Petition for Disciplinary or Remedial Action
Unless the complaint is dismissed or otherwise resolved by agreement of the parties, Bar Counsel institutes more formal proceedings by petitioning the Court of Appeals for disciplinary or remedial action. Unlike the summary contained in the Statement of Charges, this petition must clearly specify the professional misconduct charged and/or the basis of any allegation that the respondent is incapacitated and should be placed on inactive status.
Discovery and Evidentiary Hearing
Once filed, the Court of Appeals will enter an order appointing a Circuit Court judge to act on its behalf in overseeing the discovery process, ruling upon motions, holding an evidentiary hearing and issuing factual findings, legal conclusions and recommended action. After being served with this order and a copy of the Petition, the responding attorney has 15 days to file an Answer and either party may request that the Court of Appeals appoint a different judge within that time.
Unless the respondent defaults by failing to answer the Petition on time, the case proceeds in a manner similar to other civil cases in the Circuit Court, but at a much faster pace. Absent an extension, the trial judge must complete an evidentiary hearing within 120 days of his appointment, and issue his decision within 45 days thereafter.
Laboring under a tight scheduling order, Bar Counsel and respondent’s counsel must comply with the same discovery and evidentiary rules applicable to other civil cases in the circuit court. At trial, the judge may permit any complainant to testify, subject to cross-examination, regarding the effect of the alleged misconduct, the respondent may offer evidence of any action taken to rectify the harm, and Bar Counsel may rebut this evidence. Ultimately, Bar Counsel must prove misconduct or incapacity by clear and convincing evidence and the respondent must establish any affirmative defenses or mitigating circumstances by a preponderance of the evidence.
Court of Appeals Proceedings
After the trial judge issues an opinion presenting factual findings and conclusions of law, the case shifts to the Court of Appeals where the parties will have 15 days to take exceptions to the trial court’s opinion and to resolve the case in their favor. Once each party has responded to the other’s arguments, the Court will hold an oral argument to review the trial court’s decision. Although the Court reviews the circuit court’s legal conclusions de novo, it gives great deference to the trial judge’s factual findings. Because the hearing judge had an opportunity to personally assess the credibility of witnesses in the case, the Court will only sustain an exception to these findings if they are clearly erroneous.
Ultimately, the Court of Appeals may resolve the case by ordering the respondent attorney’s disbarment, by suspending his privilege to practice law indefinitely or for a specified period, by reprimanding the attorney, by placing an incapacitated attorney on inactive status, by dismissing the case or by remanding it for further proceedings. See List of Sanctions & Dismissals.