THE LEGAL PROFESSION AND THE PRACTICE OF LAW

1. THE DISCIPLINARY SYSTEM IN MISSOURI • Structure: 4 S.Ct.- appointed agencies • Advisory Committee (AC) (state-wide jur.) • at least 6 lawyers and 2 laypersons • assign hearing panels for specific cases • issue formal advisory opinions • adopt regulations E. DISCIPLINE THE LEGAL PROFESSION AND THE PRACTICE OF LAW

2. Missouri Disc. System c’t’d • Regional Disciplinary Committees (RDC) • 17 in all (one or more judicial circuits) • at least 4 lawyers and 2 lay members • Chief Disciplinary Counsel (CDC) • counsel for bar in disc. proceedings, conduct investigations • may give non-binding informal opinions on questions of concern to a particular lawyer • Disciplinary Hearing Panels (DHP) • hold hearings on assignment • 2 lawyers, 1 lay member on each

3. Missouri System c’t’d • Investigation • by CDC, or RDC at request of CDC or AC • standard: probable cause • procedure: informal (grand jury) w/ record • outcome: • referral to consensual resolution programs if appropriate, or diversion program for minor offenses • if finding of PC: • written admonition (resp. accept or reject), or • prepare information for filing w/ S.Ct. • resp. answer – default is consent to discipline w/o hearing

4. MO DISC. PROCEDURE c’t’d • [Investigation] • [outcome] • if finding of no PC: dismissal, unless complainant requests review by AC • Hearing • by DHP assigned by AC, or by S.Ct. special master on request of AC chair • civil rules and burden of proof, full record • outcome: finding on each charge, dismissal or • written admonition (both parties must agree), or • recommendation of sanction (public reprimand, suspend, disbar)

5. review by S.Ct. • either party can have entire record transferred to S.Ct. • procedure as by original writ • S.Ct. makes independent findings and determination of “appropriate discipline” • Trial (if no DHP hearing) • by S.Ct. or by special master appointed • civil non-jury rules and burden of proof • if by master, findings and recommendations required, briefed and argued before S.Ct. as under original writ

6. Some Basic Notions • Purpose of disciplinary action: protection of the public from incompetent, unreliable or misbehaving lawyers • civil, not criminal process • suppose lawyer is given immunity from prosecution to elicit testimony in criminal case: can that testimony be used against him in a disciplinary proceeding? • can lawyer invoke privilege against self-incrimination?

7. Basic notions c’t’d • Due Process? • an information is filed against a lawyer after investigation, and a hearing is held • after the hearing is concluded, bar counsel moves to amend the information to add a charge based on the evidence presented; • the motion is granted, and the lawyer is found guilty of misconduct as charged in the amendment • has the disciplinary authority denied the lawyer due process of law? In re Ruffalo, n. 3 p. 89

8. Basic notions c’t’d • Can a lawyer be disciplined in her home state for misconduct committed in another state, based on the factual findings made in disciplinary proceedings in that other state? • ABA: presumptive conclusive effect, absent denial of due process or failure of proof convincing the authorities that they can’t be accepted • some jurs. allow new evidence if there was good reason that it wasn’t introduced in first proceeding • Missouri : CDC files information, and S.Ct. issues an order to show cause why the findings should not be conclusive