THE LEGAL PROFESSION AND THE PRACTICE OF LAW E. DISCIPLINE

THE DISCIPLINARY SYSTEM IN MISSOURI Structure: 4 S.Ct.- appointed

agencies Advisory Committee (AC) (state-

wide jur.) at least 6 lawyers and 2

laypersons assign hearing panels for

specific cases issue formal advisory opinions adopt regulations

Missouri Disc. System c’t’d Regional Disciplinary Committees

(RDC) 17 in all (one or more judicial circuits) at least 4 lawyers and 2 lay members

Chief Disciplinary Counsel (CDC) counsel for bar in disc. proceedings, conduct investigations

may give non-binding informal opinions on questions of concern to a particular lawyer

Disciplinary Hearing Panels (DHP) hold hearings on assignment 2 lawyers, 1 lay member on each

Missouri System c’t’d Investigation

by CDC, or RDC at request of CDC or AC standard: probable cause procedure: informal (grand jury) w/

record outcome:

referral to consensual resolution programs if appropriate, or diversion program for minor offenses

if finding of PC: written admonition (resp. accept or reject), or prepare information for filing w/ S.Ct. resp. answer – default is consent to discipline

w/o hearing

MO DISC. PROCEDURE c’t’d [Investigation]

[outcome] if finding of no PC: dismissal, unless

complainant requests review by AC

Hearing by DHP assigned by AC, or by S.Ct. special

master on request of AC chair civil rules and burden of proof, full record outcome: finding on each charge, dismissal

or written admonition (both parties must agree),

or recommendation of sanction (public reprimand,

suspend, disbar)

review by S.Ct. either party can have entire record transferred to S.Ct.

procedure as by original writ S.Ct. makes independent findings and determination of “appropriate discipline”

Trial (if no DHP hearing) by S.Ct. or by special master appointed civil non-jury rules and burden of proof if by master, findings and

recommendations required, briefed and argued before S.Ct. as under original writ

Some Basic Notions Purpose of disciplinary action:

protection of the public from incompetent, unreliable or misbehaving lawyers

civil, not criminal process suppose lawyer is given immunity

from prosecution to elicit testimony in criminal case: can that testimony be used against him in a disciplinary proceeding?

can lawyer invoke privilege against self-incrimination?

Basic notions c’t’d Due Process?

an information is filed against a lawyer after investigation, and a hearing is held

after the hearing is concluded, bar counsel moves to amend the information to add a charge based on the evidence presented;

the motion is granted, and the lawyer is found guilty of misconduct as charged in the amendment

has the disciplinary authority denied the lawyer due process of law? In re Ruffalo, n. 3 p. 89

Basic notions c’t’d Can a lawyer be disciplined in her home

state for misconduct committed in another state, based on the factual findings made in disciplinary proceedings in that other state? ABA: presumptive conclusive effect, absent

denial of due process or failure of proof convincing the authorities that they can’t be accepted

some jurs. allow new evidence if there was good reason that it wasn’t introduced in first proceeding

Missouri : CDC files information, and S.Ct. issues an order to show cause why the findings should not be conclusive