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law 5280 - professional responsibilty > ATTORNEY DISCIPLINE SYSTEM IN MISSOURI > Flashcards

ATTORNEY DISCIPLINE SYSTEM IN MISSOURI Flashcards

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1
Q

SOURCES OF COMPLAINTS

A

Ethical complaints may be sourced from the following:

–> Clients against their own attorney
–> Other lawyers pursuant to Rule 4-8.3
–> Judges
–> Self-reports
–> Prosecutors
–> News and media reports

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2
Q

INTAKE REVIEW PROCESS

A

All complaints initially go through an intake review process.

This process ensures that the OCDC has jurisdiction.

Criteria for Jurisdiction:
–> Must be confined to professional misconduct under the RPC
–> Did the conduct occur in Missouri?
–> Alternatively, did the conduct occur out of state by an attorney licensed in Missouri?

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3
Q

AVAILALABLE DISCIPLINARY ACTION

A

Admonition
–> Issued by disciplinary agency

Public Reprimand

Disbarment
–> 5 years
–> For reinstatement, have to retake the bar

Only the Court can issue a reprimand, suspension, or disbarment.

There is confidentiality and public access to disciplinary information.

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4
Q

RELEVANT FACTORS IN DISCIPLINE

A

Did the attorney violate Rule 4 (the RPC)?

Does the attorney prior discipline and, if so, is there a course of conduct present?

Are mitigating or aggravating circumstances present? Including:
–> Restitution
–> History
–> Reputation
–> Experience

What level of discipline is necessary to protect the public and the integrity of the bar?
–> The overriding analysis
–> Discipline is not intended to punish the attorney

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5
Q

DISCIPLINARY HEARING PANEL (Formal Disciplinary proceeding for MO)

A

3 members (2 lawyers, 1 non-lawyer)

All evidentiary rules apply

Limited discovery
–> No interrogatories

Hearing concluded within 120 days of charges.

DHP decision within 45 days of hearing
–> Not jurisdictional
–> DHP decision is advisory only

Supreme Court review is de novo.

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6
Q

DIVERSION

A

Applicable to cases of minor misconduct.

Permits OCDC to monitor attorney’s practice for a period of time.

Attorney required to seek necessary and appropriate assistance (e.g. AA; mental health; practice management)

Benefits both the system and the attorney
–> Underlying complaint held in abeyance and dismissed upon successful completion of diversion.

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7
Q

PROBATION

A

Limited to major violations where the attorney is unlikely to cause additional harm to the public
–> Can’t involve an act warranting disbarment

Can only be imposed by the Court in conjunction with a stayed suspension

Unlike diversion, probation in conjunction with a stayed suspension is an order of discipline

In the event of additional misconduct, OCDC may file a motion seeking to revoke probation and impose suspension.

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8
Q

MO DISCIPLINARY SYSTEM

A
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9
Q

PROGRESSIVE, GRADUATED DISCIPLINE

A
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10
Q

PROGRESSIVE, GRADUATED DISCIPLINE

A
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11
Q

MO DISCIPLINARY SYSTEM

A

Missouri’s system of attorney discipline is distinctive in that it utilizes a mix of full-time staff at the OCDC in Jefferson City and practicing attorneys sitting as Regional Disciplinary Committees in the major metropolitan areas.

The Supreme Court, the OCDC and the RDCs follow a system of progressive, graduated discipline.
–> No one is allowed to bump around in their practice violating rules!

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12
Q

PROGRESSIVE, GRADUATED DISCIPLINE

A

The process of using increasingly severe steps or measures when an employee fails to correct a problem after being given a reasonable opportunity to do so.

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12
Q

MO DISCIPLINARY SYSTEM

A

Missouri’s system of attorney discipline is distinctive in that it utilizes a mix of full-time staff at the OCDC in Jefferson City and practicing attorneys sitting as Regional Disciplinary Committees in the major metropolitan areas.

The Supreme Court, the OCDC and the RDCs follow a system of progressive, graduated discipline.
–> No one is allowed to bump around in their practice violating rules!

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13
Q

STANDARD OF REVIEW?

A

Complaints are investigated and reviewed based upon a probable cause standard.

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14
Q

DUE PROCESS?

A
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15
Q

BURDEN OF PROOF?

A
16
Q

STANDARD OF REVIEW?

A

Complaints are investigated and reviewed based upon a probable cause standard.

16
Q

PROGRESSIVE, GRADUATED DISCIPLINE

A

The process of using increasingly severe steps or measures when an employee fails to correct a problem after being given a reasonable opportunity to do so.

16
Q

MO DISCIPLINARY SYSTEM

A

Missouri’s system of attorney discipline is distinctive in that it utilizes a mix of full-time staff at the OCDC in Jefferson City and practicing attorneys sitting as Regional Disciplinary Committees in the major metropolitan areas.

The Supreme Court, the OCDC and the RDCs follow a system of progressive, graduated discipline.
–> No one is allowed to bump around in their practice violating rules!

17
Q

DUE PROCESS?

A
17
Q

BURDEN OF PROOF?

A
18
Q

DUE PROCESS?

A

Investigative proceedings are bifurcated:

  1. Initial investigation is performed in a summary and informal fashion
    —-> Investigation can happen in any manner that they want; once a FORMAL process has been initiated, THEN due process comes into play
  2. Once probable cause is found, formal charges are filed and due process guarantees apply
    —-> No right to jury trial
18
Q

MO DISCIPLINARY SYSTEM

A

Missouri’s system of attorney discipline is distinctive in that it utilizes a mix of full-time staff at the OCDC in Jefferson City and practicing attorneys sitting as Regional Disciplinary Committees in the major metropolitan areas.

The Supreme Court, the OCDC and the RDCs follow a system of progressive, graduated discipline.
–> No one is allowed to bump around in their practice violating rules!

19
Q

BURDEN OF PROOF?

A
19
Q

STANDARD OF REVIEW?

A

Complaints are investigated and reviewed based upon a probable cause standard.

19
Q

PROGRESSIVE, GRADUATED DISCIPLINE

A

The process of using increasingly severe steps or measures when an employee fails to correct a problem after being given a reasonable opportunity to do so.

20
Q

MO DISCIPLINARY SYSTEM

A

Missouri’s system of attorney discipline is distinctive in that it utilizes a mix of full-time staff at the OCDC in Jefferson City and practicing attorneys sitting as Regional Disciplinary Committees in the major metropolitan areas.

The Supreme Court, the OCDC and the RDCs follow a system of progressive, graduated discipline.
–> No one is allowed to bump around in their practice violating rules!

21
Q

BURDEN OF PROOF?

A

Preponderance of the evidence

21
Q

DUE PROCESS?

A

Investigative proceedings are bifurcated:

  1. Initial investigation is performed in a summary and informal fashion
    —-> Investigation can happen in any manner that they want; once a FORMAL process has been initiated, THEN due process comes into play
  2. Once probable cause is found, formal charges are filed and due process guarantees apply
    —-> No right to jury trial
21
Q

PROGRESSIVE, GRADUATED DISCIPLINE

A

The process of using increasingly severe steps or measures when an employee fails to correct a problem after being given a reasonable opportunity to do so.

21
Q

STANDARD OF REVIEW?

A

Complaints are investigated and reviewed based upon a probable cause standard.

22
Q

OTHER DISCIPLINARY TOOLS

A

Diversion and probation have been in use for 20 years.

Among the lawyers that have been disciplined this way, 25% of them had never needed to be disciplined again.

23
Q

MO DISCIPLINARY SYSTEM

A

Missouri’s system of attorney discipline is distinctive in that it utilizes a mix of full-time staff at the OCDC in Jefferson City and practicing attorneys sitting as Regional Disciplinary Committees in the major metropolitan areas.

The Supreme Court, the OCDC and the RDCs follow a system of progressive, graduated discipline.
–> No one is allowed to bump around in their practice violating rules!

23
Q

PROGRESSIVE, GRADUATED DISCIPLINE

A

The process of using increasingly severe steps or measures when an employee fails to correct a problem after being given a reasonable opportunity to do so.

24
Q

STANDARD OF REVIEW?

A

Complaints are investigated and reviewed based upon a probable cause standard.

25
Q

DUE PROCESS?

A

Investigative proceedings are bifurcated:

  1. Initial investigation is performed in a summary and informal fashion
    —-> Investigation can happen in any manner that they want; once a FORMAL process has been initiated, THEN due process comes into play
  2. Once probable cause is found, formal charges are filed and due process guarantees apply
    —-> No right to jury trial
25
Q

OTHER DISCIPLINARY TOOLS

A

Diversion and probation have been in use for 20 years.

Among the lawyers that have been disciplined this way, 25% of them had never needed to be disciplined again.

25
Q

BURDEN OF PROOF?

A

Preponderance of the evidence

law 5280 - professional responsibilty (3 decks)

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