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In 1992 the ABA Commission on Evaluation of Disciplinary Enforcement submitted to the ABA House of Delegates various recommendations contained in a long report entitled Lawyer Regulation for a New Century, based on an intensive evaluation of the US lawyer disciplinary enforcement system, which the House subsequently approved, with the understanding that each state jurisdiction should determine for itself whether to accept or modify the individual recommendations, and which recommendations, taken as a whole, made more stringent the existing US lawyer disciplinary enforcement system, to wit:
1. Regulation of the legal profession should remain under the authority of the judicial branch of government.
2. Supporting Judicial Regulation and Professional Responsibility
2.1 The American Bar Association should continue to place the highest priority on promoting, developing, and supporting judicial regulation of the legal profession and professional responsibility.
2.2 The Association should continue to provide adequate funding and staffing for activities to support judicial regulation and professional responsibility.
2.3. To promote the most efficient allocation of resources, the Association should establish written policies to insure that all of its judicial regulation and professional responsibility activities are coordinated, regardless of the Association entity conducting the activity.
3. Expanding the Scope of Public Protection
The Court should establish a system of regulation of the legal profession that consists of:
3.1 component agencies, including but not limited to: lawyer discipline, a client protection fund, mandatory arbitration of fee disputes, voluntary arbitration of lawyer malpractice claims and other disputes, mediation, lawyer practice assistance, lawyer substance abuse counselling; and
3.2 a central intake office for the receipt of all complaints about lawyers, whose functions should include: (a) providing assistance to complainants in stating their complaints; (b) making a preliminary determination as to the validity of the complaint; (c) dismissing the complaint or determining the appropriate component agency or agencies to which the complaint should be directed and forwarding the complaint; (d) providing information to complainants about available remedies, operations and procedures, and the status of their complaints; and (e) coordinating among agencies and tracking the handling and disposition of each complaint.
4. Lawyer Practice Assistance Committee
4.1 The Court should establish a Lawyer Practice Assistance Committee. At least one third of the members should be nonlawyers. The Lawyer Assistance Committee should consider cases referred to it by the disciplinary counsel and the Court and should assist lawyers voluntarily seeking assistance. The Committee should provide guidance to the lawyer including, when appropriate: (a) review of the lawyer's office and case management practices and recommendations for improvement; and (b) review of the lawyer's substantive knowledge of the law and recommendations for further study.
4.2 In cases in which the lawyer has agreed with disciplinary counsel to submit to practice assistance, the Committee may require the lawyer to attend continuing legal education classes, to attend and successfully complete law school courses or office management courses, to participate in substance abuse recovery programs or in psychological counselling, or to take other actions necessary to improve the lawyer's fitness to practice law.
5. Independence of Disciplinary Officials
All jurisdictions should structure their lawyer disciplinary systems so that disciplinary officials are appointed by the highest court of the jurisdiction or by other disciplinary officials who are appointed by the Court. Disciplinary officials should possess sufficient independent authority to conduct the lawyer discipline function impartially:
5.1 Elected bar officials, their appointees and employees should provide only administrative and other services for the disciplinary system that support the operation of the system without impairing the independence of disciplinary officials.
5.2 Elected bar officials, their appointees and employees should have no investigative, prosecutorial, or adjudicative functions in the disciplinary process.
5.3 The budget for the office of disciplinary counsel should be formulated by disciplinary counsel. The budget for the statewide disciplinary board should be formulated by the board. Disciplinary budgets should be approved or modified directly by the Court or by an administrative agency of the Court. Disciplinary counsel and the disciplinary board should be accountable for the expenditure of funds only to the Court, except that bar associations may provide accounting and other financial services that do not impair the independence of disciplinary officials.
5.4 Disciplinary counsel and staff, disciplinary adjudicators and staff, and other disciplinary agency personnel should be absolutely immune from civil liability for all actions performed within the scope of their duties, consistent with ABA MRLDE 12A.
6. Independence of Disciplinary Counsel
6.1 The Court alone should appoint and remove disciplinary counsel and should provide sufficient authority for prosecutorial independence and discretion. The Court should also promulgate rules providing that disciplinary counsel shall:
(a) have authority to employ and terminate staff, formulate a budget and approve expenditures subject only to the authority of the Court;
(b) have authority, in cases involving allegations of minor incompetence, neglect, or misconduct, to resolve a matter with the consent of the respondent by administrative procedures established by the Court;
(c) have authority to appeal a decision of a hearing committee or the disciplinary board;
(d) be compensated sufficiently to attract competent counsel and retain experienced counsel; and
(e) be prohibited from providing advisory ethics opinions, either orally or in writing.
6.2 The Court should adopt a rule providing that no disciplinary adjudicative official (including hearing committee members, disciplinary board members, or members of the Court) shall communicate ex parte with disciplinary counsel regarding an ongoing investigation or disciplinary matter, except about administrative matters or to report information alleging the misconduct of a lawyer.
7. Access to Disciplinary Information
All records of the lawyer disciplinary agency except the work product of disciplinary counsel should be available to the public after a determination has been made that probable cause exists to believe misconduct occurred, unless the complainant or respondent obtains a protective order from the highest court or its designee for specific testimony, documents or records. All proceedings except adjudicative deliberations should be public after a determination that probable cause exists to believe that misconduct occurred.
8. Complainant's Rights
8.1 Complainants should receive notice of the status of disciplinary proceedings at all stages of the proceedings. In general, a complainant should receive, contemporaneously, the same notices and orders the respondent receives as well as copies of respondent's communications to the agency, except information that is subject to another client's privilege.
8.2 Complainants should be permitted a reasonable opportunity to rebut statements of the respondent before a complaint is summarily dismissed.
8.3 Complainants should be notified in writing when the complaint has been dismissed. The notice should include a concise recitation of the specific facts and reasoning upon which the decision to dismiss was made.
8.4 Disciplinary counsel should issue written guidelines for determining which cases will be dismissed for failure to allege facts that, if true, would constitute grounds for disciplinary action. These guidelines should be sent to complainants whose cases are dismissed.
8.5 Complainants should be notified of the date, time, and location of the hearing. Complainants should have the right to personally appear and testify at the hearing.
8.6 All jurisdictions should afford a right of review to complainants whose complaints are dismissed prior to a full hearing on the merits, consistent with ABA MRLDE 11B(3) and 31.
9. Procedures In Lieu of Discipline for Minor Misconduct
All jurisdictions should adopt procedures in lieu of discipline for matters in which a lawyer's actions constitute minor misconduct, minor incompetence, or minor neglect.
The procedures should provide:
9.1 The Court shall define criteria for matters involving minor misconduct, minor incompetence, or minor neglect that may be resolved by non‑disciplinary proceedings or dismissal.
9.2 If disciplinary counsel determines that a matter meets the criteria established by the Court, disciplinary counsel may reach agreement with the respondent to submit the matter to non‑disciplinary proceedings. Such proceedings may consist of fee arbitration, arbitration, mediation, lawyer practice assistance, substance abuse recovery programs, psychological counselling, or any other non‑disciplinary proceedings authorized by the Court. Disciplinary counsel shall then refer the matter to the agency or agencies authorized by the Court to conduct the proceedings.
9.3 If the lawyer does not comply with the terms of the agreement disciplinary counsel may resume disciplinary proceedings.
9.4 If the lawyer fulfils the terms of the agreement, the disciplinary counsel shall dismiss the disciplinary proceeding.
10. Expedited Procedures for Minor Misconduct
All jurisdictions should adopt simplified, expedited procedures to adjudicate cases in which the alleged misconduct warrants less than suspension or disbarment or other restriction on the right to practice. Expedited procedures should provide:
10.1 The Court shall define minor violations of the rules of professional conduct that shall subject the respondent to sanctions not constituting restrictions on the right to practice law, consistent with the ABA Standards for Imposing Lawyer Sanctions.
10.2 A hearing shall be held by a single adjudicator [member of a hearing committee].
10.3 The adjudicator shall make concise, written findings of fact and conclusions of law and shall either dismiss the case or impose a sanction that does not constitute a restriction on the respondent's right to practice.
10.4 Respondent and disciplinary counsel shall have the right to appeal the decision to a second adjudicator [member of the statewide disciplinary board], who shall either adopt the decision below or make written findings. The appellate adjudicator shall either dismiss the case or impose a sanction that does not constitute a restriction on the respondent's right to practice.
10.5 The decision of the appellate adjudicator may be reviewed at the discretion of the Court upon application by respondent or disciplinary counsel. The Court shall grant review only in cases involving significant issues of law or upon a showing that the decision below constituted an abuse of discretion. The Court shall either adopt the decision below or make written findings. The Court shall either dismiss the case or impose a sanction that does not constitute a restriction on the respondent's right to practice.
10.6 Upon final disposition of the case, the written findings of the final adjudicator shall be published in an appropriate journal or reporter and a copy shall be mailed to the respondent and the complainant and to the ABA National Discipline Data Bank.
11. Disposition of Cases by a Hearing Committee, the Board or Court.
The statewide disciplinary board should not review a determination of the hearing committee except upon a request for review by the disciplinary counsel or respondent or upon the vote of a majority of the Board. The Court should not review a matter except: (a) within its discretion upon a request for review of the determination of the Board by the disciplinary counsel or respondent; or (b) upon the vote of a majority of the Court to review a determination of the hearing committee or Board. Except in unusual cases requiring a de novo hearing by the Court, the Court should exercise its jurisdiction in the capacity of appellate review. The Court should issue and publish full written opinions in all disciplinary cases. In any matter finally determined by a hearing committee or the Board, the Court should by per curiam order adopt and publish the findings and conclusions contained in the written report of the committee or Board.
12. Interim Suspension for Threat of Harm
The immediate interim suspension of a lawyer should be ordered upon a finding that a lawyer poses a substantial threat of serious harm to the public.
13. Funding and Staffing
The Court should insure that adequate funding and staffing is provided for the disciplinary agency so that: (a) disciplinary cases are screened, investigated, prosecuted and adjudicated promptly; (b) the work load per staff person permits careful and thorough performance of duties; (c) professional and support staff are compensated at a level sufficient to attract and retain competent personnel; (d) sufficient office and data processing equipment exist to efficiently and quickly process the work load and manage the agency; (e) adequate office space exists to provide a productive working environment; and (f) staff and volunteers are adequately trained in disciplinary law and procedure.
14. Standards for Resources
14.1 Each jurisdiction should keep case load and time statistics to assist in determining the need for additional staff and resources. Case load and time statistics should include, at the minimum:
(a) time records for all counsel and investigators, tracked by case or other task including time spend on non‑disciplinary functions;
(b) the number of pending cases at each stage in the disciplinary process for each counsel and the whole agency;
(c) the number of new cases assigned to each counsel during the year and the total for the agency;
(d) the number of cases carried over from the prior year for each counsel and the total for the agency;
(e) the number of cases closed by each counsel during the year and the total for the agency;
(f) the number of cases of special difficulty or complexity at each stage in the proceedings; and
(g) the ratio of staff turnover.
14.2 The American Bar Association, National Organization of Bar Counsel, and disciplinary agencies in each jurisdiction should cooperate to develop standards for:
(a) staffing levels and case load per professional and support staff member; (b) case processing time at all stages of disciplinary proceedings; and (c) compensation of professional and support staff.
15. Field Investigations
Disciplinary counsel should have sufficient staff and resources to: (1) fully investigate complaints, by such means as sending investigators into the field to interview witnesses and examine records and evidence; and (2) regularly monitor sources of public information such as news reports and court decisions likely to contain information about lawyer misconduct.
16. Random Audit of Trust Accounts
The Court should adopt a rule providing that lawyer trust accounts selected at random may be audited without having grounds to believe misconduct has occurred and also providing appropriate procedural safeguards.
17. Burden of Proof in Arbitration of Fee Disputes
The Court should adopt a rule for fee arbitration proceedings to provide that, except where the fee agreement otherwise has been established in a continuing relationship, if there is no written agreement between the lawyer and the client, the lawyer shall bear the burden of proof of all facts, and the lawyer shall be entitled to no more than the reasonable value of services for the work completed or, if the failure to complete the work was caused by the client, for the work performed.
18. Mandatory Malpractice Insurance Study
The American Bar Association should continue studies to determine whether a model program and model rule should be created to: (a) make appropriate levels of malpractice insurance coverage available at a reasonable price; and (b) make coverage mandatory for all lawyers who have clients.
19. Effective Date of Disbarment and Suspension Orders
The Court should adopt a rule providing that orders of disbarment and suspension shall be effective on a date [15] days after the date of the order except where the Court finds that immediate disbarment or suspension is necessary to protect the public, contrary to the provisions of MRLDE 27E.
20. National Discipline Data Bank
The American Bar Association should provide or seek adequate funding to automate the dissemination of reciprocal discipline information by means of electronic data processing and telecommunications, so that:
20.1 appropriate discipline, bar admissions, and other officials in each jurisdiction can directly access and query the National Discipline Data Bank via a computer telecommunications network;
20.2 a uniform data format and software are developed permitting automated cross‑checking of jurisdictions' rosters of licensed lawyers against the National Discipline Data Bank's contents;
20.3 a listing of the contents of the National Discipline Data Bank is disseminated to discipline officials quarterly or semi‑annually on an electronic data processing medium suitable for automated comparison with a jurisdiction's roster of lawyers.
21. Coordinating Interstate Identification
21.1 The American Bar Association and the appropriate officials in each jurisdiction should establish a system of assigning a universal identification number to each lawyer licensed to practice law.
21.2 The highest court in each jurisdiction should require all lawyers licensed in the jurisdiction to (a) register annually with the agency designated by the Court stating all other jurisdictions in which they are licensed to practice law, and (b) immediately report to the agency designated by the Court changes of law license status in other jurisdictions such as admission to practice, discipline imposed, or resignation. (Http:www.abanet.org/cpr, Go to the Mackay Report).
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