THE DELAWARE LAWYERS' RULES OF DISCIPLINARY PROCEDURE
I. STRUCTURE AND SCOPE.
Rule 1. Delaware Supreme Court.
(a) Inherent power and authority. -- Pursuant to the Court's inherent power
and authority over the regulation of the legal profession, the Court shall
maintain appropriate standards of professional conduct for all lawyers subject
to its jurisdiction, dispose of individual cases of lawyer discipline and
disability, and administer the lawyer disciplinary system.
(b) Appointment of members of disciplinary agencies. -- Pursuant to Supreme
Court Rules 62 and 64, the Court shall appoint the members of the Board, the
PRC, and the ODC, who shall function with such powers and duties as set forth
by the Court.
(c) Administration of disciplinary system. -- There shall be an Administrative
Assistant to the disciplinary agencies who shall be appointed by the Delaware
Supreme Court. To maintain the efficient operation and regulation of the
disciplinary system, the Administrative Assistant shall oversee implementation
and coordination of procedures for the processing and disposition of
disciplinary matters, including, without limitation, the assignment of
individual panels of the Board and the PRC, the scheduling of Board hearings
and PRC meetings, and the filing, docketing, and maintenance of original
pleadings and other original papers constituting the official record in
individual disciplinary cases. The Administrative Assistant shall also have
such powers and duties with respect to the administration of the disciplinary
system as are authorized by the Court.
Rule 2. Board on Professional Responsibility.
(a) Composition, powers, and duties. -- The composition of the Board shall be
as set forth in Supreme Court Rule 62. Subject to the approval of the Court,
the Board shall:
(1) Adopt guidelines for the conduct of hearings and other business, not
inconsistent with these Rules;
(2) Periodically review the operation of the disciplinary system with the
Court, the PRC, and the ODC;
(3) Consider matters and conduct hearings in cases filed within the Board's
jurisdiction;
(4) Through its Hearing Panels, make findings of fact, conclusions of law, and
recommended dispositions, and file its findings, conclusions, and
recommendations with the Court; and
(5) Delegate, in its discretion, to the Chair and Vice Chair the power to act for the Board on
administrative and procedural matters.(b) Quorum. -- Except as the
Board may have delegated powers to the Chair, Vice Chair or Hearing Panels, action by the
Board requires the concurrence of a majority of the entire Board. A majority of
the whole Board shall constitute a quorum for any meeting of the Board.
(c) Hearing panels. -- The Board's power to act with respect to disciplinary or
disability matters, including, without limitation, conducting hearings, and
making findings, recommendations, reports, and orders, shall be exercised by
hearing panels, each of which shall consist of three members of the Board, of
whom two shall be lawyers and one shall be a non-lawyer, except as otherwise
provided in these Rules. The Hearing Panel Chair shall be a lawyer. The
Administrative Assistant shall designate the members of the Hearing Panel and
its chair. Decisions of the Hearing Panel on the merits of discipline or
disability matters require a unanimous vote. If a panel is unable to reach a
unanimous decision on the merits in a case under submission, two additional
members of the Board shall be designated, and the case shall be heard de novo.
The Hearing Panel Chair shall decide scheduling, administrative, procedural,
and evidentiary matters. If the Hearing Panel Chair is not available to rule on
an administrative, procedural, or evidentiary matter, the parties may address
the matter to the remaining lawyer on the Hearing Panel or the Chair or Vice Chair of the
Board.
(d) Disqualification of members. -- Members shall not take part in any
proceeding in which a judge, similarly situated, would be required to abstain
pursuant to Canon 3(C) of the Delaware Judges' Code of Judicial Conduct, or any
subsequently adopted similar code. The decision to disqualify oneself from a
proceeding is a matter within the sound discretion of the individual member. If
necessary, the Court may appoint an Acting Chair in any matter in which the
Chair or Vice Chair have entered their disqualifications or are otherwise unavailable.
(e) Appointment of counsel. -- Upon receipt of satisfactory proof of a
respondent's indigency, the Chair or Vice Chair of the Board, or if a panel of the Board has
already been assigned, the Hearing Panel Chair, may appoint a lawyer to serve
as counsel for the respondent upon such terms and subject to such provisions as
justice and equity may require. The respondent shall file with the Board an
affidavit demonstrating a financial inability to retain counsel. The respondent
must, upon request from the Board, also produce financial records (including
tax returns) to support an application for the appointment of counsel on the
grounds of indigency. The determination of indigency shall be based upon a
review of the financial circumstances of the respondent. A request for counsel
shall not be considered if respondent fails or refuses to furnish proof of
indigency.
(f) Compensation and expenses. -- Members shall receive no compensation for
their services, but may be reimbursed by application to the Administrative
Assistant for travel and other expenses incidental to the performance of their
duties.
Rule 3. Preliminary Review Committee.
(a) Composition, powers, and duties. -- The composition of the PRC shall be as
set forth in Supreme Court Rule 62(c). The PRC shall review the recommendations
of the ODC following its initial investigation. The PRC may request such
additional information and investigation, as it deems appropriate.
(b) Quorum. -- The PRC shall act through panels, each of which shall consist of
two lawyer members and one non-lawyer member. Two members shall constitute a
panel quorum, provided that one member is a non-lawyer. A panel may act only
with the concurrence of at least two of its members.
(c) Record. -- Each panel of the PRC shall prepare for filing with the
Administrative Assistant a disposition sheet recording the actions taken by the
panel.
(d) Appointment and scheduling. -- Panels of the PRC shall be appointed by the
Administrative Assistant, and shall meet in accordance with schedules
established by the Administrative Assistant.
(e) Disqualification of PRC members. -- Members of the PRC shall not take part
in any proceeding in which a judge, similarly situated, would be required to
abstain pursuant to Canon 3(C) of the Delaware Judges' Code of Judicial
Conduct, or any subsequently adopted similar code. The decision to disqualify
oneself from a proceeding is a matter within the sound discretion of the
individual member.
(f) Compensation and expenses. -- Members of the PRC shall receive no
compensation for their services, but may be reimbursed by application to the
Administrative Assistant for travel and other expenses incidental to the
performance of their duties.
Rule 4. Office of Disciplinary counsel.
All disciplinary counsel shall be appointed and shall have such powers and
duties as designated by the Court pursuant to Supreme Court Rule 64.
Rule 5. Jurisdiction.
(a) Lawyers admitted to practice. -- Any lawyer admitted to practice law in this jurisdiction, including any formerly admitted lawyer with respect to acts committed prior to suspension, disbarment, transfer to inactive status or retirement, or with respect to later acts which amount to the practice of law or constitute a violation of these Rules or of the Delaware Lawyers' Rules of Professional Conduct, or any rules or code the Court adopts later; any lawyer specially admitted by a court of this jurisdiction for a particular proceeding; and any lawyer not admitted in this jurisdiction who practices law or renders or offers to render any legal services in this jurisdiction, is subject to this Court and the Board's disciplinary jurisdiction.
(b) Former judges. -- A former judge who has resumed the status of a lawyer is
subject to the disciplinary jurisdiction of the Court under these Rules not
only for conduct as a lawyer but also for misconduct that occurred while a
judge and that would have been grounds for lawyer discipline.
(c) Incumbent judges. -- Any lawyer who is an incumbent judge is subject to the
disciplinary jurisdiction of the Court under these Rules with respect to acts
committed prior to taking office as a judge.
(d) Powers not assumed. -- These Rules shall not be construed to deny to any
court the powers necessary to maintain control over its proceedings.
Rule 6. Roster of lawyers and disciplinary records.
(a) Roster of lawyers. -- The Supreme Court shall maintain a roster of lawyers
who are subject to the disciplinary jurisdiction of the Court pursuant to
Supreme Court Rule 69. The Board, the PRC, and the ODC shall have access to
information contained in the roster.
(b) Disciplinary record of lawyer. -- The disciplinary record of a lawyer
subject to the disciplinary jurisdiction of the Court shall be maintained by
the ODC and shall consist of the history of disciplinary sanctions which have
been imposed upon the lawyer since the time that the lawyer became subject to
such jurisdiction, except for disciplinary sanctions which have been removed pursuant to Rule 9(b)(4) or expunged
pursuant to Rule 9(i) herein. The fact that a disciplinary evaluation or
investigation has been undertaken pursuant to Rules 9(a) or 9(b) herein shall
not be considered as part of the disciplinary record of a lawyer unless a
disciplinary sanction has been imposed in that matter.
Rule 7. Grounds for discipline.
It shall be grounds for disciplinary action for a lawyer to:
(a) Violate any of the Delaware Lawyers' Rules of Professional Conduct or any
subsequent rules or code adopted by the Court in lieu thereof, whether or not
the violation occurred in the course of a lawyer-client relationship;
(b) Engage in conduct that results in lawyer or judicial discipline in another
jurisdiction;
(c) Violate the terms of any conditional diversion or private or public disciplinary or disability
disposition;
(d) Fail to furnish information to or respond to a request for information from
the ODC, the PRC, the Board, or the Court, unless a protective order has been
obtained from the Board or the Court; or
(e) Fail to appear before the Court or the Board when required to do so.
Rule 8. Sanctions.
(a) Types of sanctions. -- Misconduct shall be grounds for one or more of the
following sanctions:
(1) Disbarment by the Court;
(2) Suspension by the Court for an appropriate fixed period of time not in
excess of three years;
(3) Immediate interim suspension by the Court, pending final determination of
disciplinary sanctions, or suspension by the Court as a result of "show cause"
proceedings under Rule 17 or on a sua sponte basis;
(4) Public probation by the Court;
(5) Public reprimand by the Court;
(6) Private admonition by the Court or, with the consent of the respondent, by
the PRC;
(7) Private probation by the Court or, with the consent of the respondent, by
PRC;
(8) Conditional diversion by the Court or, with the consent of the respondent, by PRC;
(9) Court-ordered restitution to persons financially injured and Court-ordered
reimbursement to the Lawyers' Fund for Client Protection; and
(10) Limitation by the Court on the nature and/or extent of the respondent's
future practice.
(b) Conditions. -- Written conditions may be attached
(c) Mitigating or aggravating circumstances. -- Mitigating or aggravating
circumstances that affect the nature or degree of discipline to be imposed in a
matter shall be fully set forth in the Board report recommending to the Court
an appropriate sanction.
(d) Dismissals. -- A disciplinary matter which results in a dismissal, with or
without conditions or cautionary language, shall not be considered as the
imposition of a disciplinary sanction.
(e) Conditional diversion. -- With the consent of the respondent, the recommendation of the ODC, and the approval of the PRC, conditional diversion may be granted, except if the misconduct is serious including but not limited to the misappropriation of funds or property or other misconduct that is serious enough to warrant suspension or disbarment.
II. PROCEDURE
Rule 9. General procedures.
(a) Screening and evaluation. -- The ODC shall screen and evaluate all
information coming to its attention by complaint or otherwise concerning
possible misconduct by or incapacity of a lawyer.
(i) Screening. -- If the lawyer is not subject to the disciplinary jurisdiction
of the Court, the matter shall be dismissed and referred to the appropriate
entity in the jurisdiction in which the lawyer is admitted.
(ii) Evaluation. -- If the lawyer is subject to the disciplinary jurisdiction
of the Court, the ODC shall conduct an evaluation of the information regarding
the lawyer, utilizing the following general procedure:
(A) If the information regarding the lawyer, on its face, is not sufficient to
raise a reasonable inference of misconduct or incapacity, the ODC shall dismiss
the matter;
(B) If the information regarding the lawyer, on its face, is sufficient to
raise a reasonable inference of misconduct or incapacity, the ODC shall gather
supplemental information;
(C) If the aggregate of information gathered by the ODC is not sufficient to
raise a reasonable inference of misconduct or incapacity, the ODC shall dismiss
the matter;
(D) If the aggregate of information gathered by the ODC is sufficient to raise
a reasonable inference of misconduct or incapacity, the ODC shall conduct a
formal investigation of the matter.(b) Formal investigation and
consideration by the PRC. -- The ODC shall conduct all formal investigations
subsequent to the screening and evaluation procedures described in Rule 9(a).
Following the receipt of sufficient information, the ODC shall dismiss the
matter or present the matter to the PRC.
(1) If the matter is to be presented to the PRC, the ODC shall notify the
respondent in a timely manner prior to the scheduled meeting of the PRC, and
shall inform the respondent that the respondent may submit to the ODC any
further written information for consideration by the PRC at such meeting.
Neither the respondent nor the respondent's counsel shall have the right to
appear at a meeting of the PRC.
(2) The ODC may recommend to the PRC one or more of the following:
(A) dismissal of the matter with or without conditions;
(B) the offer of a private probation not to exceed two years with or without
conditions;
(C) the offer of a private admonition with or without conditions;
(D) a stay;
(E) the filing of a petition for discipline with the Board; or
(F) conditional diversion.(3) The PRC
shall review the ODC's recommendation and any written information submitted by
the respondent. Disciplinary matters involving the same respondent may be
consolidated by the PRC as it deems appropriate. The PRC shall determine
whether there is probable cause to conclude that the respondent has engaged in
professional misconduct. The PRC may approve, disapprove, or modify the ODC's
recommendation, and may request additional information and investigation as it
deems appropriate.
(4) Where the PRC determines that an offer of conditional diversion, a private probation or a
private admonition is appropriate, the ODC shall send a letter to the
respondent or the respondent's counsel, which shall contain the following:
(A) a description of the facts and legal issues considered by the PRC;
(B) the PRC's conclusion that there is probable cause that the respondent
committed at least one specified disciplinary violation;
(C) a description of any conditions attached to the offer of conditional diversion, a private
probation or a private admonition; and
(D) a certification of acceptance and imposition of conditional diversion, a private probation or a private admonition.If
the respondent desires to accept the offer of conditional diversion, a private probation or a
private admonition, the respondent shall execute the certification attached to
the letter and return the certification in a timely manner to the ODC. In the case of conditional diversion the respondent shall submit a signed conditional diversion agreement and an executed release of information through an approved monitor including but not limited to the Delaware Lawyers Assistance Program to enable the ODC to verify the satisfaction of the conditions of the conditional diversion. The
respondent's acceptance of the imposition of conditional diversion or a private admonition under this
Rule means that the respondent does not contest the findings of the PRC that
there was probable cause that the respondent engaged in professional
misconduct, and that such sanction may be treated for all other purposes as if
the sanction had otherwise been imposed after the filing of a petition for
discipline with the Board. The respondent's acceptance of the imposition of a
private probation under this Rule means that the respondent does not contest
the findings of the PRC that there was probable cause that the respondent
engaged in professional misconduct; however, if the respondent is not
subsequently found by a panel of the PRC to have engaged in professional
misconduct within the probationary period, the conditional diversion or probation will be removed from
the respondent's formal disciplinary record and cannot be used in any
subsequent disciplinary proceeding. Whenever the PRC concludes that an offer of
conditional diversion or a private probation or a private admonition is appropriate, the PRC shall
also concurrently approve the filing of a petition for discipline, which may
contain additional or different disciplinary violations than those specified in
the letter, and which shall be filed with the Board if the respondent does not
accept the offer of conditional diversion, a private probation, or a private admonition. If the conditions of the conditional diversion agreement are satisfied, including that the respondent is not subsequently found by a panel of the PRC to have engaged in professional misconduct within the period of conditional diversion, the disciplinary matter shall be removed from the respondent's record. If the conditions of the conditional diversion agreement are not satisfied, the ODC shall file the petition for discipline with the Board.(c)
Disposition prior to formal charges. -- The respondent may accept or reject any
offer of conditional diversion or a private probation or a private admonition prior to the filing of
a petition for discipline. Upon receipt by the ODC of the signed certificate of
acceptance and imposition, and the payment of costs, the matter shall be
closed. If the respondent rejects the offer of conditional diversion or a private probation or a
private admonition or does not timely respond thereto, the offer shall be
deemed rejected, and the ODC shall proceed to file a petition for discipline
with the Board containing charges that have been approved by the PRC.
(d) Formal proceedings. --
(1) Formal disciplinary proceedings before the Board shall be instituted by the
ODC by filing with the Administrative Assistant, and serving upon the
respondent, after approval by a panel of the PRC, a petition which is
sufficiently clear and specific to inform the respondent of the alleged
misconduct. The filing of a petition with the Administrative Assistant
commences the official Board record in the matter.
(2) The respondent shall serve an answer upon the ODC and file the original
with the Administrative Assistant within 20 days after service of the petition,
unless the time is extended by the Chair or Vice Chair of the Board. In the event the
respondent fails to serve an answer within the prescribed time, all of the
allegations and charges in the petition shall be deemed admitted, such that the
sole remaining issue to be determined by the Board shall be the appropriate
disciplinary sanction.
(3) The Administrative Assistant shall serve a notice of hearing upon the ODC
and the respondent, identifying the members of the Board assigned to the
matter, and the date and place of the hearing. The notice shall be given at
least 20 days in advance of the date of the hearing. The notice of hearing
shall state that the respondent is entitled to be represented by a lawyer at
the respondent's expense, to cross-examine witnesses, and to present evidence.
(4) All hearings before the Board shall be recorded. Following a hearing,
briefs, memoranda, and oral argument may be permitted in the discretion of the
Board. If the Board initially finds that the respondent has engaged in
professional misconduct, the Board shall then make a separate finding as to the
appropriate disciplinary sanction. The Board may conduct a separate hearing on
sanctions in order to evaluate evidence of possible aggravating and mitigating
factors.
(5) The Board shall submit to the Court a final report containing its findings,
reasons, and recommendations within 60 days after the conclusion of its
proceedings. A copy of the report shall be served on the ODC and the
respondent. If a matter is held under advisement by the Hearing Panel for more
than 60 days, then the chair of the Hearing Panel, either before or immediately
upon the expiration of the 60 day period, shall submit to the Court a written
request for an extension of time to complete the final report. The written
request shall contain the following information:
(A) The Board case number(s);
(B) The date the matter was taken under advisement;
(C) The specific reason for the delay; and
(D) A target date on which the chair of the Hearing Panel reasonably expects
the final report to be issued. The Court may grant an extension for completing
the final report for good cause shown.(e) Review by the Court.
-- Upon the submission by the Board of its report and recommendations to the
Court for review, the Clerk of the Court shall notify the ODC and the
respondent of their respective rights to file objections to the Board's report
and recommendations within 20 days from the date of service, except for reports
filed pursuant to Rule 17. The respondent and the ODC may waive the right to
file objections. No further briefing will be permitted unless ordered by the
Court for good cause.
(f) Witnesses and evidence. --
(1) All witnesses shall be sworn in all proceedings. The court reporter or any
member of the Board or the ODC may administer oaths and affirmations.
(2) The Delaware Uniform Rules of Evidence shall be followed as far as
practicable, provided that evidence may be admitted and considered which
possesses probative value commonly accepted by reasonably prudent persons in
the conduct of their affairs, or as otherwise provided in these Rules.
(3) Where the respondent is or has been a party to or a participant in a
proceeding, whether administrative, criminal, civil, or otherwise, the relevant
portions of the transcript of the proceedings, exhibits, findings of fact,
conclusions of law, opinions, decisions, and judgments, shall be admitted in
evidence, if offered, and shall be accorded such weight as the Board shall deem
appropriate; provided, however, that evidence of a conviction of the respondent
for any crime shall be deemed conclusive as to the fact that such crime was
committed, and evidence of the imposition of a disciplinary sanction in a
foreign jurisdiction shall be deemed conclusive as to the fact of the
disciplinary violation upon which such sanction was predicated. Relevant
correspondence among and between the ODC, the respondent, and the complainant
shall also be admitted in evidence, if offered, and shall also be accorded such
weight as the Board shall deem appropriate. Evidence of conduct or statements
made in compromise negotiations prior to a hearing shall not be admitted,
unless there is no objection by any party.
(4) Information relating to prior discipline of a respondent shall not normally
be divulged until after there is a finding of misconduct in the pending matter,
unless the prior discipline is relevant to the current proceedings.
(5) After conviction of a felony or of any other form of criminal conduct
demonstrating a significant threat of substantial harm to the public or to the
orderly administration of justice, the sole issue to be determined by the Board
shall be the discipline to be imposed, if any, provided that a disciplinary
proceeding on such basis shall not be brought to a hearing until all appeals
from the conviction are concluded, unless the respondent requests that the
matter not be deferred.(g) Dismissals with warning. -- When a
disciplinary matter is dismissed, whether by the ODC, the PRC, or the Court,
the written notice of dismissal that is sent to the respondent, whether in the
form of a letter, report, order, or otherwise, may contain cautionary language
directed to the respondent, for the purpose of directly informing and educating
the respondent as to conduct which, while not violative of a disciplinary rule
or worthy of a disciplinary sanction, nevertheless has raised professional
concerns.
(h) Retention of disciplinary files. -- Files of the ODC, the PRC, and the
Board in individual disciplinary matters in which no disciplinary sanction was
imposed shall be retained for 5 years after the date that the matter was
resolved, after which time such files may be destroyed; provided, however, that
this requirement shall not apply to recordkeeping dockets and other listings of
disciplinary matters, general tabulations of information, or statistical
reports or summaries. Files in which a disciplinary sanction has been imposed
shall be retained.
(i) Limited expungement of disciplinary record. -- A lawyer who has received a
single private admonition and has received no other disciplinary sanction for a
period of 10 years after the imposition of that sanction may request that the
sanction be expunged from the lawyer's disciplinary record, for the sole
purpose of precluding reference to that sanction in any future disciplinary
proceeding. Any such request shall be in writing and shall be directed to the
Administrative Assistant, who shall take the appropriate steps in having the
sanction expunged from the lawyer's disciplinary record; provided, however,
that no request for expungement shall be granted when there is a disciplinary
matter relating to the lawyer that is pending at any stage of the proceedings
described in these Rules.
Rule 10. Immunity.
All communications to and from the Board, PRC, or the ODC relating to lawyer misconduct or disability, and all testimony given in related proceedings, shall be absolutely privileged, and no civil suit predicated on those proceedings may be instituted against any complainant, witness or lawyer. Members of the Board, members of the PRC, and members of the ODC and its agents and staff; Special Disciplinary Counsel and his or her agents and staff; the Administrative Assistant and staff; and receivers and their agents and staff shall be immune from civil suit for any conduct in the discharge of their official duties.
Rule 11. Service.
(a) Service of petition. -- Service of the petition upon the respondent or
respondent's counsel in any disciplinary or disability proceeding shall be made
by personal service by any person authorized by the ODC, or by registered or
certified mail at the address last furnished by the respondent pursuant to
Supreme Court Rule 69.
(b) Service of other papers. -- Service of any other papers or notices required
by these Rules shall, unless otherwise provided by these Rules, be made in
accordance with the Rules of Civil Procedure for the Superior Court of the
State of Delaware.
Rule 12. Subpoena power and discovery.
(a) Subpoenas. --
(1) Before the filing of a petition for discipline, the ODC may compel by
subpoena the testimony of witnesses (including the respondent) and the
production of pertinent books, papers, and documents for purposes of evaluation
or investigation.
(2) After the filing of a petition for discipline, the ODC or the respondent
may compel by subpoena the testimony of witnesses, or the production of
pertinent records, books, papers, and documents, at a deposition or hearing
under these Rules. The Clerk of the Supreme Court shall issue such subpoenas as
are requested in writing by the respondent. Upon the written request of either
the ODC or the respondent to the Administrative Assistant, the Clerk of the
Supreme Court shall issue a commission for the issuance of a subpoena where the
evidence sought is beyond jurisdictional limits.
(3) Subpoenas issued by the ODC or by the Clerk of the Supreme Court shall
clearly indicate on their face that the subpoenas are issued in connection with
a confidential matter under these Rules. It shall not be regarded as a breach
of confidentiality for a person subpoenaed to consult with an attorney.(b)
Quashing subpoena. -- Any attack on the validity of a subpoena so issued shall
be heard and determined by the Chair or Vice Chair of the Board. All orders by the Chair of
the Board relating to attacks on the validity of a subpoena are interlocutory
and may not be appealed prior to the Board's submission to the Court of its
final report.
(c) Enforcement of subpoena. -- The Court may, upon proper application, enforce
the attendance and testimony of any witnesses and the production of any
documents subpoenaed.
(d) Subpoena pursuant to law of another jurisdiction. -- Whenever a subpoena is
sought in Delaware pursuant to the law of another jurisdiction for use in
lawyer discipline or disability proceedings, and where the issuance of the
subpoena has been duly approved under the law of the other jurisdiction, the
Clerk of the Supreme Court, upon request from the Chair or Vice Chair of the Board, and for
good cause, may issue a subpoena as provided in this Rule to compel the
attendance of witnesses and 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 this subpoena shall be as provided in these
rules.
(e) Depositions. -- The ODC and the respondent may take the deposition of a
witness (including the respondent) by subpoena as set forth in Rule 12(a)(2)
above. Testimony of a deponent to be presented at a hearing may be taken by
deposition or by commission if the witness is not subject to service of
subpoena issued by a Delaware tribunal or is unable to attend or testify at a
hearing because of age, illness or other compelling reason. A complete record
of the testimony so taken shall be made and preserved.
(f) Witnesses and fees. -- Subpoena and witness fees and mileage reimbursements
shall be the same as those provided for in the Rules of Civil Procedure for the
Superior Court of the State of Delaware.
(g) Discovery. -- Disputes concerning the scope and other aspects of the
limited discovery afforded under these Rules shall be heard and determined by
the Chair or Vice Chair of the Board, unless a Hearing Panel has been assigned to the matter,
in which case such disputes shall be heard and determined by the chair of the
Hearing Panel. All discovery orders by the Chair or Vice Chair of the Board or the chair of a
Hearing Panel are interlocutory and may not be appealed prior to the Board's
submission to the Court of its final report. As soon as is practicable after a
petition for discipline is filed, the ODC shall provide to the respondent
access to any exculpatory evidence.
(h) Exchange of information. -- The ODC and the respondent shall exchange names
of witnesses and copies of documents to be used by each side in its case in
chief 10 business days prior to any hearing, and may supplement those lists
thereafter with the approval of the opposing party or the chair of the Hearing
Panel. Recorded statements, if any, of all witnesses so designated shall be
exchanged at the same time. The exchange may take place by first-class mail to
the respondent's last known address. The Hearing Panel may exclude any evidence
offered by a party who fails to comply with this Rule.
(i) Duty to respond. -- Nothing in these Rules shall be deemed to limit the
respondent's obligation to respond at any point in the disciplinary process to
a lawful demand for information from the ODC under the Delaware Lawyers' Rules
of Professional Conduct or any subsequent rules or code adopted by the Court in
lieu thereof.
Rule 13. Access to disciplinary information.
(a) Confidentiality. -- Prior to the Hearing Panel's submission to the Court of
its final report, and except as otherwise described in these rules,
disciplinary and disability proceedings and the official record in such matters
are confidential. If the Hearing Panel's report recommends that the matter be
dismissed, that a lawyer not be transferred to disability inactive status, or
that a private sanction be imposed, any further proceedings by the Court and
the official record in the matter are confidential unless and until otherwise
ordered by the Court.
(b) Protective orders. -- Upon proper application with good cause shown, or on
a sua sponte basis, the Chair or Vice Chair of the Board, the Chair of the Hearing Panel, or
the Court may issue appropriate protective orders with respect to any
proceedings, reports, documents, or other information which may otherwise be
made public, for the purpose of preserving confidentiality.
(c) Complainant's right to appear. -- The complainant in a disciplinary matter,
if any, shall have the right to appear at any Board hearing on sanctions or any
Court hearing on a petition for interim suspension relating to the matter for
the sole purpose of making a statement on the record regarding the matter.
(d) Requests for confidential information. -- A request for the release of
confidential information as described under these Rules shall be made by
written application, with good cause shown, directed to the Administrative
Assistant. Such application shall be considered and determined by the Court.
(e) Release of confidential information. -- The work product of the ODC may not
be disclosed or released except pursuant to Rule 13(f). The pendency, subject
matter, or status of a disciplinary matter may be disclosed or released if:
(1) the respondent has waived confidentiality in writing;
(2) the proceeding is based upon allegations which include the conviction of
any crime;
(3) the respondent has been placed upon interim suspension or disability
inactive status;
(4) such disclosure or release is necessary to obtain the assistance of another
person, agency, or organization, provided that such person, agency, or
organization agrees to maintain the confidentiality mandated by these Rules;
(5) the proceedings are based upon allegations which have otherwise been made
public; or
(6) with the approval of the Court, such disclosure or release is necessary in
order to correct false or misleading public statements with respect to any
otherwise confidential proceeding or information, or is necessary to prevent
public confidence in the disciplinary system from being undermined.(f)
Cooperation with criminal justice authorities. -- Any evidence or information
obtained through the disciplinary process indicating criminal conduct by a
lawyer, including documents, transcripts, and work product, or any selected
portions thereof, may be disclosed or turned over to the appropriate criminal
justice authorities for their independent review and investigation.
(g) Duty of participants. -- All participants in a proceeding under these Rules
shall conduct themselves so as to maintain the confidentiality mandated by
these Rules.
Rule 14. Dissemination of disciplinary information.
The ODC shall publicly disseminate all information relating to disciplinary
matters and proceedings as is consistent with these Rules. In particular, the
ODC shall transmit notices and information regarding the imposition of all
public discipline, transfers to or from disability inactive status, or
reinstatements to:
(a) the disciplinary enforcement agency in any jurisdiction in which the
respondent is admitted,
(b) the chief judicial officers of all courts of this State,
(c) the chief judicial officers of all federal courts located in this State,
the United States Court of Appeals for the Third Circuit, and the United States
Supreme Court,
(d) any national data bank maintained for the purposes of reporting
disciplinary action relating to lawyers, and
(e) the news media.
Rule 15. Additional rules of procedure.
(a) Nature of proceedings. -- Disciplinary proceedings are neither civil nor
criminal, but are sui generis.
(b) Proceedings governed by Rules of Civil Procedure. -- Except as otherwise
provided in these Rules, the Rules of Civil Procedure for the Superior Court of
the State of Delaware shall apply to the extent practicable in disciplinary and
disability matters, provided that discovery procedures shall not be expanded
beyond those provided in Rule 12 hereof, and there shall be no proceedings for
summary judgment.
(c) Standard of proof. -- Formal charges of misconduct, petitions for
reinstatement, and petitions for transfer to and from disability inactive
status shall be established by clear and convincing evidence.
(d) Burden of proof. -- The burden of proof in proceedings seeking discipline
or transfer to disability inactive status is on the ODC. The burden of proof in
proceedings seeking reinstatement or transfer from disability inactive status
is on the respondent.
(e) Prehearing conferences. -- Upon request of a party or at the discretion of
the chair of the Hearing Panel, a prehearing conference may be held for the
purpose of dealing with administrative, evidentiary, or procedural issues,
obtaining admissions, identifying the issues to be presented at the hearing, or
for other reasons. The conference shall be held before the chair of the Hearing
Panel, and may be recorded in the chair's discretion.
(f) Availability of hearing transcript. -- The transcript and official record
of any hearing shall be made available to the respondent at the respondent's
expense.
(g) Related pending litigation. -- Where there are civil, criminal, or other
disciplinary proceedings pending with respect to the respondent in a
disciplinary matter, the PRC or the Board may stay the matter as appropriate
and necessary, with notice to the Court of its reasons for taking such action.
(h) Position of complainant. -- Neither unwillingness nor neglect of the
complainant to cooperate with the disciplinary process, nor settlement, nor
compromise between the complainant and the respondent, nor restitution by the
respondent, shall in itself justify abatement of the processing of any
disciplinary matter. The complainant in a disciplinary matter shall not be
considered as a party and shall have no standing to appeal the disposition of
such matter.
(i) Effect of time limitations. -- Except as otherwise provided in these Rules,
time provisions are directory and not jurisdictional. Failure to observe
prescribed time intervals may result in sanctions against the violator but does
not justify abatement of any disciplinary or disability investigation or
proceeding.
(j) Complaints against disciplinary agency members. -- Disciplinary matters
involving any member of the ODC, Special Disciplinary Counsel, or the Board
shall be submitted directly to the Court for the assignment by the Court of a
special disciplinary counsel pursuant to Supreme Court Rule 64(d) for the
evaluation, investigation, and possible prosecution of the matter. Complaints
against members of the PRC shall be submitted directly to the Board. The Chair
or Vice Chair of the Board shall request assignment by the Court of a special disciplinary
counsel.
(k) ODC investigations of serious misconduct. -- Where the misconduct under
investigation by the ODC is deemed to be serious and potentially criminal in
nature, and where other means of investigation may not be effective or
practical, the ODC shall be authorized, with the approval of the Court for good
cause shown, to use all investigatory means and methods as are commonly used by
criminal prosecuting agencies.
Rule 16. Interim suspension.
(a) Transmittal of evidence. -- Upon receipt of sufficient evidence
demonstrating that a lawyer subject to the disciplinary jurisdiction of the
Court (i) has been charged with or convicted of a felony, (ii) has been charged
with or convicted of other criminal conduct which demonstrates that the lawyer
poses a significant threat of substantial harm to the public or to the orderly
administration of justice, or (iii) has otherwise engaged in professional
misconduct which demonstrates that the lawyer poses a significant threat of
substantial harm to the public or to the orderly administration of justice, the
ODC shall transmit such evidence to the Court together with a petition and
proposed order for the lawyer's immediate interim suspension pending the
disposition of disciplinary proceedings as otherwise described in these Rules.
The ODC shall also take all appropriate steps to process the matter through the
disciplinary system as otherwise described in these Rules. The ODC's filing of
a petition for interim suspension, and all subsequent proceedings, shall be
confidential unless otherwise ordered by the Court.
(b) Certificate of conviction conclusive. -- A certified copy of a judgment of
conviction of an attorney for any crime shall be prima facie evidence of the
commission of that crime in any disciplinary proceeding instituted against the
attorney based upon the conviction.
(c) Petition for interim suspension. -- The ODC's petition for interim
suspension shall set forth a plain and concise statement of the grounds, shall
be verified by the member of the ODC signing the petition, or otherwise
supported by an affidavit, and shall be filed with the Court and served upon
the respondent.
(d) Hearing before the Court. -- The Court shall promptly schedule a hearing on
the petition for interim suspension, with notice to the ODC and the respondent.
The notice of hearing shall state that the respondent is entitled to be
represented by a lawyer at the respondent's expense, to cross-examine
witnesses, and to present evidence. At the request of the respondent, the Clerk
of the Court shall compel by subpoena for any such hearing the attendance of
witnesses and the production of pertinent records, books, papers, and
documents. The ODC may exercise its subpoena powers as otherwise described in
these Rules for purposes of the proceedings described in this Rule.
(e) Standard and burden of proof. -- The standard of proof in proceedings under
this Rule shall be that the misconduct or charges are supported by clear and
convincing evidence. The burden of proof in such proceedings shall be upon the
ODC.
(f) Disposition by the Court. -- Following the hearing, the Court may enter an
order suspending the respondent from the practice of law on an interim basis
pending the disposition of disciplinary proceedings as otherwise described in
these Rules, or may enter such orders as it deems necessary to protect the
interests of the public and the orderly administration of justice, including
but not limited to orders restricting the respondent's right to practice
pending the ultimate disposition of disciplinary proceedings.
(g) Publicity. -- If the Court issues an order that suspends or otherwise
restricts the respondent's authority to practice law, such order shall be
public, and shall be disseminated as otherwise described in these Rules, unless
otherwise ordered by the Court. If the Court issues an order which dismisses
the petition, such order shall remain confidential unless otherwise ordered by
the Court.
(h) Appointment of receiver. -- In the event that the Supreme Court enters an
order suspending the respondent from the practice of law on an interim basis,
the Supreme Court may direct that proceedings be instituted by the ODC for the
appointment of a receiver of the respondent's law practice by the Court of
Chancery pursuant to Rule 24.
(i) Cooperation and compliance by respondent. -- Any lawyer suspended under
this Rule shall comply with the notice and other requirements for suspensions
set forth in these Rules, and with any other conditions set forth in the
Court's disposition of the matter. A lawyer not suspended by the Court under
this Rule but whose law practice or conduct is restricted by the Court shall
take all appropriate steps to comply fully with the Court's orders.
(j) Reinstatement upon dismissal of charges or reversal of conviction.
demonstrates to the Court that the criminal charges have been dismissed or the
underlying conviction has been reversed or vacated, the order for interim
suspension may be vacated by the Court upon motion, and the lawyer reinstated
to practice. The vacating of the interim suspension shall not automatically
terminate any other disciplinary proceedings currently pending involving the
lawyer with the ODC, the PRC, or the Board, the disposition of which shall be
determined on the basis of the available evidence.
(k) Duty to report. -- Any lawyer subject to the disciplinary jurisdiction of
the Court who is charged with or convicted of a felony, whether within or
outside of this State, shall within 10 days of such charge or conviction report
the matter to the ODC.
Rule 17. Conditional admissions and discipline by consent.
(a) Conditional admission and proposed sanction. -- A lawyer against whom a
petition for discipline has been filed may offer to the Board a conditional
admission to the petition or to a particular count or counts thereof in
exchange for a specific disciplinary sanction, provided that the ODC agrees in
writing to the conditional admission and proposed disciplinary sanction.
(b) Affidavit of consent. -- A conditional admission offered to the Board shall
be accompanied by the respondent's proposed affidavit setting forth the
following:
(1) A description of the specific factual allegations and the particular count
or counts of the petition for discipline which are being conditionally
admitted, and
(2) A statement that the respondent desires to consent to the imposition of the
proposed sanction, that such consent is freely and voluntarily given and is not
the subject of coercion or duress, and that the respondent is fully aware of
the implications of submitting such consent.(c) Consideration by the
Board. -- Upon the offer to the Board of a conditional admission as described
herein, the Board shall hold a hearing on the matter to determine the
respondent's reasons for the proffered conditional admission and the agreement
by the ODC. If the Board is satisfied that the conditional admission and the
proposed sanction are appropriate, the Board shall issue a report with
recommendations to the Court as described in Rule 9(d). If the Board is not
satisfied with either the conditional admission or the proposed sanction, the
Board shall inform the ODC and the respondent of its determination and reasons.
(d) Rights of respondent. -- If the Board rejects a proposed conditional
admission, or if after the Board approves a proposed conditional admission, it
is rejected by the Court upon review under Rule 9(e), the admissions made in
the prior proceedings shall not be used against the respondent in the pending
or any subsequently filed proceedings.
(e) Disbarment by consent. -- Where the respondent has admitted engaging in
misconduct that is serious enough to warrant disbarment as a final disposition,
the respondent and the ODC may submit at any stage of the disciplinary
proceedings described in these Rules a written stipulation of disbarment by
consent directly to the Court requesting that the Court enter an order of
disbarment as soon as possible. Any such stipulation shall contain a detailed
description of the misconduct in which the respondent admittedly engaged, an
analysis of legal precedent for the imposition of such a sanction, a signed
affidavit of consent from the respondent in the form described in subsection
(b) of this Rule, and any other supplementary materials which may be
appropriate for the Court to consider. The Court may thereupon enter an order
of disbarment as it deems appropriate, or may remand the matter in its
discretion to the ODC or the Board for further proceedings under these Rules.
Rule 18. Reciprocal discipline and reciprocal disability
inactive status.
(a) Duty of disciplinary counsel to obtain order of discipline or disability
inactive status from other jurisdiction. Upon being disciplined or
transferred to disability inactive status in another jurisdiction, a lawyer
admitted to practice in Delaware shall promptly inform ODC of the discipline or
transfer. Upon notification from any source that a lawyer within the Court's
jurisdiction has been disciplined or transferred to disability inactive status
in another jurisdiction, ODC shall obtain a certified copy of the disciplinary
order and file it with the Board and with the Court.
(b) Notice served upon respondent. Upon receipt of a certified copy of an
order demonstrating that a lawyer admitted to practice in Delaware has been
disciplined or transferred to disability inactive status in another
jurisdiction, the Chair or Vice Chair of the Board shall forthwith issue a notice directed to
the lawyer or to counsel containing:
(1) a copy of the order from the other jurisdiction; and
(2) an order directing that the lawyer or lawyer's counsel inform the Board and
the Court, within 30 days from service of the notice, of any claim by the
lawyer or lawyer's counsel predicated upon the grounds set forth in paragraph
(d), that the imposition of the identical discipline or disability inactive
status in this State would be unwarranted and the reasons therefor.(c)
Effect of stay of discipline or transfer in other jurisdiction. In the event
the discipline imposed or transfer in the other jurisdiction has been stayed
there, any reciprocal discipline imposed or transfer in this State may be
deferred until the stay expires.
(d) Discipline to be imposed or transfer to disability inactive status. Upon
the expiration of 30 days from the service of the notice pursuant to the
provisions of paragraph (b), the Board shall recommend to the Court that it
shall impose the identical discipline or disability inactive status unless
counsel or the lawyer demonstrates, or the Court finds it clear upon the face of
the record on which the discipline is predicated it clearly appears that:
(1) the procedure was so lacking in notice or opportunity to be heard as to
constitute a deprivation of due process;
(2) there was such infirmity of proof establishing the misconduct as to give
rise to the clear conviction that the Court could not, consistent with its
duty, accept as final the conclusion on that subject;
(3) the imposition of the same discipline by the Court would result in grave
injustice; or
(4) the misconduct established warrants substantially different discipline or
no discipline in this State; or ....
(5) the reason for the original transfer to disability inactive status no
longer exists.If the Court determines that any of those elements
exists, the Court shall enter such other order as it deems appropriate.
(e) Conclusiveness of adjudication in other jurisdiction. -- In all other
aspects, a final adjudication in another jurisdiction that a lawyer has been
guilty of misconduct shall establish conclusively the misconduct for purposes
of a disciplinary proceeding in this State.
Rule 19. Disability proceedings in which a lawyer is alleged
or declared to be incompetent or incapacitated.
(a) Involuntary commitment or adjudication of incompetency. -- If a lawyer has
been judicially declared incompetent or is involuntarily committed on the
grounds of incompetency or disability, the Court, upon proper proof of the
fact, may enter an order immediately transferring the lawyer to disability
inactive status for an indefinite period until further order of the Court. A
copy of the order shall be served upon the lawyer, the lawyer's guardian,
and/or the director of the institution to which the lawyer has been committed
in the manner the Court may direct.
(b) Inability to properly defend. -- If a respondent contends in the course of
a disciplinary proceeding that the respondent is unable to assist in the
respondent's defense due to mental or physical incapacity, the Court shall,
upon application, promptly transfer the lawyer to disability inactive status
pending determination of the incapacity.
If the Court determines the claim of inability to defend is valid, the
disciplinary proceeding shall be stayed and the respondent retained on
disability inactive status until the Court subsequently considers a petition
for transfer of the respondent to active status filed by the respondent or the
ODC. If the Court determines that this petition for transfer shall be granted,
the Court shall also determine the disposition of the interrupted disciplinary
proceedings.
If the Court determines the claim of incapacity to defend to be invalid, the
disciplinary proceeding shall resume and the respondent shall promptly be
placed on interim suspension pending final disposition of the matter, unless
the respondent can demonstrate to the Court by clear and convincing evidence
that interim suspension is not appropriate.
(c) Proceedings to determine incapacity. -- Information relating to a lawyer's
physical or mental condition which adversely affects the lawyer's ability to
practice law shall be investigated by the ODC. If there are reasonable grounds
to believe the interests of respondent's clients or the public are endangered,
such information shall be the subject of formal proceedings to determine
whether the respondent shall be transferred to disability inactive status. The
procedures and hearings shall be conducted in the same manner as disciplinary
proceedings. The Board may take or direct whatever action it deems necessary or
proper to determine whether the respondent is so incapacitated, including the
examination of the respondent by qualified medical experts at the respondent's
expense. If, after reviewing the recommendation of the Board and upon due
consideration of the matter, the Court concludes that the respondent is
incapacitated from continuing to practice law, it shall enter an order
transferring the respondent to disability inactive status for an indefinite
period and until further order of the Court. Any pending disciplinary
proceedings against the respondent shall be held in abeyance.
The Board shall provide for such notice to the respondent of proceedings in the
matter as it deems proper and advisable. If the respondent is not represented
by counsel, the Court shall appoint counsel for the respondent.
(d) Public notice of transfer to disability inactive status. -- The ODC may
publicize any transfer to disability inactive status in the same manner as for
the final imposition of public discipline.
(e) Reinstatement from disability inactive status. -- No respondent transferred
to disability inactive status may resume active status except by order of the
Court. Any respondent transferred to disability inactive status shall be
entitled to petition the Court for transfer to active status once a year, or at
whatever shorter intervals the Court may direct in the order transferring the
respondent to disability inactive status or any modification thereof. The
petition may be granted by the Court upon a showing by clear and convincing
evidence that the disability has been removed.
Upon the filing of a petition for transfer to active status, the Court may take
or direct whatever action it deems necessary or proper, including a remand to
the Board for hearing and recommendation, to determine whether the disability
has been removed, and may order an examination of the respondent by qualified
medical experts. In its discretion, the Court may direct that the expense of
the examination be paid by the respondent.
The Court may also direct that the respondent establish proof of competence and
learning in law, which proof may include certification by the Board of Bar
Examiners of the respondent's successful completion of an examination for
admission to practice.
If a respondent transferred to disability inactive status on the basis of a
judicial determination of incompetence has been judicially declared to be
competent, the Court may dispense with further evidence that the disability has
been removed and may immediately direct reinstatement to active status upon
terms as are deemed proper and advisable.
(f) Waiver of doctor-patient privilege. -- The filing of a petition for
reinstatement to active status by a respondent transferred to disability
inactive status shall be deemed to constitute a waiver of any doctor-patient
privilege with respect to any treatment of the respondent during the period of
disability. The respondent shall disclose the name of each psychiatrist,
psychologist, physician, hospital or other institution by whom or in which the
respondent has been examined or treated since transfer to disability inactive
status. The respondent shall furnish the Court with written consents for each
doctor to divulge information and records relating to the disability if
requested by the Court or Court-appointed experts.
(g) Mental incompetency as a defense to misconduct. --
(1) Mental incompetency is a complete defense to conduct of a lawyer which
would otherwise warrant disciplinary action if:
A. such conduct was the result or consequence of mental incompetency; and
B. the mental incompetency which was responsible for such conduct has been
cured so completely that there is no reasonable basis to believe there will be
a recurrence of the condition. The burden of proof of this defense is upon the
respondent.(2) If the respondent is able to sustain the burden of proof
as to mental incompetency at the time of the conduct that is the basis of the
complaint, but is unable to prove recovery to the extent indicated in
subsection (1) of this Rule, and the Board has reason to believe that such
recovery is possible, the Board shall recommend to the Court that respondent be
suspended until such time as the respondent can prove recovery; otherwise the
Board shall recommend transfer to disability inactive status.
(3) Any respondent defending on the grounds of mental incompetency shall be
suspended immediately on an interim basis until and unless the respondent shall
sustain the burden of proof that the respondent has been cured so completely
that there is no reasonable basis to believe there will be a recurrence of the
condition.
Rule 20. Probation.
(a) Imposition of probation. -- Probation may be imposed by order of the Court
in any disciplinary matter where there is no reasonable basis to conclude that
the respondent will harm the public or the orderly administration of justice
during the period of the probation, where the conditions of probation can be
adequately supervised or monitored, and where the imposition of such a sanction
is otherwise appropriate. Probation and any conditions attached thereto shall
continue for any period of time deemed appropriate by the Court. When
conditions are imposed, probation shall not terminate until;
(1) the expiration of the period established;
(2) the filing with the Court of an affidavit by the respondent averring that
the respondent has complied with the conditions of probation; and
(3) an order of the Court that the probation has terminated.
(b) Publicity. -- If probation is imposed along with a private sanction, the
probation itself and the terms thereof shall be confidential. If probation is
imposed along with a public sanction, the probation itself and the terms
thereof shall be public. If probation is imposed alone, the Court shall direct
whether the existence and terms thereof shall be confidential or public.
Rule 21. Orders and post-order procedures.
Unless otherwise ordered, orders imposing discipline or transfers to
disability inactive status are effective immediately. The respondent shall
refund any part of any fees paid in advance which have not been earned. In the
event the client does not obtain another lawyer before the effective date of a
disbarment or suspension, it shall be the responsibility of the respondent to
move the court, agency, or tribunal in which the proceeding is pending for
leave to withdraw. The respondent shall in that event file with the court,
agency, or tribunal before which the litigation is pending a copy of the notice
pursuant to Rule 23 to opposing counsel or adverse parties.
Rule 22. Reinstatement proceedings.
(a) Proof of rehabilitation. -- Reinstatement following suspension from
practice, except for suspensions of 6 months or less shall require proof of
rehabilitation before the Board and a final order of reinstatement by the
Court.
(b) Reinstatement after suspension of 6 months or less. -- A lawyer suspended
for less than 6 months may resume practice at the end of the period of
suspension by filing with the Court and serving upon ODC an affidavit affirming
that the lawyer has fully complied with the requirements of the suspension
order, and paying any required costs.
(c) Reinstatement after disbarment. -- A lawyer who has been disbarred may not
apply for reinstatement until the expiration of at least five years from the
effective date of the disbarment.
(d) Successive petitions. -- No petition for reinstatement shall be filed
within one (1) year following an adverse judgment upon a prior petition for
reinstatement.
(e) Notice to ODC and deposit for costs. -- Prior to filing a petition for
reinstatement, a suspended or disbarred lawyer except for lawyers suspended
pursuant to Rule 16 or suspended on a non-reciprocal basis pursuant to Rule 17,
shall send a written notification to the ODC of the intent to petition for
reinstatement. The lawyer shall thereupon comply with any procedures deemed
appropriate by the ODC for the purpose of gathering information for
presentation to the Board, including the submission of any information or
waivers requested by the ODC, and the advance payment to the ODC of a deposit
for the anticipated costs of the reinstatement proceeding. The ODC's gathering
of information as to the lawyer's proposed candidacy for reinstatement may
include physical or psychological examinations of the lawyer at the lawyer's
expense.
(f) Petition to Board. -- All petitions for reinstatement shall be filed with
the Administrative Assistant and served upon the ODC. The petition and all
subsequent proceedings shall be public. The petition shall set forth a plain
and concise statement of the grounds therefor. The ODC may publicly solicit
comments or other information on the petition from members of the legal
community or the general public by any means the ODC deems appropriate. The ODC
may file an answer to the petition with the Board within 30 days of service.
The ODC may support, object to, or take no position with respect to the
petition.
(g) Hearing before Board. -- After the time expires during which the ODC may
file an answer to the petition for reinstatement, the Administrative Assistant
shall schedule a hearing on the petition before the Board within 30 days. The
petitioner shall have the burden of demonstrating, by clear and convincing
evidence:
(1) the petitioner's professional rehabilitation, including substantial
rehabilitation from any drug or alcohol problem from which the petitioner had
suffered;
(2) the petitioner's compliance with all applicable disciplinary orders and
other rules, including conditions of restitution;
(3) the petitioner's fitness to practice;
(4) the petitioner's overall competence and current awareness of recent
developments in the law;
(5) that the petitioner has not engaged in any other professional misconduct in
any jurisdiction since suspension or disbarment;
(6) that the petitioner sincerely recognizes the wrongfulness and seriousness
of any misconduct upon which the suspension or disbarment was predicated;
(7) that the petitioner has the requisite honesty and professional integrity to
resume the practice of law; and
(8) that the petitioner's resumption of the practice of law will not be
detrimental to the administration of justice.The ODC may in its
discretion present evidence in support of or adverse to the petition, and upon
the presentation of all evidence, the ODC may make a recommendation to the
Board or take no position with respect to the petition. The Board shall conduct
the hearing as otherwise provided in these Rules with respect to ordinary
disciplinary proceedings. The Board shall file a report containing its findings
and recommendations with the Court as provided in Rule 9(d)(5) hereof, within
60 days of the conclusion of its proceedings, with service upon the petitioner
and the ODC.
(h) Review by Court. -- The petitioner or the ODC may file objections to the
Board's report within 20 days from the date of service. If objections are filed
to the Board's report, the Court may schedule the matter for briefing and
argument as appropriate. If no objections are filed, the Court may request
argument on the matter prior to entering a final order. If the Court finds that
the petitioner has not shown good reasons for reinstatement, whether or not
reinstatement has been recommended by the Board, the Court may dismiss the
matter or remand it to the Board for further proceedings as appropriate. If the
Court finds that the petitioner has shown good reasons for reinstatement, the
Court may enter an appropriate order reinstating the petitioner. The Court may
attach any conditions it deems appropriate to such a reinstatement order,
including but not limited to, restitution to former clients or third parties,
the successful completion of the bar examination administered by the Board of
Bar Examiners, or a period of probation with such terms and conditions as the
Court deems appropriate.
Rule 23. Notice to clients, adverse parties, and others.
(a) Recipients of notice; contents. -- Unless otherwise ordered, within 10
days after the date of a court order imposing a disciplinary sanction or
transfer to disability inactive status, a respondent disbarred, transferred to
disability inactive status, placed on interim suspension or suspended from
practice shall notify or cause to be notified by registered or certified mail,
return receipt requested:
(1) All clients being represented in pending matters;
(2) Any co-counsel in pending matters;
(3) Any opposing attorney in pending matters, or in the absence of such
attorney, the adverse parties. The notice shall advise of the order of the
Court and that the lawyer is therefore disqualified to act as lawyer after the
effective date of the order. The notice to be given to the opposing attorneys
or the adverse party shall state the place of residence of the client of the
respondent;
(4) All persons or their agents or guardians to whom a fiduciary duty is or may
be owed at any time after discipline or transfer to disability inactive status;
and
(5) All other persons with whom the formerly admitted attorney may at any time
expect to have professional contacts under circumstances where there is a
reasonable probability that they may infer that respondent continues as an
attorney in good standing.(b) Affidavit of compliance. -- Immediately
thereafter, the respondent shall file an affidavit with this Court indicating
compliance with subsection (a).
(c) Special notice. -- The Court may direct the issuance of notice to such
financial institutions or others as may be necessary to protect the interests
of clients or other members of the public.
(d) Return of client's property. -- Unless otherwise ordered, any respondent
described in paragraph (a) of this Rule shall deliver to all clients being
represented in pending matters any papers or other property to which they are
entitled and shall notify them and any counsel representing them 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.
Rule 24. Law practice receivers.
(a) Appointment of receiver of law practice. -- If a lawyer has been
transferred to disability inactive status, has died, has abandoned the lawyer's
law practice, or has been suspended or disbarred under these Rules, and there
is evidence that the lawyer has not complied with Rules 21 and 23, and no
partner, executor, or other responsible party capable of conducting the
lawyer's affairs is known to exist, the Court of Chancery, upon proper
application by the ODC, shall appoint a receiver of the lawyer's law practice
with such powers and authority as are appropriate and necessary.
(b) Maintenance of client confidences. -- Any receiver appointed under these
Rules shall maintain the confidentiality of information contained in client
files that have been entrusted to the receiver.
Rule 25. Notice of complainant.
The ODC shall notify in writing the complainant(s), as to the final
disposition of each disciplinary matter promptly after the matter has been
concluded, notwithstanding provisions elsewhere in these Rules relating to
confidentiality. Such notice shall specify whether the matter has been
dismissed, with or without conditions, or whether the matter has resulted in
the imposition of a disciplinary sanction, and if so, a description of the
sanction imposed and the misconduct upon which the sanction was predicated.
Unless the sanction imposed is public as provided pursuant to these Rules, the
complainant(s) shall be notified that all records and proceedings shall be
private and confidential and shall not be subject to production in any later
proceedings before any tribunal except future disciplinary proceedings
involving the respondent before the PRC, the Board, or the Court where such
prior proceedings may be relevant.
Rule 26. No limitations period.
There shall be no statute of limitations with respect to any proceedings under
these Rules.
Rule 27. Payment of costs.
Unless otherwise ordered by the Court, costs of all proceedings conducted
under these Rules shall be assessed against the respondent in any case where a
disciplinary sanction is imposed or where there is a transfer to disability
inactive status.
Rule 28. Effective date.
These Rules shall become effective on March 9, 2000, and any disciplinary or
disability proceeding pending on that date shall be processed pursuant to these
Rules from that point on unless otherwise directed by the Court.
OFFICIAL FORMS FOR BOARD ON PROFESSIONAL RESPONSIBILITY.
Form 1. Petition for discipline.
BOARD ON PROFESSIONAL RESPONSIBILITY of the SUPREME COURT
OF DELAWARE
In the Matter of a Member PETITION
of the Bar of the Supreme FOR DISCIPLINE
Court of Delaware }
To ________________________, Respondent
Disciplinary counsel petitions the Board of Professional Responsibility to
discipline the above-named respondent for the following reasons:
(Here set forth the formal charges or incorporate by reference the written
changes attaching the same to this order)
This petition was approved by a panel of the Preliminary Review Committee on
the _____________ day of _____________, 19________, and is issued and served
pursuant to the Rules of the Board on Professional Responsibility of the
Supreme Court of Delaware and the rules of that Court.
Dated this ____________ day of ____________, 19________.
______________________________________________________
Disciplinary Counsel
Note: The answer of respondent to this petition is due within 20 days
after service.
Form 2. Subpoena.
BOARD ON PROFESSIONAL RESPONSIBILITY of the SUPREME COURT
OF DELAWARE
In the Matter of a Member SUBPOENA
of the Bar of the Supreme No. ______________
Court of Delaware }
To ________________________
(Name of Witness)
You are hereby directed to appear and attend before the Board on
Professional Responsibility of the Supreme Court of Delaware at ______ in
____________, ____________ County, on the ____________ day of ____________,
19________, at the hour of ____________ o'clock, ____________ M., eastern
standard time, then and there to testify in the above entitled matter.
(If the production of books, etc., is desired, add "and to bring with you
the following"; and describe the same.)
For failure to appear and attend as herein required you may be deemed to be
in contempt of the Supreme Court of Delaware.
Dated this ____________ day of ____________, 19________.
__________________________________________________________
Disciplinary Counsel, whose address is
__________________________________________________________
____________________, Delaware
Form 3. Subpoena for interrogatories.
BOARD ON PROFESSIONAL RESPONSIBILITY of the SUPREME COURT
OF DELAWARE
In the Matter of a Member SUBPOENA
of the Bar of the Supreme No. ____________
Court of Delaware }
To ________________________
(Name of Witness)
You are hereby directed to make written answers under oath signed by you to
the written interrogatories attached hereto and to file such answer with the
Board on Professional Responsibility of the Supreme Court of Delaware at
_____________ in _____________, ______________ County, on or before the
____________ day of ____________, 19________.
For failure so to answer said written interrogatories as herein required you
may be deemed to be in contempt of the Supreme Court of Delaware.
Dated this ____________ day of ____________, 19________.
___________________________________________________________
Disciplinary Counsel, whose address is
___________________________________________________________
__________________________, Delaware
Last updated: January 2, 2004
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