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...