| 11.12—Mitigation
of Sanction for Disability or Addiction
- Respondent’s Motion. If respondent desires to present
evidence on mitigation of sanctions based on an alleged disability
or addiction (hereinafter "disability-related mitigation evidence"),
respondent shall file a motion not later than at the beginning
of the second part of the bifurcated hearing pursuant to Board
Rule 11.10, and such motion shall set forth a simple narrative
statement of the material facts including but not limited to:
(I) the alleged facts showing that respondent had a disability
or addiction, all of which facts respondent shall have the burden
of establishing by clear and convincing evidence; (ii) the alleged
facts showing that respondent’s misconduct would not have occurred
but for respondent’s disability or addiction, all of which facts
respondent shall have the burden of establishing by a preponderance
of the evidence; (iii) other alleged facts, written statements
and consents required by Board Rule 14.8(c) to establish significant
evidence of rehabilitation or recovery; and (iv) a signed form
(available at the Board Office) wherein respondent acknowledges
the alleged disability or addiction and stipulates that such acknowledgment
may be used by the Board (if relevant and if respondent fails
to establish significant evidence of rehabilitation or recovery)
in seeking from the Court an order imposing probationary conditions
or suspension pursuant to Section 13(c) of Rule XI of the Rules
Governing the Bar.
- Bar Counsel’s Response and Scheduling of Hearing. The
Chair of the Hearing Committee may require Bar Counsel to submit
a written response to respondent’s motion and may reschedule the
second part of the bifurcated hearing in order to allow Bar Counsel
a reasonable period to investigate and respond to the disability-related
mitigation evidence alleged in respondent’s motion.
- Hearing Committee Report. The Hearing Committee’s report
to the Board shall include separate findings and conclusions on
all material facts related to mitigation of sanctions.
- Evidence of Rehabilitation. In determining whether respondent
has submitted significant evidence of rehabilitation or recovery
that is sufficient for mitigation of sanctions due to disability
or addiction, the Board will generally require substantially the
same evidence (including satisfactory completion of an adequate
period of rehabilitation or recovery) as would apply, under Section
13(g) of Rule XI of the Rules Governing the Bar, to an application
for reinstatement had respondent been suspended by an order of
the Court based on the same disability or addiction for which
mitigation of sanctions is requested.
- Inadequate Evidence of Rehabilitation. If the Board concludes
that respondent’s evidence submitted at the initial bifurcated
hearing satisfies all requirements for mitigation of sanctions
due to disability or addiction except that the duration or other
aspects of respondent’s rehabilitation or recovery were not then
sufficient to constitute significant evidence of rehabilitation,
the disciplinary matter shall go forward in the usual manner.
Unless otherwise provided in any suspension order or other directive
of the Court, respondent shall be entitled, by motion filed at
any time within one year of the initial bifurcated hearing, to
supplement the record in the disciplinary proceeding by submitting
evidence showing that respondent’s rehabilitation or recovery
is then sufficient to constitute significant evidence of rehabilitation,
and if appropriate the Board will thereafter submit a supplement
report to the Court with the Board’s recommendation concerning
mitigation of sanction in light of respondent’s supplemental evidence.
|
