CHAPTER 7 - 7-5 ADMISSION OF MISCONDUCT: DISCIPLINE BY CONSENT

• Jurisdiction: United States

7-5 Admission of Misconduct: Discipline by Consent

After probable cause is found, Disciplinary Counsel has the authority to discuss and negotiate a disposition of the complaint subject to the approval of the Grievance Committee.¹⁵⁴ The procedures related to such negotiated dispositions are in Practice Book 2-82.¹⁵⁵ The disposition must consist of either an admission of some or all of the material facts alleged in the complaint, or an admission that despite denying the facts, there is sufficient evidence to prove the facts by clear and convincing evidence.¹⁵⁶ Such "Alford"¹⁵⁷ pleas allow the disposition of disciplinary matters without evidentiary admissions that may be used collaterally in malpractice or other litigation.

The negotiated disposition may also include a proposed disciplinary order.¹⁵⁸ For disciplinary orders of suspension or disbarment or otherwise in excess of the jurisdiction of the Grievance Committee, the matter is submitted to a court.¹⁵⁹ All other matters are submitted to the Grievance Committee.¹⁶⁰ Such submissions include both an agreement¹⁶¹ and an affidavit from the respondent attorney.¹⁶²

The affidavit must include an averment by the attorney that the matters are freely and voluntarily submitted,¹⁶³ that the respondent is not making the admission and proposed agreement as a result of threats, coercion or duress or promises or inducements not set forth in the agreement,¹⁶⁴ and that the attorney is fully aware of the consequences of the submission.¹⁶⁵ The affidavit must also aver that the attorney is aware of the charges in the matter and either admits the facts of the matter or denies the facts but admits that there is sufficient evidence to prove the facts by clear and convincing evidence.¹⁶⁶ Such submission must include the full record of the case.¹⁶⁷

The admission of misconduct does not have to include all of the facts in the complaint and does not have to include all of the charges proffered against the attorney.¹⁶⁸ Disciplinary Counsel may recommend dismissal of all charges not included in the disposition agreement.¹⁶⁹ If the proposed disposition is not approved, either by a court or by a reviewing committee of the Grievance Committee, the agreement is not made public, and the matter proceeds for disposition without reference to the previous agreement and admissions.¹⁷⁰

If a respondent attorney and Disciplinary Counsel cannot agree on a disposition, but nevertheless the attorney wishes to admit misconduct or predicate facts...