Supreme Court of Missouri
en banc

In re:

Repeal of subdivision 5.14, entitled “Peremptory Challenges - Assignment to Disciplinary Hearing Panel - Duty of Chief Disciplinary Counsel - Failure to Request or Attend Hearing,” subdivision 5.16, entitled “Decision of Disciplinary Hearing Panel - Findings and Recommendations,” subdivision 5.19, entitled “Procedure Following Decision of a Disciplinary Hearing Panel,” subdivision 5.27, entitled “Notification of Clients and Counsel,” and subdivision 5.28, entitled “Reinstatement,” of Rule 5, entitled “Complaints and Proceedings Thereon,” and in lieu thereof adoption of a new subdivision 5.14, entitled “Peremptory Challenges - Assignment to Disciplinary Hearing Panel – Duty of Chief Disciplinary Counsel - Failure to Request or Attend Hearing,” a new subdivision 5.16, entitled “Decision of Disciplinary Hearing Panel - Findings and Recommendations,” a new subdivision 5.19, entitled “Procedure Following Decision of a Disciplinary Hearing Panel,” a new subdivision 5.27, entitled “Procedure Following a Disbarment of Suspension Order,” and a new subdivision 5.28, entitled “Reinstatement.”


1.  It is ordered that effective January 1, 2008, subdivisions 5.14, 5.16, 5.19, 5.27 and 5.28 of Rule 5 be and the same are hereby repealed and a new subdivision 5.14, a new subdivision 5.16, a new subdivision 5.19, a new subdivision 5.27, and a new subdivision 5.28 adopted in lieu thereof to read as follows:

5.14 PEREMPTORY CHALLENGES - ASSIGNMENT TO DISCIPLINARY HEARING PANEL - DUTY OF CHIEF DISCIPLINARY COUNSEL - FAILURE TO REQUEST OR ATTEND HEARING

(a) Within 15 days of receipt of a timely answer, the chair of the advisory committee shall assign the information to a disciplinary hearing panel.  The assignment shall be made in writing addressed to the presiding officer of the disciplinary hearing panel and accompanied by the information and answer.

(b) The respondent, counsel for the informant, and the chief disciplinary counsel shall be given written notice of the assignment of the disciplinary hearing panel.  The chief disciplinary counsel or the counsel’s designee shall enter an appearance before the assigned disciplinary hearing panel and shall be responsible for all further conduct of the matter before the disciplinary hearing panel and this Court.

(c) 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.

(d) 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.

(e) In lieu of appointing a disciplinary hearing panel, the chair of the advisory committee may request that this Court appoint a special master to hear the matter pursuant to Rule 68.03.  If the chair’s request establishes good cause, this Court shall make the appointment.  The consent of the parties is not required.  The master is not subject to disqualification except for good cause shown to this Court.

(f) If the respondent fails to attend any hearing set by the disciplinary hearing panel or master, 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) 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 of the date the original answer was due.


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 as provided in Rule 5.18 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 as provided in Rule 5.18 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 shall be filed with the chair of the advisory committee and served as provided in Rule 5.18 on the respondent, the counsel for the informant and the chief disciplinary counsel.

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

(g) 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 received by the chair of the advisory committee, 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 as provided in Rule 5.18 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.


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:

(1) Shall not accept any new retainer or act as lawyer for another in any new case or legal matter of any nature, and

(2) Shall withdraw from representation in pending matters in a manner that will minimize any material adverse effect on the clients’ interests.

(b) Within 15 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;

(2) 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);

(3) 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;

(4) 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;

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

(6) 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;

(7) 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;

(8) Keep and maintain a record of the steps taken to accomplish the foregoing; and

(9) File proof with this Court and the chief disciplinary counsel of complete performance of the foregoing.

5.28 REINSTATEMENT

(a) Any person:

(1) Who is disbarred;

(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; or

(3) Who voluntarily surrendered a license;

may seek reinstatement of the person’s license upon application to this Court pursuant to this Rule 5.28.

(b) Any application for reinstatement shall include specific allegations showing that:

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

(2) All persons injured as a result of the conduct that resulted in the loss of the right to practice law have received restitution, their claims have been discharged by operation of law, or the injured persons have been notified at least ten 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 right to practice law was lost have been accomplished;

(4) The person has taken within the two years immediately preceding the application 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;

(5) If the person has not practiced law in any jurisdiction during the period of discipline and has been disciplined for:

(A) Less than three years, the person has completed at least 15 hours of continuing legal education credit within 12 months prior to the date the petition is filed; or

(B) At least three years, the person has completed at least 30 hours of continuing legal education credit, including at least three hours of ethics credit, within 24 months prior to the date the petition is filed.

For purposes of this Rule 5.28(b)(5), a person shall be engaged in the full-time practice of law for at least twelve months immediately prior to the date of filing the petition for reinstatement to be deemed a lawyer who practiced law; and

(6) The person is of good moral character and the best interest of the public will be served by reinstatement of the person’s license to practice law.

(c) A person seeking reinstatement because he or she is disbarred is not required to include specific allegations contained in Rule 5.28(b)(5).  Such person shall include specific allegations that within one year of the date of filing the application for reinstatement the person has taken the bar examination prescribed by Rule 8.08 and has attained a passing score.

(d) The provisions of Rules 5.28(b)(4) and (5) do not apply to a person seeking 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.

(e) Except for good cause shown, no application for reinstatement for a person who is:

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

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

(3) Notwithstanding Rule 5.28(e)(1) and Rule 5.28(e)(2), suspended or 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, shall be considered until five years after the date of successful completion of any sentence or period of probation as a result of the conviction, plea, or finding of guilt.

(f) In addition to the requirements of Rule 5.28(b), upon application by any person suspended under the provisions of Rule 5.23, this Court may direct such action as it deems necessary or proper, including the direction of an examination of the lawyer by such qualified medical expert as this Court shall designate.  Rule 5.28(g) shall govern the cost incurred in processing such application.

At the time of filing such an application for reinstatement, the lawyer shall be required to disclose the name of every psychiatrist, psychologist, physician and hospital by whom and at which the lawyer has been examined or treated during the disability or since the suspension and shall furnish to this Court written consent for each to divulge such information and records as ordered by this Court.

This Court may fix the compensation to be paid to any medical expert appointed by this Court, and such charges shall be a cost of investigation as that term is used in Rule 5.28(g).

(g) When a person who has surrendered a license to practice law or who has been disbarred or suspended makes application for reinstatement, except applications 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(h)(2), the application shall be accompanied by a $500 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 application for reinstatement until the required fee is paid.  The reinstatement fee is in addition to any unpaid disciplinary costs assessed under Rule 5.19(h).

(h) All applications for reinstatement shall be referred to the chief disciplinary counsel for report and recommendation.  The report shall be served by the chief disciplinary counsel on the applicant for reinstatement as provided in Rule 5.18.  The applicant 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 license of the applicant on the basis of the report, recommendation and response.

If the applicant has been suspended:

(1) Indefinitely with leave to reapply in a period of six months or less and is not on probation under Rule 5.225, or

(2) Under Rule 5.245 for three years or less, the license shall be reinstated as a matter of course 30 days after the application for reinstatement is referred to the chief disciplinary counsel for report and recommendation.  If within this 30-day period the chief disciplinary counsel files a motion to respond to the application for reinstatement, the license shall not issue and the matter shall proceed as otherwise provided in this Rule 5.28(h).  Any lawyer automatically suspended under Rule 5.245 for three years or less who is reinstated under this Rule 5.28(h) is retroactively reinstated if the lawyer is then in compliance with Rule 6.01 and Rule 15.

(i) In lieu of reinstating the applicant’s license, the Court may direct the advisory committee to appoint a disciplinary hearing panel to conduct a hearing into any allegations of misconduct contained in the report to which the applicant objects.  The hearing shall be conducted as provided in Rule 5.14.

The panel shall file a report.  The report shall determine all matters in dispute and make a recommendation as to whether the applicant’s license should be reinstated.

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

_____________________
LAURA DENVIR STITH
Chief Justice