RULE 14. Additional Rules of Procedure
(a) Proceedings before a Grievance Commission Panel.
(1) Nature of Proceedings. Disciplinary proceedings before a Grievance Commission panel are neither civil nor criminal.
(2) Proceedings Not Governed by Rules of Civil Procedure and Evidence. Except as otherwise provided in these Rules, the Maine Rules of Civil Procedure and the Maine Rules of Evidence do not apply in disciplinary proceedings before a Grievance Commission panel.
(3) Evidence. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The chair of the Grievance Commission panel may exclude irrelevant or unduly repetitious evidence.
(4) Burden and Standard of Proof. In disciplinary matters before a Grievance Commission panel, Bar Counsel shall have the burden of establishing the Board’s case by a preponderance of the evidence. In proceedings seeking reinstatement, the petitioner shall have the burden of establishing his or her case by clear and convincing evidence.
(5) Prehearing Conference. At the discretion of the chair of the Grievance Commission panel or upon request of either party, a conference may be ordered for the purpose of obtaining admissions or otherwise narrowing the issues presented by the pleadings. The conference shall be held before the chair of the Grievance Commission panel or another member of the Grievance Commission panel designated by the chair.
(6) Hearings Recorded. The Board shall cause all proceedings before the panel to be stenographically or electronically recorded in a form that will readily permit transcription.
(7) Hearing Transcript. A hearing transcript or partial transcript may be ordered at any time by the Grievance Commission panel, respondent, Bar Counsel, or the Board. When ordering a transcript, respondent or Bar Counsel must provide a copy of the requested transcript to the opposing party at that party’s own expense.
(8) Related Pending Litigation. Upon a showing of good cause, the Grievance Commission panel may stay a disciplinary matter because of substantial similarity to the material allegations of pending criminal or civil litigation or disciplinary action. The panel may weigh the following factors:
(A) whether a factual dispute exists such that weighing and balancing contending factors is peculiarly one for the tribunal;
(B) whether disciplinary action prior to conclusion of the case might have an unwarranted effect on the outcome of litigation;
(C) whether the complainant has taken the opportunity to present the dispute to the tribunal where such action would normally be expected; and
(D) whether the misconduct is so blatant as to warrant immediate discipline.
(9) Delay Caused by Complainant. None of the following shall independently justify abatement of the processing of any complaint:
(A) a complainant’s unwillingness or neglect to sign a complaint or prosecute a charge,
(B) a settlement or compromise between a complainant and the respondent, or
(C) a complainant’s acceptance of restitution from the respondent.
(10) Effect of Time Limitations. Except as is otherwise provided in these Rules, time is not jurisdictional. Failure to observe prescribed time intervals may result in sanctions against the party that has failed to observe such prescribed time intervals, but does not ordinarily, in itself, justify abatement of any discipline investigation or proceeding.
(b) Proceedings before a Single Justice or the Court.
(1) Proceedings Governed by Rules of Civil Procedure and Evidence. Except as otherwise provided, disciplinary proceedings before a Single Justice or the Court shall be governed by the Maine Rules of Civil Procedure and the Maine Rules of Evidence. Except as otherwise provided by Rule 17, Maine Rules of Civil Procedure 12(c), 13, 14, 16, 26 to 37, and 56 shall not apply.
(2) Prehearing Conference. A Single Justice or the Court may hold a prehearing conference with the attorneys for the parties to consider such matters as may aid in the disposition of the action and may by written order limit the issues to be tried.
(3) De Novo. Proceedings before a Single Justice or the Court are subject to a de novo standard of review.
(4) Burden and Standard of Proof. In disciplinary matters before a Single Justice or the Court, the Board shall have the burden of establishing its case by a preponderance of the evidence.
(5) Failure to Comply With an Award of the Fee Arbitration Commission. When a matter involving an award of a panel of the Fee Arbitration Commission is referred to Bar Counsel under Rule 7(g) because of the attorney's failure to make an awarded refund to the petitioner within 30 days of receipt of the arbitration award, the Board, upon request of Bar Counsel and after affording the attorney an opportunity to respond in writing, may refer the matter to a Single Justice or the Court for appropriate disciplinary action.
(c) Complaints Against Bar Counsel, Attorney Commission and Board Members, or the Board Clerk. If a complaint is filed against Bar Counsel, the Board Clerk, or attorney Commission or Board members, the matter shall proceed in accordance with these Rules except that:
(1) If the respondent is Bar Counsel or the Board Clerk, the Chair of the Board shall appoint Special Counsel who shall exercise independent authority to investigate the complaint, and, if necessary assign an ad hoc panel to the case.
(2) If the respondent is a member of the Grievance Commission, Fee Arbitration Commission, or Professional Ethics Commission, the office of Bar Counsel shall investigate the complaint, and, if necessary, the Chair of the Board shall assign an ad hoc panel to the case.
(3) If the respondent is a member of the Board, the Chief Justice of the Court shall appoint Special Counsel who shall exercise independent authority to investigate the complaint, and if necessary, assign an ad hoc panel to the case.
(4) Special Counsel shall not receive compensation for services unless the Board has contracted in advance with that Special Counsel to receive compensation. Special Counsel may seek reimbursement from the Board for the payment of reasonable expenses and for investigative, administrative and legal support. The Board shall have discretion to determine the amount of financial, investigative, administrative, and legal assistance to be provided.
(d) Cameras and Audio Recordings. Cameras and audio recording devices are allowed in public disciplinary hearings, subject to the regulations and limitations contained in the Court’s Cameras and Audio Recording in the Courts Administrative Order, and provided any person or organization intending to record or photograph such proceedings shall file a notice of intent to do so with the Board Clerk or the Clerk of the Court in advance of such hearing.
Reporter’s Notes – June 2015
Rule 14(a) is based upon portions of Model Rule 18 and former Maine Bar Rule 7.1(e)(2). The committee rejected the script in Model Rule 18(B)(C) providing for application of either the Maine Rules of Civil Procedure or the Maine Rules of Evidence. It also rejected the application of the standard of proof by clear and convincing evidence for Bar Counsel contained in Model Rule 18(C) and agreed to retain the revised practice of employing a preponderance of the evidence standard. The remainder of proposed Rule 14(a) generally follows former Maine Bar Rules 7.1(e)(2) and 7.3(b)(c) as well as Board Regulation #12.
Rule 14(b) makes the same refinements to Model Rule 18 in Court proceedings concerning Rules of Procedure, Rules of Evidence and burden of proof as discussed above regarding Rule 14(a). Although the organizational format has changed, Rule 14(b) adopts the practice in existence under former Maine Bar Rules 7.2(b)(2)(4), 6(b)(6), and 9(i).
Rule 14(c) adopts current practice under former Maine Bar Rule 7.1(b) and Board Regulation #49. It has no direct equivalent in the Model Rules.
Rule 14(d) permits the presence of cameras in the courtroom, so long as the party seeking to record the proceedings complies with the requirements contained in the Court’s administrative orders JB-05-15 and JB-05-16, as well as the procedural requirements of this rule.