(a) Motion to Compel a Response. If a respondent fails to respond to Bar Counsel's written inquiries in the course of an investigation, Bar Counsel may file a written motion, with a copy to the respondent, that the Board enter an order compelling a response and for such other relief as may be appropriate. The Chair is authorized to decide the issues presented by Bar Counsel's motion and to enter an appropriate order. The Office of the Executive Attorney shall send a copy to the respondent of a Board order issued pursuant to this subsection.
(b) Petition for Temporary Suspension or Probation for Failure
to Respond to Board Order.
(i) Bar Counsel’s Motion to Petition the Court. If a respondent does not comply with a Board order issued under subparagraph (a) of this Rule in connection with an investigation that involves allegations of serious misconduct, Bar Counsel may file a motion requesting that the Board petition the Court to impose on respondent a temporary suspension, and/or seek temporary conditions of probation pursuant to Section 3(c)(1) of Rule XI. “Serious misconduct” for purposes of this subsection means “fraud, dishonesty, misappropriation, commingling, overdraft of trust accounts, criminal conduct other than criminal contempt, or instances of neglect that establish a pattern of misconduct in the pending investigation.” See Section 3(c)(1) of Rule XI. In addition to the requirements of any other applicable Board Rule, each such motion shall include or have attached thereto:
(a) A statement of all material facts and a supporting affidavit demonstrating that respondent has failed to comply with an order of the Board in connection with an investigation that involves allegations of serious misconduct;
(b) A proposed petition for filing with the Court, in the event that Bar Counsel’s motion is granted by the Chair or Vice Chair of the Board;
(c) A proposed order to be submitted to the Court; and
(d) Proof that respondent has received notice of the Board order, in accordance with the procedures set forth in Section 19(e) of Rule XI. In seeking leave for notice by publication, Bar Counsel shall inform the Court that the matter involves a confidential investigation and a confidential order of the Board.
(ii) Response. Any response by respondent shall include:
(a) Any objections to the action requested by Bar Counsel;
(b) An admission, denial or lack of knowledge with respect to each of the material facts in Bar Counsel’s motion and affidavit; and
(c) An affidavit or other document setting forth the facts on which respondent intends to rely for purposes of disputing or denying any material fact set forth in Bar Counsel’s motion.
The response shall be filed and served within seven days after the service of the motion, unless such time is shortened or enlarged by the Chair or the Vice Chair for good cause shown.
(iii) Reply. Bar Counsel’s reply, if any, shall be filed and served five days after the filing of respondent’s response.
(iv) Disposition of Bar Counsel’s Motion. The Chair or Vice Chair is authorized to decide the matter presented by Bar Counsel’s motion under Section 3(c)(1) of Rule XI and subparagraphs (b)(i) through (iii) of this Rule.
(a) If the motion is granted, the Chair or Vice Chair shall cause the Board to petition the Court for an order, with such notice as the Court may prescribe, temporarily suspending respondent and/or imposing temporary conditions of probation, or to direct Bar Counsel to do so; and
(b) If the motion and/or response thereto raises a genuine issue as to any material fact regarding respondent’s failure to respond to an order of the Board or whether the investigation involves allegations of serious misconduct, the Chair or the Vice Chair may refer such issue(s) to a Hearing Committee for an evidentiary hearing and report thereon, which the Board will forward to the Chair or Vice Chair for action.
(v) Confidentiality. Materials that disclose the substance of the allegations under investigation that are not subject to a petition shall be filed as confidential documents and captioned “Under Seal.”
(vi) Dissolution. To permit prompt dissolution of a Court order of temporary suspension or probation for failure to respond to a Board order, Bar Counsel shall promptly notify the Court when respondent has complied with the Board’s order that formed the basis for the temporary suspension and/or temporary conditions of probation. If Bar Counsel fails to do so, a respondent who believes that s/he has complied with the Board’s order may request that the Board petition the Court for dissolution of the order of temporary suspension and/or temporary conditions of probation, following the applicable procedures set forth in subparagraph (b) of this Rule.