DISCIPLINARY PROCEEDINGS

Will I get a hearing?

Maybe. Complainants are key witnesses in proceedings brought by the OCDC or the Regional Disciplinary Committees, but are not parties, and have no right to seek a hearing. Most disciplinary cases are resolved without hearings.

What Types of Discipline Might be Imposed?

If the OCDC or a Regional Disciplinary Committee determines after investigation that there is insufficient probable cause to believe  the lawyer has engaged in professional misconduct that would justify discipline, the complaint will be dismissed. If, on the other hand, a determination is made that a violation of the Rules has occurred, the resultant disciplinary action can range from an admonition (issued by the OCDC or a Regional Disciplinary Committee) to discipline imposed by the Supreme Court. Supreme Court Discipline can include a reprimand,  a suspension from the practice of law  (with or without probation), or disbarment. Admonitions can be issued by the OCDC, by Regional Disciplinary Committees or by Disciplinary Hearing Panels.

Who will make the decision on my complaint?

The Office of Chief Disciplinary Counsel has the authority to determine that a complaint will not lead to discipline and to dismiss the complaint.This may happen for a variety of reasons: the OCDC may conclude that the evidence is not strong enough, the conduct may not fall within the Rules of Professional Conduct even if it can be proven, or the case may fall within one of the categories which are excluded from disciplinary consideration by policies of the OCDC. In any event, you will be notified if the OCDC decides not to proceed on your complaint.

If the OCDC determines that a complaint may lead to discipline, an investigation will be conducted. The investigation includes a process of notifying the lawyer of the complaint and giving him or her opportunity to respond.The complainant will be given an opportunity to further comment on the attorney’s response.If it is determined by the OCDC or a Regional Disciplinary Committee that no probable cause exists to conclude that a violation of the Rules has occurred, the complaint will be dismissed.If, however, it is determined that a violation has occurred and that discipline should be imposed after an investigation, there are two possibilities:

• The attorney may be given an admonition for relatively minor violations where the conduct does not warrant removing the lawyer from the practice of law.
• If the violation of the Rules is serious enough that the lawyer should be disbarred, suspended or reprimanded by the Supreme Court of Missouri, formal charges and a formal disciplinary proceeding must take place and the matter will normally go to a hearing before a Disciplinary Hearing Panel. Rule 5: Any public discipline (disbarment, suspension or reprimand) may only be imposed by the Supreme Court of Missouri.

After investigation, if the OCDC or Regional Disciplinary Committee finds that there is no probable cause to believe a violation has occurred, the investigative materials and decision remain confidential.

Alternatively, if after investigation, the OCDC or a Regional Disciplinary Committee determines that probable cause exists that a violation has occurred, an admonition may be issued under Rule 5.11. An admonition is available to the public when accepted by the lawyer, or when it is deemed accepted, fifteen days from issuance, if the lawyer has not affirmatively accepted it.

Finally, if, after investigation,the OCDC or any Regional Disciplinary Committee determines probable cause to believe that a violation has occurred and that anadmonition is insufficient (or if an attorney rejects an admonition), an Information (charge) is filed with the Advisory Committee pursuant to Rule 5.12.

When the Respondent attorney answers the Information pursuant to Rule 5.13, a Disciplinary Hearing Committee is appointed and given the authority to conduct a hearing. Per Rule 5.31, the case record becomes public at that time. The hearings are also public. Protective orders may be issued to close certain records and proceedings. Parties interested in attorney discipline cases pending before Disciplinary Hearing Panels should contact the Legal Ethics Counsel.

After a hearing, the Disciplinary Hearing Panel prepares a Report, containing findings, conclusions and a recommendation for sanctions. At that point, unless the OCDC accepts a Hearing Panel recommendation for dismissal of the charges, the complete record of the hearing, the charges, and the decision are filed at the Supreme Court. Supreme Court records in attorney discipline are open to the public.

(If either the OCDC or the Respondent attorney fails to accept the DHP decision and recommendation, the Court typically sets the cases for briefing and argument.)

Status of Missouri Supreme Court cases can be tracked at: Casenet or at the Court´s own website by the docket, minutes and decisions. Additionally, all public discipline imposed by the Supreme Court (since January 1, 2006) is available at the Missouri Supreme Court website.

Attorney discipline cases, like civil and criminal cases, are often resolved by agreement (stipulation). In those cases, the Supreme Court must approve the stipulated decision.

Are disciplinary investigations public?

Anyone can find out if a Missouri attorney has a record of public discipline by contacting the Office of Chief Disciplinary Counsel.(Office of the Chief Disciplinary Counsel, 3327 American Avenue, Jefferson City, MO 65109. Phone (573) 635-7400 Fax (573) 635-2240).

Missouri Supreme Court Rule 5.31 sets out which records and procedures of the Missouri Supreme Court discipline process are public and which parts are confidential.

5.31 Records Under Rule 5; Confidential Records and Proceedings; Public Documents and Proceedings; Redaction Requirements; Protective Orders; Permissive Disclosure; Dissemination of Disciplinary Information

(a) Confidential Records and Proceedings.
(1) All proceedings, the records of all proceedings, investigations, records pursuant to Rule 5.30, and records of the Advisory Committee under this Rule 5 shall be confidential except as otherwise provided in this Rule 5.31.

(2) All confidential records shall be deposited with, and maintained by, the Chief Disciplinary Counsel, except all confidential records pursuant to Rule 5.30 and records of the Advisory Committee shall be maintained by the Legal Ethics Counsel.
(b) Public Documents and Proceedings.
(1) Upon the filing of an information and an answer or other responsive pleading with the Advisory Committee, all materials filed in connection with the information and all related proceedings are public unless a protective order is issued.

(2) The Advisory Committee may adopt regulations regarding public and media access and “media coverage” of open disciplinary hearings consistent with this Rule 5.31 and subject to approval by this Court.

(3) A written admonition becomes public upon its acceptance.

(4) Upon the filing of an information in this Court, whether as an initial matter or after proceedings before a disciplinary hearing panel, all materials filed in connection with the information are public unless otherwise ordered by this Court or protected by a protective order issued pursuant to Rule 5.31(c).

(5) All pleadings and documents filed with the Advisory Committee or this Court shall be redacted in accordance with Rule 84.015. The responsibility for redacting such information rests solely with counsel, the parties, or any other person preparing, offering, or filing the document.

(6) The following aspects of otherwise public proceedings shall remain confidential:
(A) Deliberations by a disciplinary hearing panel; and

(B) Deliberations of and work product prepared by the Chief Disciplinary Counsel, the Chief Disciplinary Counsel’s staff, the Advisory Committee, the Legal Ethics Counsel, the Legal Ethics Counsel’s staff, and the regional disciplinary committees.
(c) Protective Orders and Closing Records After Disposition. A protective order may be issued upon application, or on the motion of the presiding officer or the chair of the Advisory Committee, and for good cause shown to protect the interests of a complainant, witness, third party, or respondent. A party seeking to file a document or other item that is confidential or privileged by operation of law shall seek a protective order.
(1) A protective order may be issued by the chair of the Advisory Committee prior to the appointment of a disciplinary hearing panel. The disciplinary hearing panel may issue a protective order from the time of its appointment until an information, if any, is filed in this Court.

(2) A protective order may prohibit the disclosure of specific information and direct that the proceedings be conducted so as to implement the order including, but not limited to, an order that the hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of the application.

(3) Special consideration shall be given to an application for a protective order regarding information that is confidential or privileged by operation of law.

(4) When good cause is shown and a protective order is necessary, the order should be written as narrowly as is practicably feasible.

(5) Once issued, a protective order is effective throughout the disciplinary proceeding, including disposition by this Court if the matter is reviewed by this Court, but is subject to withdrawal or modification.

(6) Once a protective order issues, parties must file all subsequent documents in accordance with the terms of such protective order, including any required redactions.
If a disciplinary hearing panel recommends dismissal of an information and the Chief Disciplinary Counsel accepts the recommendation, records of the information shall be confidential upon request of the respondent.

If this Court dismisses an information, the respondent may move to have records of the information sealed from public access.

(d) Permissible Disclosure of Confidential Records.
(1) Confidential records may be inspected only by the Advisory Committee, the Chief Disciplinary Counsel, members of the regional disciplinary committee conducting an investigation, the Legal Ethics Counsel, and the person complained against or that person’s duly authorized representative, unless otherwise ordered by this Court. A complainant may be provided with copies of those materials the complainant submitted.

(2) If public statements that are false or misleading are made about any otherwise confidential disciplinary proceeding or record, the Chief Disciplinary Counsel or the Advisory Committee chair may disclose information to the extent necessary to correct such false or misleading statements.

(3) The Chief Disciplinary Counsel may make otherwise confidential records of disciplinary proceedings available to:
(A) The Commission on Retirement, Removal and Discipline when the confidential records relate to a possible violation of Rule 2;

(B) The Board of Law Examiners when the confidential records relate to the qualifications of an applicant for admission;

(C) Appropriate lawyer disciplinary authorities in other jurisdictions when the confidential records relate to possible violations by a lawyer licensed, or applying for licensure, in that jurisdiction;

(D) Law enforcement agencies acting within the scope of their lawful authority when the confidential records relate to possible criminal conduct; and

(E) Other persons as reasonably necessary to perform duties under this Rule 5.
(4) Nothing in this Rule 5.31(d) compels the Chief Disciplinary Counsel to make confidential records available under Rule 5.31(d)(3) without a subpoena and court order.
(e) Dissemination of Disciplinary Information. Notice of discipline imposed by this Court under this Rule 5 and reinstatements shall be given by the Chief Disciplinary Counsel:
(1) To the disciplinary enforcement agency of every other jurisdiction in which the respondent is licensed or to the American Bar Association National Lawyer Regulatory Data Bank if that jurisdiction fully participates with the data bank;

(2) For publication in the Journal of The Missouri Bar; and

(3) To the presiding judge of each judicial circuit and each chief judge of the court of appeals.

This Court, the Chief Disciplinary Counsel, the Legal Ethics Counsel, and The Missouri Bar may disseminate public records of lawyer discipline by additional means including electronic records to ensure public access to a lawyer’s status, contact information, disciplinary history, and pending public disciplinary matters through a single point of access. The Chief Disciplinary Counsel also may transmit copies of such records to other tribunals and agencies.

Will I be informed of the progress of my complaint?

You will be informed of the disposition of your complaint and of any cooperation that is needed on your part.The OCDC and the Regional Disciplinary Committees attempt to keep complainants informed of the general status of and major developments that occur in their complaints.

How long will this take?

The time it takes to complete the investigation and action on a disciplinary complaint varies.In most cases, if a complaint is dismissed, the complainant will be informed of the action within six months.However, any complaint that leads to the imposition of discipline may take much longer.Matters that go through formal charges and a hearing can take more than a year to reach a final disposition.

Can I appeal if I am not happy with the OCDC’s decision?

If your complaint is opened, investigated and then dismissed upon a finding of no probable cause, the Rules provide you with an opportunity to request a review by the Missouri Supreme Court Advisory Committee. Requests must be received within 30-days of the decision to close the file.If the Advisory Committee agrees with the dismissal, it will close the file.If it disagrees and finds that the complaint has merit, it will assign the complaint for reinvestigation.

Do I have to wait for your decision before looking into a malpractice suit?

A disciplinary investigation into your complaint is not a substitute for any action that you must take to protect your own interests.If you feel that you may have a claim for professional negligence or malpractice, you should consult counsel of your choice (at your expense) for advice as to whether you have remedies available to you.The OCDC’s role is to determine whether the protection of the public requires that discipline be imposed on the lawyer.The OCDC cannot represent or advise complaining parties as to how to protect their personal interests.

Can I be held liable for filing a disciplinary complaint against an attorney?

Missouri Supreme Court Rule 5.315 provides that all communications relating to alleged misconduct and all testimony given in a proceeding conducted pursuant to the Rules shall be absolutely privileged if submitted in good faith and the person making the communication shall be immune from suit based upon such communication.

Do I have to wait until your office takes final action on my complaint before trying to find a new attorney to represent me?

No, you should take whatever action you need in order to protect your interests.

Where can I find the ethics and disciplinary procedure rules that apply to Missouri attorneys?

Missouri Supreme Court Rule 4 (Rules of Professional Conduct)
Missouri Supreme Court Rule 5 (Rules for Disciplinary Enforcement)