(a) Purpose. The purpose of the peer review process is for the Peer Review Panel to consider the Statement of Charges and all relevant information offered by Bar Counsel and the attorney concerning it and to determine (1) whether the Statement of Charges has a substantial basis and there is reason to believe that the attorney has committed professional misconduct or is incapacitated, and, if so, (2) whether a Petition for Disciplinary or Remedial Action should be filed or some other disposition is appropriate. The peer review process is not intended to be an adversarial one and it is not the function of Peer Review Panels to hold evidentiary hearings, adjudicate facts, or write full opinions or reports.
Committee note: If a Peer Review Panel concludes that the complaint has a substantial basis indicating the need for some remedy, some behavioral or operational changes on the part of the attorney, or some discipline short of suspension or disbarment, part of the peer review process can be an attempt through both evaluative and facilitative dialogue, (a) to effectuate directly or suggest a mechanism for effecting an amicable resolution of the existing dispute between the attorney and the complainant, and (b) to encourage the attorney to recognize any deficiencies on his or her part that led to the problem and take appropriate remedial steps to address those deficiencies. The goal, in this setting, is not to punish or stigmatize the attorney or to create a fear that any admission of deficiency will result in substantial harm, but rather to create an ambience for a constructive solution. The objective views of two fellow attorneys and a lay person, expressed in the form of advice and opinion rather than in the form of adjudication, may assist the attorney (and the complainant) to retreat from confrontational positions and look at the problem more realistically.
(b) Scheduling of Meeting; Notice to Attorney.
(1) The Chair of the Peer Review Committee, after consultation with the members of the Peer Review Panel, Bar Counsel, and the attorney, shall schedule a meeting of the Panel.
(2) If, without substantial justification, the attorney does not agree to schedule a meeting within the time provided in subsection (b)(5) of this Rule, the Chair may recommend to the Commission that the peer review process be terminated. If the Commission terminates the peer review process pursuant to this subsection, the Commission may take any action that could be recommended by the Peer Review Panel under section (e) of this Rule.
(3) The Chair shall notify Bar Counsel, the attorney, and each complainant of the time, place, and purpose of the meeting and invite their attendance.
(4) The notice to the attorney shall inform the attorney of the attorney's right to respond in writing to the Statement of Charges by filing a written response with the Commission and sending a copy of it to Bar Counsel and each member of the Peer Review Panel at least ten days before the scheduled meeting.
(5) Unless the time is extended by the Commission, the meeting shall occur within 60 days after appointment of the Panel.
(1) The Peer Review Panel shall conduct the meeting in an informal manner. It shall allow Bar Counsel, the attorney, and each complainant to explain their positions and offer such supporting information as the Panel finds relevant. Upon request of Bar Counsel or the attorney, the Panel may, but need not, hear from any other individual. The Panel is not bound by any rules of evidence, but shall respect lawful privileges. The Panel may exclude a complainant after listening to the complainant's statement and, as a mediative technique, may consult separately with Bar Counsel or the attorney. The Panel may meet in private to deliberate.
(2) If the Panel determines that the Statement of Charges has a substantial basis and that there is reason to believe that the attorney has committed professional misconduct or is incapacitated, the Panel may (A) conclude the meeting and make an appropriate recommendation to the Commission or (B) inform the parties of its determination and allow the attorney an opportunity to consider a reprimand or a Conditional Diversion Agreement.
(3) The Panel may schedule one or more further meetings, but, unless the time is extended by the Commission, it shall make a recommendation to the Commission within 90 days after appointment of the Panel. If a recommendation is not made within that time or any extension granted by the Commission, the peer review process shall be terminated and the Commission may take any action that could be recommended by the Peer Review Panel under section (e) of this Rule.
(d) Ex Parte Communications. Except for administrative communications with the Chair of the Peer Review Committee and as allowed under subsection (c)(1) of this Rule as part of the peer review meeting process, no member of the Panel shall participate in an ex parte communication concerning the substance of the Statement of Charges with Bar Counsel, the attorney, the complainant, or any other person.
(e) Recommendation of Panel.
(1) Agreed Upon Recommendation.
(A) If Bar Counsel, the attorney, and the Panel agree upon a recommended disposition, the Panel shall transmit the recommendation to the Commission.
(B) If the Panel determines that the attorney committed professional misconduct or is incapacitated and that the parties should consider a Conditional Diversion Agreement, the Panel shall orally advise the parties of that determination and afford them the opportunity to consider and enter into such an Agreement in accordance with Rule 19-716. If an Agreement is reached, the Conditional Diversion Agreement shall be the Panel's recommended disposition.
(2) If No Agreement. If there is no agreed-upon recommendation under subsection (e)(1) of this Rule, the Panel shall transmit to the Commission an independent recommendation, not subject to the approval of Bar Counsel, and shall accompany its recommendation with a brief explanatory statement. The Panel's recommendation shall be one of the following:
(A) the filing of a Petition for Disciplinary or Remedial Action;
(B) a reprimand in accordance with Rule 19-717;
(C) dismissal of the complaint or termination of the proceeding without discipline, but with a warning, in accordance with Rule 19-715 (c); or
(D) dismissal of the complaint or termination of the proceeding without discipline and without a warning, in accordance with Rule 19-715.
(f) Action by Commission. The Commission may:
(1) direct Bar Counsel to file a Petition for Disciplinary or Remedial Action;
(2) take any action on the Panel's recommendation that the Commission could take on a similar recommendation made by Bar Counsel under Rule 19-714; or
(3) dismiss the Statement of Charges and terminate the proceeding.