| 7.6
Notice of Intent to Raise Disability in Mitigation
- Respondent’s Notice. If respondent intends to raise an alleged
disability in mitigation pursuant to Board Rule 11.12, respondent
shall file a notice with the Board Office on a form provided by the
Board Office. Respondent shall serve a copy on Bar Counsel. The notice
is due on the date that the answer to the petition is due. Failure
to file a notice of intent to raise an alleged disability in mitigation
shall operate as a waiver of the right to raise an alleged disability
in mitigation, subject to the provisions of subparagraph (d).
- Confidentiality of Notice. The Hearing Committee before which
the disciplinary matter is pending shall not be informed of the notice
by the Board Office or Bar Counsel until the conclusion of the first
phase of the hearing, and the Committee has determined preliminarily
pursuant to Board Rule 11.10 that Bar Counsel proved some or all of
the charges alleged in the petition. Respondent may notify the Hearing
Committee of the notice at any time.
- Conditions of Practice. If a respondent files a notice pursuant
to subparagraph (a) hereof, the Board shall issue an order forthwith
providing for appropriate conditions under which respondent shall
practice law. Said order may include the appointment of monitor(s)
depending upon the particular circumstances of the case. The Board
hereby delegates authority to the Chair of the Board to enter an order
pursuant to this subparagraph.
- Monitors. Should the Board appoint monitors, the monitor(s)
shall report to the Board Office on a periodic basis to be determined
by the Board. The monitoring shall remain in effect during the
pendency of the disciplinary proceeding or until order of the
Board or the Court. The monitor(s) shall respond to Bar Counsel’s
inquiries concerning such monitoring and may be called by Bar
Counsel or respondent to testify in the sanction phase of a disciplinary
proceeding involving respondent, or in a proceeding initiated
under Rule XI, Section 13.
- Waiver. The filing of a notice pursuant to subparagraph
(a) hereof is deemed to constitute a waiver by respondent of any
claim of the right to withhold from the Board or Bar Counsel information
coming to the attention of a monitor, subject to respondent’s
right to seek protective treatment pursuant to Rule XI, Section
17(d).
- Late-Filed Notice.
- 30 Days Before Scheduled Hearing. If respondent wishes
to raise an alleged disability in mitigation after the date prescribed
in subparagraph (a) but no later than 30 days before the date
scheduled by the Board Office for the hearing on the petition,
respondent shall file a motion with the Board, on notice to Bar
Counsel, setting forth good cause why respondent should be allowed
to raise the plea in mitigation out of time. Bar Counsel may consent
in writing to the grant of the motion. The Board may grant or
deny the motion, or may refer the matter to a Hearing Committee
(other than the Hearing Committee before which the disciplinary
matter is pending) for an evidentiary hearing. Leave to assert
the plea in mitigation shall be freely granted when justice so
requires, and in the absence of a showing of prejudice by Bar
Counsel. An order of the Board granting such a motion may include
the provisions prescribed in subparagraphs (c), (c)(I) and (c)(ii),
and, in circumstances where the Board determines it to be just
and appropriate, may further be conditioned upon respondent’s
consent to an interim suspension pending the disposition of the
disciplinary proceeding.
- Within 30 Days of Scheduled Hearing. If a respondent
wishes to raise an alleged disability in mitigation after the
date prescribed in subparagraph (d)(I), respondent shall file
a motion with the Board, as prescribed in that subparagraph. Such
a motion will be granted only on the condition that respondent
consent to an interim suspension pending the disposition of the
disciplinary proceeding.
- Disposition of Respondent’s Motion. The Board hereby
delegates authority to the Chair of the Board to enter an appropriate
order disposing of Respondent’s motion pursuant to this subsection
(d).
- Violations of Conditions of Practice. Should a monitor report
that respondent has violated a term or condition under which respondent
is continuing to practice, Bar Counsel may ask the Executive Attorney
to schedule the matter before a Hearing Committee for a hearing and
recommendation to the Board on the issue of whether the monitoring
shall be lifted, and respondent suspended, pending final disposition
of the disciplinary proceedings. The Hearing Committee shall file
its report with the Board on an expedited basis. The Board shall consider
whether to order the suspension of respondent until final disposition
of the disciplinary proceeding.
- Motion to Vacate or Modify Suspension. A respondent suspended
pursuant to this Rule 7.6 may file a motion at any time with the Board
to vacate or modify suspension. If respondent’s motion presents a
prima facie case that respondent is significantly rehabilitated from
the alleged disability, the matter will be referred promptly by the
Board to a Hearing Committee for an evidentiary hearing on the issue
of rehabilitation. Reinstatement pursuant to this subparagraph (f)
shall be subject to the monitoring and waiver provisions of subparagraphs
(c), (c)(I) and (c)(ii). Respondent shall have the burden of proving,
by clear and convincing evidence, significant rehabilitation from
the alleged disability. The Hearing Committee shall file a report
with the Board on an expedited basis.
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