(a) Availability of negotiated discipline.
An attorney who is the subject of an investigation by Disciplinary Counsel, or of a pending petition under section 8 (c) of this rule charging misconduct, may negotiate with Disciplinary Counsel a disposition of the charges and sanction at any time before a Hearing Committee has submitted to the Board a report containing its findings and recommendation with respect to discipline.
(b) Documentation of a negotiated disposition.
(1) A petition for negotiated disposition, signed by Disciplinary Counsel and the attorney, shall contain:
(i) A statement of the nature of the matter that was brought to Disciplinary Counsel's attention;
(ii) A stipulation of facts and charges, including citation to the Rules of Professional Conduct that the attorney has violated;(iii) A statement of any promises that have been made by Disciplinary Counsel to the attorney; and
(iv) An agreed upon sanction, with a statement of relevant precedent and any circumstances in aggravation or mitigation of sanction that the parties agree should be considered.
(2) In further support of a petition for negotiated disposition, the attorney shall submit an affidavit which includes averments that:
(i) The disposition is freely and voluntarily entered into, the attorney is not being subjected to coercion or duress and is fully aware of the implications of the disposition, and Disciplinary Counsel has made no promises to the attorney other than what is contained in the petition for negotiated disposition;
(ii) The attorney is aware that there is currently pending an investigation into, or a proceeding involving, allegations of misconduct;
(iii) The attorney acknowledges the truth of the material facts upon which the misconduct described in the accompanying petition for negotiated disposition is predicated; and
(iv) The attorney agrees to the disposition because the attorney believes that he or she could not successfully defend against disciplinary proceedings based on that misconduct. The affidavit may recite any other facts the attorney chooses to present in mitigation that support the agreed upon sanction.
(c) Hearing Committee review.
A petition for negotiated disposition and accompanying affidavit shall be submitted to the Executive Attorney, who in turn shall assign it to a Hearing Committee for review. The Board may adopt procedures for assignment of petitions for negotiated disposition to Hearing Committees, taking into account such matters as the pendency (and at what stage) of a related section 8 (c) proceeding.
A Hearing Committee receiving a proposed negotiated disposition shall hold a limited hearing. The hearing shall be public and the proceeding a matter of public record. Prior to the hearing, Disciplinary Counsel shall furnish to any complainant the petition for negotiated disposition and affidavit, together with notice of the hearing and of the complainant's opportunity to be present. Also before the hearing, the Hearing Committee or the Chairperson may review Disciplinary Counsel's investigative file in camera or meet with Disciplinary Counsel ex parte to discuss the basis for Disciplinary Counsel's recommendation of a negotiated disposition.
The Hearing Committee conducting the review shall recommend to the Court approval of a petition for negotiated disposition if it finds that:
(1) The attorney has knowingly and voluntarily acknowledged the facts and misconduct reflected in the petition and agreed to the sanction set forth therein;
(2) The facts set forth in the petition or as shown at the hearing support the admission of misconduct and the agreed upon sanction; and
(3) The sanction agreed upon is justified. If the Hearing Committee rejects a petition for negotiated disposition, it may not modify the proposed disposition on its own initiative, but instead shall afford Disciplinary Counsel and the attorney an opportunity to revise the petition, and shall review any revised petition they submit.
(d) Review by the Court of a recommendation.
Upon receipt from a Hearing Committee of a recommendation to approve a negotiated disposition, the Court shall review the recommendation in accordance with its procedures for the imposition of uncontested discipline. The Court in exceptional cases may request the views of the Board concerning the appropriateness of a negotiated disposition. If the Court accepts the recommendation, it shall impose the recommended discipline in a per curiam opinion briefly describing the misconduct, the specific Rule(s) of Professional Conduct violated, and the sanction imposed. Unless the opinion provides otherwise, an opinion imposing negotiated discipline may not be cited as precedent in contested disciplinary proceedings except as provided in the second sentence of D.C. App. R. 28 (g).
No review by the Board or the Court may be had from a refusal of Disciplinary Counsel to agree to a disposition or from the rejection of a petition for negotiated disposition by a Hearing Committee.
(e) Limitations on reference to a negotiated disposition or admissions by an attorney. Neither a Hearing Committee nor the Board may inquire of Disciplinary Counsel or an attorney who is the subject of a contested disciplinary proceeding whether the parties considered entering into a negotiated disposition, nor may a Hearing Committee or the Board, in imposing discipline following a section 8 (c) proceeding, consider whether the attorney offered or declined to enter into a negotiated disposition. If a section 8 (c) proceeding commences or resumes after a petition for negotiated disposition has been rejected, admissions made by the attorney in the petition or accompanying affidavit, or in the associated hearing, may not be used as evidence against the attorney except for purposes of impeachment.