Supreme Court Rules - Rule 5 - Rules Governing the Missouri Bar and the Judiciary - Complaints and Proceedings Thereon: Probation

Clerk Handbooks

Supreme Court Rules

		Section/Rule:	5.175
Subject:	Rule 5 - Rules Governing the Missouri Bar and the Judiciary - Complaints and Proceedings Thereon	Publication / Adopted Date:	January 1, 2023
Topic:	Probation	Revised / Effective Date:

5.175 Probation

(a) Eligibility. A lawyer is eligible for probation, or stayed suspension with probation, if the lawyer:

(1) Is unlikely to harm the public during the period of probation and can be adequately supervised;

(2) Is able to perform legal services and is able to practice law without causing the courts or profession to fall into disrepute; and

(3) Has not committed acts that, absent mitigating factors, would warrant disbarment.

(b) Conditions.

(1) The nature and circumstances of the lawyer's misconduct and the history, character, and health status of the lawyer shall be taken into consideration when placing a lawyer on probation. A standard requirement or condition in all such cases shall be that the lawyer engage in no further violations of the Rules of Professional Conduct (Rule

), Rule

, or Rule

(2) The order placing a lawyer on probation shall specify the conditions of probation. A standard condition of probation shall be that the lawyer may be required to submit to one or more examinations of practices and records related to compliance with Rules

4-1.145

4-1.15

, and

4-1.155

governing safekeeping property, IOLTA, and trust accounts.

(3) Probation shall be imposed for a specified period of time. Probation may be imposed in conjunction with a stayed suspension.

(4) The period of probation shall not exceed five years unless an extension is granted upon motion by either party. A motion for an extension must be filed prior to the conclusion of the probation period.

(5) An order of probation is an order of discipline.

(c) Costs. The lawyer is responsible for all costs related to meeting the conditions of probation including, but not limited to, evaluation, training, treatment, and supervision. Failure to pay these costs prior to termination of probation shall constitute a violation of probation.

(d) Monitoring Probation. The Chief Disciplinary Counsel shall monitor the lawyer's compliance with the conditions of probation. The Chief Disciplinary Counsel shall determine all reporting requirements unless the Court designates otherwise. When appropriate, the Chief Disciplinary Counsel may designate a portion of the monitoring role to the Intervention Committee, a regional disciplinary committee, or may contract with people or entities to assist with monitoring the lawyer. In cases in which the Chief Disciplinary Counsel has delegated some or all of the monitoring responsibility, additional reports regarding the progress of the lawyer shall be submitted by the monitor to the Chief Disciplinary Counsel.

(e) Violations.

(1) If the Chief Disciplinary Counsel receives information during the period of probation that any condition may have been violated, the Chief Disciplinary Counsel may file a motion in this Court specifying the alleged violation and seeking an order requiring the lawyer to show cause why the probation should not be revoked and further discipline imposed. Further discipline may include additional probation, suspension, or disbarment. The filing of the motion stays the expiration date of the period of probation until final action is taken on the motion.

(2) Service of the motion shall be in any manner permitted by Rule

5.125

(3) The lawyer shall file a written response to the show cause order within 15 days of service.

(4) The Court may decide the issues on the basis of the pleadings. If the Court finds a hearing is necessary, it may order that the case proceed in accordance with Rule

5.19(d)

or may refer the matter for appointment of one or more disciplinary hearing panel members to conduct a hearing and make recommendations as if the case were proceeding under Rules

5.15

5.16

, and

5.19

(5) The lawyer's failure to file a response or appear at the hearing shall be deemed a default.

(6) At the hearing, the Chief Disciplinary Counsel has the burden of establishing the violation by a preponderance of the evidence. When the alleged violation is the lawyer's failure to pay restitution or costs, the evidence of the failure to pay shall constitute prima facie evidence of a violation. Any evidence having probative value shall be received regardless of its admissibility under the rules of evidence if the lawyer is accorded a fair opportunity to rebut the evidence.

(f) Termination of Probation. Not more than 30 days and not fewer than 15 days prior to the expiration of the period of probation, the lawyer may file with this Court an application for an order of successful completion of the probation.

(1) An affidavit stating that the lawyer has complied with all terms of probation shall be attached to the application.

(2) The lawyer shall serve a copy of the application and affidavit on the Chief Disciplinary Counsel.

(3) If the Chief Disciplinary Counsel fails to object to termination of probation within 15 days of receipt of the application, the order showing successful completion of the period of probation shall issue. The probation ends on the date of the order.

(4) If an application is not filed timely, the probation shall continue. If the probation continues, an application may be filed at any time.

(g) Independent Charges. A motion for revocation of a lawyer's probation does not preclude the Chief Disciplinary Counsel from filing independent disciplinary charges based on the same conduct as alleged in the motion.

(h) Reinstatement on Probation. Probation may be imposed by the Court as a condition of reinstatement after suspension or disbarment pursuant to Rule 5.28. Protection of the public and the integrity of the legal profession shall be the primary issues in determining whether the person will be permitted to practice on probation.

(Adopted May 31, 2022, effective January 1, 2023.)