to the extent of providing the attorney an opportunity to show cause why such disbarment would not be in the interest of justice.
(a) NOTIFICATION TO OTHER COURTS.
When any person subject to these Rules has been convicted of any crime or disbarred, suspended, reprimanded, censured or disbarred on consent by this Court, the Clerk shall within 10 days transmit to the disciplinary authorities in any other jurisdictions or courts in which the attorney is admitted to practice, a certified copy of the conviction or a certified copy of the judgment or order of disbarment, suspension, reprimand, censure or disbarment on consent. The Clerk shall also serve a certified copy of such judgment or order and a copy of such notice upon the respondent in accordance with Rule 707(a).
(b) NOTIFICATION TO NATIONAL DISCIPLINE DATA BANK.
The Clerk shall promptly notify the National Discipline Data Bank operated by the American Bar Association of any order imposing public discipline upon any attorney admitted to practice before this Court.
COMMENT TO RULE 708: Rule 708 has been adopted from the Model Rules of Disciplinary Enforcement. The purpose is to foster cooperation in reporting disciplinary actions.
(a) AFTER DISBARMENT OR SUSPENSION.
An attorney suspended for a specific period shall be automatically reinstated at the end of the period upon the filing with the Court of an affidavit of compliance with the provisions of the order of suspension (including, in the case of reciprocal discipline, proof that the attorney has been reinstated by the court in which the attorney was disciplined). An attorney suspended for an indefinite period may not resume practice until the suspension is terminated by an order of the Disciplinary Panel. A disbarred attorney may not resume practice until reinstated by order of the Disciplinary Panel.
(b) TIME OF APPLICATION FOLLOWING DISBARMENT OR SUSPENSION FOR INDEFINITE PERIOD.
A person who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the order of disbarment. A person who has been suspended for an indefinite period may not apply for termination of the suspension until after the expiration of the minimum period fixed by the order of suspension or, if no minimum period is fixed, for a period of three years, or, in the case of reciprocal discipline, upon proof that the attorney has been reinstated by the court in which the attorney was disciplined.
(c) HEARING ON APPLICATION.
Petitions for reinstatement under this Rule shall be filed with the Clerk to the Committee. The Committee shall have 30 days within which to respond. The attorney shall have the burden of demonstrating by clear and convincing evidence that he/she has met the conditions of reinstatement or termination of suspension as provided for under these Rules. The Disciplinary Panel may hold a hearing on the application or, in its discretion, decide the matter on the basis of the papers filed.
(d) CONDITIONS OF REINSTATEMENT OR TERMINATION OF SUSPENSION.
If the Disciplinary Panel finds the attorney unfit to resume the practice of law, the petition for reinstatement shall be denied. If Disciplinary Panel finds the attorney fit to resume the practice of law, it shall issue an order reinstating the attorney or terminating the suspension. The order may make reinstatement or termination of the suspension conditional upon the payment of all or part of the costs of the proceedings and upon the making of partial or complete restitution to parties harmed by the attorney's misconduct which led to the suspension or disbarment. In the discretion of the Disciplinary Panel, reinstatement or termination of suspension may also be conditioned upon the furnishing of proof of competency and learning in the law, which proof may include certification by the Bar Examiners of a State or other jurisdiction of the attorney's successful completion of an examination for admission to practice subsequent to the date of indefinite suspension or disbarment.
(e) SUCCESSIVE PETITIONS.
No petition for reinstatement or for termination of suspension under this Rule shall be filed within one year following an order denying a petition for reinstatement or termination of suspension filed by or on behalf of the same person.
(f) NOTIFICATION OF REINSTATEMENT.
Upon entry of an Order of Reinstatement or an Order Terminating Suspension, the Clerk shall promptly notify the same persons who notified of the disciplinary orders.
COMMENT TO RULE 709: Substantially the same as former Rule 4-3(VII). Section (a) is modified to include the provision that to apply for reinstatement in the case of reciprocal discipline, the attorney must submit proof of reinstatement by the court in which the attorney was disciplined. Section (c) is modified to provide that the Committee will have 30 days to respond to a petition for reinstatement. The provision outlining the respondent's burden in obtaining reinstatement is modified to require proof that the respondent has met the conditions of reinstatement under these Rules.
Section (d) sets forth the conditions for reinstatement, in substance the same as former Rule 4-3(VII)(d). It is changed to state that the Disciplinary Panel has the discretion to condition reinstatement or termination of suspension upon proof of competency and learning in the law, eliminating the provision that such proof would only be required if the disbarment or suspension lasted for five years or niore. Section (f) has been added to provide for notification of reinstatement to the attorney.
(a) ATTORNEYS DECLARED INCOMPETENT OR PHYSICALLY INFIRM.
If an attorney who is subject to these Rules has been judicially declared incompetent or involuntarily committed to a mental hospital, or has resigned from the bar of any court or been suspended from such a bar on the basis of such mental incompetence or incapacity or on the basis of physical infirmity or illness, the Disciplinary Panel, upon proper proof of the fact, shall enter an order suspending such attorney from the practice of law effective immediately and for an indefinite period until further order of the Court. A copy of such order shall be served upon such attorney, his/her guardian and the administrator of any hospital or other institution if the Court is informed such attorney is a patient thereof in such manner as the Disciplinary Panel may direct.
(b) ATTORNEYS ALLEGED TO BE INCAPACITATED.
Whenever the Committee shall petition the Disciplinary Panel to determine whether an attorney who is subject to these Rules is incapacitated from continuing the practice of law by reason of mental infirmity or illness or because of the use of drugs or intoxicants, the Disciplinary Panel may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including the examination of the attorney by such qualified medical experts as the Disciplinary Panel shall designate. Failure or refusal to submit to such examination shall be prima facie evidence of incapacity. If upon due consideration of the matter the Disciplinary Panel concludes that the attorney is incapacitated from continuing to practice law it shall enter an order suspending the attorney on the ground of such disability for an indefinite period and until further order of the Court.
The Disciplinary Panel may provide for such notice to the attorney of proceedings in the matter as it deems proper and advisable and may appoint an attorney to represent the attorney if the attorney is without representation.
(c) CLAIM OF DISABILITY DURING DISCIPLINARY PROCEEDINGS.
If during the course of a disciplinary proceeding the attorney contends that he/she is suffering from a disability by reason of mental or physical infirmity or illness or because of the use of drugs or intoxicants which makes it impossible for the attorney to defend adequately, the Disciplinary Panel shall enter an order immediately suspending the attorney from continuing to practice law until a determination is made of the attorney's capacity to continue to practice law in a proceeding instituted in accordance with the provisions of paragraph (b) above.
(d) APPLICATION FOR REINSTATEMENT. Any attorney suspended under this Rule for incompetency, mental illness, physical infirmity or because of the use of drugs or intoxicants may apply to the Disciplinary Panel for reinstatement immediately and thereafter once a year or at such shorter intervals as the Disciplinary Panel may direct in the order of suspension. The application shall be granted by the Disciplinary Panel upon a showing by clear and convincing evidence that the attorney's disability has been removed and that the attorney is fit to resume the practice of law provided, however, that if the suspension was based on resignation from the bar of another court the attorney must provide proof that the attorney has been reinstated in the other court, or that, if the suspension from practice before this Court was based on a finding of incompetence or incapacity by another court, it clearly appears on the face of the record that any of the five elements set forth in Rule 707(c)(4) exist. The Disciplinary Panel may take or direct such action as it deems necessary or proper to a determination of whether the attorney's disability has been removed including a direction for an examination of the attorney. The Disciplinary Panel may direct that the expenses of such an examination shall be paid for by the attorney.
If an attorney has been suspended because of a judicial declaration of incompetence or involuntary commitment to a mental hospital and has thereafter been judicially declared to be competent, the Disciplinary Panel may dispense with further evidence and direct the reinstatement of the attorney upon such terms as it deems proper and advisable.
(e) EVIDENTIARY HEARING.
If the Disciplinary Panel holds an evidentiary hearing to determine whether an attorney is incapacitated or on an attorney's application for reinstatement under this Rule, the Chairman of the Committee shall appoint one or more members of the Committee to appear for the purpose of examining and cross-examining witnesses and/or offering proof or argument pertinent to the issues.
(f) WAIVER Of PHYSICIAN-PATIENT PRIVILEGE.
The filing of an application for reinstatement by an attorney who has been suspended for disability shall constitute a waiver of any physician-patient privilege with respect to any treatment of the attorney during the period of the attorney's disability. The attorney shall be required to disclose the name of every psychiatrist, psychologist, physician and hospital by whom or in which the attorney has been examined or treated since the attorney's suspension and the attorney shall furnish the Disciplinary Panel with written consents for such psychiatrists, psychologists, physicians or hospital to disclose such information or records as may be requested by the medical experts designated by the Disciplinary Panel.
COMMENT TO RULE 710: Substantially the same as former Rule 4-4. Section (a) is modified to cover attorneys who have resigned from the bar of any court or been suspended from any bar on the basis of mental incompetence, or incapacity, or on the basis of physical infirmity or illness. Section (d) is modified to provide diat application for reinstatement following suspension based on resignation from the bar of another court will require proof of reinstatement in the other court.
(a) REFERRAL OF ATTORNEYS FOR COUNSELING.
Judges may refer to the Counseling Panel established by this Rule any member of the bar of this Court who exhibits a deficiency in performance and who, in the judge's opinion, would likely benefit from counseling by other trial attorneys on matters of litigation practice, ethics, or apparent abuse of alcohol or drugs. The judge will notify the Panel of the referral and the basis therefor, and may also notify the attorney. The referral shall be confidential.
(b) THE COUNSELING PANEL.
The Counseling Panel shall be composed of experienced litigating practitioners appointed by the Court, one of whose members shall be designated Chairperson.
(c) PANEL PROCEEDINGS.
The Chairperson of the Counseling Panel shall receive references from judges and assign the referred member to a particular panel member for counseling. Participation in the counseling program by referred attorneys shall be voluntary. Any conversations between the referred attorney and members of the Panel shall be confidential and shall not waive any attorney-client privilege. The Panel will make no findings or report of its action as to any referred attorney, other than a report to the referring judge as to whether the attorney did or did not participate in counseling.
(d) CLERK.
The Clerk shall, with approval of the Court, appoint a clerk to the Counseling Panel who shall have all powers vested in a Deputy Clerk of the Court. The clerk to the Counseling Panel shall assist the Panel and maintain records of its referrals.
(e) CONFIDENTIALITY AND IMMUNITY.
All documents and communications relating or referring to the Panel's referrals shall remain confidential and privileged.
All meetings and discussions of the Counseling Panel shall be held in camera and the business conducted therein shall remain confidential and privileged. All records, reports, correspondence and minutes of the Panel shall be maintained by the Clerk under seal and shall not be disclosed except by order or direction of the Chief Judge (or the designee of the Chief Judge).
When exercising the power relegated by the Court, panel members shall be absolutely immune from suit for any conduct in connection with their duties. Referrals and counseling with respect thereto shall be absolutely privileged and no claim or action predicated thereon may be instituted or maintained.