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RULE 83.6.3 PROCEDURE IN DISCIPLINARY CASES

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(a) Jurisdiction.

(1) In General. Any lawyer admitted to practice law in this court is subject to the disciplinary jurisdiction of this court.

(2) Definitions. The term "any lawyer admitted to practice law in this court" includes the following persons:

(A) Any formerly-admitted lawyer with respect to the following acts:

(i) acts committed prior to resignation, suspension, disbarment, or transfer to inactive status; or

(ii) acts subsequent thereto that amount to the practice of law in violation of these rules or of the Model Rules of Professional Conduct as adopted by the Supreme Court of Kansas or any standards of professional conduct adopted by the court in addition to or in lieu thereof;

(B) Any lawyer specially admitted for a particular proceeding; and

(C) Any lawyer not admitted to the bar of this court or the bar of Kansas who practices or attempts to practice law in this court.

(b) Complaints Generally.

(1) Complaints Filed in This Court. A complaint against an attorney practicing in this court for any cause or conduct that may justify disciplinary action must be:

(A) in writing;

(B) under oath - unless filed by a judge or magistrate judge of this court; and

(C) filed in the record office of the clerk at Kansas City. The clerk must refer all complaints so-filed to the Disciplinary Panel.

(2) Complaints Filed with the Kansas Disciplinary Administrator. Alternatively, a complainant concerned with federal conduct may file a complaint with the Kansas Disciplinary Administrator.

(3) Referral of Complaint. Even where a complainant files a complaint in this court, the court or the Disciplinary Panel may refer the complaint to the Kansas Disciplinary Administrator.

(c) Initial Action by Disciplinary Panel.

(1) Dismissal. The Disciplinary Panel must dismiss the complaint if it finds from the face of the complaint that it is frivolous, groundless, or malicious. If it so finds, the Disciplinary Panel's order must recite the reasons for dismissal. Upon dismissal under this subparagraph, the clerk must mail a copy of the order of dismissal to the complainant by certified mail, return receipt requested.

(2) Referral to Hearing Panel. The Disciplinary Panel must refer the matter to a hearing panel if it finds from the face of the complaint the misconduct charged would, if true, justify disciplinary sanctions. The hearing panel consists of three members of the bar of this court appointed by the Disciplinary Panel. One member must be designated as chairperson of the hearing panel.

(d) Hearing Panel.

(1) Hearings. A hearing panel sits as a panel of inquiry. Upon reasonable notice to the complainant and respondent, the hearing panel may hold hearings on the issues. All hearings must be recorded verbatim pursuant to 28 U.S.C. § 753(b).

(2) Actions of Chairperson. The chairperson of the hearing panel conducting the inquiry is hereby designated and appointed master with authority to cause subpoenas to be issued commanding the appearance of witnesses, the production of books, papers, documents, or tangible things designated therein at such hearings or such other time designated in the subpoena. The chairperson may also administer oaths to the parties and witnesses.

(3) Contempt Proceedings. The Disciplinary Panel may order the initiation of contempt proceedings against witness when:

(A) the witness fails or refuses to attend or testify under oath; and

(B) his or her name is certified to the Disciplinary Panel.

(e) Investigation by Disciplinary Counsel.

(1) Disciplinary Counsel's Duty. With the approval of the chief judge, the chairperson of the hearing panel may appoint one or more members of the bar of this court (or if circumstances require of the bar of another court) in good standing, as Disciplinary Counsel. Disciplinary Counsel's duty is to:

(A) investigate, present, and prosecute charges; and

(B) prepare all orders and judgments as directed by the hearing panel.

(2) Investigation and Report. Disciplinary Counsel must conduct an initial investigation of the charges and submit a written report to the hearing panel recommending:

(A) dismissal of the complaint;

(B) informal admonition of the attorney; or

(C) prosecution of formal charges before a hearing panel.

(3) Disposition. The hearing panel may direct further investigation or take action by a majority vote.

(4) Informal Admonition. If informal admonition is contemplated, the attorney must first be notified. The attorney may demand a formal hearing by written request to the chairperson of the hearing panel.

(f) Formal Charges.

(1) Formal Complaint. If the hearing panel directs or demands formal prosecution, Disciplinary Counsel must, after making such additional investigation as he finds necessary, prepare and file with the clerk a formal complaint.

(A) Requirements of Complaint. The complaint must be sufficiently clear and specific to inform the respondent of the alleged misconduct.

(B) Service. A copy of the complaint, together with a summons, must be served upon the respondent. The summons must be in the general form of a civil summons issued pursuant to Fed. R. Civ. P. 4 and be served in accordance with that rule.

(C) Response. The respondent must serve a response upon Disciplinary Counsel and file a copy with the clerk within 21 days after service of the complaint unless the chairperson of the hearing panel extends the time.

(2) Hearing.

(A) When Set. The chairperson of the hearing panel must set the matter for hearing:

(i) Following the service of a response or upon the respondent's failure to respond;and

(ii) Upon completion of any additional investigation that the chairperson of the hearing panel allows either party.

(B) Notice. Disciplinary Counsel must serve a notice of hearing upon the respondent, respondent's attorney, and the complainant. The notice must be served at least 14 days in advance of the hearing date and must state:

(i) the respondent is entitled to be represented by an attorney at his or her own expense, to cross-examine witnesses and to present evidence; and

(ii) the date and place of the hearing.

(C) Rules of Evidence. The Federal Rules of Evidence govern the hearing, except as these rules otherwise provide. All witnesses must be sworn and all proceedings and testimony must be recorded as provided by 28 U.S.C. § 753(b).

(D) Burden of Proof. Disciplinary Counsel bears the burden of establishing charges of misconduct by clear and convincing evidence.

(3) Report. At the conclusion of the hearing, Disciplinary Counsel must prepare a report setting forth the findings and recommendations of the hearing panel. A majority of the hearing panel must sign the report and submit it to the Disciplinary Panel.

(A) Prior Record and Other Circumstances. In recommending discipline, the hearing panel may consider the respondent's prior record, if any. The panel's report must fully set forth any mitigating or aggravating circumstances that affect the nature or degree of discipline recommended.

(B) Failure to Reach Unanimous Decision. If the panel cannot agree unanimously on either the findings of fact or the recommended discipline, or both, Disciplinary Counsel must, if requested, prepare a draft of a majority report for consideration by the majority. The minority member may file a minority report.

(C) Filing and Distribution of Report. Reports must be filed with the clerk for referral to the Disciplinary Panel. Disciplinary Counsel must mail or deliver a copy to the respondent and to attorneys of record.

(D) Confidentiality. The hearing panel's report is confidential, must be so marked, and must not become a public record unless the Disciplinary Panel so orders.

(4) Referral to Disciplinary Administrator. The hearing panel may, with or without preparing charges, refer the matter to the Disciplinary Administrator of the Supreme Court of Kansas. In considering whether to make this referral, the hearing panel will consider any prior discipline imposed, the nature of the conduct, the type of investigation necessary, and where the conduct occurred.

(g) Review of Report.

(1) Items Forwarded to Disciplinary Panel. With the hearing panel's report, the clerk must also forward to the Disciplinary Panel:

(A) copies of the complaint;

(B) the answer, if any;

(C) the transcript of the hearing;

(D) all evidence admitted before the panel; and

(E) all evidence properly offered but rejected. Together, these items constitute the record in the case.

(2) Citation Issued to the Respondent. At the same time, the clerk must issue and serve a citation by certified mail to the respondent's last address registered with the clerk.

(A) Content of the Citation. The citation must direct the respondent to file within 21 days from the date of mailing either: (i) a statement that the respondent does not wish to file exceptions to the report, findings, and recommendations; or (ii) respondent's exceptions to the report.

(B) Failure to File Exceptions. Any part of the report, findings, or recommendations not timely excepted to will be deemed admitted.

(C) Undeliverable Citation. If the citation is not deliverable by mail directed to the respondent's last address registered with the clerk and the respondent cannot be otherwise served, the matter stands submitted upon the filing by the clerk of a certificate reporting such facts.

(3) Procedure.

(A) Exceptions Not Timely Filed. If the respondent fails to file timely exceptions, the hearing panel's findings of fact will be deemed admitted and the case submitted on the record.

(B) Exceptions Timely Filed. If exceptions are timely filed, the respondent has 30 days thereafter to file a brief; Disciplinary Counsel 30 days after service of the respondent's brief; and the respondent 14 days after service of Disciplinary Counsel's brief to file a responsive brief. The case will be submitted to the Disciplinary Panel on the record when all briefs have been filed or the time for filing them has expired.

(4) Other Disability or Disciplinary Proceedings. If the Disciplinary Panel receives reliable information that disability or disciplinary proceedings involving the same attorney or the same or connected circumstances are pending or contemplated in another jurisdiction, the Panel may stay the proceedings in this court or direct such other action as it deems appropriate.

(5) Evidence to be Considered. During its review, the Disciplinary Panel must not receive or consider any evidence that was not presented to the hearing panel, except after notice to the respondent and Disciplinary Counsel and opportunity to respond. If new evidence warranting a reopening of the proceeding is discovered, the case must be remanded to the hearing panel for a hearing. The hearing may be limited to specified issues.

(6) Entry of Order. Upon conclusion of the proceedings, the Disciplinary Panel must promptly enter an appropriate order for the court.

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As amended 12/01/09, 3/17/04, 10/22/98, 11/16/90.