RULE 13. Disciplinary Rules of Procedure
(a) Evaluation. The Central Intake Office shall evaluate all information coming to the attention of the Board by complaint or from other sources alleging lawyer misconduct or incapacity. If the lawyer is not subject to the jurisdiction of the Court, the Central Intake Office shall refer the matter to the appropriate entity in any jurisdiction in which the lawyer is known to be admitted. If the information, if true, would not constitute misconduct or incapacity, the Central Intake Office may refer the matter to another agency with appropriate jurisdiction, or dismiss the complaint. If the lawyer is subject to the jurisdiction of the Court and the information alleges facts that, if true, would constitute misconduct or incapacity, the Central Intake Office shall refer the matter to Bar Counsel, who shall conduct an investigation.
(1) Bar Counsel shall conduct all investigations, except as otherwise required by these Rules. Upon the conclusion of an investigation, Bar Counsel shall:
(A) dismiss subject to review under Rules 9(e) and 13(b)(3);
(B) issue a stay;
(C) refer respondent to the Alternatives to Discipline Program, pursuant to Rule 13(c);
(D) recommend dismissal, if a public member had previously disapproved dismissal under Rule 9(e);
(E) recommend dismissal with a warning, subject to review under Rule 13(d); or
(F) issue a report to the Board Clerk recommending the filing of formal charges with a Grievance Commission panel (or a Single Justice, if authorized by these Rules).
In all cases, Bar Counsel shall briefly and generally state in writing the reasons for the recommended disposition.
(2) Notice to Respondent. Bar Counsel may dismiss a matter or issue a stay without providing respondent an opportunity to respond. In all other cases, Bar Counsel shall first notify the respondent in writing of the substance of the matter and afford him or her an opportunity to respond. Notice to the respondent shall be pursuant to Rule 15.
(3) Dismissal Review. If Bar Counsel dismisses the complaint, Bar Counsel shall notify the complainant and the respondent of the dismissal, provide the reasons for the dismissal, and inform the complainant and the respondent that any review of the dismissal must be requested within 21 days of service pursuant to Rule 15. Any further review shall be subject to Rule 9(e).
(c) Alternatives to Discipline Program.
(1) Referral to Program. Bar Counsel may refer respondent to the Alternatives to Discipline Program. The Alternatives to Discipline Program may include fee arbitration, Silent Partners, Maine Assistance Program for Lawyers and Judges, psychological counseling, continuing legal education, or any other program authorized by the Board or the Court.
(2) Factors. The following factors may be considered in determining whether to refer a respondent to the Alternatives to Discipline Program:
(A) whether the presumptive sanction under the ABA Standards for Imposing Lawyer Sanctions for the alleged misconduct is likely to be no more severe than reprimand or admonition;
(B) whether participation in the program is likely to benefit the respondent and accomplish the goals set forth by the program; and
(C) whether aggravating or mitigating factors exist.
(3) Notice to Complainant. Bar Counsel shall notify the complainant, if any, of the decision to refer the respondent to the Alternatives to Discipline Program. The complainant shall have a reasonable opportunity to submit a statement offering any new information regarding the respondent. This statement shall be made part of the record.
(4) Contract. Bar Counsel and the respondent shall negotiate a contract, the terms of which shall be tailored to the individual circumstances. In each case, the contract shall be in writing and signed by the respondent and by Bar Counsel. The contract shall set forth the terms and conditions of the plan for the respondent and, if appropriate, shall identify the use of a practice monitor and/or a recovery monitor and the responsibilities of the monitor(s). The contract shall provide for oversight of fulfillment of the contract terms. Oversight includes reporting of any alleged breach of contract to Bar Counsel. The contract shall also provide that the respondent will pay all costs incurred in connection with the contract. The contract shall include a specific acknowledgment that a material violation of a term of the contract renders voidable the respondent's participation in the program for the original charge(s) filed. The contract may be amended upon agreement of the respondent and Bar Counsel. If a recovery monitor is assigned, the contract shall include respondent's waiver of confidentiality so that the recovery monitor may make necessary disclosures in order to fulfill the monitor's duties under the contract.
(5) Effect of Non-Participation in the Program. The respondent has the right not to participate in the Alternatives to Discipline Program. If the respondent does not participate, the matter will proceed as though no referral to the Program had been made.
(6) Stay. After an agreement is reached, the disciplinary complaint may be stayed pending successful completion of the terms of the contract.
(A) Fulfillment of the Contract. Bar Counsel may terminate the contract when Bar Counsel determines that the respondent has fulfilled the terms of the contract, at which point the stay is lifted.
(B) Material Breach. A material breach of the contract shall be cause for termination of the respondent's participation in the program. After such termination, disciplinary proceedings may be resumed or reinstituted.
(d) Preliminary Review by Grievance Commission Panel.
(1) If a complaint is not concluded pursuant to Rules 13(b)(1)(A) to (C), at the conclusion of Bar Counsel’s investigation, Bar Counsel shall file a confidential report with the Board Clerk recommending disposition pursuant to Rules 13(b)(1)(D) to (F). Bar Counsel shall also notify the parties of the proposed recommendation.
(2) At least fourteen days in advance of the preliminary review, the Board Clerk shall prepare and deliver to Bar Counsel a statement as to the existence of any sanction record, reinstatement, or surrender of license involving the respondent. Bar Counsel shall then mail the statement to the respondent. Within 10 days, the respondent may submit a reply as to the relevance of the prior sanction record to the present charge. The statement and any reply from the respondent shall be provided to the panel in accordance with Rule 13(e)(8). These procedures and filings shall not be applicable when the respondent attorney has no prior sanction record.
(3) The Board Clerk shall assign the complaint to a three-member panel of the Grievance Commission for a confidential review. However, with the consent of the review panel chair, the panel may act with the concurrence of one attorney and one public member. In the event that such a review panel is deadlocked, a new three-member panel shall be assigned to review. The confidential review is not open to the public. Only Bar Counsel and the panel shall be present for the review.
(4) The panel shall review the complaint, any response submitted by the attorney, any reply submitted by the complainant, the results of Bar Counsel's investigation, and Bar Counsel's report with recommendation to (A) file formal charges, (B) dismiss with a warning, or (C) dismiss. Within 10 days following a review, unless otherwise extended by the Chair or Vice Chair of the Grievance Commission, the panel shall decide whether it approves Bar Counsel’s recommended disposition and notify the Board Clerk of its decision.
(5) The Board Clerk shall notify Bar Counsel, the respondent and the Complainant in writing of the panel’s decision to defer, dismiss, dismiss with a warning, or file formal charges. The panel's decision is final and not subject to further review.
(6) When a respondent is the subject of a pending disciplinary proceeding pursuant to Rule 13(g), with the consent of a Grievance Commission review panel, Bar Counsel may bypass the preliminary review stage and commence a disciplinary action before a Single Justice concerning any allegations of misconduct by the same attorney that have subsequently come to the attention of Bar Counsel.
(7) Prior to a hearing, a review panel may, for good cause shown, rescind the directive to proceed to a public hearing and issue a dismissal or a dismissal with a warning.
(e) Formal Charges Hearing. If a matter is to be resolved by a formal proceeding, Bar Counsel shall prepare formal charges in writing that give fair and adequate notice of the nature of the alleged misconduct.
(1) Bar Counsel shall file the charges with the Board Clerk.
(2) Bar Counsel shall serve a copy of the formal charges upon the respondent in accordance with Rule 15.
(3) The respondent shall file a written answer with the Board Clerk and serve a copy on Bar Counsel within 21 days after service of the formal charges, unless the time is extended by the chair of the Grievance Commission panel to which the matter is assigned for review or, in the chair’s absence, by the Chair or Vice Chair of the Grievance Commission. If the respondent fails to answer within the prescribed time, or the time as extended, the factual allegations and the alleged misconduct shall be deemed admitted as provided in Rule 20(a). Bar Counsel may provide a copy of the respondent’s answer to the complainant; provided, however, that upon a request by the respondent and submission of a redacted version of the answer, Bar Counsel may provide the complainant with only a redacted version of the answer.
(4) The Board Clerk shall assign the complaint to a three-member panel of the Grievance Commission for hearing. The panel may act with the concurrence of two members. However, one attorney and one public member may conduct a hearing with the consent of all parties. In the event that such a two-member panel member is deadlocked, a new three-member panel shall be assigned to hear the matter.
(5) The Board Clerk shall serve a notice of hearing upon Bar Counsel, the complainant and the respondent, stating the date and place of hearing at least 25 days in advance thereof. The notice of hearing shall advise the respondent of the right to be represented by a lawyer, to cross-examine witnesses and to present evidence.
(6) At least 14 days before the hearing, the Board Clerk shall prepare and deliver to Bar Counsel a statement as to the existence or absence of any sanction record, reinstatement, or surrender of license involving the respondent. Bar Counsel shall then mail the statement to the respondent. Within 10 days, the respondent may submit a reply as to the relevance of the prior sanction record to the present charge. The statement and any reply from the respondent shall be provided to the panel in accordance with Rule 13(e)(8).
(7) Hearing. The Grievance Commission panel shall hold a hearing in accordance with Rule 14(a) and the following:
(A) The panel chair shall preside at the hearing, and shall have the power to control the course of proceedings and regulate the conduct of those individuals appearing as counsel, parties, or witnesses. The failure of an attorney participating in such a hearing a party, counsel for a party, or as a witness to obey an order of the chair shall constitute a violation of Rule 8.4 of the Maine Rules of Professional Conduct, and if committed by the respondent, may be duly considered by the Grievance Commission panel in its disposition of the matter before it.
(B) The hearing shall be open to the public, except that to protect the interests of a complainant, witness, third party, or respondent attorney, the chair may, upon motion filed with the Board Clerk and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement that order. The deliberations of the Grievance Commission panel following the hearing shall not be open to the public or the parties.
(C) At the hearing, Bar Counsel and the respondent may present evidence and may cross-examine witnesses. The respondent may be represented by counsel. The testimony of witnesses shall be by oath or affirmation administered by the panel chair.
(D) Subject to approval by the chair, hearing formalities of this rule may be waived by a signed, stipulated agreement of the parties. When such a waiver includes or incorporates the parties’ submission of an agreed proposed sanction order, that waiver shall also contain the respondent attorney’s signed waiver of the right to file a petition for review under Rule 13(f).
(8) Bar Counsel shall not divulge the statement as to the existence or absence of any sanction record to the Grievance Commission panel until after the panel has made a finding of misconduct, unless this statement is probative of issues pending in the matter before the panel.
(9) Within 30 days following the hearing, unless otherwise extended by the Chair or Vice Chair of the Grievance Commission, the Grievance Commission panel shall issue a written report containing its findings and decision on dismissal or sanction to the Board Clerk. The report shall set forth the Grievance Commission panel’s findings of fact, conclusions of law, and application of any relevant factors with respect to appropriate sanctions for misconduct. The Board Clerk shall serve the report on respondent and Bar Counsel, who shall provide the report to the complainant.
(10) The Grievance Commission panel’s report shall render one or more of the following:
(A) Dismissal. The Grievance Commission panel shall dismiss the petition if it finds, on the evidence and arguments presented, that no misconduct subject to sanction under these Rules occurred.
(B) Admonition. If the disciplinary panel finds that misconduct subject to sanction under these Rules has occurred, but that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by the attorney, the panel will issue an admonition having the effect provided in Rule 21(b)(1).
(C) Reprimand. If the disciplinary panel finds that misconduct subject to sanction under these Rules has occurred and that all of the conditions set forth in Rule 13(e)(10)(B) are not present, the panel may reprimand the respondent attorney.
(D) Probation. If the disciplinary panel finds that misconduct subject to sanction under these Rules has occurred and that all of the conditions set forth in Rule 13(e)(10)(B) are not present, the panel may impose a period of probation on the respondent attorney as defined in Rule 21(b)(4).
(E) Information. Upon a finding of probable cause for suspension or disbarment, the Grievance Commission panel shall direct Bar Counsel to file an Information pursuant to Rule 13(g).
(f) Petition for Review of Dismissal, Admonition, Reprimand, or Probation.
(1) Petition and Answer. Within 21 days after dismissal or delivery of a reprimand, probation, or admonition, a respondent attorney or Bar Counsel may file a petition for review by a Single Justice. The petitioning party shall file the petition for review with the Executive Clerk of the Court, and shall serve the petition on the opposing party. The petition for review shall include copies of the disciplinary petition and answer filed with the Grievance Commission and of the panel’s decision dismissing or imposing a reprimand, probation, or admonition, and shall contain a concise statement of the grounds upon which the petitioning party seeks relief and a demand for the specific relief sought. Within 21 days after service of the petition for review, the opposing party shall file an answer with the Executive Clerk of the Court and shall transmit a copy thereof to the petitioning party.
(2) Preparation of Record. Within 21 days after the answer is filed, the Board Clerk shall prepare and file the complete record of the proceedings with the Executive Clerk of the Court and provide notice thereof to the parties. If either party believes that the record filed by the Board Clerk is incomplete or over-inclusive, that party shall serve notice upon the opposing party within 10 days after the record is filed. The notice shall include specific proposals regarding additions to or deletions from the record filed by the Board Clerk. The parties shall attempt to agree upon the contents of the record. If the parties cannot agree, either party may request that the Single Justice modify the contents of the record.
(3) Motion for Trial of the Facts. The respondent may file a motion for a trial of the facts with the petition for review. If, on motion, the Court finds in its discretion that the respondent attorney ought to have a trial of the facts, the Single Justice may order a hearing to permit the introduction of evidence that does not appear in the record of the proceedings before the Grievance Commission panel and that has not been stipulated. Respondent’s failure to file such a motion shall constitute a waiver of any right to a trial of the facts. With the motion, the respondent attorney shall also file a detailed statement, in the nature of an offer of proof, of the evidence to be introduced at the hearing. That statement must be sufficient to permit the Single Justice to make a proper determination as to whether any trial of the facts as presented in the motion and offer of proof is appropriate and, if so, to what extent. After hearing, the Single Justice shall issue an appropriate order specifying the future course of proceedings. The Single Justice may order that additional evidence be taken.
(4) Scope of Review. Unless otherwise provided by order of the Single Justice, review of a Grievance Commission panel’s decision to dismiss or impose a reprimand, probation, or admonition shall be based upon the record of the proceedings before the panel. The judgment entered after such review may affirm, vacate, or modify the decision of the panel. Any findings of fact of the Grievance Commission panel shall not be set aside unless clearly erroneous. Either party may appeal to the Court within 21 days from entry of the judgment.
(5) Finding of Probable Cause. If at any stage of the proceedings on petition for review, the Single Justice determines that there is probable cause that the matter be concluded by suspension or disbarment, the Single Justice shall direct Bar Counsel to file an Information and the matter shall be conducted as an attorney discipline action in accordance with Rule 13(g).
(g) Attorney Discipline Actions before the Court.
(1) Commencement. An attorney discipline action authorized pursuant to this rule shall be commenced by the filing of an Information with the Executive Clerk of the Court. The Information shall allege that the respondent is an attorney subject to these Rules and has conducted herself or himself in a manner unworthy of an attorney admitted to the Maine Bar for the reasons specified in the Information. The Board shall be responsible for serving the Information, together with a summons, upon the respondent in accordance with Rule 15.
(2) Procedure. An attorney discipline action shall be heard by a Single Justice assigned by the Chief Justice to hear the action. The Board shall be treated as the plaintiff and the respondent attorney as the defendant; and the action shall be captioned “Board of Overseers of the Bar v. [name of respondent attorney].”
(3) Discovery. Bar Counsel shall furnish to the respondent attorney, within a reasonable time after the filing of the Information, copies of all exhibits presented to the Grievance Commission panel or the Board in the proceedings leading to the information. The stenographic or electronic record, as required by Rule 14(a)(6), and any other matter within Bar Counsel's possession or control that is discoverable under Rule 26 of the Maine Rules of Civil Procedure, shall be made available to the respondent attorney at the office of Bar Counsel at any reasonable time for inspection and copying at the respondent attorney's expense.
(4) Judgment and Appeal. The Single Justice may enter judgment imposing an admonition, probation, a reprimand, suspended suspension, suspension for a definite period, or disbarment, or may dismiss the Information. Either party may appeal to the Court within 21 days from the entry of the judgment.
(5) Attorney's Status Pending Appeal. Pending appeal to the Court, a judgment of suspension or disbarment shall, unless stayed in whole or in part by the Single Justice or the Court, be given full force and effect.
Reporter’s Notes – June 2015
Rule 13(a) is a new rule that incorporates the Central Intake Office into the review process. That office initially evaluates the complaint, thus removing the need for Bar Counsel to review all submitted complaints.
Rule 13(b) corresponds with former Maine Bar Rules 7.1(b), (c), and (d). Bar Counsel retains substantially the same investigative powers, but the revised rule gives Bar Counsel additional options that did not exist under the former Maine Bar Rules. One of those options is to refer the respondent to the Alternatives to Discipline Program, which is described in Rule 13(c). The revised rule also requires Bar Counsel to state in writing the reasons for the recommended disposition. The committee thought this requirement was important to ensure that the respondent and the complainant have fair notice as to Bar Counsel’s reason for the decision, and to ensure that all decisions are fair and supported by the provided factual information.
Rule 13(c) corresponds to Model Rule 11(G). There is no comparable provision in the former Maine Bar Rules. The committee believes that incorporation of this Rule provides Bar Counsel, in appropriate cases, with meaningful alternatives to formal proceedings.
Rule 13(d) continues Maine practice of a preliminary review by a Grievance Commission under former Maine Bar Rules 7(b), 7.1(d), and does not have a Model Rule equivalent.
Rule 13(e) corresponds to former Maine Bar Rule 7.1(e)(1) to (4) and Board Regulation #31, as well as Model Rule 13(D). The procedure for the formal disciplinary proceeding remains largely the same.
Rule 13(f) is a departure from both the former Maine Bar Rules and Model Rules 11(E) and (F). The committee felt the Board should not be involved in the appellate function of reviewing a panel’s determination. Therefore, the committee rejected Model Rule 11(E), as well as former Maine Bar Rule 7.1(e)(5)(A) to(C). The committee also rejected the Model Rules’ approach that makes court review discretionary. Instead, the committee chose to continue current Maine practice of appeals to the Court, and endorsed the inclusion of Bar Counsel’s much more extensive option to file an appeal consistent with Model Rule 11(F). The Maine Bar Rules allow for a very limited right of appeal by Bar Counsel.
Rule 13(g) has no Model Rule equivalent, and is generally consistent with the procedures for the Court’s disciplinary proceedings under former Maine Bar Rule 7.2(b). The committee believes that the current involvement of the Court by conducting de novo testimonial hearings after a preliminary hearing by a panel of the Grievance Commission, usually to confirm whether serious sanctions such as actual suspension or disbarment, is a proper and appropriate involvement of the Court in such matters. The committee rejected the general approach of the Model Rules allowing Grievance Commission panels to impose suspensions and disbarments subject to the Court’s approval without hearing. The committee agreed that such serious sanction determinations should remain as a factual determination to be made by the Court after hearing. However, the new rule departs from current practice requiring such hearings to be heard by a Single Justice of the Court by allowing a either a Single Justice or another judge designated by the Chief Justice of the Court to preside over a hearing.
Advisory Note– January 2017
The identical amendments to Rules 13(d)(2) and 13(e)(6) are issued to make the full disclosure of a respondent attorney’s complete prior sanction history consistent with the language of Rule 13(e)(8). Under that Rule, any prior sanction record of the involved respondent attorney, including both disciplinary and non-disciplinary sanctions, is provided to a hearing panel after it has made a finding of professional misconduct in a current matter(s). Such full disclosure of that complete sanction record to review panels and hearing panels under these amendments to Rules 13(d)(2) and 13(e)(6), respectively, is also consistent with the prior practice of Grievance Commission panels under both former bar Rule 7.1(d)(4)(B) and Board of Overseers’ Regulation #31.