RULE 9. Grievance Commission

(a)   Appointment. The Board shall appoint five or more Grievance Commission panels. Each Grievance Commission panel shall consist of two attorney members and one public member. The Board shall also appoint alternate attorney members and public members to serve on the Grievance Commission. The Board shall appoint the Chair and Vice Chair of the Grievance Commission each year from among the attorney members of the Grievance Commission. The Chair or Vice Chair shall appoint a lawyer member of each panel each year as chair of that panel.

(b)   Terms of Office. Panel members shall be appointed for a term of four years. No member shall serve for more than two consecutive four-year terms. A member whose term has expired may continue to serve on any case that was commenced before the expiration of the member's term. A member who has served two consecutive four-year terms may not be reappointed before the expiration of at least one year. The Board may not remove members during their terms of office except for cause. The Board may defer the reappointment of commission members who are temporarily removed pursuant to Rule 1(d)(2).

(c)   Representation Prohibition. No member may be legal counsel for a party in any proceedings under Rules 10-32. When a member of the panel member's firm serves as legal counsel for a party in any proceeding under Rules 10-32, the panel member may perform Commission responsibilities unrelated to that proceeding, provided that the panel member is timely screened from any participation in or relating to that proceeding, at both the panel member's firm and the Commission.

(d)   Powers and Duties. Grievance Commission panels shall have the following powers and duties:

(1)   to review and approve, modify, or disapprove recommendations by Bar Counsel; and

(2)   to conduct hearings in connection with public disciplinary proceedings on charges of misconduct or petitions for reinstatement, and in connection with such hearings, to make findings and issue written decisions.

(e)   Review by Public Member. Upon a written request made in accordance with Rule 13(b)(3), a public member shall review dismissals by the Central Intake Office or Bar Counsel. Dismissals by Bar Counsel shall not be subject to review under this rule if a public member has previously reviewed a dismissal by the Central Intake Office in the same matter. The written request for review must be made within 21 days of receipt of the dismissal notice. The public member shall:

(1)   approve the dismissal by the Central Intake Office or Bar Counsel and the Board Clerk shall notify the complainant and the respondent that the matter shall remain closed; or

(2)   disapprove the dismissal by the Central Intake Office or Bar Counsel, and direct that the matter be investigated further by Bar Counsel and reviewed in accordance with Rule 13(d). The Board Clerk shall notify the complainant and the respondent of the public member?s action in writing.

(f)   Powers and Duties of Panel Chair. Each Grievance Commission panel chair shall have the following powers and duties:

(1)   to preside at hearings in accordance with Rules 13(e) and 14(a);

(2)   to conduct prehearing conferences regarding formal charges of misconduct or petitions for reinstatement; and

(3)   to consider and decide prehearing motions.

(g)   Recusal and Disqualification of Panel Members.

(1)   Panel members shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain. If a member is disqualified or recused, another member shall be appointed by the Board Clerk. No peremptory challenges of a panel member are allowed.

(2)   Requests to disqualify panel members shall be filed within 10 days after service of the first hearing notice containing the names of the panel members assigned to the matter. The chair of the Grievance Commission panel or the Commission Chair or Vice Chair shall rule on the motion. Failure to timely file a motion to disqualify shall be a factor in deciding whether the motion should be granted.

(3)   Grounds for disqualification or recusal not reasonably discoverable within that 10-day period may be asserted within 10 days after they were discovered or in the exercise of reasonable diligence should have been discovered.

(4)   A former member of a Grievance Commission panel who is a member of the bar shall comply with the provisions of Rule 1.12 of the Maine Rules of Professional Conduct with respect to participating in any proceedings under these Rules.

(5)   In the event that a Grievance Commission panel finds probable cause for a public disciplinary hearing or authorizes Bar Counsel to file an Information and the respondent attorney is a member of the Grievance Commission, Fee Arbitration Commission, or Professional Ethics Commission, such member shall be disqualified from all Commission responsibilities until such time as the pending matter is concluded.

(6)   Grievance Commission members may not testify voluntarily in any proceedings under these Rules or as an expert witness in the field of ethics in any court proceeding.

(7)   Grievance Commission members may not serve as probation monitors. Members of the Grievance Commission shall be recused from participating in any matter where a member of the Grievance Commission member's firm is serving as a probation monitor.

(h)   Destruction of Confidential Documents. Upon conclusion of service, members shall take reasonable steps to destroy all documents, in paper or electronic format, relating to the proceedings of the Board and subject to the confidentiality provisions of these rules.

(i)   Ex Parte Communication. Except as otherwise permitted under Rule 13(f), members of a Grievance Commission panel shall refrain from ex parte meetings and communication with non-Commission members concerning matters affecting a particular case or pending proceeding.

Reporter?s Notes ? Reporter Notes

Rule 9(a), which governs appointments to the Grievance Commission, adopts language similar to that contained in Model Rule 3(A). However, in contrast to the Model Rule, the revised rule requires the Board appoint five or more panels rather than three or more panels. In this regard, the appointment procedure is in accord with former Maine Bar Rule 7(b)(2).

Rule 9(b) sets out the terms of office for members of the Grievance Commission. The committee concluded four-year terms, as was provided in former Maine Bar Rule 7(a), have worked well and decided to retain the four-year terms rather than adopting the three-year terms provided in Model Rule 3(B).

Rule 9(d) is based on Model Rule 3(D), and is consistent with former Maine Bar Rule 7(c).

Rule 9(e) is based on former Maine Bar Rule 7.1(c). The equivalent Model Rules are 4(B) and 11(A). The revised rule references the Central Intake Office?s authority to dismiss complaints. In contrast to the former Maine Bar Rule that allots complainants a fourteen-day period to request public member review, the revised rule increases this timeframe to twenty-one days.

Rule 9(f) is based on Model Rule 3(E), and is consistent with former Maine Bar Rule 7.1(e)(2)(D).

Rule 9(g) is based on Model Rule 3(F). There is no direct analogue in the former Maine Bar Rules. The revised rule expands on the Model Rule in describing the process for requesting a recusal of a panel member.