Supreme Court of Missouri
en banc
May 31, 2012
Effective January 1, 2013
Effective January 1, 2013
In re:
Repeal of subdivisions (c) and (d) of subdivision 5.16, entitled "Decision of Disciplinary Hearing Panel - Findings and Recommendations;" subdivision (h) of subdivision 5.19, entitled "Procedure Following Decision of Disciplinary Hearing Panel;" and subdivision 5.225, entitled "Probation;" of Rule 5, entitled "Complaints and Proceedings Thereon," and in lieu thereof adoption of new subdivisions (c) and (d) of subdivision 5.16, entitled "Decision of Disciplinary Hearing Panel - Findings and Recommendations;" a new subdivision (h) of subdivision 5.19, entitled "Procedure Following Decision of Disciplinary Hearing Panel;" and a new subdivision 5.225, entitled "Conditional Discipline."
ORDER
1. It is ordered that effective January 1, 2013, subdivisions 5.16 (c) and (d), subdivision 5.19(h), and subdivision 5.225 of Rule 5 be and the same are hereby repealed and new subdivisions 5.16(c) and (d), a new subdivision 5.19(h), and a new subdivision 5.225 adopted in lieu thereof to read as follows:
- 5.16 DECISION OF DISCIPLINARY HEARING PANEL - FINDINGS AND RECOMMENDATION
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- (c) Subject to Rule 5.16(b), the disciplinary hearing panel shall render a written decision within 30 days of the completion of the hearing. 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.
The decision shall include a finding regarding each specific act of misconduct charged in the information. If there is a finding of any violation of Rule 4, the decision shall also include a recommendation for discipline.
(d) The recommended discipline may be a public reprimand, probation, suspension, or disbarment.
(1) The recommendation of a reprimand may include additional requirements to improve the lawyer's practice.
(2) The recommendation of a suspension 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. The recommendation for suspension may provide that the suspension be stayed and that the respondent be placed on probation.
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5.19 PROCEDURE FOLLOWING DECISION OF A DISCIPLINARY HEARING PANEL
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(h) Costs in the matter shall be taxed in the same manner as costs in civil proceedings. In addition to such costs, a respondent upon whom discipline is imposed by this Court shall be taxed a fee in the following amounts depending upon the nature of the discipline imposed:
Reprimand: $750.00
Reprimand with requirements: $1,000.00
Suspension: $1,000.00
Probation: $1,500.00
Disbarment: $2,000.00
Such costs and fees shall be paid to the clerk of this Court to the credit of the advisory committee fund.
5.225 CONDITIONAL DISCIPLINE
(a) Eligibility.
(1) A lawyer is eligible for a reprimand with requirements if the lawyer:
(A) Is unlikely to harm the public;
(B) Should be required to take specific steps for practice improvement;
(C) Does not need to be monitored;
(D) Is able to perform legal services and is able to practice law without causing the courts or profession to fall into disrepute; and
(E) Has not committed acts warranting suspension or disbarment.
(2) A lawyer is eligible for probation if the lawyer:
(A) Is unlikely to harm the public during the period of probation and can be adequately supervised;
(B) Is able to perform legal services and is able to practice law without causing the courts or profession to fall into disrepute; and
(C) Has not committed acts warranting 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 reprimanding a lawyer with requirements or 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 reprimanding a lawyer with requirements shall specify the requirements the lawyer must meet and the period of time within which the lawyer must meet the requirements.
(3) The order placing a lawyer on probation shall specify the conditions of probation.
(4) Probation shall be imposed for a specified period of time. Probation may be imposed in conjunction with a stayed suspension.
(5) 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.
(6) An order of probation is an order of discipline.
(c) Costs. The lawyer is responsible for all costs related to meeting the requirements of a reprimand and 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) Public Notice. Notice shall be given of a lawyer reprimanded with requirements or placed on probation in the same manner as notice is given of other discipline.
(f) Violations.
(1) If a lawyer who is reprimanded with requirements fails to meet any of the requirements, it shall be grounds for reconsideration of the appropriate sanction for the underlying misconduct. Facts previously determined will not be reconsidered. 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 appropriate sanction for the underlying misconduct should not be reconsidered. The motion may not be filed more than 60 days after the end of the period during which the lawyer was ordered to meet the requirements.
(2) 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.
(3) Service of the motion shall be in any manner permitted by Rule 5.18.
(4) The lawyer shall file a written response to the show cause order within 15 days of service.
(5) 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 under Rule 5.22(b) or may refer the matter for appointment of one or more disciplinary hearing panel members or a special master to conduct a hearing and make recommendations as if the case were proceeding under Rules 5.15, 5.16, and 5.19.
(6) The lawyer's failure to file a response or appear at the hearing shall be deemed a default.
(7) 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.
(g) 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.
(h) Independent Charges.
(1) A motion for reconsideration of the appropriate sanction for the underlying misconduct of a lawyer who is reprimanded with requirements does not preclude the chief disciplinary counsel from filing independent disciplinary charges based on the same conduct as alleged in the motion.
(2) 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.
(i) Reinstatement on Probation. Probation may be imposed by the Court as a condition of reinstatement after suspension or disbarment.
2. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
3. It is ordered that this order be published in the South Western Reporter.
Day - to - Day
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RICHARD B. TEITELMAN
Chief Justice