5.01  THE ADVISORY COMMITTEE – RESPONSIBILITIES, MEMBERSHIP, AND TENURE

(a) This Court shall appoint a committee known as the "Advisory Committee," which shall be composed of not fewer than nine lawyers, whose licenses are active and in good  standing, and three nonlawyers. This Court will maintain nonlawyer membership at no less than one-fourth of the total membership. The Advisory Committee and its members shall act in accordance with responsibilities as provided by this Court in Rules 4, 5, and 6.

(b) Before commencing the duties of a member of the Advisory Committee, each member shall take an oath to support the Constitution of the United States and this state and to fairly and impartially perform the member's duties. 

(c) Exclusive of any unexpired term, no member shall be appointed to more than two successive four-year terms, but members shall serve until a successor is appointed and qualified by this Court.

(d) The members of the Advisory Committee shall serve without compensation, but their reasonable and necessary expenses shall be reimbursed.

(e) This Court shall designate one member of the Advisory Committee as chair, and the chair may serve any additional terms as designated by this Court. The chair shall designate one member as vice chair with the approval of a majority of the Advisory Committee. The chair shall perform all duties as authorized by this Court in Rules 4, 5, and 6 and shall also preside over all meetings of the Advisory Committee. If the chair is unable to perform the chair's duties, the vice chair, or other Advisory Committee member as designated by the chair, shall perform the duties of the chair.

(f) A quorum for the Advisory Committee shall consist of attendance of a majority of duly appointed members including at least one nonlawyer member unless the Advisory Committee expressly determines that no nonlawyer member is available and that the public interest requires that the proceeding go forward. If a quorum is not present at any proceeding, the chair may schedule the proceeding for a different time. Members may attend in person, by telephone conference, by video conference, or by similar available technologies.

(g) Any action undertaken by the Advisory Committee shall be concurred in by a majority of those present. No action may be taken without the participation of at least one of the nonlawyer members unless the Advisory Committee expressly determines that no nonlawyer member is available and that the public interest requires that the proceeding go forward. 

Advisory Committee Regulation Re: Rule 5.01

(a) No Advisory Committee member shall provide legal representation to anyone involved in any Missouri attorney discipline matter.

(b) No attorney in a firm in which an Advisory Committee member is associated may provide legal representation, as described above, unless the attorney who is an Advisory Committee member is screened in the manner set forth in Rule 4-1.11(b).

(c) No Advisory Committee member shall serve or be retained as an expert witness in a legal malpractice case in Missouri.

5.02  REGIONAL DISCIPLINARY COMMITTEES – RESPONSIBILITIES, MEMBERSHIP, AND TENURE

(a) This Court may appoint a committee in each region known as the "Regional Disciplinary Committee," which shall be composed of not fewer than four lawyers, whose licenses are active and in good standing, and two nonlawyers. The regional disciplinary committees shall act in accordance with their responsibilities as provided by this Court in this Rule 5. Before commencing the duties of a member of the committee, each member shall take an oath to support the Constitution of the United States and this state and to fairly and impartially perform the member's duties. Each member shall be appointed to a term of up to four years. No member shall serve more than two successive four-year terms exclusive of any unexpired term, except that each member shall serve until a successor is appointed and qualified. The members of the regional disciplinary committees shall serve without compensation, but their reasonable and necessary expenses shall be reimbursed.

(b) The regional disciplinary committee in any region may sit en banc or in divisions as the committee may determine. Except as provided in Rule 5.02(e), each division shall be composed of not fewer than three lawyer members and one nonlawyer member and shall have the same powers and duties and follow the same procedures as provided by this Rule 5 for the full committee. A division, or a committee if it lacks divisions, shall designate one of its members as the chair. If a regional disciplinary committee has divisions, the division chairs shall collectively serve as the chair when the committee sits en banc.

(c) The Chief Disciplinary Counsel is authorized to assign any investigation to any regional disciplinary committee or division thereof.

(d) The state shall be divided into the following regions: Region I shall consist of judicial circuits 1, 2, 9, 10, 14, and 41. Region II shall consist of judicial circuits 3, 4, 5, 8, and 43. Region III shall consist of judicial circuit 6. Region IV shall consist of judicial circuits 7, 16, and 17. Region V shall consist of judicial circuits 15, 18, and 27. Region VI shall consist of judicial circuit 13. Region VII shall consist of judicial circuit 19. Region VIII shall consist of judicial circuits 12 and 45. Region IX shall consist of judicial circuit 20. Region X shall consist of judicial circuits 11, 21, and 23. Region XI shall consist of judicial circuit 22. Region XII shall consist of judicial circuits 24 and 42. Region XIII shall consist of Maries, Phelps, and Pulaski counties in judicial circuit 25 and Camden, Miller, Moniteau, and Morgan counties in judicial circuit 26. Region XIV shall consist of judicial circuit 40. Region XV shall consist of Texas County in judicial circuit 25, Laclede County in judicial circuit 26, and judicial circuits 28, 29, 30, 31, 37, 38, 39, 44, and 46. Region XVI shall consist of judicial circuit 36. Region XVII shall consist of judicial circuits 32, 33, 34, and 35.

(e) A quorum for a regional disciplinary committee, or a division thereof, shall consist of attendance of a majority of duly appointed members including at least one nonlawyer member unless the regional disciplinary committee or a division expressly determines that no nonlawyer member is available and that the public interest requires that the proceeding go forward. If a quorum is not present at any proceeding, the chair may schedule the proceeding for a different time. Members may attend in person, by telephone conference, by video conference, or by similar available technologies.

(f) Any action undertaken by a regional disciplinary committee, or a division thereof, shall be concurred in by a majority of those present. No action may be taken without the participation of at least one of the nonlawyer members unless the regional disciplinary committee or division expressly determines that no nonlawyer member is available and that the public interest requires that the proceeding go forward.

Advisory Committee Regulation Re: Rule 5.02

(a) No regional disciplinary committee member shall provide legal representation to anyone involved in any Missouri attorney discipline matter. However, a member of a regional disciplinary committee may provide legal representation in a disciplinary matter on behalf of a regional disciplinary committee, the Chief Disciplinary Counsel, or both. 

(b) No attorney in a firm in which a regional disciplinary committee member is associated may provide legal representation, as described above, unless the attorney who is a regional disciplinary committee member is screened in the manner set forth in Rule 4-1.11(b).

(c) No regional disciplinary committee member shall serve or be retained as an expert witness in a legal malpractice case in Missouri.

5.03  REPEALED

5.04  DISCIPLINARY HEARING PANELS – DISCIPLINARY HEARING OFFICERS – RESPONSIBILITIES, APPOINTMENT, AND REASSIGNMENT

(a) This Court shall appoint a minimum of 24 lawyers, whose licenses are active and in good standing, and 12 nonlawyers as disciplinary hearing officers. The qualifications, terms, and reimbursement of a disciplinary hearing officer shall be the same as for a member of the Advisory Committee. In addition, each member of the Advisory Committee shall be a disciplinary hearing officer.

(b) The chair of the Advisory Committee shall appoint a three-member disciplinary hearing panel to hear each matter for which an information is filed. Each panel shall consist of two lawyers, one of whom shall be designated as the presiding officer, and one nonlawyer. The chair of the Advisory Committee may reassign or replace disciplinary hearing officers as may be necessary.

(c) Before commencing duties as a disciplinary hearing officer, the officer shall take an oath to support the Constitution of the United States and this state and to perform the officer's duties fairly and impartially. Members of the Advisory Committee need not take an oath in addition to that prescribed in Rule 5.01.

(d) A quorum for a disciplinary hearing panel requires that all duly appointed panel members be in attendance at a proceeding. If a quorum is not present at any proceeding, the presiding officer may schedule the proceeding for a different time. Attendance by a disciplinary hearing officer in a disciplinary hearing proceeding may be by telephone conference, video conference, or similar available technologies when the presiding officer expressly determines that the public interest requires that the proceeding go forward. Either party may object. In determining if the public interest requires that the proceeding go forward by telephone conference, video conference, or similar available technologies, the presiding officer should consider any objection, the nature and severity of the disciplinary charges against the respondent, the health and safety of the participants, and the effect of delay.

(e) If one of the panel members is unable to continue participation in a matter that has been heard before a disciplinary hearing panel, but prior to the issuance of a panel decision, the chair of the Advisory Committee may instruct the remaining disciplinary hearing panel members to proceed with issuing a panel decision or direct that the record of the disciplinary hearing be transferred to this Court without a panel decision.

Advisory Committee Regulation Re: Rule 5.04

(a) No disciplinary hearing officer shall provide legal representation to anyone involved in any Missouri attorney discipline matter. 

(b) No attorney in a firm in which a disciplinary hearing officer is associated may provide legal representation, as described above, unless the attorney who is a disciplinary hearing officer is screened in the manner set forth in Rule 4-1.11(b).

(c) No disciplinary hearing officer shall serve or be retained as an expert witness in a legal malpractice case in Missouri.

5.05  REPEALED

5.06  CHIEF DISCIPLINARY COUNSEL

(a) This Court shall appoint a "Chief Disciplinary Counsel," who shall serve at the pleasure of the Court.

(b) The Chief Disciplinary Counsel shall have a Missouri law license that is active and in good standing or become so licensed within 18 months of the date of appointment.

(c) Before commencing duties as the Chief Disciplinary Counsel, the Counsel shall take an oath to support the Constitution of the United States and this state and to fairly and impartially perform the Counsel's duties.

(d) The Chief Disciplinary Counsel shall devote full time to the duties of the office and shall not engage in the private practice of law, except that the Counsel may serve as a member of an educational or civic organization devoted to the education in or improvement of the law, the legal system, or the administration of justice.

(e) The Chief Disciplinary Counsel or the Counsel's designees pursuant to Rule 5.07 shall serve as counsel in all disciplinary proceedings and shall conduct necessary investigations as provided in this Rule 5.

(f) The compensation of the Chief Disciplinary Counsel shall be fixed by this Court.

5.07  DEPUTY DISCIPLINARY COUNSEL, STAFF COUNSEL, SPECIAL REPRESENTATIVES, SPECIAL COUNSEL, LEGAL ETHICS COUNSEL – LOCATION OF OFFICES – EXPENSES

(a) With the approval of this Court, the Chief Disciplinary Counsel may appoint Deputy Disciplinary Counsel, who shall serve at the pleasure of the Chief Disciplinary Counsel and shall have such authority as may be designated by the Chief Disciplinary Counsel. The Chief Disciplinary Counsel may appoint or engage special representatives to make investigations for the purpose of aiding in the enforcement of Rules 4, 5, 6, and 8.11, may appoint or engage special counsel to investigate and prosecute any information, complaint, or proceeding instituted pursuant to Rule 5, and may employ staff counsel. The Chief Disciplinary Counsel may also accept the assistance of volunteers. The Chief Disciplinary Counsel may employ or engage necessary staff and support.

(b) The Chief Disciplinary Counsel shall select a Legal Ethics Counsel subject to the approval of the Advisory Committee. The Legal Ethics Counsel shall serve as staff and counsel to the Advisory Committee and keep minutes of Advisory Committee meetings. For administrative purposes, the Office of Legal Ethics Counsel shall be associated with the Office of Chief Disciplinary Counsel. The Legal Ethics Counsel may employ or engage necessary staff and support.

(c) The Advisory Committee, through the Office of Legal Ethics Counsel, and the Chief Disciplinary Counsel shall maintain such physical offices as designated by this Court.

(d) All expenses incurred pursuant to this Rule 5 shall be approved by the Chief Disciplinary Counsel or Legal Ethics Counsel and paid out of the Advisory Committee Fund.

5.08  INVESTIGATIONS – AUTHORITY

(a) The Chief Disciplinary Counsel is authorized, with or without complaint, to investigate professional misconduct alleged to have been committed in this jurisdiction or in another United States jurisdiction or in a foreign jurisdiction by a lawyer licensed to practice law in this jurisdiction. The Chief Disciplinary Counsel is authorized, with or without complaint, to investigate professional misconduct alleged to have been committed in this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. Each regional disciplinary committee or division thereof may investigate any such matter upon request of the Advisory Committee or the Chief Disciplinary Counsel.

(b) If a complaint alleges professional misconduct by the Chief Disciplinary Counsel, a staff counsel, or a special representative performing duties in accordance with Rule 5, or if the Chief Disciplinary Counsel is otherwise disqualified from acting in any matter, notice of this fact shall be given to the Advisory Committee. The Advisory Committee shall make a determination based on the complaint as to whether an investigation shall be initiated. If the Advisory Committee determines that an investigation shall be initiated, it shall assign the matter for investigation to any of the following entities, as long as that entity is not otherwise disqualified: the Chief Disciplinary Counsel, a regional disciplinary committee, or a division of a regional disciplinary committee.

(c) If a regional disciplinary committee or a division thereof is unable to undertake or complete an investigation for any reason, notice of this fact shall be given to the Chief Disciplinary Counsel. The Chief Disciplinary Counsel shall refer the matter to a different division or committee or shall conduct the investigation.

(d) If more than one investigation of the same lawyer is being conducted simultaneously by the Chief Disciplinary Counsel, a regional disciplinary committee, or a division thereof, the Chief Disciplinary Counsel may assign all such matters for investigation to a single disciplinary entity. The Chief Disciplinary Counsel may relieve a regional disciplinary committee or division of any investigation and refer the matter to a different committee, division, or to the Chief Disciplinary Counsel for investigation.

5.085  PERIOD OF LIMITATION

(a) Investigations under this Rule 5 may be initiated only within five years after the Chief Disciplinary Counsel knows or should know of the alleged acts of misconduct. If the investigation involves a course of alleged misconduct, the time of limitation shall date from the last act of alleged misconduct. Investigations relating to a felony, requests for reciprocal discipline under Rule 5.20, and requests for discipline under Rule 5.21 are not subject to any time limitation.

(b) The limitation period is tolled during any time tolling would be allowed in law, including the period:

(1) The lawyer actively conceals the professional misconduct; 

(2) The complainant has not attained the age of 18 years; or

(3) The complainant is incapacitated.

5.09  INVESTIGATIONS

Investigations under this Rule 5 are for the purpose of determining probable cause and may be conducted in a summary and informal manner. Any entity conducting investigations shall make a record of all investigations. Investigations may be conducted outside the presence of complainants or persons being investigated.

5.095  SUBPOENAS

(a) Investigatory Subpoenas. During the pendency of an investigation conducted pursuant to Rule 5, the Chief Disciplinary Counsel, a regional disciplinary committee, or a division thereof may cause to be served subpoenas issued and provided by the Clerk to compel the attendance of witnesses to testify under oath and the production of documents. Actions to enforce investigatory subpoenas issued pursuant to this Rule 5.095(a) and challenges thereto shall be made to this Court.

(b) Subpoenas for Deposition or Hearing. After an information has been filed, the Chief Disciplinary Counsel or the respondent may cause to be served subpoenas issued by the Clerk to compel the attendance of witnesses to testify under oath and the production of documents at a deposition or disciplinary hearing panel hearing. Any actions to enforce subpoenas issued pursuant to this Rule 5.095(b) and challenges thereto shall be determined by the presiding officer of the disciplinary hearing panel if a panel is appointed. If no disciplinary hearing panel has been appointed, the chair of the Advisory Committee may make a determination as to any actions to enforce or challenges thereto. Any resulting order may not be challenged until the matter is filed with the Court pursuant to Rule 5.16(m) or (n).

(c) Witnesses and Fees. Subpoena and witness fees and mileage shall be in accordance with the laws of this state.

(d) Subpoena Pursuant to Law of Another Jurisdiction. Whenever a subpoena is sought in this state pursuant to the law of another jurisdiction for use in lawyer discipline or disability proceedings in another jurisdiction, and where the issuance of the subpoena has been duly ordered under the law of the other jurisdiction, the Chief Disciplinary Counsel, upon petition for good cause, may issue a subpoena as provided in this Rule 5.095 to compel the attendance of witnesses and the production of documents in the county where the witness resides or is employed or elsewhere as agreed by the witness. Service, enforcement, or challenges to a subpoena issued pursuant to this Rule 5.095(d) shall be in accordance with this Rule 5.

5.10  RESOLUTION OF COMPLAINTS

(a) The Chief Disciplinary Counsel may refer complaints that may be resolved best outside of Rule 5 proceedings to either The Missouri Bar Complaint Resolution Program or The Missouri Bar Lawyer-to-Lawyer Dispute Resolution Program, as provided for in Rule 7.16.

(b) If the matter is successfully resolved, no investigation shall be initiated by the Chief Disciplinary Counsel.

(c) The complaint shall be returned to the Chief Disciplinary Counsel if:

(1) The designated program determines that the matter is not successfully resolved;

(2) The attorney withdraws from participation or otherwise fails to fully cooperate with the process;

(3) The process reveals information that would require a report under Rule 4-8.3; or

(4) The designated program determines that the matter is no longer appropriate for resolution under this Rule 5.10.

(d) When a complaint is referred to either program under this Rule by the Chief Disciplinary Counsel, records of all referrals, complaints, conferences, and proceedings shall be filed with the Chief Disciplinary Counsel and are subject to the confidentiality restrictions of Rule 5.31.

5.105  DIVERSION

(a) Offer of Diversion. At any time prior to the conclusion of an investigation, the Chief Disciplinary Counsel may offer the lawyer the opportunity to participate in a diversion program.

(b) Diversion Program. The diversion program is designed to benefit the lawyer and protect the public. The diversion program may include monitoring and programs to improve law practice management skills, to support lawyer well-being, and to protect the public.

(c) Participation in the Program Not Appropriate. The diversion program is not appropriate, absent special circumstances, in the following situations:

(1) The misconduct involves misappropriation of funds or property of a client or third party;

(2) It is likely that the lawyer will harm the public during the period of participation;

(3) The lawyer is unable to perform legal services and is unable to practice law without causing the courts or profession to fall into disrepute;

(4) The Chief Disciplinary Counsel cannot adequately supervise the conditions of the program;

(5) The misconduct involves criminal activity as set forth in Rule 5.21;

(6) The misconduct resulted in or is likely to result in actual injury, such as loss of money, legal rights, or valuable property rights, to a client or other person, unless restitution is made a condition of diversion;

(7) This Court previously imposed discipline;

(8) The misconduct involves dishonesty, deceit, fraud, or misrepresentation; or

(9) The misconduct is part of a pattern of similar misconduct.

(d) Diversion Agreement. If a lawyer agrees to an offer of diversion, the terms and conditions of the diversion shall be set forth in a written agreement between the lawyer and the Chief Disciplinary Counsel. The agreement shall specify the programs to which the lawyer shall be diverted, the general purpose of the diversion, the manner in which the lawyer's compliance with the program is to be monitored, and terms and conditions including any requirement for restitution or costs. A standard condition of diversion 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.

(e) Costs of the Diversion. The lawyer shall pay all the costs incurred in connection with participation in any diversion program.

(f) Effect of Diversion. Upon execution of a diversion agreement, the lawyer shall complete the requirements thereof and the underlying disciplinary matter shall be placed in abeyance. Diversion is not discipline under this Rule 5.

(g) Effect of Successful Completion of the Diversion Agreement. If the Chief Disciplinary Counsel determines that the lawyer has successfully completed the requirements of the diversion agreement, the Chief Disciplinary Counsel shall close the underlying disciplinary matter.

(h) Breach of Diversion Agreement. If the Chief Disciplinary Counsel has reason to believe that the lawyer has breached the diversion agreement, the lawyer shall be notified and given an opportunity to respond. The Chief Disciplinary Counsel may modify the terms and conditions of the diversion agreement or terminate the diversion agreement and proceed with the matter as provided by this Rule 5. If the diversion agreement is terminated, any information obtained while the lawyer participated in a diversion agreement may be used in the same manner as any other evidence acquired in the course of a Rule 5 investigation.

(i) Rejection of Diversion. If a lawyer rejects a diversion offer, the matter shall proceed as otherwise provided in this Rule 5.

(j) Confidentiality. All of the records resulting from the diversion of a matter shall be filed with the Chief Disciplinary Counsel and shall be subject to the same restrictions concerning confidentiality as provided in Rule 5.31.

5.11  DETERMINATION OF INSUFFICIENT PROBABLE CAUSE – REQUEST FOR REVIEW BY COMPLAINANT

(a) Determination of Insufficient Probable Cause. If the Chief Disciplinary Counsel, a regional disciplinary committee, or a division thereof determines after investigation that there is insufficient probable cause to believe that the lawyer has engaged in professional misconduct that would justify issuing an admonition or filing an information, the complainant and the lawyer shall be so notified in writing within 20 days of the determination. Notwithstanding the determination of insufficient probable cause, the Chief Disciplinary Counsel may provide the lawyer with guidance regarding Rule 4. Such guidance shall be confidential in accordance with Rule 5.31.

(b) Request for Review by Complainant. The complainant may seek review of the Chief Disciplinary Counsel or regional disciplinary committee's determination pursuant to Rule 5.11(a) by submitting a written request for review with the Advisory Committee. The request must be received by the Advisory Committee within 30 days of the date of the written notice by the Chief Disciplinary Counsel or the regional disciplinary committee. Requests received more than 30 days after the date of the written notice by the Chief Disciplinary Counsel or the regional disciplinary committee will not be granted.

(c) Advisory Committee Finding of Substantial Need for Further Investigation. If the Advisory Committee finds a substantial need for further investigation or analysis, it may assign the complaint to: 

(1) The Chief Disciplinary Counsel, if the Chief Disciplinary Counsel did not make the initial determination; or

(2) A regional disciplinary committee that did not conduct the initial investigation.

If the Advisory Committee assigns the complaint to the Chief Disciplinary Counsel, the Chief Disciplinary Counsel may accept the assignment or assign the complaint to a regional disciplinary committee that did not conduct the initial investigation.

(d) Advisory Committee Finding of No Substantial Need for Further Investigation. If the Advisory Committee finds no substantial need for further investigation or analysis, it shall notify the complainant and lawyer. Further review by the Advisory Committee, the Chief Disciplinary Counsel, or this Court is not available under this Rule 5. Notwithstanding the finding of no substantial need for further investigation or analysis, the Advisory Committee may provide the lawyer with guidance regarding Rule 4. Such guidance shall be confidential in accordance with Rule 5.31.

5.12  DETERMINATION OF SUFFICIENT PROBABLE CAUSE – ADMONITION OR INFORMATION – SERVICE ON RESPONDENT

(a) Determination of Sufficient Probable Cause. If after completion of an investigation, the Chief Disciplinary Counsel, a regional disciplinary committee, or a division thereof determines that there is sufficient probable cause to believe that the individual under investigation is guilty of professional misconduct, it may administer an admonition or file an information seeking discipline by this Court.

(b) Admonition.

(1) If the professional misconduct is of such nature that further proceedings are not warranted, a written admonition may be administered to the respondent.

(2) The admonition shall be served upon the respondent as provided in Rule 5.125.

(3) Within 15 days of the receipt of such admonition, the respondent shall accept or reject the admonition in writing. This timeframe is jurisdictional and not subject to extension. Failure of the respondent to timely respond in writing is an acceptance of the admonition.

(4) If the admonition is accepted, a copy of such admonition shall become part of the record maintained by the Chief Disciplinary Counsel and is public pursuant to Rule 5.31. An accepted admonition is not discipline imposed by this Court but may be considered in determining discipline for subsequent misconduct.

(5) If the admonition is rejected, an information shall be filed. If the admonition is rejected, the admonition shall be used as evidence or otherwise for any purpose except as provided in Rule 5.31.

(c) Information. An information shall be styled "In re: (Name of Respondent)", shall set forth in brief form the specific acts of misconduct charged, and shall state briefly the grounds upon which the proceedings are based.

(1) Any number of acts of misconduct against a lawyer may be charged in the same information, but each act of misconduct shall be separately stated. If two or more lawyers are alleged to have engaged in acts of misconduct, informations shall be filed against each lawyer individually.

(2) The information shall be signed by one of the following: the Chief Disciplinary Counsel; the division chair or a majority of the members of the division of the committee to which the matter was assigned; the Deputy Chief Disciplinary Counsel; staff counsel; or the special representative of the division of the committee to which the matter was assigned.

(3) An information shall not be filed unless approved by the Chief Disciplinary Counsel. The Chief Disciplinary Counsel may review and revise each information as to form and substance prior to filing the information. Each information shall include the name and address of the person designated by the Chief Disciplinary Counsel as counsel of record for the informant.

(4) The information shall be served on the respondent as provided in Rule 5.125, and a copy shall be delivered to the Chief Disciplinary Counsel and the chair of the Advisory Committee. The information served on the respondent shall be accompanied by a list of the names of all disciplinary hearing officers and Advisory Committee members and a copy of any statements or documents obtained in the investigation or with a notice that such material is voluminous and is available for inspection and copying. Proof of service shall be filed with the chair of the Advisory Committee and the Chief Disciplinary Counsel as a part of the record of the proceedings.

(5) The information shall be accompanied by a notice that the respondent shall file an answer or other response with the chair of the Advisory Committee and serve a copy on the counsel of record for the informant and the Chief Disciplinary Counsel, within 30 days after the service of the information on the respondent. Such notice shall also include a statement that all pleadings, records, and proceedings are subject to Rule 5.31. The notice shall include a statement that failure to timely respond will result in the filing of a notice of default pursuant to Rule 5.13(g).

5.125  SERVICE

(a) Service of an information shall be made by any method that will give notice reasonably calculated, under all the circumstances, to apprise the respondent of the pendency of the action and offer the respondent an opportunity to be heard. Such methods include, but are not limited to, service by certified mail, restricted delivery, or service by any method provided by Rule 54. If personal service, service by Rule 54.16, or service by certified mail, restricted delivery, cannot be obtained, the information may be served by first class United States mail to the respondent at the address designated by the respondent in the most recent registration with, or change address notification to, The Missouri Bar or, if such address is not available, to the address furnished by the respondent to the client whose complaint is the basis for the charges or, if such address is not available, to the last known office or residence address of the respondent. No further service need be attempted; however, additional notice to the respondent may be attempted in the discretion of the Chief Disciplinary Counsel.

(b) Except for the service of informations, service shall be made pursuant to Rule 43.01 unless otherwise specified in this Rule 5.

5.1255  DISCIPLINARY HEARING PANELS: LEGAL ETHICS COUNSEL AS CLERK; ROLE OF ADVISORY COMMITTEE CHAIR; LOCATION OF RECORDS

(a) Legal Ethics Counsel as Clerk for Disciplinary Hearing Panel Proceedings. The Legal Ethics Counsel shall act as clerk on behalf of the chair of the Advisory Committee for matters filed for hearing before a disciplinary hearing panel prior to the transfer of the record to this Court pursuant to Rule 5.16(m) or (n). All filings directed to the chair of the Advisory Committee shall be submitted through the Legal Ethics Counsel.

(b) Role of the Chair of the Advisory Committee. The chair of the Advisory Committee may act in accordance with such authority as provided in this Rule 5 with the assistance of the Legal Ethics Counsel.

(c) Location and Maintenance of Records. The record shall include information produced or available to the Legal Ethics Counsel, the Chief Disciplinary Counsel, or the Court regardless of physical form or storage medium used.

(1) The record of each case shall be maintained by:

(A) The Legal Ethics Counsel until the record is transferred to the Chief Disciplinary Counsel pursuant to Rule 5.16(m) or (n).

(B) The Chief Disciplinary Counsel after the record is transferred pursuant to 5.16(m) or (n).

All requests for copies of or access to the record shall be made in writing. Any request for a copy of a transcript shall be made to the person maintaining the record. If the request is approved, the person maintaining the record shall transmit the request to the court reporter. Upon payment of any transcript fee, the court reporter shall provide the transcript directly to the person who made the request.

Portions of the transcript and any related exhibits covered by a protective order shall not be provided to a nonparty except as permitted by the terms of the protective order.

(2) Filings shall be made as specified throughout this Rule 5.

(3) The Advisory Committee may impose a reasonable fee for copies of records.

5.13  ANSWER REQUIRED – EXTENSION AND FILING OUT OF TIME – PEREMPTORY CHALLENGES – APPOINTMENT OF COUNSEL – DEFAULT

(a) Filing Answer or Other Response. An answer or other response shall be filed with the chair of the Advisory Committee and a copy served on the counsel of record for the informant and the Chief Disciplinary Counsel within 30 days after the service of the information on the respondent. Motions to dismiss the information or counts therein, or other dispositive motions, shall not be permitted. If no disciplinary hearing panel has been appointed, the chair of the Advisory Committee may make a determination on other motions.

(b) Request for Extension of Time to File Answer. Time to file an answer may be extended by the chair of the Advisory Committee only once and solely for good cause shown. The request for the extension shall be filed within 30 days after the service of the information on the respondent. No request for extension filed more than 30 days after the service of information on the respondent shall be considered.

(c) Filing Answer Out of Time. Upon notice and motion made more than 30 days after service upon the respondent, and prior to the filing with this Court of an information with notice of default, the chair of the Advisory Committee may, for good cause shown, and upon a showing of excusable neglect, permit the filing of an answer.

(d) Peremptory Challenges. When an answer is filed, the respondent may exercise peremptory challenges of two persons from the furnished list of disciplinary hearing officers and Advisory Committee members. The persons challenged shall be ineligible to serve on the disciplinary hearing panel assigned to try the information. The peremptory challenges shall be directed to the chair of the Advisory Committee with service on the counsel of record for the informant and the Chief Disciplinary Counsel.

(e) Consideration of Mental Disorder. Pursuant to Rule 5.285, a person claiming a mental disorder shall identify such at the time of filing an answer.

(f) Appointment of Counsel. When requested by the respondent and upon a finding of financial inability to employ counsel, the Advisory Committee shall appoint or employ counsel to represent the respondent. 

The request shall be filed not later than the date for filing an answer or other response pursuant to this Rule 5.13.

The request shall be consistent with Rule 77.03 and contain at least the following information:

(1) A statement of all the respondent's current assets and liabilities;

(2) Copies of all of the respondent's bankruptcy petitions and orders; and

(3) Copies of the respondent's state and federal personal income and business tax returns for the prior three-year period.

If the Advisory Committee finds counsel should be appointed or employed, it shall fix the compensation of counsel, which shall be paid from the Advisory Committee Fund. Such appointment or employment is effective only for the disciplinary hearing proceeding and terminates at the end of the disciplinary hearing proceeding. The respondent shall be responsible for paying any and all costs and expenses. If the matter proceeds to this Court through the filing of a record, the respondent may request appointment of counsel at this Court pursuant to Rule 5.19(f).

(g) Default.

(1) If an answer or other response is not timely filed with the chair of the Advisory Committee, the information shall be filed in this Court as an information with notice of the default. The notice of default shall include a recommendation regarding discipline with supporting suggestions.

(2) The failure to timely file an answer to the information with the chair of the Advisory Committee shall be deemed an admission of the facts and charges contained in the information.

(3) Within 30 days after the filing of the notice of default, the respondent may submit suggestions in support of a particular discipline. The failure to timely submit suggestions shall be deemed consent to imposition of any discipline by the Court.

(4) After the suggestions in support are filed pursuant to Rule 5.13(g)(3), or the time for doing so has passed, the Court shall impose discipline without further process.

(5) Motions to set aside orders of discipline following a default under this Rule 5.13 shall be verified and shall be granted only upon compelling evidence of unavoidable circumstances sufficient to excuse the default. No motion to set aside shall be filed more than 60 days after issuance of an order imposing discipline.

5.14  ASSIGNMENT TO DISCIPLINARY HEARING PANEL; FILINGS; CHALLENGE TO A HEARING OFFICER; FAILURE TO ATTEND HEARING

(a) Assignment of Matter to a Disciplinary Hearing Panel. Within 15 days of receipt of a timely answer, the chair of the Advisory Committee shall assign the matter to a disciplinary hearing panel and designate the presiding officer. If two or more lawyers are alleged to have engaged in misconduct arising out of the same or related act(s) or transaction(s), the informations may be considered by the same disciplinary hearing panel and, upon motion, heard in a single proceeding. The chair shall provide written notice of the assignment and designation to the panel, counsel for the informant, the Chief Disciplinary Counsel, and the respondent.

(b) Filings with Disciplinary Hearing Panels. The original of all pleadings and other documents the informant or the respondent files with or submits to a disciplinary hearing panel shall be filed with the chair of the Advisory Committee, and a copy shall be served on each member of the disciplinary hearing panel, opposing counsel, and the Chief Disciplinary Counsel. The pleading or document shall show on its face the individuals on whom a copy has been served. If there is no original, a copy shall be sent to the chair of the Advisory Committee. Filings shall be in accordance with Rule 5.15(d).

(c) Challenge to Hearing Officer. Any party may file a motion challenging a hearing officer for cause. The motion shall be filed with the chair of the Advisory Committee within 30 days after the hearing officer is assigned to the panel hearing the matter. If the chair of the Advisory Committee determines the motion demonstrates good cause, a new panel member shall be appointed.

(d) Failure to Attend Hearing. If the respondent fails to attend any hearing set by the disciplinary hearing panel, a record shall be made of the respondent's failure to attend, including the date, time, and location of the hearing, those present, and the fact of timely service of the notice of hearing upon the respondent. Communications from the respondent, if any, received by the disciplinary hearing panel shall also be made part of the record. No further proceedings shall be conducted by the disciplinary hearing panel. The information shall be filed as an information in this Court with notice of these facts. The information shall be treated in the same manner as an information filed in this Court after the failure to file an answer pursuant to Rule 5.13(g) regarding default.

5.15  CONDUCT OF HEARING

(a) Notice of Hearing, Pre-Hearing Conferences, and Timeframe. The presiding officer of the disciplinary hearing panel assigned to hear an information shall set a date for hearing that is no more than 60 days from the date the matter was assigned to the panel and shall provide at least 15 days written notice of the hearing date to the respondent, the counsel for the informant, the Chief Disciplinary Counsel, and the chair of the Advisory Committee. Panels may conduct scheduling and pre-hearing conferences as appropriate. The hearing should be concluded within 120 days of the assignment of the matter.

(b) Hearing on Information. The hearing shall be conducted on the information.

(c) Amendment of Information or Answer. The information can be amended at any time not less than 10 days prior to the hearing. If any amendment substantially changes the charges, the respondent shall be given a reasonable time to respond. The answer can be amended at any time not less than 10 days prior to the hearing. If any amendment substantially changes the responses or defenses, the informant shall be given a reasonable time to take appropriate action.

(d) Rules and Hearing Procedures. All hearings shall be in accordance with this Rule 5. Procedures not addressed by this Rule 5 shall be in accordance the rules of this Court. Matters before the disciplinary hearing panel may be ruled on by the presiding officer in consultation with the other panel members. Motions to dismiss the information or counts therein, or other dispositive motions, shall not be permitted. No amicus briefs shall be permitted. If requested by the disciplinary hearing panel, the parties may file proposed findings of fact, conclusions of law, and recommended sanctions or dispositions. Such filings shall be made by both parties within 30 days of the conclusion of the disciplinary hearing, within 30 days of the receipt of the transcript, or as otherwise ordered by the presiding officer.

(e) Discovery. Discovery shall be limited to requests for production of documents, requests for admissions, and depositions and shall be completed within the time limits established by the presiding officer of the hearing panel, but no less than 10 days prior to the hearing unless good cause is shown. Disputes concerning discovery shall be resolved by the presiding officer of the hearing panel.

(f) Rules of Evidence. The rules of evidence for trials in the circuit courts shall apply. Expert testimony regarding interpretations of Rules 4 or 5 shall not be permitted. 

(g) Burden of Proof. The burden of proof shall be on the informant to establish a violation of Rule 4 by a preponderance of the evidence. 

(h) Record of Proceedings; Exhibits. The hearing shall be on the record and a transcription made. Original exhibits shall be filed with the presiding officer at the disciplinary hearing.

(i) Time Standards. The time standards for the conduct and completion of hearings contained in this Rule 5.15 are not jurisdictional.

(j) Virtual Proceeding. The presiding officer may expressly determine that the public interest requires that all or part of the proceeding go forward by virtual means, including by telephone conference, video conference, or similar available technologies. In determining if the public interest requires that all or part of the proceeding go forward by virtual means, including telephone conference, video conference, or similar available technologies, the presiding officer should consider the nature and severity of the disciplinary charges against the respondent, health and safety of the participants, and effect of delay.

5.16  DECISION OF DISCIPLINARY HEARING PANEL – FINDINGS AND RECOMMENDATION

(a) Panel Options After a Hearing. After a hearing, a disciplinary hearing panel may administer an admonition or issue a written decision. A written decision shall recommend dismissal of the information or that the respondent be disciplined.

(b) Admonition. If an admonition is administered to the respondent:

(1) It shall be in writing and filed with the chair of the Advisory Committee. The chair of the Advisory Committee shall serve the admonition by first class United States mail, postage prepaid, upon the respondent, the counsel for the informant, and the Chief Disciplinary Counsel.

(2) Within 15 days of receipt of the admonition, the Chief Disciplinary Counsel and the respondent each shall file with the chair of the Advisory Committee a written notice stating whether that party accepts or rejects the admonition. A copy of the written notice shall be served by first class United States mail, postage prepaid, on the opposing party and the presiding officer of the panel. Failure to timely file a written notice rejecting the admonition shall be deemed acceptance.

(3) Acceptance by both the Chief Disciplinary Counsel and the respondent shall conclude the disciplinary proceeding. The respondent shall be deemed admonished.

(4) If the admonition is accepted, a copy of such admonition shall become part of the record maintained by the Chief Disciplinary Counsel and is public pursuant to Rule 5.31. An accepted admonition is not discipline imposed by this Court but may be considered in determining discipline for subsequent misconduct.

(5) If the admonition is rejected by either party, the disciplinary hearing panel shall render a written decision within 30 days of receipt of the rejection or within the time provided for a decision in this Rule 5.16, whichever is later. The decision shall include the findings and recommendations required by this Rule 5.16 but may not include an admonition.

(c) Panel Decision Findings and Recommendation. The panel shall issue a written decision that includes a proposed finding of fact and conclusion of law regarding each specific act of misconduct charged in the information. If there is a finding of any professional misconduct, the panel shall recommend one of the following disciplinary actions based on the totality of the misconduct:

(1) Reprimand;

(2) Probation, subject to the provisions of Rule 5.175;

(3) Stayed suspension with probation, subject to the provisions of Rule 5.175;

(4) Suspension, whether stayed or not, shall be for an indefinite period but may include a period of not less than six months and not more than three years during which the respondent cannot apply for reinstatement; or

(5) Disbarment.

(d) Factors for Decision Recommendation. The disciplinary hearing panel may consider the following factors in making its recommendation as to discipline:

(1) Recommendations of the parties;

(2) Discipline imposed by this Court in previous reported decisions;

(3) ABA Model Standards for Imposing Lawyer Sanctions;

(4) The factors established in Rule 5.285;

(5) The factors established in Rule 5.175; and 

(6) Prior accepted admonitions.

(e) Panel Decision Timeframe. Subject to Rule 5.16(b), the disciplinary hearing panel shall render a written decision within 45 days after the completion of the hearing or the date of the last filing of proposed findings of fact, conclusions of law, and recommended sanctions requested by the disciplinary hearing panel pursuant to Rule 5.15(d).

(f) Panel Decision Unanimous or Not Unanimous; Signing. If the decision is unanimous, the panel's presiding officer shall sign and date the written decision. If the decision is not unanimous, at least two members of the panel shall sign and date the written decision; the other member of the panel may attach a written statement to the decision.

(g) Review of Panel Decision for Compliance with Rule 5. The written decision of the disciplinary hearing panel shall be filed with the chair of the Advisory Committee. The chair shall review the panel's decision for the limited purpose of determining that the recommendation for discipline, if any, conforms to this Rule 5 and the sanctions established by the Court. If the chair of the Advisory Committee determines that the panel's recommendation does not conform, the chair shall direct the disciplinary hearing panel to reconsider its recommendation for discipline. After reconsideration, the panel shall file the revised written decision with the chair of the Advisory Committee.

(h) Service of Panel Decision. The chair of the Advisory Committee shall serve the written decision of the disciplinary hearing panel by first class United States mail, postage prepaid, on the respondent or the respondent's counsel if represented, the counsel for the informant, and the Chief Disciplinary Counsel.

(i) Effect of Panel Decision. The written decision of a disciplinary hearing panel shall not have any binding or limiting effect on this Court.

(j) Time Standards for Advisory Committee Chair and Disciplinary Hearing Panels. Time standards set forth in this Rule 5 for action by the chair of the Advisory Committee or of a disciplinary hearing panel are not jurisdictional. The chair of the Advisory Committee shall monitor compliance with these standards, and if such standards are not substantially met, may reassign an information to a different hearing panel, reassign the presiding officer, or reassign the members of the hearing panel.

(k) Acceptance or Rejection of Panel Decision. Within 30 days after the panel's written decision is mailed pursuant to Rule 5.16(h), the Chief Disciplinary Counsel and the respondent each shall file with the chair of the Advisory Committee a written notice stating whether that party accepts or rejects the decision of the panel. A copy of the written notice shall be served by first class United States mail, postage prepaid, on the opposing party. Failure to timely file a notice rejecting the decision shall be deemed acceptance.

(l) Dismissal. If the disciplinary hearing panel recommends dismissal of the information and the informant accepts the written decision, the disciplinary proceeding is concluded.

(m) Mutual Acceptance of Panel Decision to Court. If the disciplinary hearing panel recommends discipline and both parties accept the written decision, the Chief Disciplinary Counsel, within 30 days after the deadline for filing an acceptance or as otherwise ordered by this Court, shall file with this Court the complete record made before the disciplinary hearing panel and a statement regarding the parties' acceptance of the panel's decision. In such event, the Court may issue a final order of discipline.

(n) Rejection of Panel Decision to Court. If either party rejects the decision of the panel, the Chief Disciplinary Counsel, within 30 days after the deadline for filing a rejection or as otherwise ordered by this Court, shall file in this Court the complete record made before the disciplinary hearing panel.

5.17  DISCIPLINE

(a) Upon finding one or more violations, this Court may impose any of the following appropriate discipline or combination of discipline:

(1) Reprimand;

(2) Probation, subject to the provisions of Rule 5.175;

(3) Stayed suspension with probation, subject to the provisions of Rule 5.175;

(4) Suspension, whether stayed or not, shall be for an indefinite period but may include a period of not less than six months and not more than three years during which the respondent cannot apply for reinstatement;

(5) Disbarment.

(b) The Court may consider factors including, but not limited to, the following:

(1) Recommendations of the parties;

(2) Recommendation of the hearing panel;

(3) Discipline imposed by this Court in previous reported decisions;

(4) ABA Model Standards for Imposing Lawyer Sanctions;

(5) The factors established in Rule 5.285;

(6) The factors established in Rule 5.175;

(7) Prior accepted admonitions; and

(8) Other appropriate factors.

(c) Additional consequences that may result from discipline include requirements related to:

(1) Payment of costs and investigative expenses, as established in Rule 5.19(k);

(2) Disgorgement of fees;

(3) Conditions and requirements related to probation;

(4) Publication of discipline and discipline cases, as described in Rule 5.31;

(5) Conditions precedent to reinstatement or readmission;

(6) Requirements following suspensions and disbarments associated with closing a practice and notification of clients, courts, and opposing counsel, as established by Rule 5.27;

(7) Orders of this Court; and

(8) Other consequences flowing from misconduct and any resulting discipline.

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 4), Rule 6, or Rule 15.

(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.

5.18  SATISFACTION OF COMPLAINANT

Proceedings under this Rule 5 may be undertaken and completed notwithstanding any resolution between the complainant and lawyer or a complainant's unwillingness or inability to participate in the proceedings.

5.19  DISCIPLINARY CASES IN THIS COURT

(a) Parties' Mutual Acceptance of Panel Decision. Upon the filing of the record and the parties' mutual acceptance of the disciplinary hearing panel decision pursuant to Rule 5.16(m), the Court may issue a final order of discipline.

(b) A Party's Rejection of Panel Decision. Upon the filing of the record and a party's rejection of the disciplinary hearing panel decision pursuant to Rule 5.16(n), the matter shall be briefed and argued in this Court.

(c) Court Rejects Panel Decision. If the Court rejects the disciplinary hearing panel decision as accepted by the parties, it may enter a final order of discipline, suggest a proposed disposition to the parties, or direct further process, including that the matter be briefed and argued. 

(d) Briefs and Oral Argument. Briefs shall be filed, and oral arguments shall be conducted, in accordance with Rule 84. The time for filing the briefs shall be as follows: the informant shall file its brief within 30 days of the filing of the record pursuant to Rule 5.19(b), or upon order of the Court pursuant to Rule 5.19(c); the respondent's brief shall be filed within 20 days thereafter; and if the informant desires to file a reply brief, it shall be filed within 10 days thereafter.

(e) Standard of Review and Additional Evidence. This Court will review the matter de novo. Further evidence is not permitted except upon this Court's request or upon motion granted.

(f) Appointment of Counsel. In matters pending before this Court, when requested by the respondent and upon a showing of financial inability to employ counsel, this Court shall appoint counsel to represent the respondent. Compensation shall be fixed by this Court and shall be payable from the Advisory Committee Fund.

(g) Dismissal. If this Court finds for the respondent, it shall dismiss the information.

(h) Discipline. If this Court finds the professional misconduct charged in the information, it shall impose appropriate discipline pursuant to Rule 5.17.

(i) Notice to Other Jurisdictions. If the respondent is licensed in this jurisdiction and is also licensed in any other jurisdiction, the Chief Disciplinary Counsel shall send a copy of this Court's order to the appropriate disciplinary authorities of the other jurisdiction wherein the respondent is licensed or to the American Bar Association National Lawyer Regulatory Data Bank if that jurisdiction fully participates with the data bank.

(j) Lawyers Licensed Only in Other Jurisdictions. If the respondent is licensed to practice in another jurisdiction and not in this state, this Court may render a judgment finding the respondent guilty and discipline the respondent. The Chief Disciplinary Counsel shall send a copy of this Court's order to the appropriate disciplinary authorities of the states wherein the respondent is licensed or to the American Bar Association National Lawyer Regulatory Data Bank if that jurisdiction fully participates with the data bank.

(k) Costs and Investigative Expenses. A respondent upon whom discipline is imposed by this Court shall be taxed costs in the matter. The Chief Disciplinary Counsel shall prepare an itemized bill of costs allowable in each case, including reasonable expenses incurred by the Chief Disciplinary Counsel in the course of the investigatory, hearing, or review procedures under this Rule. The itemized bill of costs, with associated invoices or receipts attached, shall be served upon the respondent by first class United States mail. Within 15 days of receipt of the bill of costs, the respondent shall either accept and pay such costs or notify the Chief Disciplinary Counsel of any objections thereto. The Chief Disciplinary Counsel may either reduce the bill of costs in accordance with the respondent's objection or may file a motion requesting that the Court review the bill of costs and enter an order with regard thereto.

In addition to such costs, a respondent upon whom discipline is imposed by this Court shall be assessed an investigative expense in the following amounts depending upon the nature of the discipline imposed:

Reprimand:     $750.00

Suspension: $1,000.00

Probation: $1,500.00

Disbarment: $2,000.00

The costs and investigative expenses shall be paid to the Clerk of this Court to the credit of the Advisory Committee Fund.

COMMENT

[1] Rule 5.19(k) provides that a respondent attorney upon whom discipline is imposed by the Court shall be taxed out-of-pocket costs incurred in the disciplinary case. Such costs may include reasonable expenses that would qualify as taxable costs recoverable in civil proceedings as well as additional out-of-pocket costs incurred by the disciplinary authority including, but not limited to, transcripts and fees paid to court reporters for transcripts of investigatory statements, depositions, and disciplinary hearing panel proceedings; copy costs necessary to the investigation and disciplinary hearing panel hearing; fees for service of process; witness fees and travel expenses for witnesses; travel and out-of-pocket expenses incurred by the disciplinary hearing panel counsel in the matter; travel and out-of-pocket expenses incurred by disciplinary counsel associated with the investigation or hearing in the matter; bank charges for producing records; expenses incurred in the physical or mental examination of a respondent attorney; and fees for translation services, if necessary.

5.20  RECIPROCAL DISCIPLINE FOR MISCONDUCT

(a) Upon being disciplined by another jurisdiction, a lawyer licensed to practice in this jurisdiction shall within 10 days thereafter inform the Chief Disciplinary Counsel.

(b) Upon the filing of an information directly in this Court by the Chief Disciplinary Counsel that a lawyer licensed to practice in Missouri has been adjudged guilty of professional misconduct in another jurisdiction, this Court shall cause to be served on the lawyer an order to show cause why said adjudication should not be conclusive of said misconduct for the purpose of discipline by this Court.

(c) A lawyer suspended or disbarred pursuant to this Rule 5.20 shall comply with Rule 5.27.

5.21  INTERIM SUSPENSION AND FINAL DISCIPLINE FOR CRIMINAL ACTIVITIES

(a) A lawyer licensed to practice law in Missouri who has pleaded guilty or nolo contendere to or been found guilty of a crime in this state, any other state, or the United States, whether sentence is imposed or not, shall within 10 days thereafter inform the Chief Disciplinary Counsel. 

(b) Upon being advised that a lawyer licensed to practice in this jurisdiction has pleaded guilty, or nolo contendere to or been found guilty of a crime in this state, any other state, or the United States, the Chief Disciplinary Counsel may file an information directly in this Court seeking to suspend the lawyer from the practice of law or may otherwise proceed under this Rule 5. The pendency of an after-trial motion or an appeal in the lawyer's criminal proceedings shall not require a delay in the entry of an order of interim suspension.

(c) For purposes of this Rule 5.21, a crime shall include:

(1) Any felony of this state, any other state, or the United States;

(2) Any misdemeanor of this state, any other state, or the United States involving interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or moral turpitude; or 

(3) Any misdemeanor involving attempt, conspiracy, or solicitation of another to commit any misdemeanor of this state, any other state, or the United States as described in this Rule 5.21(c)(2).

(d) Upon the filing of the information, this Court shall cause to be served on the lawyer an order to show cause why the lawyer should not be disciplined.

The Court may impose an interim suspension under this Rule 5.21 in such case without the requirement of any other proceeding or the Court may direct that disciplinary proceedings based upon the criminal case otherwise proceed as provided by this Rule 5.

(e) If an order of interim suspension based upon such plea or finding is entered and, thereafter, a court reverses or sets aside the finding of guilt, the suspended lawyer may file an application for reinstatement under this Rule 5.21. The application shall contain a copy of the order rejecting or setting aside the guilty plea or plea of nolo contendere. The application shall be served on the Chief Disciplinary Counsel.

The application shall be granted as a matter of course 30 days after it is served on the Chief Disciplinary Counsel unless, within that time, the Chief Disciplinary Counsel files an information and proposed order of interim suspension pursuant to Rule 5.24. If such information and proposed order are filed, reinstatement shall be ordered unless an interim suspension is ordered as provided in Rule 5.24.

(f) If an interim suspension is ordered under this Rule 5.21 and the case in which the plea or finding was entered is finally disposed, the Chief Disciplinary Counsel shall file with this Court a motion for final discipline, together with a copy of the judgment, whereupon the lawyer shall be subject to discipline by this Court without the requirement of any other proceeding.

(g) If the lawyer is subject to discipline as provided in this Rule 5.21, and the Chief Disciplinary Counsel has not sought an interim suspension pursuant to Rule 5.21(b), the Chief Disciplinary Counsel shall file an information directly in this Court seeking discipline upon final disposition of the criminal case. A copy of the judgment in the criminal case shall be attached to the information.

Upon the filing of the information, this Court shall cause to be served on the lawyer an order to show cause why the lawyer should not be disciplined.

The Court may impose discipline in such case without the requirement of any other proceeding or the Court may direct that disciplinary proceedings based upon the criminal case otherwise proceed as provided by this Rule 5.

(h) The Chief Disciplinary Counsel may defer making a recommendation for discipline concerning a lawyer subject to discipline as provided in Rule 5.21(b) pending the lawyer's successful or unsuccessful completion of a treatment court program, and may consider the lawyer's successful or unsuccessful completion of a treatment court program in such recommendation.

(i) A lawyer suspended or disbarred pursuant to this Rule 5.21 shall comply with Rule 5.27.

5.22  REPEALED

5.225  REPEALED 

5.23  PROCEDURE WHERE LAWYER IS DECLARED INCAPACITATED OR DISABLED OR ALLEGED TO BE INCAPACITATED OR DISABLED

(a) Actions Following Adjudication of Incapacity. The Chief Disciplinary Counsel may file an information in this Court alleging that a lawyer licensed to practice in Missouri has been adjudicated, incapacitated, or disabled, including partial incapacitation or partial disability, or that a lawyer licensed in Missouri is not authorized to practice law in another jurisdiction because the lawyer's mental incapacity renders the lawyer unfit to practice law. Upon sufficient proof of the facts alleged in the information, this Court shall enter an order suspending such lawyer from the practice of law effective immediately and until further order of this Court. A copy of such order shall be served upon the lawyer or a duly appointed representative in such manner as this Court may direct.

(b) Investigation and Informations Related to Fitness. 

(1) The Chief Disciplinary Counsel, with or without formal complaint, shall have the power to investigate in a summary and informal manner any charges, statements, or information that a lawyer is unable to competently represent the interests of the lawyer's clients by reason of physical or mental condition or because of addiction to drugs or intoxicants, and may thereafter file an information directly in this Court. 

(2) If this Court finds by a preponderance of the evidence that the lawyer is unable to competently represent the interests of clients by reason of physical or mental condition or because of addiction to drugs or intoxicants, it shall enter an order suspending the lawyer until further order of this Court.

(c) Proceedings. If a lawyer who is the subject of an information filed under this Rule 5 contends during the proceeding that the lawyer is suffering from a disability by reason of mental infirmity or by reason of addiction to drugs or intoxicants and that the disability makes it impossible for the lawyer to competently participate in the proceeding, the Chief Disciplinary Counsel or the presiding officer of the hearing panel before which the proceeding is pending shall immediately advise this Court thereof in writing and file an information directly in this Court alleging such disability. Thereupon this Court shall enter an order suspending the lawyer from continuing to practice law until a determination is made of the lawyer's capacity to continue the practice of law. If, after hearing, this Court finds that the lawyer is not so disabled, the disciplinary proceeding against the lawyer shall be immediately resumed. If this Court finds that the lawyer is disabled from continuing to practice law, it shall enter an order suspending the lawyer on the grounds of such disability until further order of this Court. If such order of suspension is entered, the Chief Disciplinary Counsel or the presiding officer of the hearing panel before which the disciplinary proceedings are pending may hold such disciplinary proceedings in abeyance during the period of such suspension. If the Chief Disciplinary Counsel or the hearing panel finds that the alleged misconduct is of such nature that disbarment would be warranted if the lawyer were found guilty, disciplinary proceedings shall be resumed; however, the Chief Disciplinary Counsel or the hearing panel shall ensure that the lawyer is adequately represented.

(d) A lawyer suspended pursuant to this Rule 5.23 shall comply with Rule 5.27.

(e) Alternative to Proceeding. As an alternative to proceeding pursuant to Rule 5.23(b), the Chief Disciplinary Counsel and each regional disciplinary committee may refer any lawyer whose ability to practice law may be impaired because of dependence on or use of alcohol, drugs, or other chemically addictive substances to the Intervention Committee created pursuant to Rule 16 for appropriate intervention and confrontation action by the Intervention Committee.

5.24  INTERIM SUSPENSION FOR THREAT OF HARM

(a) Upon receipt of sufficient evidence demonstrating that there is probable cause to believe that a lawyer is guilty of professional misconduct or is unable to competently represent the interests of the lawyer's clients and evidence that the lawyer poses a substantial threat of irreparable harm to the public, the Chief Disciplinary Counsel shall: (1) file an information directly in this Court together with a proposed order for interim suspension and (2) make contemporaneously a reasonable attempt to provide the lawyer with notice, which may include notice by telephone or electronic mail, that a proposed order for immediate interim suspension has been transmitted to this Court.

(b) Upon examination of the evidence transmitted to this Court by the Chief Disciplinary Counsel and of any response that the lawyer transmits to this Court prior to ruling, this Court may enter an order immediately suspending the lawyer pending final disposition of a disciplinary proceeding predicated upon the conduct causing the harm, or this Court may order such other action as it deems appropriate.

(c) On 10 days notice to the Chief Disciplinary Counsel, a lawyer suspended pursuant to this Rule 5.24 may appear and move for dissolution or modification of the order of suspension. Such motion shall be heard and determined as expeditiously as the ends of justice require.

(d) A lawyer who has been suspended pursuant to this Rule 5.24 may request an accelerated disposition of the allegations forming the basis of the interim suspension by filing a notice with this Court and serving a copy of the notice on the Chief Disciplinary Counsel requesting accelerated disposition. If the notice is filed, the matter shall proceed and be concluded without appreciable delay.

(e) A lawyer suspended pursuant to this Rule 5.24 shall comply with Rule 5.27.

 

5.245  SUSPENSION FOR FAILURE TO PAY TAX

(a) If the director of revenue reports to the Clerk of this Court under section 484.053, RSMo, that a lawyer is delinquent on a tax or failed to file tax returns, the Clerk shall notify the lawyer that the lawyer's license to practice law is subject to automatic suspension unless the matter is satisfactorily resolved within 30 days of the date of the last notice sent by the Clerk.

(b) For purposes of this Rule 5.245, notice means a letter sent by first class United States mail to the most recent address the lawyer provided to the Clerk of this Court pursuant to Rule 6.01(b). If the notice letter is returned, the Court shall attempt to contact the lawyer by either: (1) sending the notice letter to the most recent e-mail address the lawyer provided pursuant to Rule 6.01(b), or (2) calling the telephone number, if any, provided on the official roll of attorneys maintained by the attorney enrollment section of this Court. The notice shall be sent within 30 days after the Clerk receives the lawyer's name from the director.

(c) The matter is satisfactorily resolved if: 

(1) The department of revenue revises its report to the Clerk of this Court by removing the name of the lawyer from the report; or

 

(2) The lawyer provides an affidavit setting out facts showing that the tax liability is being contested in appropriate administrative or judicial proceedings. The affidavit shall not be notarized by the lawyer, any relative of the lawyer within the third degree of relationship by consanguinity or affinity, or any person employed by the lawyer or the lawyer's law firm.

(d) The Clerk shall notify the Chief Disciplinary Counsel of every lawyer suspended under this Rule 5.245. 

(e) A lawyer suspended pursuant to this Rule 5.245 must comply with Rule 5.27.

5.25  VOLUNTARY SURRENDER – CONSENT TO DISBARMENT OR OTHER PROCESS

(a) A lawyer may seek to surrender the lawyer's license to practice law in this state voluntarily by application to this Court. The application shall be accompanied by the license and shall set forth the basis for tendering the license, including any alleged ethical misconduct that is the subject of investigation or complaint under this Rule 5, whether or not formal disciplinary actions have been commenced. The application may also allege permanent disability to practice law. The lawyer shall admit or deny the ethical misconduct included in the application.

The application for voluntary surrender shall be forwarded to the Chief Disciplinary Counsel for report and recommendation.

 

The report shall be served by the Chief Disciplinary Counsel on the applicant for surrender in the manner provided in Rule 5.125, and the applicant may file with the Chief Disciplinary Counsel, within 15 days of the mailing of the report, a written response thereto. 

The report, recommendation, and response, if any, shall be filed by the Chief Disciplinary Counsel with this Court upon receipt of the response or the expiration of the time for making a response. 

The Court shall make a determination to accept or reject the surrender on the basis of the application, report, recommendation, and response, if any. The Court may reject the application if the lawyer does not admit sufficient facts to warrant disbarment. If the Court accepts the surrender, the lawyer shall be disbarred.

(b) If the Court rejects the surrender, the Court may, without further process, suspend the lawyer's license and direct the Chief Disciplinary Counsel to proceed as otherwise provided in this Rule 5.

(c) If the lawyer formally asserts, during a proceeding under Rule 5.25, that the lawyer is unable to competently represent the interests of clients by reason of physical or mental condition or because of addiction to drugs or intoxicants, such evidence shall be sufficient to meet the requirements for interim suspension under Rule 5.24(a) and (b) and this Court may, without further process, suspend the lawyer's license under Rule 5.24 and direct the Chief Disciplinary Counsel to proceed as otherwise provided in this Rule 5.

5.26  DESIGNATION AND APPOINTMENT OF TRUSTEE

(a) For purposes of this Rule 5.26, the following terms mean:

(1) "Disability," a physical or mental condition resulting from accident, injury, disease, chemical dependency, mental health problems, or age that more than minimally impairs judgment, cognitive ability, or volitional or emotional functioning in relation to the lawyer's performance of professional duties and commitments;

(2) "Fiduciary entity," a partnership, limited liability company, professional corporation, or a limited liability partnership in which entity a lawyer is practicing with one or more other persons licensed to practice law in this state who are partners, shareholders, or owners;

(3) "Lawyer," a person licensed to practice law in this state who is engaged in the private practice of law in this state. "Lawyer" does not include a person licensed to practice law whose practice is solely as an employee of another lawyer, a fiduciary entity, or an organization that is not engaged in the private practice of law; and

(4) "Trustee," a person licensed to practice law in this state, in good standing, who has been appointed by an authorized court to protect the interests of the clients of a lawyer and other affected parties.

(b) Designation of Trustee.

(1) At the time of completing the annual enrollment statement required by Rule 6.0l, a lawyer may designate a trustee by specifying the name and the bar number of the trustee and certifying that the trustee has agreed to the designation in a writing in possession of both the lawyer and the trustee. The designation of a trustee shall remain in effect until revoked by either the designated trustee or the lawyer designating the trustee, or the designated trustee is disqualified due to suspension, disbarment, disability, or death. The lawyer who designates the trustee shall notify the Clerk of this Court of any change of designated trustee within 30 days of such change. The Clerk shall keep a list of designated trustees and their addresses.

(2) At the time of completing the annual enrollment statement required by Rule 6.01, a lawyer practicing in a fiduciary entity shall state the name and address of the fiduciary entity. Because of the ongoing responsibility of the fiduciary entity to the clients of the lawyer, no trustee shall be appointed for a lawyer practicing in a fiduciary entity.

(3) A lawyer not practicing in a fiduciary entity who does not designate a trustee pursuant to Rule 5.26(b)(1) will be deemed to designate a suitable person licensed to practice law in this state in good standing appointed by an authorized court to perform the duties of a trustee under this Rule 5.26.

(c) Appointment of Trustee. A circuit court in the circuit where the lawyer maintained an office, through the presiding judge or a judge of the circuit designated by the presiding judge, on motion or sua sponte, may appoint the trustee designated by the lawyer or, if no trustee has been designated by the lawyer in the lawyer's annual enrollment statement, may appoint one or more persons licensed to practice law in this state to serve as the trustee(s) for a lawyer upon a showing that:

(1) The lawyer is unable to properly discharge the lawyer's responsibilities to clients due to disability, disappearance, or death; or 

(2) The lawyer failed to comply with Rule 5.27 after disbarment or suspension. 

Notice of the trustee's appointment shall be given by the clerk of the court to the Chief Disciplinary Counsel who shall monitor and assist the work of the trustee as necessary and appropriate.

(d) Duties of Trustee. The trustee shall take whatever action seems indicated to protect the interests of the clients and other affected parties, including:

(1) Inventory active and inactive client files and make reasonable efforts to distribute them to clients consistent with the requirements of Rule 4-1.22;

(2) Deliver any undistributed active client files and any inactive client files to the Chief Disciplinary Counsel for action as required by this Rule 5;

(3) Take possession of and review the lawyer's trust and business accounts;

(4) Make reasonable efforts to safekeep and distribute identified trust funds to clients or other parties (other than the lawyer) in accordance with Rule 4-1.15 and maintain records of such efforts;

(5) Preserve and maintain trust account records in accordance with Rule 4-1.15;

(6) After obtaining an order of the court, dispose of any remaining funds and assets as directed by the court; and

(7) Initiate any legal action necessary to recover or secure any client funds or other property.

The lawyer, to the extent possible, shall cooperate and promptly respond to reasonable requests for information from the trustee.

(e) Protection of Client Information. The trustee shall be bound by the Rules of Professional Conduct pertaining to client confidentiality with regard to the records of individual clients.

The trustee shall not disclose any information contained in any file under this Rule 5.26 without the informed, written consent of the client to whom the file relates except as necessary to:

(1) Carry out the order of appointment; or

(2) Comply with any request from an appropriate disciplinary authority.

The trustee shall report professional misconduct on the part of the lawyer as required by Rule 4-8.3.

(f) Reports to the Court. The trustee shall file written reports with the clerk of the appointing court:

(1) Within 120 days of appointment;

(2) Prior to being discharged if later than 120 days of appointment; and

(3) At such other times as directed by the appointing court. 

The reports shall describe the nature and scope of the work accomplished and to be accomplished under this Rule 5.26 and the significant activities of the trustee in meeting the obligations under this Rule 5.26.

The final report must include accountings for any trust and business accounts, the disposition of active and inactive case files, and any requests for disposition of remaining files and property.

The trustee may apply to the appointing court for instructions whenever necessary to carry out or conclude the duties and obligations imposed by this Rule 5.26.

(g) Immunity. All trustees appointed pursuant to this Rule 5.26 shall be immune from liability for conduct in the performance of their official duties in accordance with Rule 5.315. This immunity shall not extend to employment under Rule 5.26(h).

(h) Acceptance of Clients. With the consent of any client, the trustee may, but need not, accept employment to complete any legal matter.

(i) Legal Responsibility of Lawyer. The lawyer for whom a trustee has been appointed or the estate of a deceased lawyer for whom a trustee has been appointed is liable to the trustee for all reasonable fees, costs, and expenses incurred by the trustee as approved by the appointing court. To the extent that the approved trustee's fees, costs, and expenses are paid by the disciplinary authority or other third party, the lawyer or the estate shall be liable to make reimbursement to the disciplinary authority or other third party for such payment.

(j) Fees, Costs, and Expenses. Application for allowance of fees, costs, and expenses shall be made by affidavit to the appointing court, which may enter a judgment in favor of the trustee and against the lawyer or the estate of a deceased lawyer for whom a trustee has been appointed. The application shall be made on notice to the Chief Disciplinary Counsel, the lawyer or, if deceased, to the lawyer's personal representative, or heirs. For good cause shown, an interim application for fee, costs, and expenses may be made.

As approved by the appointing court, the trustee shall be entitled to reimbursement from the lawyer or the deceased lawyer's estate for:

(1) Reasonable expenses incurred by the trustee for costs, including, but not limited to, clerical, paralegal, legal, accounting, telephone, postage, moving, and storage expenses; and 

(2) Reasonable attorney fees.

In the absence of other funding sources, the Chief Disciplinary Counsel may pay the approved fees, cost, and expenses from the Advisory Committee Fund.

5.27  PROCEDURE FOLLOWING A DISBARMENT OR SUSPENSION ORDER

(a) Orders imposing disbarment or suspension shall be effective 15 days after entry unless the Court sets a different effective date. Between the entry date of the order and its effective date, the disbarred or suspended lawyers shall:

(1) Cease practicing law;

(2) Wind up the lawyer's law practice;

(3) Not accept any new retainer or act as lawyer for another in any new case or legal matter of any nature;

(4) Withdraw from representation in pending matters in a manner that will minimize any material adverse effect on the clients' interests;

(5) Notify all clients in writing and any counsel in pending matters that the lawyer has been disbarred or suspended if such notice was not made pursuant to Rule 5.27(a)(2); 

(6) In the absence of co-counsel, notify all clients, if such notice was not made pursuant to Rule 5.27(a)(2), to make arrangements for other representation, calling attention to any urgency in seeking the substitution of another lawyer; 

(7) Deliver to all clients being represented in pending matters any papers or other property to which they are entitled or notify them and any co-counsel of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers or other property;

(8) Refund any part of any fees paid in advance that have not been earned;

(9) Notify opposing counsel in pending litigation or, in the absence of such counsel, the adverse parties, if such notice was not made pursuant to Rule 5.27(a)(2), of the lawyer's disbarment or suspension and consequent disqualification to act as a lawyer after the effective date of such discipline;

(10) File with the court, agency, or tribunal before which the litigation is pending a copy of the notice to the opposing counsel or adverse parties; and

(11) Keep and maintain a record of the steps taken to accomplish the foregoing.

(b) Within five days after the effective date of an order of disbarment or suspension, the lawyer shall:

(1) Deliver the lawyer's license to practice law to the Clerk of this Court or file an affidavit that the license has been lost or destroyed; and

(2) File a verified certificate of compliance with this Court and the Chief Disciplinary Counsel attesting to complete performance of the obligations under this Rule 5.27.

5.28  REINSTATEMENT

(a) Petitioners Must Use Disciplinary Form A. A person:

(1) Who is disbarred; or

(2) Whose license to practice law is suspended, except a suspension for less than three years for either failure to pay the annual enrollment fee or failure to comply with Rule 15, may seek reinstatement of the person's license upon the filing of a petition in this Court pursuant to this Rule 5.28. The petition for reinstatement to practice law shall be substantially in the form as set forth in Disciplinary Form A appended hereto.

(b) Pleading Requirements. A petition for reinstatement shall include specific averments showing that:

(1) The cause for suspension or disbarment has abated;

(2) All persons injured as a result of the conduct that resulted in the loss of the privilege to practice law have received restitution, their claims have been discharged by operation of law, or the injured persons have been notified at least 10 days but not more than 90 days in advance of the filing of the petition for reinstatement;

(3) All special conditions for reinstatement required by this Court at the time the privilege to practice law was lost have been accomplished; and

(4) The person has taken within the two years immediately preceding filing of the petition the multistate professional responsibility examination and scored a grade at least equal to that established by the Board of Law Examiners as passing at the time the examination was taken.

(c) Reinstatements Following Certain Suspensions. If the petitioner has been suspended:

(1) indefinitely with leave to reapply in a period of six months or less and is not on probation under Rule 5.175; or

(2) under Rule 5.245 for three years or less,

then his or her license shall be reinstated as a matter of course 45 days after the petition for reinstatement is referred to the Chief Disciplinary Counsel for report and recommendation. If within this 45-day period the Chief Disciplinary Counsel files a motion to respond to the petition for reinstatement, the license shall not issue and the matter shall proceed as otherwise provided in this Rule 5.28(k). A person automatically suspended under Rule 5.245 for three years or less who is reinstated under this Rule 5.28(c) is retroactively reinstated if the person is then in compliance with Rules 6.01 and 15.

(d) MCLE Requirements. A person whose license has been suspended less than three years as of the filing date of the petition for reinstatement shall include specific averments that within one year prior to the date of filing the petition for reinstatement the person has completed at least 15 hours of continuing legal education credit, including at least three hours of ethics credit, one of which must be on the elimination of bias. A person whose license has been suspended three years or more as of the filing date of the petition for reinstatement shall include specific averments that within two years prior to the date of filing the petition for reinstatement the person has completed at least 30 hours of continuing legal education credit, including at least six hours of ethics credit, two of which must be on the elimination of bias.

(e) Bar Examination Requirements for Disbarred Persons. A person who has been disbarred and is seeking reinstatement shall include specific averments that within one year prior to the date of filing the petition for reinstatement the person has taken the bar examination prescribed by Rule 8.08 and has attained a passing score.

(f) Limited Exceptions for MCLE and MPRE Requirements. The provisions of Rules 5.28(b)(4) and 5.28(d) do not apply to a person filing a petition for reinstatement because the person's license was suspended for more than three years solely for failure to comply with Rule 15 or failure to pay the annual enrollment fee. The provisions of Rule 5.28(b)(4) do not apply to a person filing a petition for reinstatement within six months of a suspension under Rule 5.245 if the petition contains a statement that the cause of suspension under Rule 5.245 has been resolved and the department of revenue confirms that statement.

(g) No Petition Shall Be Considered Unless Good Cause Shown. Except for good cause shown, no petition for reinstatement shall be considered for a person who is:

(1) Suspended, except a person suspended under Rule 5.245, until after six months of the date discipline is imposed unless the Court provides by order for a longer time;

(2) Disbarred until after five years of the date discipline is imposed; or

(3) Notwithstanding Rule 5.28(g)(2), disbarred because the person has pleaded guilty or nolo contendere to or been found guilty of any felony of the United States, this state, any other state or any United States territory, whether sentence is imposed or not, until the date of successful completion of any period of confinement, and any subsequent or alternate period of probation or parole, as a result of the conviction, plea, or finding of guilt.

(h) Mental Health Considerations in Reinstatement Cases. If:

(1) the person seeking reinstatement has claimed or claims that a physical or mental condition caused or had a direct and substantial relationship to the professional misconduct resulting in a suspension or disbarment; or

(2) the person was suspended under Rule 5.23,

the following provisions apply:

The person's current ability to manage a mental disorder shall not be considered in a reinstatement proceeding unless an independent, licensed mental health professional mutually agreed upon by the person and the Chief Disciplinary Counsel provides evidence that the mental disorder caused or had a direct and substantial relationship to the professional misconduct. The person seeking reinstatement shall bear the burden of proving the causal relationship and current ability to manage the mental disorder. All costs of the independent licensed mental health professional in a reinstatement proceeding shall be paid by the person seeking reinstatement.

The factors noted in Rule 5.285(e) and (f) shall be considered in determining whether a person should be reinstated, and whether the person shall be reinstated with or without probation.

(i) Reinstatement Fees and Previous Costs. When a person who has been disbarred or suspended petitions for reinstatement, except petitions following suspensions for less than three years made as a matter of course under Rule 6.01(f), Rule 15.06(f), and Rule 5.28(c)(2), the petition shall be accompanied by a $1,000 reinstatement fee. The amount paid shall be deposited to the credit of the Advisory Committee Fund. No report or hearing shall be had on any petition for reinstatement until the required fee is paid. The reinstatement fee is in addition to any unpaid disciplinary costs assessed under Rule 5.19(k).

(j) Burden and Factors. The person must establish, by clear and convincing evidence, that the person is of good moral character, is fit to practice law, and the best interest of the public will be served by reinstatement of the person's license to practice law. Factors to consider in determining whether the person has met this burden include the following:

(1) The person's acceptance of responsibility for wrongdoing with sincerity and honesty and a lack of malice toward those who brought evidence against the person;

(2) The extent of the person's rehabilitation, as demonstrated by good current reputation for character and moral standing in the community;

(3) The nature and severity of the misconduct leading to discipline;

(4) The person's conduct since discipline, including strict compliance with the specific conditions of any disciplinary, judicial, administrative, or other order, when applicable;

(5) The time elapsed since discipline;

(6) Other instances of dishonesty, criminal behavior, professional discipline, unauthorized practice of law, academic and employment misconduct, financial irresponsibility, or involvement in or neglect of legal and professional matters;

(7) The cumulative effect of all misconduct;

(8) The person's current competency and qualifications to practice law;

(9) Restitution;

(10) Candor in the discipline and reinstatement processes; and

(11) Positive social contributions since the misconduct.

(k) Report, Response, and Recommendation. Petitions for reinstatement shall be referred to the Chief Disciplinary Counsel for a character and fitness investigation of the petitioner, a report, and a recommendation. The Chief Disciplinary Counsel may contract with the Board of Law Examiners for that agency to conduct a character and fitness investigation and to provide its investigative documentation and information generated to the Chief Disciplinary Counsel for its review in connection with the report and recommendation. The Chief Disciplinary Counsel shall serve the report on the petitioner for reinstatement as provided in Rule 5.125. The petitioner may file a written response to the report with the Chief Disciplinary Counsel within 15 days of the date of the mailing of the report.

The report, recommendation, and response, if any, shall be filed by the Chief Disciplinary Counsel with this Court upon receipt of the response or the expiration of the time for making a response. The Court shall make a determination whether to reinstate the petitioner's license on the basis of the petition, report, recommendation, and response. Probation may be imposed by the Court as a condition of reinstatement after suspension or disbarment pursuant to Rule 5.175(h).

When the Court denies a reinstatement petition, it may state a period of time before which another petition will be considered. It may also provide guidance to the petitioner as to particular concerns or conditions that the petitioner should address before submitting another petition for reinstatement.

(l) Hearings in Certain Reinstatement Cases. In lieu of reinstating the petitioner's license, the Court may direct the Advisory Committee to appoint a disciplinary hearing panel to conduct a hearing regarding issues raised in the reinstatement proceeding. The hearing shall be conducted as provided in Rule 5.14. The panel shall file a report with this Court. The report shall determine all matters in dispute and make a recommendation as to whether the petitioner's license should be reinstated.

 

5.285  CONSIDERATION OF MENTAL DISORDER 

(a) Definitions. For purposes of this Rule 5.285, the following terms mean:

(1) "Mental disorder" is a condition, found in the current Diagnostic and Statistical Manual, that more than minimally impairs judgment, cognitive ability, or volitional or emotional functioning in relation to performance of professional duties and commitments; and

(2) "Mitigation claim" is a claim that a mental disorder should be considered in mitigation of professional misconduct.

(b) Consideration of a Mental Disorder in Disciplinary Matters. A mental disorder, including, but not limited to, substance abuse or dependency, is not a defense to allegations of professional misconduct but may be considered as a mitigating factor in determining appropriate discipline. Demonstration of management of the mental disorder will be considered in determining whether to impose discipline less than that which would have been imposed upon a lawyer in similar circumstances where a mental disorder was not present, but does not in itself entitle the person to imposition of a lesser discipline. 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 pursuant to Rule 5.175 or otherwise.

(c) Asserting Claims for Mitigation. A person claiming a mental disorder as a mitigating factor shall identify the mental disorder and how it relates to the alleged professional misconduct no later than in the answer. For good cause shown, the time for claiming the mitigating factor may be extended, and an amended answer may be filed. Upon request, informant shall be given reasonable time to investigate.

(d) Records Required. A person who asserts a mitigation claim or reinstatement claim shall disclose to the Chief Disciplinary Counsel, beginning with the date the person first applied to attend law school, the name of every healthcare provider by whom and at which the person has been examined or treated related to any and all mental disorders, including, but not limited to, every psychiatrist, psychologist, professional counselor, social worker, physician, treatment center, and hospital.

The person shall furnish to the Chief Disciplinary Counsel written consent for each named person or entity to divulge information and records related to such examination, treatment, or both, to the Chief Disciplinary Counsel.

Such records shall be filed under seal and shall not be disclosed by the Chief Disciplinary Counsel, regional disciplinary committee, disciplinary hearing panel, or the Advisory Committee outside the proceeding during the course of any investigation, disciplinary hearing, or court proceeding, unless ordered otherwise by this Court.

(e) Independent Evaluation Required; Burden and Cost on Respondent. A mental disorder is not a mitigating factor in a disciplinary proceeding unless an independent, licensed mental health professional provides evidence, and the Court finds, that:

(1) The mental disorder caused or had a direct and substantial relationship to the professional misconduct;

(2) The ability to manage the mental disorder for a meaningful and sustained period of successful function; and 

(3) Recurrence of the misconduct as a result of the mental disorder is unlikely.

All costs of the independent licensed mental health professional in a disciplinary proceeding shall be paid by the respondent. The respondent shall bear the burden of proof that the mental disorder is a mitigating factor.

(f) Additional Factors. The following additional factors shall be considered, to the extent relevant to a particular case:

(1) The seriousness of the misconduct;

(2) The extent to which the misconduct is attributable to the mental disorder;

(3) The extent to which the mental disorder will interfere with the ability to practice law;

(4) The results of a functional analysis of the person's abilities in light of the mental disorder;

(5) The person's other health conditions that interact with, or result in, mental health disorders or impairments;

(6) The person's prognosis including, but not limited to, the likelihood of relapse as determined by an independent evaluation;

(7) The person's history of dealing with the mental disorder;

(8) The person's ability to self-monitor the person's status in relation to the mental disorder;

(9) The level of monitoring that will be needed;

(10) The length of time monitoring will be needed; 

(11) The cost of monitoring; and

(12) The likelihood the person will be able to continue to practice in a manner in which the public is protected once any period of monitoring is complete.

Comment

Lawyers, like other human beings, are subject to very stressful life events. For example, an automobile accident, an office fire, a marriage dissolution, or the death of a loved one are all very demanding circumstances. However, the response to such situations is not what is meant here by a mental disorder. Some people may seek mental health counseling in such circumstances, but that process in and of itself does not mean reactions to such stressful events rise to the level of mental disorder. The ABA Model Standards for Imposing Lawyer Sanctions address the possible mitigating nature of these personal and emotional problems. See Rule 5.17.

Conditions that impair judgment, cognitive ability, or volitional or emotional functioning in relation to performance of professional duties and commitments are the issue. Conditions that are more likely to produce this type of impairment include, but are not limited to, schizophrenia and other psychotic disorders, bipolar illness types I and II, major depressive disorder, substance dependence or abuse, delirium, and dementia.

Some conditions included in the Diagnostic and Statistical Manual as conditions that may be quite serious and in need of professional treatment are outside the scope of this consideration, unless they impair judgment, cognitive ability, or volitional or emotional functioning in relation to performance of professional duties and commitments.

The mere presence of such a disorder, accurately diagnosed and present in a relevant timeframe, does not in and of itself call for mitigation. If such a disorder is under control through effective treatment, a lawyer so afflicted may be quite competent and professional. Such treatment is to be encouraged.

5.29  UNAUTHORIZED PRACTICE OF LAW

(a) For the purpose of protecting the public, the Chief Disciplinary Counsel shall have the authority to investigate the unauthorized practice of law and to institute and prosecute appropriate suits, actions, or proceedings against any parties in any forums.

(b) In any employment security proceeding before the state division of employment security, an individual party may represent himself or herself or be represented by a duly authorized agent and shall be afforded the opportunity to participate in the proceeding. Except for services provided by licensed lawyers, an individual shall not be charged fees of any kind for representation in an employment security hearing.

(c) In any employment security proceeding before the state division of employment security, a corporation, partnership, or other business entity authorized by law may be represented by an officer of the entity or a person in the full-time employment of the entity in a managerial capacity who shall be afforded the opportunity to participate in the proceeding.

(d) In any employment security proceeding before the state division of employment security, any governmental entity, including Indian tribes, may be represented by an officer of the entity or a person in the full-time employment of the entity in a managerial capacity, who shall be afforded the opportunity to participate in the proceeding.

5.30  OPINIONS AND REGULATIONS BY ADVISORY COMMITTEE; LEGAL ETHICS COUNSEL

(a) The Advisory Committee may give formal opinions as to the interpretations of Rules 4, 5, and 6 and the amendments or additions thereto. Formal opinions shall be binding. Formal opinions of the Advisory Committee shall be published in the Journal of The Missouri Bar after adoption thereof and on the website for this Court.

(b) The Chief Disciplinary Counsel or any member of the bar who is substantially and individually aggrieved by any formal opinion of the Advisory Committee may petition this Court for review of the formal opinion. The Court in its discretion may direct that the petition be briefed and argued as though a petition for an original remedial writ has been sustained, may sustain, modify, or vacate the opinion, or may dismiss the petition.

(c) The Legal Ethics Counsel, on behalf of the Advisory Committee, may give an informal opinion, upon request, to a member of the bar as to the lawyer′s prospective conduct pursuant to Rules 4, 5, and 6. Informal opinions are not binding, but advisory. Members of the bar may provide confidential information to the Office of Legal Ethics Counsel pursuant to Rule 4-1.6(b)(2) and such information shall remain confidential pursuant to Rule 5.31. The Office of Legal Ethics Counsel has no duty to report possible violations of Rule 4-8.3 when disclosures are made by lawyers seeking informal opinions pursuant to this Rule. Written summaries of informal opinions, with no identifying information, may be published for informational purposes as determined by the Advisory Committee.

(d) Records of formal opinion and informal opinion requests shall be confidential pursuant to Rule 5.31 and be held by the Office of Legal Ethics Counsel.

(e) The Advisory Committee may promulgate regulations necessary to implement Rules 4, 5, and 6. The Regulations shall be consistent with the provisions of these Rules and shall be submitted to this Court for review; they shall become effective 60 days after submission unless disapproved by this Court. This Court may promulgate, amend, revise, or rescind any regulation at any time. Copies of any such regulations to Rules 4, 5, and 6 shall be published in a publication of general distribution to all lawyers and shall be furnished to interested parties upon request.

5.31  RECORDS UNDER RULE 5; CONFIDENTIAL RECORDS AND PROCEEDINGS; PUBLIC DOCUMENTS AND PROCEEDINGS; 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 social security numbers and financial account numbers shall be redacted from any materials that are public except for the last four digits of such numbers. 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.

ADVISORY COMMITTEE REGULATION RE: RULE 5.31: 

PUBLIC AND MEDIA ACCESS TO MATTERS PENDING 

BEFORE A DISCIPLINARY HEARING PANEL

(a) Definitions.

(1) "Advisory Committee," the committee appointed by this Court pursuant to Rule 5.01.

(2) "Disciplinary Hearing Panel," a three-member panel hearing each matter for which an information is filed, as provided in Rule 5.04.

(3) "Disciplinary Hearing Officer," a lawyer or nonlawyer appointed by this Court as provided in Rule 5.04.

(4) "Hearing Room," any space in which any portion of a disciplinary proceeding occurs, including a virtual space.

(5) "Legal Ethics Counsel," the ethics counsel serving as staff and counsel to the Advisory Committee pursuant to Rule 5.07(b).

(6) "Media" includes any person who regularly gathers, processes, and disseminates news or information about matters of public interest in any medium. "Media" also includes any educational institution or its representatives seeking media coverage of a judicial proceeding for educational purposes.

(7) "Media Coverage" includes audio, video, or electronic recording; streaming, broadcasting, filming, or televising; photographing; or otherwise transmitting information, including by text, electronic mail, online post, or other electronic format, whether for live or later dissemination in any medium.

(8) "Media Equipment" includes still or video cameras, audio recorders, and any other device capable of taking photographs, making audio or video recordings, or otherwise transmitting information, including texts, online posts, or other electronic messages, whether for live or later dissemination in any medium.

(9) "Notice in Writing" shall include notice sent via electronic mail.

(10) "Participant" shall include witnesses and parties.

(11) "Presiding Officer," the person whom the chair of the Advisory Committee has designated as the presiding officer pursuant to Rule 5.04.

(12) "Public" includes any person not otherwise defined in this Regulation.

(13) "Recording" includes audio, video, or electronic recording; streaming, broadcasting, filming, or televising; photographing; or otherwise transmitting information, including by text, electronic mail, online post, or other electronic format, whether for live or later dissemination in any medium.

(b) Open Proceedings. Each proceeding in which an information has been filed and in which an answer or other responsive pleading has been received is public as provided in Rule 5.31. Public and media access to matters pending before a disciplinary hearing panel shall be in accordance with this Rule 5.31 and Regulation. No member of the public or media shall have access to matters or proceedings that are confidential or subject to a protective order pursuant to this Rule 5.31. Anyone seeking to disrupt a proceeding shall leave the hearing room at the request of the presiding officer. 

(c) Public and Media Access to Attend Hearings. Members of the public and media may attend disciplinary hearings that are public in accordance with this Rule 5.31 and Regulation. Recording of such proceedings shall be prohibited except for members of the media who have provided notice requesting media coverage and been granted such permission by the presiding officer in accordance with this Regulation. No person may use any device capable of media coverage in a hearing room unless specifically authorized under the provisions of this Regulation.

(d) Procedural.

(1) Requests for Media Coverage. All requests for media coverage or otherwise to use media equipment in the hearing room shall be made to the Legal Ethic Counsel in writing as soon as practicable after the disciplinary proceeding is scheduled but at least five business days in advance of the scheduled proceeding. Any member of the media making a request to the Legal Ethics Counsel for media coverage of a disciplinary proceeding shall include the name of the person seeking such coverage; the affiliated entity, if any; and the media equipment to be used. The Legal Ethics Counsel shall provide this information to the presiding officer, as to all media granted access to media coverage under this Regulation, as soon as practicable before a disciplinary proceeding is scheduled to begin. The presiding officer may extend or reduce these times to ensure adequate notice, to prevent delay in a disciplinary proceeding, or to ensure the efficient administration of the disciplinary process.

(2) Legal Ethics Counsel Coordinates Arrangements. Whenever possible, the presiding officer and all interested members of the media shall coordinate all arrangements for media coverage with the Legal Ethics Counsel. The Legal Ethics Counsel may designate a media coordinator when appropriate. A media coordinator may be either a member of the media or other appropriate person. Whether to designate a media coordinator, and selection thereof, shall be in the sound discretion of the Legal Ethics Counsel.

(3) Notice to Witnesses. Before the proceeding commences, counsel shall inform any person counsel may call as a witness that the witness will be subject to media coverage unless the presiding officer limits or prohibits such coverage.

(4) Objections. Upon the objection of a party or other participant, or on the disciplinary hearing panel's own motion and for good cause shown, the presiding officer, in consultation with the other hearing officers, may prohibit any or all media coverage of a participant in a disciplinary proceeding or any or all of the participant's testimony.

(5) Media Conference. The presiding officer may hold a conference, in person or by any other means, concerning applications or plans for media coverage. During the conference, the presiding officer may hear any objections to media coverage and set terms and conditions of media coverage. To the extent appropriate to protect confidential or privileged matters, the presiding officer may exclude media from portions of the conference.

(e) Conditions of Media Coverage. Media coverage of a disciplinary proceeding will be permitted in the hearing room if expressly authorized by order of the presiding officer and under the following conditions:

(1) Any media granted permission to conduct media coverage shall be provided access to this Regulation and, by appearing at a proceeding, are deemed to have agreed to comply with this Regulation and any directives the presiding officer may issue pursuant to this Regulation.

(2) The presiding officer may prescribe such conditions of coverage as provided for in this Regulation, including the manner in which objections may be raised and whether media coverage may be conducted in the hearing room before or after a disciplinary proceeding or while the proceeding otherwise is in recess. Any media coverage the presiding officer permits must be executed in a manner that ensures the fairness and dignity of the proceeding.

(3) Even when media coverage is expressly permitted, the presiding officer shall limit or disallow media coverage of a proceeding if the presiding officer concludes, under the circumstances of the particular proceeding, such coverage would materially interfere with the rights of the parties to a fair hearing or the substantial rights of individual participants, including, but not limited to, the security, privacy, confidentiality, or attorney-client privilege of participants to the proceedings. Restrictions the presiding officer may impose on media coverage may not be evaded by photographing or recording proceeding activities from outside the hearing room, such as through a door or window.

(4) Prohibitions on Media Coverage. Media coverage is prohibited of any:

 

(A) Disciplinary proceeding or part thereof covered by a protective order or required under state or federal law to be closed. No coverage shall be permitted of any juveniles.

(B) Conferences between attorneys and their clients, between co-counsel, between counsel and one or more hearing officers, or between or among hearing officers, to protect the attorney-client privilege and the right to effective counsel.

(C) Materials: on counsel tables; subject to a discussion with one or more hearing officers regarding the admissibility of the materials; or otherwise not admitted into evidence, to ensure the fairness of the proceeding. The presiding officer may provide the media access, after the proceeding concludes or while the proceeding is in recess, to exhibits received into evidence, subject to ruling on any objection from counsel in the proceeding, unless subject to a protective order or filed under seal.

(5) Unintentional or Inadvertent Violations. In the event of an unintentional or inadvertent violation of any of these provisions:

(A) The media shall prevent the recording, photographing, or reporting, as a result of media coverage, from being disseminated in any manner; and

(B) The presiding officer shall take any other appropriate action, including, but not limited to, the limitation or termination of media coverage.

(6) Adjacent Areas. Regardless of whether media coverage of a proceeding is granted, the presiding officer may prohibit media conducting interviews, recording, photographing, or preparing a report in the hallways immediately adjacent to the entrances to the hearing room if such activity would interfere with the fairness of the proceeding or otherwise is prohibited by local officials or building or law firm managers. 

(7) Limitations on Coverage Once Granted. The presiding officer may limit or terminate media coverage at any time during the proceedings if the presiding officer finds:

(A) Any media has violated this Regulation or any directives the presiding officer imposed pursuant to this Regulation; or

(B) Any substantial rights of individual participants or rights to a fair hearing may be prejudiced if media coverage is allowed to continue.

(f) Technical.

(1) Equipment Limitations. All media equipment to be used pursuant to this Regulation during disciplinary proceedings must be unobtrusive in both size and appearance, without distracting sound or light, and of sufficient technical quality to prevent interference with the disciplinary proceeding. The presiding officer may limit the number of media personnel and the amount of media equipment in a hearing room covering a disciplinary proceeding and may require other media personnel to pool coverage in accordance with this Regulation and as the presiding officer deems appropriate under particular circumstances. The hearing panel is not required to reject a hearing room because it will not allow for the presence of video or audio recording equipment. No live media coverage shall be permitted except as specifically authorized by the presiding officer. 

(A) Still Photography. No more than one still photographer shall be permitted to participate at one time unless the presiding officer otherwise approves in advance.

(B) Video Recording. Not more than one videographer, using a single device, shall be permitted in the hearing room during a disciplinary proceeding. Such equipment must be designed or modified so participants in the disciplinary proceeding are unable to determine when the equipment is recording. When practicable, recording or broadcasting equipment that is not a component part of a video camera shall be located outside the hearing room. When video recording equipment is not compatible, the presiding officer may permit use of an additional device and operator. 

(C) Audio Recording. Not more than one audio recording system shall be set up in the hearing room for media coverage of a disciplinary proceeding at any time. Such recording shall be made from an existing audio system present in the hearing room if the existing system produces sound technically suitable for broadcast. Any changes in an existing audio system must be approved by the presiding officer. Microphones for use by counsel and hearing officers shall be equipped with off/on switches to facilitate compliance with this Regulation. When practicable, electronic audio recording equipment and any operating personnel shall be located outside the hearing room.

(D) Advance Approval. It shall be the duty of the media to demonstrate to the presiding officer reasonably in advance of the proceeding that the equipment sought to be utilized meets the requirements of this Regulation. Failure to obtain advance approval for equipment may preclude its use in the proceeding. All media and media equipment should be in place at least 30 minutes prior to the scheduled time of commencement of the proceeding.

(E) Nonapproved Uses Prohibited. Any media equipment approved for still photography, video recording, or audio recording of a disciplinary proceeding is to be used only for the specified purpose. If the equipment is capable of making other types of recordings or producing other content, no such recordings may be made or content produced without express permission of the presiding officer.

(2) Lighting. Other than light sources already existing in the hearing room, no external lighting equipment, flashes, or other artificial light device of any kind shall be employed in the hearing room. 

(3) Pooling.

(A) If multiple media personnel apply under the provisions of this Regulation for media coverage for the same disciplinary proceeding, they shall be pooled appropriately based on the type of media coverage they seek. The Legal Ethics Counsel, media coordinator, or presiding officer should endeavor to rotate still photographers and videographers as may be appropriate under the circumstances. Requests for copies of audio or video recordings or photographs shall be directed to only the pool representative, who shall supply such copies upon request to the media in the pool at a price not exceeding actual cost. Failure to make timely application for coverage may result in exclusion from the pool and from access to resulting media coverage.

(B) The presiding officer shall not be called upon to mediate any media dispute regarding pooling. In the absence of advance media agreement, coordinated through the Legal Ethics Counsel or the media coordinator, the presiding officer may exclude any or all media coverage.

(4) Location of Media Equipment and Personnel. When media access has been granted, the presiding officer shall designate an area or areas in the hearing room where media equipment and operating personnel shall be located. The area or areas designated shall provide reasonable access to the proceeding to be covered. The remainder of the media pool may be located in an auxiliary room, if one is available, although the hearing panel is not required to reject a facility because it will not allow for an auxiliary room for use by the media pool. No media or media equipment shall block the view of persons seated in the public area of the hearing room.

(5) Movement During Proceedings. Media must set up and remove all media equipment permitted by the presiding officer only when the proceeding is not in session and at all times shall operate from a fixed position. Still photographers and videographers shall not move about the hearing room while proceedings are in session, nor shall they engage in any movement that attracts undue attention.

(6) Personal Audio Devices. Notwithstanding other provisions of this Regulation, the presiding officer may permit the media to use inconspicuous personal recording devices to make audio recordings solely as personal notes of the proceeding. Media proposing to use a personal audio recording device must make timely application to the Legal Ethics Counsel and obtain advance permission from the presiding officer. Any such audio recording must be in accordance with the provisions governing media access and coverage in general, may not be used for any other purpose, and, if the device is capable of making other types of recordings or producing other content, no such recordings may be made without express permission of the presiding officer.

(7) Use of Devices. No person may use any device capable of media coverage in a hearing room unless specifically authorized under the provisions of this Regulation. The presiding officer may authorize media to use electronic devices solely for textual notetaking and writing if they are configured to operate quietly and in such a manner as to avoid undue distractions.

(8) Decorum. All media personnel in the hearing room shall wear business or business-casual attire; shall not assume any body position inappropriate for spectators; and otherwise shall maintain proper decorum at all times while covering a disciplinary proceeding.

5.315  IMMUNITY AND PRIVILEGES

(a) Communications submitted to the Advisory Committee, the Chief Disciplinary Counsel, the Legal Ethics Counsel, regional disciplinary committees, disciplinary hearing panels, or staff of any of these entities relating to lawyer misconduct or disability are absolutely privileged if submitted in good faith. No lawsuit predicated on such communications may be instituted.

(b) All complainants and witnesses are immune from suit for any complaint filed or testimony given under this Rule 5.

(c) The Advisory Committee, the Chief Disciplinary Counsel, the Legal Ethics Counsel, regional disciplinary committees, disciplinary hearing panels, trustees appointed pursuant to Rule 5.26, and their staff and representatives are immune from suit for any conduct in the course of their official duties.

5.32  COOPERATION WITH THE BOARD OF LAW EXAMINERS

(a) In addition to the other powers and duties conferred upon them, the Chief Disciplinary Counsel, the Advisory Committee, and the regional disciplinary committees shall aid and assist the Board of Law Examiners in their duties under Rule 8.11.

(b) The Chief Disciplinary Counsel shall have access to the files and records of the Board of Law Examiners of all applicants who have been licensed to practice law in this jurisdiction to the extent necessary for the performance of the duties of the Chief Disciplinary Counsel pursuant to this Rule 5.

5.33  INTERPRETATION OF RULE: NO LIMITATION ON COURT′S POWER; PERSONNEL ACTING UNDER JUDICIAL BRANCH

(a) Nothing in this Rule 5 shall be construed as a limitation upon the powers of this Court to regulate the practice of law in this jurisdiction. 

(b) This Court shall have the authority to revoke at will any appointment or employment made under this Rule 5.

(c) This Court may make inquiry of the various disciplinary entities with regard to the status of any matter and may require such reports as may be appropriate. This Court may adopt such case disposition guidelines as may be appropriate. 

(d) It is the intent of this Court that members of the Advisory Committee, the Chief Disciplinary Counsel, the Legal Ethics Counsel, regional disciplinary committees, staff counsel, special representatives, staff, and all appointed or employed personnel acting in the course and scope of their official duties shall be considered as acting under the authority of this Court and, as such, shall be a part of the judicial branch of state government and shall be protected and be free from suits and judgments for damages.

(e) This Rule 5 shall not constitute an exclusive method for regulating the practice of law or the unauthorized practice of law by laypersons or corporations.

5.34  APPLICABILITY OF RULE

This Rule 5 shall apply to all cases in which an information is filed on or after January 1, 2023. All cases in which an information is pending before January 1, 2023, shall be governed by the provisions of this Rule 5 in effect on December 31, 2022.

The complaint resolution program shall be administered by a three-person complaint resolution committee that will oversee the complaint resolution panel of volunteers, hereinafter referred to as panel members, as well as the complaint resolution program staff coordinator. The complaint resolution committee shall be appointed by The Missouri Bar Board of Governors, with the chair designated by the president of The Missouri Bar. The terms of the complaint resolution committee appointees shall be for three years, except with the first committee having staggered one, two, and three-year terms. No committee member shall be requested to serve more than two successive terms. Terms of the panel members shall be for four years, and no member shall be requested to serve more than two successive terms.

The complaint resolution program staff coordinator shall have the duties of maintaining all files received; assignment of panel members; giving notices; making arrangements for all conferences; record keeping; compiling of reports to The Missouri Bar and chief disciplinary counsel; and handling administrative tasks. The complaint resolution program staff coordinator shall be designated by the executive director of The Missouri Bar.

The chief disciplinary counsel will first determine whether the complaint appears appropriate for referral to the complaint resolution program. After a complaint is referred to the complaint resolution program, the complaint resolution program will solicit an answer from the respondent lawyer. Once the answer is received, the complaint resolution program chair or staff coordinator will assign the matter to a resolution panel member who will solicit further information from the parties and hold a mediation-like conference. Following the conference, the panel member will prepare an appropriate report to be returned to the complaint resolution program coordinator for forwarding to the chief disciplinary counsel's office. If the respondent lawyer does not participate, or if it appears that the respondent has engaged in serious misconduct, the matter will be returned to the chief disciplinary counsel for further proceedings. If the complainant does not participate, the complaint resolution committee will refer the complaint back to the chief disciplinary counsel noting such.

The goal of this program is to assist the chief disciplinary counsel in the resolution of grievances and to assure the public and the legal profession that such grievances can be resolved in a just fashion and in accordance with the participation and reasonable expectations of all parties.

Lawyers will be nominated to serve on the complaint resolution program by the president of The Missouri Bar, who will forward their names to The Missouri Bar Board of Governors for consideration for appointment to the complaint resolution program. In order to keep The Missouri Bar apprised of the complaint resolution program's work, the complaint resolution program will make a quarterly report to the president of The Missouri Bar concerning the progress of the complaint resolution program.

Panel Procedures

1. The first step in the process is the referral of the complaint to the complaint resolution program. After the chief disciplinary counsel has determined that the complaint is appropriate for referral, the chief disciplinary counsel staff coordinator will send a letter to the complainant and the respondent advising them that the matter is being forwarded to the complaint resolution program. The chief disciplinary counsel staff coordinator will send the chief disciplinary counsel file to the extent that the same relates to the complaint against this lawyer, including the complaint and the letter advising the parties of the reference to the complaint resolution program staff coordinator.

2. After receiving the file from the chief disciplinary counsel, the complaint resolution program staff coordinator will set up the complaint resolution program file. The complaint resolution program staff coordinator will assign a complaint resolution program docket number to the matter using as a prefix the year the file was received, e.g., 96-1, 96-2, etc. After the matter is assigned to a panel member (see section 8 below), the panel member's initials will be added as a suffix. The complaint resolution program staff coordinator will prepare two index cards for the matter. The complaint resolution program staff coordinator will maintain one set of index cards in numerical order and one set in alphabetical order by the respondent lawyer's last name. The complaint resolution program staff coordinator will also maintain a computerized record of each matter, which will contain the same information set forth on the index cards.

3. The complaint resolution program staff coordinator will set up a confidential file for each matter, which will contain the original documents submitted to the complaint resolution program by the chief disciplinary counsel, the complainant, the respondent lawyer or third parties. This file will remain at all times under the custody of the complaint resolution program. The matter file, the index cards and the computerized docket will all be prominently marked "confidential," and the complaint resolution program staff coordinator will take all reasonable steps to maintain such confidentiality. Absent an order from the Supreme Court of Missouri, the only persons who shall have access to the confidential files of the complaint resolution program are the complaint resolution committee, the complaint resolution program staff coordinator, the complaint resolution program secretary, members of staff of the chief disciplinary counsel, personnel authorized by the Supreme Court of Missouri, and, except as to internal memoranda, the complainant and respondent lawyer and their respective counsel, if any.

4. Promptly after receipt of the file from the chief disciplinary counsel, the complaint resolution program staff coordinator will send a letter signed by the chair of the complaint resolution committee to the respondent lawyer with a copy to the complainant notifying the respondent of the receipt of the file from the chief disciplinary counsel and requesting a written response to the complaint within 20 days. In addition, both parties will be asked to sign an agreement committing to voluntarily participate in the complaint resolution. All written communications from the complaint resolution program to the parties shall bear the legend, "ALL PROCEEDINGS OF THE COMPLAINT RESOLUTION PROGRAM ARE CONFIDENTIAL, AND ANY UNAUTHORIZED DISCLOSURE RELATING THERETO IS PROHIBITED BY LAW." In addition, all envelopes should be marked "PERSONAL AND CONFIDENTIAL."

5. If the complaint resolution committee does not receive a reply from the respondent, the complaint resolution program staff coordinator will send a second letter advising the respondent that failure to respond within 10 days will result in the case being returned to the chief disciplinary counsel. This letter will be sent certified mail, return receipt requested.

6. If the respondent does not answer after an additional 10 days, or if the respondent does not sign the form consenting to participate in a resolution conference, the complaint resolution program staff coordinator will return the file to the chief disciplinary counsel, with a closing memorandum. The complaint resolution program staff coordinator will send a letter to the respondent, with a copy to the complainant, advising the respondent that the matter has been returned to the chief disciplinary counsel and enclose a copy of the closing memorandum. The appropriate notation will be made in the complaint resolution program records.

7. If the complainant does not agree to participate in the resolution conference by returning the signed consent form, the complaint resolution committee will review the matter before returning it to the office of chief disciplinary counsel with an appropriate recommendation. The complaint resolution program staff coordinator will send a letter to the complainant, with a copy to the respondent, advising the complainant that the matter has been returned to the chief disciplinary counsel and enclose a copy of the closing memorandum. The appropriate notation will be made in the complaint resolution program records.

8. If the respondent files a response and both parties agree in writing to participate in the resolution conference, the complaint resolution program staff coordinator, in consultation with the complaint resolution committee chair, will assign the matter to a panel member. Assignments will be made to panel members on a rotating basis, by geographic location. Panel members will keep the complaint resolution program staff coordinator informed if they expect to be unavailable for any extended period of time.

9. Before determining the panel member's availability to serve, the complaint resolution program staff coordinator shall advise the panel member of the identities of the complainant and respondent lawyer in order to determine the possibility of conflicts of interest between the panel member and the parties. The panel member should attempt to determine whether members of the panel member's firm or organization have an adversarial relationship with either party. In doing so, the panel member should keep in mind that the complaint resolution process is confidential, and any inquiries concerning conflicts should be made discreetly. If the panel member does not believe that he or she can serve as an impartial neutral, the complaint resolution program staff coordinator should be advised to assign the matter to another panel member. Additionally, prior to the start of the conference process, either party may timely object, within 10 days of the receipt of notification of the name of the assigned panel member, and exercise a peremptory challenge to the panel member serving as the panel member, at which time the panel member must be excused and advise the complaint resolution program staff coordinator that a new panel member must be assigned to the case. Only one such challenge shall be allowed to each party.

10. Once the panel member has decided that they can serve, the panel member and the complaint resolution program staff coordinator will set a date for the conference within a period from 20 to 40 days after the date of the panel member's assignment to the matter. If the prospective panel member is unavailable during this interval, the complaint resolution program staff coordinator will choose another panel member in consultation with the complaint resolution program chair.

11. The complaint resolution program staff coordinator will send a letter to the panel member confirming the panel member's assignment to the matter, enclosing a copy of the complaint, the response, and the notice of the complaint resolution conference (see section 12 below), and setting forth the proposed conference date and time. The complaint resolution program staff coordinator will send a copy of this letter together with a copy of the complaint and the response to the complainant and the respondent. This letter and all other communications between the complaint resolution program and panel member will bear the legend: "PERSONAL AND CONFIDENTIAL: TO BE OPENED BY ADDRESSEE ONLY."

12. After reviewing the file, the panel member will choose the location of the conference. The conference may be held at a private conference room in the panel member's offices, at The Missouri Bar Center, or at another convenient location chosen by the panel member. Conferences will be held in circumstances that assure confidentiality. The complaint resolution program staff coordinator will make arrangements for the use of the facilities for the conference. The panel member should determine, prior to the conference, whether there are any documents, witnesses, or information that the parties should bring to the conference that would assist the process. The complaint resolution program staff coordinator will schedule all conferences and send a notice of the complaint resolution conference to the parties; this notice will contain the date, time, and place of the conference and will set forth the documents, witnesses, or information requested by the panel member. The panel member should advise the parties to forward all documentary evidence to the panel member 10 days prior to the conference date.

13. The panel member shall consider and decide all requests for adjournment, but adjournments should be granted sparingly. In no event should the conference be adjourned more than 75 days after the complaint resolution program has referred it to the panel member. If the respondent does not appear, the panel member will refer the matter back to the complaint resolution program, which will, in turn, refer it back to the chief disciplinary counsel. If the complainant does not appear, the panel member will refer the matter back to the complaint resolution program for referral to the chief disciplinary counsel.

14. The panel member may recommend, after consultation with the complaint resolution committee, that the matter be disposed of without a conference. Although the complaint resolution committee may review such recommendation and consent to it, the complaint resolution program discourages such dispositions. However, if the complaint resolution committee agrees to such a decision, the complaint resolution committee will prepare a closing memorandum setting forth the reasons for this decision and will return it with the file to the complaint resolution program staff coordinator. The complaint resolution committee chair will send a letter to the complainant, with a copy to the respondent, advising of the disposition and enclosing a copy of the closing memorandum. The complaint resolution program staff coordinator will return the file with the closing memorandum to the chief disciplinary counsel and will make an appropriate notation in the complaint resolution programs records.

15. The panel member will conduct the conference informally. At the outset, the panel member should make clear to the parties that the panel member is serving as a facilitator, not a judge. The panel member's role is to promote communication and suggest ways of resolving the dispute; the panel member is not to impose a settlement on the parties. The panel member shall make every effort to hear all the relevant facts, review all the documents, familiarize herself or himself with any controlling relevant legal principles, and seek to bring about an acceptable resolution between the parties. The panel member should refrain from using legal jargon. The panel member should advise the lawyer respondent before the conference begins that the panel member must report any serious ethical violations as outlined under Supreme Court Rule 4-8.3. If notes are taken by the panel member during the conference, they should be destroyed immediately thereafter. The panel member should make sure that any proposal offered for resolution of the matter is clearly understood by the parties and perceived to be fair. If the parties cannot reach an agreement, the panel member should return the matter to the compliant resolution program staff coordinator with the instructions that it be forwarded to the chief disciplinary counsel.

16. The panel member should have the parties sign an agreement setting forth the terms of the resolution of the complaint. The panel member should keep in mind that performance of the agreement should take place within a reasonably short time after the conference so that the complaint resolution program is able to close the file. The panel member should advise the parties that they may contact the panel member if they have any difficulty enforcing the agreement. However, if one of the parties refuses to abide by the agreement, the matter should be returned to the complaint resolution program so that it may be referred back to the chief disciplinary counsel for further proceedings.

In accordance with Supreme Court Rule 4 -1.8(h), the lawyer respondent shall not make an agreement in the conference that limits the lawyer respondent's liability to the complainant for malpractice unless permitted by law and the complainant is independently represented in making the agreement or settle a claim for such liability with an unrepresented or former client without first advising that person in writing that independent representation is appropriate.

17. At any time, the panel member may refer the complaint back to the complaint resolution program for review by the Committee if the respondent will not participate in the complaint resolution program or if the panel member believes that the respondent has engaged in misconduct warranting proceedings pursuant to Supreme Court Rule 5. Following the committee's review, the complaint will be referred back to the office of chief disciplinary counsel.

18. At the conclusion of the conference or, if the matter is closed, prior to the conference, the panel member will prepare a closing memorandum reflecting the disposition of the matter that will promptly be sent to the complaint resolution program staff coordinator. The complaint resolution program staff coordinator will forward the closing memorandum to the chief disciplinary counsel within 10 days of the panel member's disposition of the matter. The complaint program staff coordinator will then forward a copy of the closing memorandum, appropriate disposition letter, and agreement to the complaint and the respondent.

Overview

Complaints or disputes arising among lawyers concerning financial, property, or professional matters unrelated to any lawyer-client relationship among those lawyers may be submitted to the Lawyer-to-Lawyer Dispute Resolution Program. That complaint or dispute may be: 

1) submitted by any lawyer involved in the complaint or dispute, or 

2) referred pursuant to Rule 5.10 by the office of chief disciplinary counsel where it believes the complaint or dispute may be resolved through alternative resolution rather than formal disciplinary procedures.

All complaints and disputes shall be processed as these guidelines provide.

The program shall be administered by a five-person Lawyer-to-Lawyer Dispute Resolution Committee that will oversee the activities and proceedings in the program. The committee shall be appointed by The Missouri Bar Board of Governors, with the chair designated by the president of The Missouri Bar. The terms of the committee appointees shall be four years. No committee member shall be requested to serve more than two successive terms.

The committee shall solicit and maintain a list of Missouri attorneys who will serve as a panel of neutrals. In compiling the list of neutrals, the committee shall consider the following criteria: (1) years of practice; (2) years of practice in Missouri; (3) specific training or experience; (4) specific training provided by The Missouri Bar on the relevant Missouri Rules of Professional Conduct; (5) minority representation, and (6) other relevant factors. The neutrals of the program shall be appointed to four-year terms and may be reappointed to successive terms, provided they agree to serve.

Unless the parties stipulate otherwise, disputes will be assigned to a neutral from outside the parties' geographic regions. For this purpose, the neutral may neither reside nor maintain an office in the county in which any of the parties practice or reside unless the parties, in their agreement for facilitation, agree that the neutral from that geographic region be appointed. 

All program proceedings are confidential. All inquiries, all proceedings, and all communications with the committee, the administrator, the parties, and the neutral are not subject to discovery or production in any other forum or for any other purpose. See section 435.014.2, RSMo. Even information as to the identity of the parties and the fact of a dispute is confidential. No neutral or candidate for appointment as a neutral shall disclose to any person any confidential information acquired as a result of or in connection with a complaint or dispute processed under these guidelines except with the consent of the parties or as required by Rule 4-8.3 or other law.

The dispute resolution administrator shall be responsible for maintaining all files received, assigning neutrals, giving notices, making arrangements for all conferences, record keeping, compiling reports to The Missouri Bar and chief disciplinary counsel, and handling administrative tasks. The administrator shall be designated by the executive director of The Missouri Bar. The administrator may delegate program administrative tasks as appropriate and as approved by the executive director of The Missouri Bar.

By participating in the program and submitting to these rules, the parties agree that The Missouri Bar, its agents and employees, and any assigned neutral shall not be liable to any person for any act or omission in connection with any proceeding conducted under these guidelines. The parties further agree that The Missouri Bar, its agents and employees, and the assigned neutral shall have the same immunity from civil suit or claim in connection with any conduct or actions under the proceedings described herein that a judicial officer or body would have in a court proceeding.

The goal of this program is to provide an efficient, private, cost-effective, and voluntary mechanism for resolving economic and professional disputes between and among lawyers. This program is intended to protect the interests of clients and benefit the judicial system, the public, and the profession by preventing additional burdens on an already over-burdened court system.

Procedures

The Missouri Bar offers the parties non-binding facilitation as the preferred mechanism for dispute resolution. In the event that non-binding facilitation is not successful in resolving any complaint or dispute, binding arbitration will be offered. Submission of the dispute to non-binding facilitation shall be a prerequisite to the offer of binding arbitration.

1. The first step in the process is the submission of the complaint or dispute to the program by any party to the dispute by the filing of a notice of dispute and request for facilitation with the administrator or referral of the complaint or dispute to the program by the chief disciplinary counsel.

2. Upon receiving the complaint or dispute, the administrator shall open a dispute resolution program file. The administrator shall assign a chronological docket number to the matter using as a prefix the year the complaint was received; prepare a manual index for each matter; and maintain a computerized record of each matter that shall contain the same information as the manual index.

3. For each matter, the administrator shall open a confidential file, which shall contain the original of all documents submitted to the program. This file shall remain at all times in the custody of the program. The file and manual index will each prominently be marked "confidential," and the computerized docket will be password protected. The administrator will take all reasonable steps to maintain confidentiality. Absent an order from the Supreme Court of Missouri, the only persons who shall have access to the program's confidential files are the committee, the administrator, the program secretary, personnel authorized by the Supreme Court of Missouri, the parties, and their respective counsel, if any. The office of chief disciplinary counsel also shall have access to the confidential files, except for internal memoranda, if the complaint or dispute was referred by that office.

4. All written communications from the program to the parties shall bear the legend, "ALL PROCEEDINGS OF THE DISPUTE RESOLUTION PROGRAM ARE CONFIDENTIAL, AND ANY UNAUTHORIZED DISCLOSURE RELATING THERETO IS PROHIBITED." In addition, all envelopes should be marked, "PERSONAL AND CONFIDENTIAL."

5. Promptly after receipt of the submission or referral, the administrator shall contact all parties or their counsel by facsimile or mail and advise them regarding all appropriate administrative agreements and the neutral selection process. All parties will be asked to sign an agreement for facilitation, developed by the committee, agreeing voluntarily to participate in the program.

6. If any party fails to sign the agreement for facilitation, the administrator shall mail a second written inquiry as to the willingness to execute the agreement. If any party initially failing to sign an agreement does not do so within 10 days after the administrator mails the second written inquiry, the file shall be closed, and all parties shall be notified of such closure. 

7. Upon execution of all agreements for facilitation, the administrator will assign a neutral from the panel.

8. Before determining the neutral's availability to serve, the administrator shall advise the neutral of the parties' identities to determine if conflicts of interest exist. The neutral should attempt to determine whether members of the neutral's firm or organization have any relationship with any party. In doing so, the neutral should keep in mind that the process is confidential and that any inquiries concerning conflicts should be made discreetly. If the neutral does not believe that he or she can serve as an impartial neutral, the administrator should be advised to assign the matter to another neutral. 

Within 10 days of the receipt of notification of the name of the assigned neutral, any party may exercise a peremptory challenge to the assigned neutral, at which time the neutral must be excused. A new neutral must be assigned to the case. Only one peremptory challenge shall be allowed to each party for each process initiated under this program. Upon application within such 10-day period by any party who has previously exercised its peremptory challenge and an opportunity for all other parties and the assigned neutral to respond, the committee may disqualify an assigned neutral for good cause. Upon such disqualification, a new neutral will be assigned.

9. The assigned neutral shall make the initial contact with each party to ascertain the nature of the dispute and the parties' respective positions. The neutral shall request such information from all parties as may be reasonably necessary to promote a thorough understanding of the issues and to produce meaningful suggestions for resolving the dispute.

10. All sessions shall be scheduled at the earliest date practicable. Sessions shall take place at a site mutually agreed upon by the parties and the neutral. If the parties are unable to agree upon a site, the neutral shall designate a neutral site. The neutral's offices, courthouses, and the offices of the state and county bar associations shall be considered neutral sites for this purpose. Any neutral may request the administrator's assistance in scheduling sessions and notifying parties of the time and place of such sessions.

11. Time shall be provided at each facilitation session for the frank exchange of all parties' views. At the request of any party or the neutral, the neutral may caucus individually with one party at a time. All statements made during the caucus shall be kept confidential between the neutral and the caucusing party, except insofar as the caucusing party permits the neutral to disclose such statements to the other parties. There shall be no limitation on the duration or the number of facilitation sessions. After the first session, additional sessions may be scheduled by mutual agreement of the parties and the neutral. If a party fails to appear at a facilitation session, the remaining parties may agree to proceed with the session if they feel that progress can be made in the absence of a party.

12. Parties shall be entitled to legal representation if they choose. Parties shall be responsible for arranging and paying for their own legal representation. Subject to other of these guidelines, additional persons may be allowed to attend the facilitation sessions; however, the neutral shall have the discretion to exclude from any session any person who he or she considers counterproductive to the process and may limit the number of legal representatives who may speak for each side.

13. The neutral shall not be considered legal counsel for any party and shall not provide legal advice to any party. The neutral may, however, identify legal issues as they arise during the course of the session. The neutral shall attempt to alert the parties to the requirements of the Rules of Professional Conduct and other applicable ethical codes and shall not knowingly participate in the formation of a resolution of a complaint or dispute in violation of any such codes.

14. The services of the neutral shall be on a volunteer basis, and the neutral's expenses shall be reimbursed by The Missouri Bar.

15. The administrator will consult with the neutral about requests to postpone a scheduled session or requests for adjournment. The neutral shall consider and decide all requests for adjournments, but adjournments should be granted sparingly.

16. The neutral will conduct all facilitation sessions informally. At the initial session, the neutral should make clear to the parties that the neutral is not serving as a judge. The neutral's role is to promote communication and suggest ways of resolving the dispute; the neutral is not to impose a settlement on the parties. The neutral shall make every effort to hear all the relevant facts, review all the documents, be familiar with any controlling relevant legal principles, and seek to bring about an acceptable resolution for the parties. The neutral should advise all lawyers before the initial session begins that the neutral must report any serious ethical violations, pursuant to Supreme Court Rule 4-8.3. If the neutral takes notes during the conference, they should be either destroyed immediately thereafter or returned in a marked sealed envelope to the administrator's office to be stored in a secure location for five years. The neutral should make sure that any proposal offered for resolution of the matter is clearly understood by the parties, perceived to be fair, and freely entered into by the parties.

17. The neutral shall suspend any facilitation session upon any of the following occurrences: the parties reach an agreement; one of the parties refuses to continue with the process; the neutral assesses that nothing meaningful is to be gained in continuing the process; or upon the request of all parties.

18. The neutral shall attempt to complete the facilitation process within 30 days after its initiation. If the parties reach an agreement, the neutral may assist the parties in reducing their agreement to a written settlement agreement, which shall be binding upon the parties. If the parties fail to reach an agreement, the neutral may recommend binding arbitration.

19. If the parties agree to binding arbitration, it shall be conducted in a manner as agreed by the parties and consistent with these guidelines. If the administrator believes that any process for binding arbitration to which the parties have agreed is in conflict with any of these guidelines, the administrator shall refer the matter to the committee before any neutral is assigned as an arbitrator. The committee's determination as to whether to proceed with such proposed arbitration under this program shall be final. Any neutral previously assigned to facilitate the resolution of the complaint or dispute shall be ineligible for assignment as the neutral for the binding arbitration of the complaint or dispute under this program.

20. Within 10 days after the conclusion of the last scheduled session or, if the matter is closed, prior to the initial session, the neutral will prepare a brief report reflecting the disposition of the matter, along with a copy of any settlement agreement, which promptly will be sent to the administrator. 

21. The administrator should keep in mind that performance of any settlement agreement should take place within a reasonably short time after the facilitation so that the program may close the file. The administrator should advise the parties that they may contact the administrator if they have any difficulty enforcing the agreement.

22. At the conclusion of the matter, the administrator will prepare a brief memorandum reflecting the resolution reached, if any, along with a copy of the settlement agreement or comments from the neutral if a resolution was not reached, that will be forwarded to the committee chair for a final review. The committee chair will review and sign the closing memorandum and return it to the administrator within 10 days. The administrator will close the file and forward the closing memorandum, settlement agreement, if any, and the report from the neutral to the parties. If the initial referral of the matter was by the chief disciplinary counsel, the administrator shall also forward a copy of the entire contents of the file to the chief disciplinary counsel.

Day – to – Day

_____________________

PAUL C. WILSON

Chief Justice