CHAPTER 7 - 7-6 ALTERNATIVES TO DISCIPLINE

• Jurisdiction: United States

7-6 Alternatives to Discipline

Not every probable cause finding leads to the imposition of an order of discipline.¹⁷³ In addition to matters where the Committee finds a lack of clear and convincing evidence to support the imposition of discipline, or declines to discipline even after finding evidence of misconduct, there are two types of negotiated dismissals available, called the "Rule 11A" or the "2-82 with a dismissal" dispositions.

7-6:1 Rule 11A Dismissal

If Disciplinary Counsel believes that the burden of clear and convincing evidence of misconduct cannot be met, a motion to dismiss may be filed.¹⁷⁴ Rule 11A motions may only be filed by Disciplinary Counsel.¹⁷⁵ In addition, if the respondent attorney is also exposed to discipline for the same conduct because of proceedings in another jurisdiction,¹⁷⁶ or as a result of criminal conviction of a crime in state court¹⁷⁷ or the court of another jurisdiction,¹⁷⁸ Disciplinary Counsel may ask that the matter be dismissed without prejudice.¹⁷⁹ If a Rule 11A motion is denied, the matter is sent to a different reviewing committee for a hearing on the merits.¹⁸⁰

Rule 11A is the disciplinary equivalent of a nolle. It was designed to allow Disciplinary Counsel to dismiss matters where they felt that prosecution was not required, where probable cause had been found improperly, or where they felt that they could not sustain their burden of proof. Disciplinary Counsel use Rule 11A infrequently. When Disciplinary Counsel have felt that a matter should not be pursued, they have refused to call witnesses or moved for dismissal after presenting a pro forma case, instead of filing a Rule 11A motion.

This raises some difficult strategic choices for respondents and their counsel. If they know that Disciplinary Counsel is going to recommend a dismissal, how much of a defense case should they present? What if the recommendation is rejected? Will they be prepared to proceed on the merits at that time? The beauty of the Rule 11A system is that it exposes the respondent to no such risk. If the recommendation is rejected, it is clear that the matter has to proceed on another day before a different reviewing committee, giving the respondent time to prepare.

7-6:2 Admissions with a Dismissal

While there is no rule that specifically allows it, one protocol that has developed under the Rule 2-82 procedures is a disposition agreement wherein the respondent attorney admits some misconduct and a rule violation but the Disciplinary...