Supreme Court of Missouri
en banc
September 10, 2009
In re:
Repeal of subdivision 5.16, entitled “Decision of Disciplinary Hearing Panel - Findings and Recommendations,” and subdivision 5.19, entitled "Procedure Following Decision of a Disciplinary Hearing Panel," of Rule 5, entitled “Complaints and Proceedings Thereon,” and in lieu thereof adoption of a new subdivision 5.16, entitled “Decision of Disciplinary Hearing Panel - Findings and Recommendations,” and a new subdivision 5.19, entitled "Procedure Following Decision of a Disciplinary Hearing Panel.”
ORDER
1. It is ordered that subdivisions 5.16 and 5.19 of Rule 5 be and the same are hereby repealed and a new subdivision 5.16 and a new subdivision 5.19 adopted in lieu thereof to read as follows:
5.16 DECISION OF DISCIPLINARY HEARING PANEL - FINDINGS AND RECOMMENDATION
(a) After a hearing, a disciplinary hearing panel may find that the information should be dismissed, a written admonition should be administered to the respondent, or that further proceedings are warranted.
(b) If a written admonition is administered to the respondent:
(1) It shall be filed with the chair of the advisory committee and served 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 rejected by either party, the disciplinary hearing panel shall render a written decision within 15 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.
(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. The written decision shall be signed and dated by at least two members of the panel. The decision shall include a finding regarding each specific act of misconduct charged in the information. In those cases where there is a finding of any violation of Rule 4, it shall also include a recommendation for discipline.
(d) The recommended discipline may be a public reprimand, suspension, or disbarment. A recommendation for suspension shall include the length of time that must elapse before the respondent is eligible to apply for reinstatement. A recommendation for suspension may provide that the suspension be stayed in whole or in part and that the respondent be placed on probation.
(e) 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.
(f) 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, the counsel for the informant, and the chief disciplinary counsel.
(g) The written decision of a disciplinary hearing panel shall not have any binding or limiting effect on this Court.
(h) All time limits set forth in this Rule 5 for action by the chair of the advisory committee or of a disciplinary hearing panel are guidelines and are not jurisdictional. The chair of the advisory committee shall monitor compliance with these guidelines, and if such guidelines are not substantially met, may reassign an information to a different hearing panel, reassign the presiding officer, reassign the members of the hearing panel, or request this Court to assign the matter to a special master.
5.19 PROCEDURE FOLLOWING DECISION OF A DISCIPLINARY HEARING PANEL
(a) Within 30 days after the panel’s written decision is mailed pursuant to Rule 5.16(f), 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.
(b) If the disciplinary hearing panel recommends dismissal of the information and the informant accepts the written decision, the disciplinary proceeding is concluded.
(c) If the disciplinary hearing panel recommends discipline and both parties accept the written decision, the chief disciplinary counsel, within 45 days of the date the decision is received by the chair of the advisory committee, shall file with this Court a copy of the panel’s decision and a statement regarding the parties’ acceptance of that decision. In such event, the Court may issue a final order of discipline.
(d) If:
(1) The chief disciplinary counsel does not accept the disciplinary hearing panel’s decision to dismiss the information;
(2) Either party rejects the decision of the panel; or
(3) This Court does not accept the panel’s decision, 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. The matter shall be briefed and argued in this Court as though a petition for an original remedial writ has been sustained.
(e) If this Court finds for the respondent, it shall dismiss the information.
If this Court finds the professional misconduct charged in the information, it shall impose appropriate discipline. In determining discipline, this Court may consider any prior discipline issued by the Court and any admonitions administered and accepted by the respondent pursuant to this Rule 5.
(f) 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) If the respondent is a member of the bar of this state and is also licensed in any other state, the chief disciplinary counsel shall send a copy of this Court’s order to the appropriate disciplinary authorities of the other states wherein the respondent is licensed.
If the respondent is a member of the bar of another state and not of this state and the charges are found to be true, this Court may render a judgment finding respondent guilty and sanction 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.
(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
Suspension: $1,000.00
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.
3. It is ordered that this order be published in the South Western Reporter.
Day - to - Day
____________________________
WILLIAM RAY PRICE, JR.
Chief Justice