RULE 25. Discipline by Consent and Surrender of License
(a) Approval of Tendered Admission. A lawyer against whom formal charges have been filed may tender to Bar Counsel a conditional admission to the petition or to a particular count thereof in exchange for a stated sanction. The Grievance Commission panel may approve or reject the tendered conditional admission, subject to final approval or rejection by a Single Justice or the Court if the stated form of discipline includes disbarment, suspension, or surrender. If a Single Justice, the Court, or the Grievance Commission panel reject the stated sanction, the admission and any affidavit(s) submitted pursuant to Rule 25(b) and (d) cannot be used against the respondent in any subsequent proceedings.
(b) Affidavit of Consent. A lawyer who consents to a stated sanction shall present to the Grievance Commission panel an affidavit stating that the lawyer consents to the sanction and that
(1) the consent is freely and voluntarily rendered, the lawyer is not being subjected to coercion or duress, and the lawyer is fully aware of the implications of submitting the consent;
(2) the lawyer is aware that there is presently pending an investigation into, or proceeding involving, allegations that there exist grounds for sanction, the nature of which shall be specifically set forth;
(3) the lawyer acknowledges that the material facts so alleged are true or could be proven; and
(4) the lawyer acknowledges that sufficient evidence exists to support a finding of misconduct and the imposition of the stated sanction.
(c) Order of Discipline. If the sanction by consent is an admonition, probation, or reprimand, the Board Clerk shall enter the order. If the sanction is disbarment or suspension, review for approval of the sanction may be sought as permitted by these Rules. In all other instances in which any proposed sanction has been approved, the Board Clerk shall file the affidavit with the Court, and upon approval the Court shall enter the order sanctioning the lawyer on consent.
(d) Surrender of License.
(1) An attorney who is the subject of an investigation under these Rules may submit to the Board a letter of surrender, supported by an affidavit showing that
(A) the surrender is freely and voluntarily rendered, the attorney is not being subjected to coercion or duress, and the attorney is fully aware of the implications of surrender;
(B) the attorney is aware that there is presently pending an investigation into allegations of misconduct, the nature of which allegations the attorney shall specifically set forth; and
(C) the attorney acknowledges that the material facts, or specified material portions of them, underlying the allegations are true or could be proven.
(2) Upon receipt of such surrender, the Board shall file it, together with its recommendation thereon, with the Court, which after hearing shall enter such order as it deems appropriate.
(3) Any order accepting such surrender shall be a matter of public record unless otherwise ordered by the Court; but the supporting affidavit required under the provisions of subsection (1) shall be impounded, whether or not such surrender is accepted, and shall not be made available for use in any other proceeding unless otherwise ordered by the Court.
(4) An attorney who has surrendered his or her license under this rule may be reinstated only upon petition filed in the Court after at least 5 years from the effective date of the surrender, unless otherwise ordered by the Court.
Reporter’s Notes – June 2015
Rule 25(a) is similar to Model Rule 21(A). However, the committee elected to retain the jurisdictional approach of current practice and former Maine Bar Rule 7.1(e)(2)(E). Thus, a Grievance Commission panel, not the Board, has the authority to approve or reject the lawyer’s tendered admission to formal charges. Rule 25(a) also adopts a major change to the current authority of a Grievance Commission panel in such admitted matters. The committee felt panels should have the authority to accept all such admissions of misconduct including, subject to Court approval, matters including disbarment, suspension, or surrender of license.
Rule 25(b) is identical to Model Rule 21(D) and has no direct former Maine Bar Rule equivalent.
Rule 25(c) is a slight variant of Model Rule 21(E) and although similar to existing practice concerning reprimand matters, it has no direct equivalent in the former Maine Bar Rules. Under Rule 25(c), the Board Clerk shall enter all reprimand orders.
The surrender of license provision in Rule 25(d) is not based upon any Model Rule. It is substantively similar to former Maine Bar Rule 7.3(g) (resignation). This rule changes the current language (“resignation”) to language the committee felt better reflects the circumstances.
Advisory Notes – June 2017
Rule 13(e)(7)(D) provides for the Grievance Commission’s imposition of a sanction by agreement of the parties, which may include either disciplinary or non-disciplinary sanctions. Rule 21 provides for the imposition of both disciplinary sanctions as well as a non-disciplinary sanction (admonition). By making reference only to “discipline” by consent, the former language contained in Rule 25 made no provision for the acceptance and imposition of an agreed upon non-disciplinary sanction (an admonition) by the Grievance Commission. The revised language of Rule 13(e)(7)(D) and Rule 25 makes it clear that the provisions of Rule 25 apply to both disciplinary and non-disciplinary sanctions that the Grievance Commission may impose by agreement of the parties.