IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
FEDERAL RULES OF DISCIPLINARY ENFORCEMENT
The United States District Court for the Western District of
Virginia, in furtherance of its inherent power and
responsibility to supervise the conduct of attorneys who are
admitted to practice before it, or admitted for the purpose of
a particular proceeding (pro hac vice), promulgates the
following Rules of Disciplinary Enforcement superseding all of
its other rules pertaining to disciplinary enforcement
heretofore promulgated.
Rule I
Attorneys Convicted of Crimes
A. Upon filing with this court of a certified copy of a
judgment of conviction demonstrating that any attorney
admitted to practice before the court has been convicted in
any Court of the United States, or the District of Columbia,
or of any state, territory, commonwealth or possession of the
United States of a serious crime as hereinafter defined, the
Court shall enter an order immediately suspending that
attorney, whether the conviction resulted from a plea of
guilty, or nolo contendere or from a verdict after trial or
otherwise, and regardless of the pendency of any appeal, until
final disposition or a disciplinary proceeding to be commenced
upon such conviction. A copy of such order shall immediately
be served upon the attorney. Upon good cause shown, the Court
may set aside such order when it appears in the interest of
justice to do so.
B. The term "serious crime" shall include any felony and any
lesser crime a necessary element of which, as determined by
the statutory or common law definition of such crime is the
jurisdiction where the judgment was entered, involves false
swearing, misrepresentation, fraud, willful failure to file
income tax returns, deceit, bribery, extortion,
misappropriation, theft, or any attempt or a conspiracy of
solicitation of another to commit a "serious crime."
C. A certified copy of a judgment of conviction of an attorney
for any crime shall be conclusive evidence of the commission
of that crime in any disciplinary proceeding instituted
against that attorney based upon the conviction.
D. Upon the filing of a certified copy of a judgment of
conviction of any attorney for a serious crime, the Court
shall in addition to suspending that attorney in accordance
with the provisions of this Rule, also refer the matter to
counsel for the institution of a disciplinary proceeding
before the Court in which the sole issue to be determined
shall be the extent of final discipline to be imposed as a
result of the conduct resulting in the conviction, provided
that a disciplinary proceeding so instituted will not be
brought to final hearing until all appeals from the conviction
are concluded.
E. Upon the filing of a certified copy of a judgment of
conviction of an attorney for a crime not constituting a
"serious crime", the court may refer the matter to counsel for
whatever action counsel may deem warranted, including the
institution of a disciplinary proceeding before the court
provided however, that the court may in its discretion make no
reference with respect to convictions for minor offenses.
F. An attorney suspended under the provisions of this Rule
will be reinstated immediately upon the filing of a
certificate demonstrating that the underlying conviction of a
serious crime has been reversed but the reinstatement will not
terminate any disciplinary proceeding then pending against the
attorney, the disposition of which shall be determined by the
Court on the basis of all available evidence pertaining to
both guilt and the extent of discipline to be imposed.
G. No attorney, regardless of his ability to practice in the
state courts, will be permitted to practice in this Court
while that attorney is on federal probation or parole.
Rule II
Discipline Imposed by Other Courts
A. Any attorney admitted to practice before this Court shall,
upon being subjected to public discipline by any other Court
of the United States or the District of Columbia, or by a
court of any state, territory, commonwealth or possession of
the United States, promptly inform the Clerk of Court of such
action.
B. Upon the filing of a certified or exemplified copy of a
judgment or order demonstrating that any attorney admitted to
practice before this Court has been disciplined by another
court, this Court shall forthwith issue a notice directed to
the attorney containing:
1. a copy of the judgment or order from the court;
and
2. an order to show cause directing the attorney
inform this Court within 30 days after service
of that order upon the attorney, personally or
by mail, of any claim by the attorney
predicated on the grounds set forth in (D)
hereof that the imposition of the identical
discipline by the Court would be unwarranted
and the reasons therefor.
C. In the event that discipline imposed in the other
jurisdiction has been stayed there, any reciprocal discipline
imposed by this Court shall be deferred until the stay
expires.
D. Upon the expiration of 30 days from the service of the
notice
issued pursuant to the provision of (B) above, this Court
shall impose the identical discipline unless the
respondent/attorney demonstrates, or this Court finds, that
upon which the discipline in another jurisdiction is
predicated it clearly appears:
1. that the procedure was so lacking in notice of
opportunity to be heard as to constitute a
deprivation of due process; or
2. that there was such an infirmity of proof
establishing the misconduct as to give rise to
the clear conviction that this Court could not,
consistent with its duty accept as final the
conclusion on that subject; or
3. that the imposition of the same discipline by
this Court would result in grave injustice; or
4. that the misconduct established is deemed by
this Court to warrant substantially different
discipline.
When this Court determines that any of the said elements
exist, it shall enter such other order as it deems
appropriate.
E. In all other respects a final adjudication in another court
that an attorney has been guilty of misconduct shall establish
conclusively that misconduct for purposes of a disciplinary
proceeding in the Court of the United States.
RULE III
Disbarment on Consent or Resignation in Other Courts
A. Any attorney admitted to practice before this Court who
shall be disbarred on consent or resign from the bar of any
other Court of the United States or the District of Columbia,
or from the bar of any state, territory, commonwealth or
possession of the United States while an investigation into
the allegations of misconduct is pending, shall, upon the
filing with this Court of a certified or exemplified copy of
the judgment or order accepting such disbarment on consent or
resignation, cease to be permitted to practice before this
Court.
B. Any attorney admitted to practice before this Court shall,
upon being disbarred on consent or resigning from the bar of
any other Court of the United States or the District of
Columbia, or from the bar of any state, territory,
commonwealth or possession of the United States while an
investigation into the allegations of misconduct is pending,
promptly inform the Clerk of this Court of such disbarment on
consent or resignation.
Standards for Professional Conduct
A. For misconduct defined in these rules, and for good cause
shown, and after notice and opportunity to be heard, any
attorney admitted to practice before this Court may be
disbarred, suspended from practice before this Court,
reprimanded or subjected to such other disciplinary actions as
the circumstances may warrant.
B. Act or omissions by an attorney admitted to practice before
this Court, individually or in concert with another person or
persons, which violate the Code of Professional Responsibility
or Rules of Professional Conduct adopted by this Court shall
constitute misconduct and shall be grounds for discipline,
whether or not the act or omission occurred in the course of
an attorney--client relationship. The Code of Professional
Responsibility or Rules of Professional Conduct adopted by the
highest court of the state in which this Court sits, as
amended from time to time by that state court, except as
otherwise provided by specific Rule of this Court after
specific consideration of comments by representatives of bar
associations within the state.
RULE V
Disciplinary Proceedings
A. When misconduct or allegations of misconduct which if
substantiated, would warrant discipline on the part of an
attorney admitted to practice before this court shall come to
the attention of a Judge of this Court, whether by complaint
or otherwise, and the applicable procedure, is not otherwise
mandated by these rules, the judge shall refer the matter to
counsel for investigation and the prosecution of a formal
disciplinary proceeding or the formulation of other such
recommendation as may be appropriate.
B. Should counsel conclude after investigation and review that
a formal disciplinary proceeding should not be initiated
against the respondent/attorney because sufficient evidence is
not present, or because there is pending another proceeding
against the respondent/attorney, the disposition of which in
the judgment of counsel should be awaited before further
action by this Court be considered for any other valid reason,
counsel shall file with the court a recommendation for
disposition of the matter, whether by dismissal, admonition,
deferral, or otherwise setting forth the reasons therefor.
C. To initiate formal disciplinary proceedings, counsel shall
obtain an order of this Court upon a showing of probable cause
requiring the respondent/attorney to show cause within 30 days
after service of that order upon the attorney, whether
personally or by mail, why the attorney should not be
disciplined. The order to show cause shall include the form
certification of all courts before which the
respondent/attorney is admitted to practice as specified in
form appended to these Rules.
D. Upon the respondent/attorneys answer to the order to show
cause, if any issue of fact is raised or the
respondent/attorney wishes to be heard in mitigation this
court shall set the matter for prompt hearing before one or
more of the judges of this Court, provided however, that if
the disciplinary proceeding is predicated on the complaint of
a Judge of this Court, the hearing shall be conducted before a
panel of three judges of this Court appointed by the chief
judge, or if there are less than three judges eligible to
serve or the chief judge is the complainant, by the Chief
Judge of the Court of Appeals for this Circuit. The
respondent/attorney shall execute the certification of all
courts before which the respondent/attorney is admitted to
practice, in the form specified, and file the certification
with his or her answer.
Rule VI
Disbarment on Consent while under Disciplinary
Investigation or Prosecution
A. Any attorney admitted to practice before this Court who is
the subject of an investigation into or a pending proceeding
involving allegations or misconduct may consent to disbarment,
but only by delivering to this court an affidavit stating that
the attorney desires to consent to disbarment and that:
1. the attorneys consent is freely and voluntarily
rendered; the attorney is not being subjected
to coercion, or duress; the attorney is fully
aware of the implications of so consenting;
2. the attorney is aware that there is a presently
pending investigation or proceeding involving
allegations that there exists grounds for, the
attorneys discipline the nature of which the
attorney shall specifically set forth;
3. the attorney acknowledges that the material
facts so alleged are true; and
4. the attorney so consents because the attorney
knows that if charges were predicated upon the
matters under investigation, or if the
proceeding were prosecuted, the attorney could
not successfully defend himself.
B. Upon receipt of the required affidavit, this Court shall
enter an Order barring the attorney.
C. The order disbarring the attorney on consent shall be a
matter of public record. However, the affidavit required under
the provisions of this Rule shall not be publicly disclosed or
made available for use in any other proceeding except upon
order of this Court.
Reinstatement
A. AFTER DISBARMENT OR SUSPENSION. An attorney suspended for
three months or less shall be automatically reinstated at the
end of the period of suspension upon the filing with the Court
of an affidavit- of compliance with the provisions of the
order. An attorney suspended for more than three months or
disbarred may not resume practice until reinstated by order of
this Court, except as provided in Rule XI(H).
B. TIME OF APPLICATION FOLLOWING DISBARMENT. A person who has
been disbarred after hearing or by consent may not apply for
reinstatement until the expiration of at least five years from
the effective date of disbarment.
C. HEARING ON APPLICATION. Petitions for reinstatement by a
disbarred or suspended attorney under this Rule shall be filed
with the Chief Judge of this Court. Upon receipt of this
petition, the Chief Judge shall promptly refer the petition to
counsel and assign the matter for prompt hearing before one or
more judges of this Court, provided however that if the
disciplinary proceeding was predicated on the complaint of a
judge of this Court, or if there are less than three judges
eligible to serve or the Chief Judge was the complainant, by
the Chief Judge for the Court of Appeals for this Circuit. The
Judge or Judges assigned to this matter shall within thirty
days after referral schedule a hearing at which the petitioner
shall have the burden of demonstrating by clear and convincing
evidence that he has the moral qualifications, competency and
learning in the law required f or admission to practice law
before this court and that his resumption of the practice of
law will not be detrimental to the integrity and standing of
the bar or to the administration of justice, or subversive of
the public interest.
D. DUTY OF COUNSEL. In all proceedings upon a petition for
reinstatement, cross examination of witnesses of the
respondent/attorney and the submission of evidence, if any, in
opposition to the petition shall be conducted by counsel.
E. DEPOSIT FOR COSTS OF PROCEEDING. Petitions for
reinstatement under this Rule shall be accompanied by an
advance cost deposit in an amount to be set from time to time
by the Court to cover anticipated costs of the reinstatement
proceedings.
F. CONDITIONS OF REINSTATEMENT. If the petitioner is found
unfit to resume the practice of law, the petition shall be
dismissed. If the petitioner is found fit to resume the
practice of law, the judgment shall reinstate him, provided
that the judgment may make reinstatement conditional upon the
payment of all or part of the costs of the proceedings and
upon the making of a partial or complete restitution to the
parties harmed by petitioner whose conduct led to the
suspension or disbarment. Provided further, that if the
petitioner has been suspended or disbarred for five years or
more, reinstatement may be conditioned, in the discretion of
the Judge of Judges before whom the matter is heard, upon the
furnishing of proof of competency and learning in the law,
which proof may include certification by the bar examiners of
a state or other jurisdiction of the attorneys successful
completion of an examination for admission to practice
subsequent to the date of suspension or disbarment.
G. SUCCESSIVE PETITIONS. No petition for reinstatement under
this Rule shall be filed within one year following an adverse
judgment upon a petition for reinstatement filed by or on
behalf of the same person.
Rule VIII
Attorneys Specially Admitted
Whenever an attorney applies to be admitted or is admitted to
this Court for purposes of a particular proceeding (pro hac
vice), the attorney shall be deemed thereby to have conferred
disciplinary jurisdiction upon this Court for any alleged
misconduct of that attorney arising in the course of or in the
preparation for such proceeding.
Rule IX
Service of Papers and Other Notices
Service of an order to show cause instituting a formal
disciplinary proceeding shall be made by personal service or
registered or certified mail addressed to the
respondent/attorney at the address shown in the most recent
registration filed pursuant to Rule XI(F) hereof. Service of
any other papers or notices required by these rules shall be
deemed to have been made if such paper or notice is addressed
to the respondent/attorney at the address shown on the most
recent registration statement filed pursuant to Rule XI(F)
hereof; or to counsel or respondents attorney at the address
indicated in the most recent pleading or other document filed
by them in the course of any proceeding.
Rule X
Appointment of Counsel
Whenever counsel is to be appointed pursuant to these rules to
investigate allegation of misconduct or to prosecute
disciplinary proceedings or in conjunction with a
reinstatement petition filed by a disciplined attorney, this
Court shall appoint as counsel the disciplinary agency of the
highest court of the Commonwealth of Virginia wherein the
Court sits or the attorney maintains his principal office in
the case of the courts of appeal, or other disciplinary agency
having jurisdiction. If no such disciplinary agency exists, or
such
disciplinary agency declines appointment or such appointment
is clearly inappropriate, this Court shall appoint as counsel
one or more members of the bar of this Court to investigate
allegations of misconduct or to prosecute disciplinary
proceedings under these rules, provided however that the
respondent attorney may move to disqualify an attorney so
appointed who is or has been engaged as an adversary of the
respondent/attorney in any matter. Counsel, once appointed,
may not resign unless permission to do so is given by the
Court.
Rule XI
Periodic Assessment of Attorneys: Registration Statements
Note--Each court shall make such provisions as it deems
advisable for the assessment and registration of attorneys.
Any fees collected should be maintained in a separate fund
held by the Clerk of Court, as trustee, for the payment,
pursuant to Rule XII, of expenditures incurred, and not on
behalf of the United States.
Rule XII
payment of Fees and Costs
Note--Each court may make such provision as it deems advisable
for the payment of fees and costs incurred in the course of
disciplinary investigation or prosecution.
Rule XIII
Duties of the Clerk
A. Upon being informed that an attorney admitted to practice
before this Court has been convicted of any crime, the Clerk
of this Court shall determine whether the Clerk of the Court
in which such conviction occurred has forwarded a certificate
of such conviction to this Court. If a certificate has not
been so forwarded, the Clerk of this Court shall promptly
obtain a certificate and file it with this Court.
B. Upon being informed that an attorney admitted to practice
before this Court has been subjected to discipline by another
court, the Clerk of Court shall determine whether a certified
or exemplified copy of the disciplinary judgment or order has
been filed with this Court, and if not, the Clerk shall
promptly obtain a certified or exemplified copy of the
disciplinary judgment or order and file it with this Court.
C. Whenever it appears that any person convicted of any crime
or disbarred or suspended or censured or disbarred on consent
by this Court is admitted to practice law in any other
jurisdiction or before any other court, the Clerk of this
Court shall within ten days of that conviction, disbarment,
suspension, censure or disbarment on consent, transmit to the
disciplinary authority in such other jurisdiction or for such
other court, a certificate of the conviction or a certified
exemplified copy of the judgment or order of disbarment,
suspension, censure or disbarment on consent, as well as the
last known office and residence addresses of the defendant or
respondent.
D. The Clerk of Court shall likewise promptly notify the
National Discipline Data Bank operated by the American Bar
Association of any order imposing public discipline upon any
attorney admitted to practice before this Court.
Rule XIV
Jurisdiction
Nothing contained in these Rules shall be construed to deny to
this Court such powers as are necessary for the Court to
maintain control over proceedings conducted before it such as
proceedings for contempt under Title 18 of the United States
Code or under Rule 42 of the Federal Rules of Criminal
Procedure.
Rule XV
Effective Date
These rules as revised, shall become effective on November 4,
1992 provided that any formal disciplinary proceeding pending
before this Court shall be concluded under the procedure
existing prior to the effective date of these rules.
ENTERED FOR THE COURT: 4th
/s/ James C. Turk
CHIEF UNITED STATES DISTRICT JUDGE
