Supreme Court of Missouri
en banc
November 5, 2003
Effective January 1, 2004
In re:
Repeal of subdivision 5.09, entitled “Investigations - Conduct - Subpoenas,” and subdivision 5.14, entitled “Request for Hearing - Peremptory Challenges - Assignment to Disciplinary Hearing Panel - Duty of Chief Disciplinary Counsel - Failure to Request or Attend Hearing," of Rule 5, entitled “Complaints and Proceedings Thereon,” and in lieu thereof adoption of a new subdivision 5.09, entitled “Investigations - Conduct - Subpoenas,” and a new subdivision 5.14, entitled “Peremptory Challenges - Assignment to Disciplinary Hearing Panel - Duty of Chief Disciplinary Counsel - Failure to Request or Attend Hearing.”
ORDER
1. It is ordered that effective January 1, 2004, subdivision 5.09 and subdivsion 5.14 of Rule 5 be and the same are hereby repealed and a new subdivision 5.09 and a new subdivision 5.14 adopted in lieu thereof to read as follows:
5.09 INVESTIGATIONS - CONDUCT - SUBPOENAS
Investigations under this Rule 5 are for the purpose of determining probable cause and may be conducted in a summary and informal manner.
The chief disciplinary counsel, on behalf of the counsel, a disciplinary hearing panel, or any committee or division conducting an investigation, may issue subpoenas for documents and witnesses to testify under oath before the counsel, panel, committee, or division or before a member of the committee or division conducting the investigation. The chief disciplinary counsel may seek to compel answers to any proper question and may seek enforcement of any such subpoena in this Court, in the circuit court to which this Court refers the matter, or in the circuit court for the county in which the subpoena was served.
A record of all investigations shall be made.
Persons being investigated are not entitled to be present throughout the investigation.
5.14 PEREMPTORY CHALLENGES - ASSIGNMENT TO DISCIPLINARY HEARING PANEL - DUTY OF CHIEF DISCIPLINARY COUNSEL - FAILURE TO REQUEST OR ATTEND HEARING
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.
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.
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.
If the respondent fails to attend the hearing, 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.
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.
3. It is ordered that this order be published in the South Western Reporter.
Day - to - Day
____________________________
RONNIE L. WHITE
Chief Justice