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Committee seeks more time to develop rule to deal with lawyers charged with felonies

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Robin Bresky

Robin Bresky

The Disciplinary Procedure Committee wants the Bar to ask the Supreme Court for more time to develop a proposed rule for temporarily suspending lawyers who face felony charges.

“We’re trying to get to a better place,” Committee Chair Robin Bresky said at a September 23 meeting.

The committee voted unanimously to recommend that the Bar request a six-month extension to an October 15 deadline the Supreme Court set in June for filing a rule petition.

The committee was poised  to approve two versions of proposed amendments to Rule 3-5.2 (Emergency Suspension and Interim Probation or Interim Placement on the Inactive List for Incapacity Not Related to Misconduct).

One version would create a subsection (b) that would permit the court to temporarily suspend a lawyer after the Bar filed a “Notice of Institution of Felony Charge.”

Concerned that the rule would allow for the suspension of an attorney without a hearing in the underlying criminal case, or a disciplinary proceeding, the committee also proposed a comment.

“In light of those concerns, the board hopes that the Court will not order suspension as a matter of course and, rather than viewing suspension as a default position, hopes the Court will review the issue of whether individual respondents will be subject to emergency suspension due to felony charges on a case-by-case basis.”

In a June 11 letter, the Supreme Court cited a “continuing need to protect the public,” and directed the Bar to develop a rule petition.  Justices noted that Bar Rule 3-7.2 provides for suspensions only after there has been a determination of guilt in a criminal case.

“Without an appropriate rule modification, an attorney may remain eligible to practice law during the pendency of a felony case while the attorney may also be unwilling or unable to respond fully in disciplinary proceedings,” the justices wrote.

Committee members acknowledged that they have struggled to develop a proposal that balances the court’s concerns with a lawyer’s due process rights.

The committee was also considering a revised version that would give lawyers an opportunity to file a response to the criminal allegations. The response, along with the charging documents, would be forwarded to the court with the Bar’s “Notice of Institution of Criminal Charge.” The proposal also would have allowed a suspended lawyer to file a motion to dissolve the temporary suspension if the indictment was dropped or the charges were reduced to a misdemeanor.

But the committee voted to put the proposals on hold and seek an extension after members of the Criminal Law Section raised strenuous objections.

“We stand for due process as lawyers, and we have to lead the way,” said Criminal Law Section immediate past Chair Warren Lindsey. “Prosecutors, defense lawyers, judges, and people in academia, and the people in the executive committee, everybody thought that this needed more work.”

At the same time the committee voted to recommend the extension, it also asked the Criminal Law Section to forward a proposed amendment to the committee by December 1. The Board of Governors will weigh the committee’s recommendation next week at an October 1 meeting.

Criminal Law Section Executive Council member David B. Rothman told the committee that emergency suspensions are justified when a lawyer poses a clear danger to the community. But he said the proposed rule amendments would make it too easy for a vindictive or inexperienced prosecutor to derail a lawyer’s practice.

“It was clearly a rule change without any due process whatsoever, and to us, it was totally unacceptable,” he said.

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