Sec. 2-40. Discipline of Attorneys Convicted of a Felony and other matters in Connecticut

(a) The clerk of the superior court location in this state in which a lawyer is convicted of a felony, any larceny or any crime for which the lawyer is sentenced to a term of incarceration or for which a suspended period of incarceration is imposed, shall transmit, immediately upon the imposition of sentence, a certificate of the conviction to the [statewide bar] disciplinary counsel and to the statewide grievance committee. The lawyer shall also notify the disciplinary counsel in writing of his or her conviction. The [statewide bar] disciplinary counsel or designee shall, pursuant to Section 2-47, file a presentment against the lawyer predicated upon the conviction. No entry fee shall be required for proceedings hereunder.

(b) The provisions of subsection (c) of this section notwithstanding, after sentencing an attorney who has been convicted of a felony, any larceny or any crime for which the lawyer is sentenced to a term of incarceration or for which a suspended period of incarceration is imposed, the judge who presided at the trial may in his or her discretion enter an order immediately suspending the attorney pending final disposition of a disciplinary proceeding predicated upon the conviction. Thereafter, upon good cause shown, the judge before whom the presentment is pending may, in the interest of justice, set aside or modify the interim suspension.

(c) A presentment filed pursuant to this section shall be heard by the judge who presided at the trial which resulted in the [felony] conviction. A hearing on the presentment complaint addressing the issue of the eligibility of such attorney to continue the practice of law in this state shall be held within thirty days of sentencing or the filing of the presentment, whichever is later. Such hearing shall be prosecuted by the [statewide bar] disciplinary counsel[, an assistant bar counsel] or an attorney designated pursuant to Section 2-48. At such hearing the attorney shall have the right to counsel, to be heard in his or her own defense and to present evidence and witnesses in his or her behalf. After such hearing, the judge shall enter an order dismissing the matter or imposing discipline upon such attorney in the form of suspension for a period of time, disbarment or such other discipline as the judge deems appropriate.

(d) Whenever the judge enters an order suspending or disbarring an attorney pursuant to subsections (b) or (c) of this section, it may appoint a trustee, pursuant to Section 2-64, to protect the clients' and the attorney's interests.

(e) If an attorney suspended solely under the provisions of this section demonstrates to the court that the underlying judgment of conviction has been vacated or reversed, the court shall vacate the order of interim suspension and place the attorney on active status. The vacating of the interim suspension shall not automatically terminate any other disciplinary proceeding then pending against the attorney.

(f) Immunity from prosecution granted to an attorney is not a bar to disciplinary proceedings, unless otherwise ordered by a judge of the superior court. The granting of a pretrial diversion program to an attorney charged with a crime is not a bar to disciplinary proceedings, unless otherwise ordered by the judge who granted the program to the attorney.

(g) When an attorney has been found guilty of a crime, and if the matter is not final and is subject to appeal, the disciplinary counsel may seek an interim suspension.

(P.B. 1978-1997, Sec. 28B.)

COMMENTARY:

The amendments to this section broaden the application of this section to matters other than felonies, provide a procedure by which an order of interim suspension can be vacated based upon the underlying conviction having been vacated or reversed, provide that immunity from prosecution and the granting of a pretrial diversion program to an attorney will not bar disciplinary proceedings and allow disciplinary counsel to seek an interim suspension against an attorney who has been found guilty of a crime but whose criminal matter is not final and is subject to appeal.

Sec. 2-41. Discipline of Attorneys Convicted of a Felony in Another Jurisdiction

(a) An attorney shall send to the [statewide bar] disciplinary counsel written notice of his or her conviction in any court of the United States, or the District of Columbia, or of any state, territory, commonwealth or possession of the United States of a serious crime as hereinafter defined within ten days of the entry of the judgment of conviction. That written notice shall be sent by certified mail, return receipt requested.

(b) The term "conviction" as used herein refers to the disposition of any charge of a serious crime as hereinafter defined resulting from either a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of any appeal.

(c) The term "serious crime" as used herein shall mean any felony as defined in the jurisdiction in which the attorney was convicted.

(d) The written notice required by subsection (a) of this section shall include the name and address of the court in which the judgment of conviction was entered, the date of the judgment of conviction, and the specific section of the applicable criminal or penal code upon which the conviction is predicated.

(e) Upon receipt of the written notice of conviction the [statewide bar] disciplinary counsel shall obtain a certified copy of the attorney's judgment of conviction, which certified copy shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that attorney on the basis of the conviction. Upon receipt of the certified copy of the judgment of conviction, the [statewide bar] disciplinary counsel shall file a presentment against the attorney with the superior court for the judicial district wherein the attorney maintains an office for the practice of law in this state, except that, if the attorney has no such office, the [statewide bar] disciplinary counsel shall file it with the superior court for the judicial district of Hartford. The filing of a presentment shall be discretionary with the disciplinary counsel where the offense for which the attorney has been convicted carries a period of incarceration of one year or less. The sole issue to be determined in the presentment proceeding shall be the extent of the final discipline to be imposed, provided that the presentment proceeding instituted will not be brought to hearing until all appeals from the conviction are concluded unless the attorney requests that the matter not be deferred. The [statewide bar] disciplinary counsel shall also apply to the court for an order of immediate interim suspension, which application shall contain the certified copy of the judgment of conviction. The court may in its discretion enter an order immediately suspending the attorney pending final disposition of a disciplinary proceeding predicated upon the judgment of conviction. Thereafter, upon good cause shown, the court may, in the interest of justice, set aside or modify the interim suspension. Whenever the court enters an order suspending or disbarring an attorney pursuant to this section, the court may appoint a trustee, pursuant to Section 2-64, to protect the client's and the attorney's interests.

(f) If an attorney suspended solely under the provisions of this section demonstrates to the court that the underlying judgment of conviction has been vacated or reversed, the court shall vacate the order of interim suspension and place the attorney on active status. The vacating of the interim suspension shall not automatically terminate any other disciplinary proceeding then pending against the attorney.

(g) An attorney's failure to send the written notice required by this section shall constitute misconduct.

(h) No entry fee shall be required for proceedings hereunder.

(P.B. 1978-1997, Sec. 28B.1.) (Amended June 29, 1998, to take effect Sept. 1, 1998.)

COMMENTARY:

The amendments to this section substitute disciplinary counsel for statewide bar counsel, and provide disciplinary counsel with discretion concerning whether to bring a presentment where the offense for which the attorney has been convicted carries a period of incarceration of one year or less.

Sec. 2-42. Conduct Constituting Threat of Harm to Clients

(a) If there is a disciplinary proceeding pending against a lawyer and the grievance panel, the reviewing committee, [or] the statewide grievance committee or the disciplinary counsel believes that the lawyer poses a substantial threat of irreparable harm to his or her clients or to prospective clients, the panel or committee shall so advise the [statewide bar] disciplinary counsel. The [statewide bar] disciplinary counsel[, an assistant bar counsel or an attorney appointed pursuant to Section 2-48] shall, upon being so advised or upon his or her own belief, apply to the court for an order of interim suspension. The disciplinary counsel shall provide the lawyer with notice that an application for interim suspension has been filed and that a hearing will be held on such application.

(b) The court, after hearing, pending final disposition of the disciplinary proceeding, may, if it finds that the lawyer poses a substantial threat of irreparable harm to his or her clients or to prospective clients, enter an order of interim suspension, or may order such other interim action as deemed appropriate. Thereafter, upon good cause shown, the court may, in the interest of justice, set aside or modify the interim suspension or other order entered pursuant hereto. Whenever the court enters an interim suspension order pursuant hereto, the court may appoint a trustee, pursuant to Section 2-64, to protect the clients' and the suspended attorney's interests.

(c) No entry fee shall be required for proceedings hereunder. Any hearings necessitated by the proceedings may, in the discretion of the court, be held in chambers.

(P.B. 1978-1997, Sec. 28C.)

COMMENTARY:

The amendments to this section substitute disciplinary counsel for statewide bar counsel and allows the disciplinary counsel to pursue, in his or her discretion, an order of interim suspension.

Sec. 2-43. Notice by Attorney of Alleged Misuse of Clients' Funds and Garnishments of Lawyers' Trust Accounts

(a) When any complaint, counterclaim, cross complaint, special defense or other pleading in a judicial or administrative proceeding alleges a lawyer's misuse of funds handled by the lawyer in his or her capacity as a lawyer or a fiduciary, the person signing the pleading shall mail a copy thereof to the statewide bar counsel.

(b) In any case where a lawyer's trust account, as defined in Section 2-28 (b), is garnisheed, or otherwise liened, the party who sought the garnishment or lien shall mail a copy of the garnishee process or writ of attachment to the statewide bar counsel.

(P.B. 1978-1997, Sec. 28D.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-44. Power of Superior Court to Discipline Attorneys and to Restrain Unauthorized Practice

The superior court may, for just cause, suspend or disbar attorneys and may, for just cause, punish or restrain any person engaged in the unauthorized practice of law.

(P.B. 1978-1997, Sec. 29.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-45. --Cause Occurring in Presence of Court

If such cause occurs in the actual presence of the court, the order may be summary, and without complaint or hearing; but a record shall be made of such order, reciting the ground thereof. Without limiting the inherent powers of the court, if attorney misconduct occurs in the actual presence of the court, the statewide grievance committee and the grievance panels shall defer to the court if the court chooses to exercise its jurisdiction.

(P.B. 1978-1997, Sec. 30.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-46. Suspension of Attorneys Who Violate Support Orders

(a) Except as otherwise provided in this section, the procedures of General Statutes 46b-220 through 46b-223 shall be followed with regard to the suspension from the practice of law of attorneys who are found to be delinquent child support obligors.

(b) A judge, upon finding that an attorney admitted to the bar in this state is a delinquent child support obligor as defined in General Statutes 46b-220(a), may, pursuant to General Statutes 46b-220(b), issue a suspension order concerning that attorney.

(c) If the attorney obligor fails to comply with the conditions of the suspension order within thirty days of its issuance, the department of social services, a support enforcement officer, the attorney for the obligee or the obligee, as provided in the suspension order, shall file with the clerk of the superior court which issued the suspension order an affidavit stating that the conditions of the suspension order have not been met, and shall serve the attorney obligor with a copy of such affidavit in accordance with Sections 10-12 through 10-17. The affidavit shall be filed within forty-five days of the expiration of the thirty day period.

(d) Upon receipt of the affidavit, the clerk shall forthwith bring the suspension order and the affidavit to a judge of the superior court for review. If the judge determines that pursuant to the provisions of General Statutes 46b-220 the attorney obligor should be suspended, the judge shall suspend the attorney obligor from the practice of law, effective immediately.

(e) A suspended attorney who has complied with the conditions of the suspension order concerning reinstatement, shall file a motion with the court to vacate the suspension. Upon proof of such compliance, the court shall vacate the order of suspension and reinstate the attorney. The provisions of Section 2-53 shall not apply to suspensions under this section.

(f) The clerk shall notify the statewide bar counsel of any suspensions and reinstatements ordered pursuant to this section.

(P.B. 1978-1997, Sec. 30A.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-47. Presentments and Unauthorized Practice of Law Petitions

(a) Presentment of attorneys for misconduct, whether or not the misconduct occurred in the actual presence of the court, shall be made by written complaint of the statewide grievance committee or a reviewing committee. Service of the complaint shall be made as in civil actions. Any interim proceedings to the contrary notwithstanding, a hearing on the merits of the complaint shall be held within sixty days of the date the complaint was filed with the court. At such hearing, the respondent shall have the right to be heard in his or her own defense and by witnesses and counsel. After such hearing the court shall render a judgment dismissing the complaint or imposing discipline as follows: reprimand, suspension for a period of time, disbarment or such other discipline as the court deems appropriate. This may include conditions to be fulfilled by the attorney before he or she may apply for readmission or reinstatement. Unless otherwise ordered by the court, such complaints shall be prosecuted by the [statewide bar] disciplinary counsel[, an assistant bar counsel] or an attorney appointed pursuant to Section 2-48.

(b) The sole issue to be determined in a disciplinary proceeding predicated upon conviction of a felony, any larceny or crime for which the lawyer is sentenced to a term of incarceration or for which a suspended period of incarceration is imposed shall be the extent of the final discipline to be imposed.

(c) A petition to restrain any person from engaging in the unauthorized practice of law not occurring in the actual presence of the court may be made by written complaint to the superior court in the judicial district where such violation occurs. When offenses have been committed by the same person in more than one judicial district, presentment for all offenses may be made in any one of such judicial districts. Such complaint may be prosecuted by the state's attorney, by the [statewide bar] disciplinary counsel, or by any member of the bar by direction of the court. Upon the filing of such complaint, a rule to show cause shall issue to the defendant, who may make any proper answer within twenty days from the return of the rule and who shall have the right to be heard as soon as practicable, and upon such hearing the court shall make such lawful orders as it may deem just. Such complaints shall be proceeded with as civil actions.

(d) If a determination is made by the statewide grievance committee or a reviewing committee that a respondent is guilty of misconduct and such misconduct does not otherwise warrant a presentment to the superior court, but the respondent has been reprimanded pursuant to these rules at least three times within the five year period preceding the date of such determination, the statewide grievance committee or the reviewing committee shall direct the disciplinary counsel to file a presentment against the respondent in the superior court. Service of the matter shall be made as in civil actions. The statewide grievance committee or the reviewing committee shall file with the court the record in the matter and a copy of the prior reprimands issued against the respondent within such five year period. The sole issue to be determined by the court upon the presentment shall be the appropriate discipline to be imposed as a result of the nature of the misconduct in the instant case and the cumulative reprimands issued concerning the respondent within such five year period. Such discipline may include reprimand, suspension for a period of time, disbarment or such other discipline as the court deems appropriate. This suspension or disbarment may include conditions to be fulfilled by the respondent before he or she may apply for readmission or reinstatement.

(e) If the respondent has appealed the issuance of a finding of misconduct made by the statewide grievance committee or the reviewing committee, the court shall first adjudicate and decide that appeal in accordance with the procedures set forth in subsections (d) through (f) of Section 2-38. In the event the court denies the respondent’s appeal of the finding of misconduct, the court shall then adjudicate the presentment brought under this section. In no event shall the court review the merits of the matters for which the prior reprimands were issued against the respondent. This subsection shall apply to all findings of misconduct issued from the day of enactment forward and the determination of presentment shall consider all reprimands within a five year period from the finding of misconduct even if they predate the effective date of these rules.

[(d)](f) No entry fee shall be required for the filing of any complaint pursuant to this section.

(P.B. 1978-1997, Sec. 31.)

COMMENTARY:

The court may consider the nature of the rule violations giving rise to the reprimands, the attorney’s service to the community, the length of the time the attorney has practiced, the amount of time between events resulting in the imposition of discipline, and the attorney’s own efforts to improve the quality of his lawyering. Not every instance of repeated reprimands will require further discipline, however, such repeated occurrences warrant further scrutiny regarding the attorney’s continued fitness to practice law without harm to the public.

Sec. 2-48. Designee to Prosecute Presentments

The executive committee of the superior court may choose one or more members of the bar of this state to prosecute presentments. The chief court administrator may also contract with members of the bar of this state to prosecute presentments, actions for reciprocal discipline, actions for interim suspension and disciplinary proceedings predicated on the conviction of an attorney of a felony or other crime set out in Section 2-40.

(P.B. 1978-1997, Sec. 31A.)

COMMENTARY:

The amendment to this section makes the section consistent with Section 2-40.

Sec. 2-49. Restitution

Whenever restitution has been made the panel or committee investigating the attorney's conduct shall nevertheless determine if further proceedings are necessary. If it is found that further proceedings are deemed unnecessary, such decision shall be reviewed by the statewide grievance committee in accordance with the provisions of this chapter.

(P.B. 1978-1997, Sec. 31B.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-50. Records of Statewide Grievance Committee, Reviewing Committee, Grievance Panel and Bar Examining Committee

(a) The records and transcripts, if any, of hearings conducted by the state bar examining committee or the several standing committees on recommendations for admission to the bar shall be available only to such committee or to a judge of the superior court or to the statewide grievance committee or, with the consent of the applicant, to any other person, unless otherwise ordered by the court.

(b) For purposes of this section, the record in a grievance proceeding shall consist of the following: (1) the grievance panel's record, (2) the reviewing committee's record, (3) any statement submitted to the statewide grievance committee concerning a proposed decision, (4) any request submitted to the statewide grievance committee concerning a reviewing committee decision, and (5) the decision and record, if any, of the statewide grievance committee or reviewing committee. The statewide grievance committee shall maintain the record of each grievance proceeding, including presentments. All such records pertaining to grievance complaints that have been filed on or after July 1, 1986, and that have not been dismissed by a grievance panel, by the statewide grievance committee or by a reviewing committee, shall be public. All such records pertaining to grievance complaints that have been filed on or after July 1, 1986, and that have been dismissed by a grievance panel, by the statewide grievance committee or by a reviewing committee shall be available only to such committee or its counsel, to reviewing committees, to grievance panels, to a judge of the superior court, to the standing committee on recommendations for admission to the bar, or, with the consent of the respondent, to any other person, unless otherwise ordered by the court. [Notwithstanding the above, f]For all complaints filed on or after July 1, 1986, the following shall be public records: (1) the grievance panel's probable cause determination, (2) the reviewing committee's proposed or final decision, (3) the statewide grievance committee's decision and (4) transcripts of hearings held following a determination that probable cause exists except that records of complaints dismissed pursuant to Section 2-32(a)(2) shall not be public. For purposes of this section, all grievance complaints that are pending before a grievance panel on July 1, 1986, shall be deemed to have been filed on that date. Notwithstanding the above, all records of the statewide grievance committee, a grievance panel and any disciplinary counsel shall be erased, and shall not be made public, in any proceeding which has been concluded by: (a) a final decision of the statewide grievance committee or a reviewing committee thereof or a grievance panel dismissing the complaint; or (b) a final judgment of the superior court in a proceeding under Sec. 2-38 rescinding a reprimand, including a judgment directed on an appeal from the superior court; or (c) a final judgment of the superior court in favor of a respondent in a proceeding commenced pursuant to Sections 2-36, 2-39 through 2-46, and Sections 2-47 or 2-52, including a judgment directed on an appeal from the superior court. Nothing in this rule shall prohibit the use or consideration of such erased records in any subsequent disciplinary or client security fund proceeding pertaining to the respondent and such records shall be available to a judge of the superior court, to the standing committee on recommendations for admission to the bar, or, with the consent of the respondent, to any other person, unless otherwise ordered by the court.

(c) Any respondent who shall have been the subject of a complaint in which the respondent was misidentified and which has been erased pursuant to subsection (b) shall be deemed to have never been subject to disciplinary proceedings with respect to that complaint and may so swear under oath.

[(c)](d) The records and decisions pertaining to grievance complaints that have been decided by a local grievance committee prior to July 1, 1986, shall be available only to the statewide grievance committee or its counsel, to reviewing committees, to grievance panels, to a judge of the superior court, to the standing committee on recommendations for admission to the bar, or, with the consent of the respondent, to any other person, unless otherwise ordered by the court.

(P.B. 1978-1997, Sec. 32.)

COMMENTARY: The amendments to this section allow certain records to be erased.

Sec. 2-51. Costs and Expenses

Costs may be taxed against the respondent in favor of the state, if the respondent be found guilty of the offense charged in whole or in part, at the discretion of the court. The court may also, upon any such complaint by the state's attorney or by the statewide grievance committee, as the case may be, audit and allow (whatever may be the result of the proceeding) reasonable expenses to be taxed as part of the expenses of the court.

(P.B. 1978-1997, Sec. 34.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-52. Resignation of Attorney

(a) The superior court may, under the procedure provided herein, permit the resignation of an attorney whose conduct is the subject of investigation by a grievance panel, a reviewing committee or the statewide grievance committee or against whom a presentment for misconduct under Section 2-47 is pending.

(b) Such resignation shall be in writing, signed by the attorney, and filed in quintuplicate with the clerk of the superior court in the judicial district in which the attorney resides. The clerk shall forthwith send one copy to the grievance panel, one copy to the statewide bar counsel, one copy to the state's attorney, and one copy to the standing committee on recommendations for admission to the bar. Such resignation shall not become effective until accepted by the court after hearing following a report by the statewide grievance committee that the investigation has been completed, [unless] whether or not the attorney seeking to resign shall, in the resignation, waive the privilege of applying for readmission to the bar at any future time.

(P.B. 1978-1997, Sec. 35.)

COMMENTARY:

The amendment to this section requires the court to consider each resignation before such resignation will become effective regardless of whether the attorney seeking to resign has waived the privilege of applying for readmission to the bar.

Sec. 2-53. Reinstatement after Suspension, Disbarment or Resignation

(a) No application for reinstatement or readmission shall be considered by the court unless the applicant, inter alia, states under oath in the application that he or she has successfully fulfilled all conditions imposed on him or her as a part of the applicant’s discipline. However, if an applicant asserts that a certain condition is impossible to fulfill, he or she may apply, stating that assertion and the basis therefor. It is the applicant’s burden to prove at the hearing on reinstatement or readmission the impossibility of the certain condition. Any application for reinstatement or readmission to the bar shall contain a statement by the applicant indicating whether such applicant has previously applied for reinstatement or readmission and if so, when. The application shall be referred, by the court to which it is brought, to the standing committee on recommendations for admission to the bar that has jurisdiction over the judicial district court location in which the applicant was suspended or disbarred or resigned, and notice of the pendency of such application shall be given to the state's attorney of that judicial district, the chair of the grievance panel whose jurisdiction includes that judicial district court location, [all other attorneys in active practice in it,] the statewide grievance committee, [and] the attorney or attorneys appointed by the court pursuant to Section 2-64, and to all complainants whose complaints against the attorney resulted in the discipline for which the attorney was disbarred or suspended or resigned, and it shall also be published in the Connecticut Law Journal. The standing committee on recommendations shall investigate the application, hold hearings pertaining thereto and render a report with its recommendations to the court. The court shall thereupon inform the chief justice of the supreme court of the pending application and report, and the chief justice shall designate two other judges of the superior court to sit with the judge presiding at the session. Such three judges, or a majority of them, shall determine whether the application should be granted.

(b) The standing committee shall notify the presiding judge, no later than fourteen days prior to the court hearing, if the committee will not be represented by counsel at the hearing and, upon such notification, the presiding judge may appoint, in his or her discretion, an attorney to review the issue of reinstatement and report his or her findings to the court. The attorney so appointed shall be compensated in accordance with a fee schedule approved by the Executive Committee of the superior court.

(c) The applicant shall pay to the clerk of the superior court $200 at the time his or her application is filed. This sum shall be expended in the manner provided by Section 2-22 of these rules. If the petition for readmission or reinstatement is denied, the reasons therefore shall be stated on the record or put in writing. The attorney may not reapply for six months following the denial.

(P.B. 1978-1997, Sec. 36.) (Amended June 26, 2000, to take effect Jan. 1, 2001).

COMMENTARY:

The three judge panel considering an attorney’s petition for reinstatement may want to consider the following criteria:

(1) The lawyer has fully complied with the terms and conditions of all prior disciplinary orders.

(2) The lawyer has not engaged nor attempted to engage in the unauthorized practice of law during the period of suspension or disbarment.

(3) If the lawyer was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the lawyer’s misconduct, the lawyer shall not be reinstated or readmitted unless:

(a) the lawyer has pursued appropriate rehabilitative treatment;

(b) the lawyer has abstained from the use of alcohol or other drugs for an appropriate period of time; and

(c) the lawyer is likely to continue to abstain from alcohol or other drugs.

(4) The lawyer recognizes the wrongfulness and seriousness of the misconduct for which the lawyer was suspended or disbarred.

See ABA, Model Rules for Lawyer Disciplinary Enforcement, Rule 25 E.

Sec. 2-54. Publication of Notice of Reprimand, Suspension, Disbarment, Resignation, Placement on Inactive Status or Reinstatement

(a) Notice of the final action transferring an attorney to inactive status or reprimanding, suspending, or disbarring an attorney from practice in this state shall be published once in the Connecticut Law Journal by the authority accepting or approving such action. Notice of a reprimand by the statewide grievance committee or by a reviewing committee shall not be published until the expiration of any stay pursuant to Sections 2-35(e) and 2-38.

(b) Notice of the resignation or reinstatement after suspension, disbarment, resignation or placement on inactive status of an attorney shall be published once in the Connecticut Law Journal by the authority accepting or approving such action.

(P.B. 1978-1997, Sec. 36A.) (Amended June 28, 1999, to take effect Jan. 1, 2000.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-55. Retirement of Attorney

Written notice of retirement from the practice of law, pursuant to the provisions of General Statutes 51-81b, shall not constitute removal from the bar or the roll of attorneys, but it shall be noted on the roll of attorneys kept by the clerk in Hartford county who shall notify the statewide bar counsel of such retirement. The notice shall include the attorney's jurist number and be filed in triplicate with such clerk. Upon the filing of such notice, the attorney shall no longer be eligible to practice law as an attorney admitted in the state of Connecticut. Retirement may be revoked at any time upon written notice to the clerk for Hartford county and the statewide bar counsel. Disciplinary proceedings against an attorney shall not be stayed or terminated on account of the attorney's retirement from the practice of law.

(P.B. 1978-1997, Sec. 37.) (Amended Nov. 17, 1999, on an interim basis pursuant to Section 1-9(c), to take effect Jan. 1, 2000 and amendment adopted June 26, 2000, to take effect Jan. 1, 2001.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-56. Inactive Status of Attorney

During the time an order placing an attorney on inactive status is in effect, such attorney shall be precluded from practicing law. No entry fee shall be required for proceedings pursuant to this section and Sections 2-57 through 2-62. Any hearings necessitated by the proceedings may, in the discretion of the court, be held in chambers, and records and papers filed in connection therewith shall be open for inspection only to persons having a proper interest therein and upon order of the court. The court shall, in exercising discretion, weigh the public policy in favor of open proceedings, as well as the duty to protect the public, against the attorney’s right to medical and mental health privacy and ability to pursue a livelihood.

(P.B. 1978-1997, Sec. 39.)

COMMENTARY:

The amendment to this section is intended to provide the court with a standard by which its discretion to hold hearings in chambers shall be exercised.

Sec. 2-57. --Prior Judicial Determination of Incompetency or Involuntary Commitment

In the event an attorney is by a court of competent jurisdiction (1) declared to be incapable of managing his or her affairs or (2) committed involuntarily to a mental hospital for drug dependency, mental illness, or the addictive, intemperate, or excessive use of alcohol, the superior court, upon notice from a grievance panel, a reviewing committee, the statewide grievance committee or a state's attorney and upon proof of the fact of incapacity to engage in the practice of law, shall enter an order placing such attorney upon inactive status, effective immediately, for an indefinite period and until further order of the court. A copy of such order shall be served, in such manner as the court shall direct, upon such attorney, the attorney's conservator if any, and the director of any mental hospital in which the attorney may reside.

(P.B. 1978-1997, Sec. 40.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-58. --No Prior Determination of Incompetency or Involuntary Commitment

(a) Whenever a grievance panel, a reviewing committee, [or] the statewide grievance committee or the disciplinary counsel shall have reason to believe that an attorney is incapacitated from continuing to practice law by reason of mental infirmity or illness or because of drug dependency or addiction to alcohol, [it] such committee or counsel shall petition the court to determine whether the attorney is so incapacitated and the court may take or direct such action as it deems necessary or proper for such determination, including examination of the attorney by such qualified medical expert or experts as the court shall designate, at the expense of the judicial branch. If, upon due consideration of the matter, the court is satisfied and concludes that the attorney is incapacitated from continuing to practice law, it shall enter an order placing the attorney in an inactive status on the ground of such disability for an indefinite period and until the further order of the court, and any pending disciplinary proceedings against the attorney shall be held in abeyance.

(b) The court may provide for such notice to the respondent attorney of proceedings in the matter as is deemed proper and advisable and shall appoint an attorney, at the expense of the judicial branch, to represent any respondent who is without adequate representation.

(P.B. 1978-1997, Sec. 41.)

COMMENTARY:

The amendment to this section authorizes the disciplinary attorney to petition the court to determine whether an attorney is incapacitated as defined with this section.

Sec. 2-59. --Disability Claimed during Course of Disciplinary Proceeding

If, during the course of a disciplinary proceeding, the respondent contends that he or she is suffering, by reason of mental infirmity or illness, or because of drug dependency or addiction to alcohol, from a disability which makes it impossible for the respondent adequately to defend himself or herself, the court thereupon shall, in a proceeding instituted in substantial accordance with the provisions of Section 2-58, enter an order placing the respondent on inactive status until a determination is made of the respondent's capacity to [continue the practice of law] defend himself or herself. Notice of the institution of inactive status proceedings shall be provided to the Statewide Bar Counsel. If the court determines that the respondent is not incapacitated from practicing law, it shall take such action as it deems proper and advisable, including a direction for the resumption of the disciplinary proceeding against the respondent.

(P.B. 1978-1997, Sec. 42.)

COMMENTARY:

The amendment to this section is intended for clarity.

Sec. 2-60. --Reinstatement upon Termination of Disability

(a) Any attorney placed upon inactive status under the provisions of these rules shall be entitled to apply for reinstatement, without the payment of an entry fee, at such intervals as the court may direct in the order placing the attorney on inactive status or any modification thereof. Such application shall be granted by the court upon a showing by clear and convincing evidence that the attorney's disability has been removed and the attorney is fit to resume the practice of law. Upon such application, the court may take or direct such action as it deems necessary or proper, including the determination whether the attorney's disability has been removed, and including direction of an examination of the attorney by such qualified medical expert or experts as the court shall designate. The court shall direct that the expense of such an examination be paid either by the attorney or by the judicial branch.

(b) Where an attorney has been placed on inactive status by an order in accordance with the provisions of Section 2-57 and thereafter, in proceedings duly taken, has been judicially declared to be competent, the court may dispense with further evidence that his or her disability has been removed and may direct his or her return to active status upon such terms as are deemed proper and advisable.

(P.B. 1978-1997, Sec. 44.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-61. --Burden of Proof in Inactive Status Proceedings

In a proceeding seeking an order to place an attorney on inactive status, the burden of proof shall rest with the petitioner. In a proceeding seeking an order terminating inactive status, the burden of proof shall rest with the inactive attorney.

(P.B. 1978-1997, Sec. 45.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-62. --Waiver of Doctor-Patient Privilege upon Application for Reinstatement

The filing of an application for reinstatement by an attorney on inactive status shall be deemed to constitute a waiver of any doctor-patient privilege existing between the attorney and any psychiatrist, psychologist, physician or hospital who or which has examined or treated the attorney during the period of disability. The attorney shall be required to disclose the name of every psychiatrist, psychologist, physician and hospital by whom or at which the attorney has been examined or treated since being placed on inactive status and shall furnish to the court written consent to each to divulge such information and records as are requested by court-appointed medical experts or by the clerk of the court.

(P.B. 1978-1997, Sec. 46.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-63. Definition of Respondent

When used in Sections 2-29 through 2-62 the word "respondent" shall mean the attorney against whom a grievance complaint or presentment has been filed or a person who is alleged to have been engaged in the unauthorized practice of law pursuant to General Statutes 51-88.

(P.B. 1978-1997, Sec. 46A.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-64. Appointment of Attorney to Protect Clients' and Attorney's Interests

(a) Whenever an attorney is placed upon inactive status, suspended, disbarred, or resigns, the court, upon such notice to him or her as the court may direct, shall appoint an attorney or attorneys to inventory the files of the inactive, suspended, disbarred or resigned attorney and to take such action as seems indicated to protect the interests of the attorney's clients. The court may also appoint an attorney to protect the interests of the attorney placed on inactive status, suspended, disbarred or resigned with respect to such files, when the attorney is not otherwise represented and the court deems that such representation is necessary. If the discipline imposed is not effective immediately as a result of an appeal or stay, the court, after the hearing and consideration of the merits of the appeal or reason for the stay, may issue interim orders to protect the public during the pendency of the appeal period or stay, until the discipline order becomes effective. In case of an attorney’s death, the court may appoint an attorney where no partner, executor or other responsible party capable of conducting the deceased’s attorney’s affairs is known to exist or willing to assume the responsibility.

(b) Any attorney so appointed by the court shall not be permitted to disclose any information contained in any file so inventoried without the consent of the client to whom such file relates except as is necessary to carry out the order of the court which appointed the attorney to make such inventory.

(c) Not less frequently than once each year and at such time as the attorney may be returned to active status, reinstated or readmitted to the practice of law or when the attorney appointed to protect clients' interests has finished rendering services to those clients, the appointed attorney shall file with the court, for its examination and approval, a report showing fees earned from the clients of the attorney, necessary disbursements, and the amount requested by the appointed attorney as a fee for services rendered, to be paid out of the funds received. Any attorney so appointed by the court for the inactive, suspended, disbarred, [or] resigned or deceased attorney may also be reimbursed for his or her services from any amount found to be due to the inactive, suspended, disbarred, [or] resigned or deceased attorney for services rendered to such clients. All attorney's fees paid to any attorney appointed hereunder shall be subject to court approval.

(d) Unless the attorney appointed to protect clients' interests is a partner or associate of the attorney, if the attorney is returned to active status, reinstated or readmitted, the appointed attorney shall immediately cease representing the clients of the attorney and shall return to the reinstated or readmitted attorney, or to the attorney returned to active status, such files as the appointed attorney may have received, and the appointed attorney and partners and associates shall not represent any person who was a client of the reinstated or readmitted attorney, or who was a client of an attorney returned to active status, on or before the date when he or she was placed upon inactive status, suspended, disbarred or resigned, unless the court which entered the order directing reinstatement, readmission, or return to active status shall order otherwise after written request to the court by the client whose interest is involved.

(P.B. 1978-1997, Sec. 46B.)

COMMENTARY:

The amendment to this section addresses the concern of the committee that the public should be protected during the period between an order of discipline being imposed and becoming effective. The amendment also addresses situations in which an attorney has died.

Sec. 2-65. Good Standing of Attorney

An attorney is in good standing in this state if the attorney has been admitted to the bar of this state, has registered with the statewide grievance committee in compliance with Section 2-27 (d), and is not under suspension, on inactive status, disbarred, or resigned from the bar.

(P.B. 1978-1997, Sec. 46C.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-66. Practice by Court Officials

(a) No lawyer who is a judge of the supreme court, appellate court or superior court shall practice law in any state or federal court.

(b) The chief public defender, the deputy chief public defender, public defenders, assistant public defenders, deputy assistant public defenders, the chief state's attorney, the deputy chief state's attorney, state's attorneys, assistant state's attorneys and deputy assistant state's attorneys who have been appointed on a full-time basis will devote their full time to the duties of their offices, will not engage in the private practice of law, either civil or criminal, and will not be connected in any way with any attorney or law firm engaged in the private practice of law.

(c) No state's attorney or assistant state's attorney, no partner or associate of a law firm of which any of the aforementioned court officials is a partner or associate, shall appear as counsel in any criminal case in behalf of any accused in any state or federal court.

(d) No chief clerk, deputy chief clerk, clerk, deputy clerk or assistant clerk who has been appointed on a full-time basis shall appear as counsel in any civil or criminal case in any state or federal court. Such persons may otherwise engage in the practice of law as permitted by established judicial branch policy.

(e) No chief public defender, deputy chief public defender, public defender, assistant public defender or deputy assistant public defender shall appear in behalf of the state in any criminal case.

(P.B. 1978-1997, Sec. 47.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-67. Payment of Attorneys by Bank and Trust Companies

(a) No attorney shall directly or indirectly receive payment from any bank or trust company for legal services rendered to others in the preparation of wills, codicils or drafts of such instruments or for advising others as to legal rights under existing or proposed instruments of that character.

(b) The violation of this section by an attorney may be cause for grievance proceedings.

(P.B. 1978-1997, Sec. 48.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-68. Client Security Fund Established

(a) A client security fund is hereby established to promote public confidence in the judicial system and the integrity of the legal profession by reimbursing clients, to the extent provided for by these rules, for losses resulting from the dishonest conduct of attorneys practicing law in this state in the course of the attorney-client relationship.

(b) It is the obligation of all attorneys admitted to the practice of law in this state to participate in the collective effort to reimburse clients who have lost money or property as the result of the unethical and dishonest conduct of other attorneys.

(c) The client security fund is provided as a public service to persons using the legal services of attorneys practicing in this state. All monies and assets of the fund shall constitute a trust.

(d) The establishment, administration and operation of the fund shall not impose or create any obligation, expectation of recovery from or liability of the fund to any claimant, and all reimbursements therefrom shall be a matter of grace and not of right.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-69. --Definition of Dishonest Conduct

(a) As used in Sections 2-68 through 2-81, inclusive, "dishonest conduct" means wrongful acts committed by an attorney, in an attorney-client relationship or in a fiduciary capacity arising out of an attorney-client relationship, in the nature of theft or embezzlement of money or the wrongful taking or conversion of money, property, or other things of value, including, but not limited to refusal to refund unearned fees received in advance as required by Rule 1.16(d) of the Rules of Professional Conduct.

(b) "Dishonest conduct" does not include such wrongful acts committed in connection with the provision of investment services to the claimant by the attorney.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-70. --Client Security Fund Fee

(a) The judges of the superior court shall assess an annual fee in an amount adequate for the proper payment of claims under these rules and the costs of administering the client security fund. Such fee shall be paid by each attorney admitted to the practice of law in this state and each judge, judge trial referee, state referee, family support magistrate, family support referee and workers' compensation commissioner in this state. Notwithstanding the above, an attorney who is disbarred, retired or resigned shall be exempt from payment of the fee, provided, however, that no attorney shall be reinstated pursuant to Sections 2-53 or 2-55 until such time as the attorney has paid the fee due for the year in which the attorney retired, resigned or was disbarred.

(b) An attorney or family support referee who fails to pay the client security fund fee in accordance with this section shall be suspended from the practice of law in this state until such payment has been made. An attorney or family support referee who is under suspension for another reason at the time he or she fails to pay the fee, shall be the subject of an additional suspension which shall continue until the fee is paid.

(c) A judge, judge trial referee, state referee, family support magistrate or workers' compensation commissioner who fails to pay the client security fund fee in accordance with this section shall be referred to the judicial review council.

(Adopted June 29, 1998, to take effect Jan. 1, 1999; amended June 28, 1999, to take effect Jan.1, 2000; amended Nov. 17, 1999 on an interim basis pursuant to Section 1-9(c), to take effect Jan.1, 2000, and amendment adopted June 26, 2000, to take effect Jan. 1, 2001.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-71. --Eligible Claims

(a) A claim for reimbursement of a loss must be based upon the dishonest conduct of an attorney who, in connection with the defalcation upon which the claim is based, was a member of the Connecticut bar and engaged in the practice of law in this state.

(b) The claim shall not be eligible for reimbursement unless:

(1) the attorney was acting as an attorney or fiduciary in the matter in which the loss arose;

(2) the attorney has died, been adjudged incapable, not competent or insane, been disbarred or suspended from the practice of law in Connecticut, been placed on probation or inactive status by a Connecticut court, resigned from the Connecticut bar, or become the judgment debtor of the claimant with respect to such claim; and

(3) the claim is presented within four years of the time when the claimant discovered or first reasonably should have discovered the dishonest acts and the resulting losses or the claim was pending before the Connecticut Bar Association's client security fund committee as of the effective date of this rule.

(c) Except as provided by subsection (d) of this section, the following losses shall not be eligible for reimbursement:

(1) Losses incurred by spouses, children, parents, grandparents, siblings, partners, associates and employees of the attorney causing the losses;

(2) Losses covered by any bond, surety agreement, or insurance contract to the extent covered thereby, including any loss to which any bonding agent, surety or insurer is subrogated, to the extent of that subrogated interest;

(3) Losses incurred by any financial institution which are recoverable under a "banker's blanket bond" or similar commonly available insurance or surety contract;

(4) Losses incurred by any business entity controlled by the attorney, any person or entity described in subdivisions (c) (1), (2), or (3) herein;

(5) Losses incurred by any governmental entity or agency.

(d) In cases of extreme hardship or special and unusual circumstances, the client security fund committee may, in its discretion, consider a claim eligible for reimbursement which would otherwise be excluded under these rules.

(e) In cases where it appears that there will be unjust enrichment, or the claimant unreasonably or knowingly contributed to the loss, the client security fund committee may, in its discretion, deny the claim.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-72. --Client Security Fund Committee

(a) There is hereby established a client security fund committee which shall consist of fifteen members who shall be appointed by the chief justice. Nine of the members shall be attorneys, three shall not be attorneys and three shall be individuals who serve in one of the following capacities: superior court judge, judge trial referee, appellate court judge, supreme court justice, family support magistrate, family support referee or workers' compensation commissioner. Members shall be appointed for terms of three years, provided, however, that of the members first appointed, five shall serve for one year, five for two years and five for three years. No person shall serve as a member for more than two consecutive three year terms, excluding any appointments for less than a full term, but a member may be reappointed after a lapse of one year. The appointment of any member may be revoked or suspended by the chief justice. In connection with such revocation or suspension, the chief justice shall appoint a qualified individual to fill the vacancy for the remainder of the term or for any other appropriate period. In the event that a vacancy arises in this position before the end of a term by reason other than revocation or suspension, the chief justice shall fill the vacancy for the balance of the term or for any other appropriate period.

(b) The client security fund committee shall elect from among its members a chair and a vice-chair who shall serve for a period of one year.

(c) Seven members of the client security fund committee shall constitute a quorum at its meetings. The chair may assign individual members of the committee to investigate and report on claims to the committee.

(d) Members shall serve without compensation, but shall be reimbursed for their necessary and reasonable expenses incurred in the discharge of their duties.

(e) The client security fund committee shall operate under the supervision of the superior court judges and report on its activities to the executive committee of the superior court on at least a quarterly basis.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-73. --Powers and Duties of Client Security Fund Committee

In addition to any other powers and duties set forth in Sections 2-68 through 2-81, the client security fund committee shall:

(a) Publicize its activities to the public and bar, including filing with the chief justice and the executive committee of the superior court an annual report on the claims made and processed and the amounts disbursed.

(b) Receive, investigate and evaluate claims for reimbursement.

(c) Determine in its judgment whether reimbursement should be made and the amount of such reimbursement.

(d) Prosecute claims for restitution against attorneys whose conduct has resulted in disbursements.

(e) Employ such persons and contract with any public or private entity as may be reasonably necessary to provide for its efficient and effective operations, which shall include, but not be limited to, the investigation of claims and the prosecution of claims for restitution against attorneys.

(f) Perform all other acts necessary or proper for the fulfillment of the purposes and effective administration of the fund.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-74. --Regulations of Client Security Fund Committee

The client security fund committee shall have the power and authority to implement these rules by regulations relevant to and not inconsistent with these rules. Such regulations may be adopted at any regular meeting of the client security fund committee or at any special meeting called for that purpose. The regulations shall be effective sixty days after publication in one issue of the Connecticut Law Journal and shall at all times be subject to amendment or revision by the committee. A copy shall be mailed to the chief justice, the chief court administrator, and the executive committee of the superior court.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-75. --Processing Claims

(a) Upon receipt of a claim the client security fund committee shall cause an appropriate investigation to be conducted and shall cause the attorney who is the subject of the claim or the attorney's representative to be notified by certified mail within ten days of the filing of such claim. The attorney or his or her representative shall have twenty days from the date the notice was mailed to file a response with the client security fund committee. Before processing a claim, the client security fund committee may require the claimant to pursue other remedies he or she may have.

(b) The client security fund committee shall promptly notify the statewide grievance committee of each claim and shall request the grievance committee to furnish it with a report of its investigation, if any, on the matter. The statewide grievance committee shall allow the client security fund committee access to its records during an investigation of a claim. The client security fund committee shall evaluate whether the investigation is complete and determine whether it should conduct additional investigation or await the pendency of any disciplinary investigation or proceeding involving the same act or conduct as is alleged in the claim.

(c) The client security fund committee may, to the extent permitted by law, request and receive from the state's attorneys and from the superior court information relative to the client security fund committee's investigation, processing and determination of claims.

(d) A certified copy of an order disciplining an attorney for the same dishonest act or conduct alleged in a claim, or a final trial court judgment imposing civil or criminal liability therefor, shall be evidence that the attorney committed such dishonest act or conduct.

(e) The client security fund committee may require that a claimant, the subject attorney or any other person give testimony relative to a claim and may designate one or more members to receive the testimony and render a report thereon to the committee.

(f) The client security fund committee shall, on the basis of the record, make its determination in its sole and absolute discretion as to the validity of claims. A determination shall require an affirmative vote of at least seven members.

(g) Based upon the claims approved for reimbursement, the claims being processed and the amounts available in the client security fund, the client security fund committee shall determine in its sole and absolute discretion the amount, the order and the manner of the payment to be made on the approved claim.

(h) Reimbursements shall not include interest, expenses, or attorneys' fees in processing the claim, and may be paid in a lump sum or in installments.

(i) The client security fund committee shall notify the claimant and the subject attorney of its determination, which shall be final and not be subject to review by any court.

(j) The approval or disapproval of a claim shall not be pertinent in any disciplinary proceeding.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-76. --Confidentiality

Claims, proceedings and reports involving claims for reimbursement are confidential until the client security fund committee authorizes a disbursement to the claimant, at which time the committee may disclose the name of the claimant, the attorney whose conduct produced the claim and the amount of the reimbursement. However, the client security fund committee may provide access to relevant information to the statewide grievance committee, grievance panels and to law enforcement agencies. The client security fund committee may also provide statistical information which does not disclose the names of claimants and attorneys until a disbursement is authorized.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-77. --Review of Status of Fund

The client security fund committee shall periodically analyze the status of the fund, the approved claims and the pending claims to ensure the integrity of the fund for its intended purposes. Based upon the analysis and recommendation of the client security fund committee, the judges of the superior court may increase or decrease the amount of the client security fund fee and the superior court executive committee may fix a maximum amount on reimbursements payable from the fund.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-78. --Attorney's Fee for Prosecuting Claim

No attorney shall accept any fee for prosecuting a claim on behalf of a claimant, except where specifically approved by the client security fund committee for payment out of the award.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-79. --Enforcement of Payment of Fee

(a) The statewide grievance committee shall send a notice to each attorney who has not paid the client security fund fee pursuant to Section 2-70 of these rules that a presentment will be filed in the superior court against such attorney unless within sixty days from the date of such notice the statewide grievance committee receives from such attorney proof that he or she has either paid the fee or is exempt from such payment. If the statewide grievance committee does not receive such proof within the time required, it shall cause a presentment to be filed against the attorney in the superior court for the judicial district of Hartford.

(b) A presentment proceeding against an attorney under this section shall be terminated prior to hearing upon proof of payment of the fee to the Department of Revenue Services being provided to the statewide grievance committee.

(c) If a judge, judge trial referee, state referee, family support magistrate or workers' compensation commissioner has not paid the client security fund fee, the office of the chief court administrator shall send a notice to such person that he or she will be referred to the judicial review council unless within sixty days from the date of such notice the office of the chief court administrator receives from such person proof that he or she has either paid the fee or is exempt from such payment. If the office of the chief court administrator does not receive such proof within the time required, it shall refer such person to the judicial review council.

(d) Family support referees shall be subject to the provisions of subsections (a) and (b) herein until such time as they come within the jurisdiction of the judicial review council, when they will be subject to the provisions of subsection (c).

(e) The notices required by this section shall be sent by certified mail, return receipt requested to the last address registered by the attorney pursuant to Section 2-27 (d), and to the home address of the judge, judge trial referee, state referee, family support magistrate, family support referee or workers' compensation commissioner. Presentments filed under this section may be served by certified mail, return receipt requested, sent to the last address registered by the attorney pursuant to Section 2-27 (d).

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-80. --Restitution by Attorney

An attorney whose dishonest conduct has resulted in reimbursement to a claimant shall make restitution to the fund including interest and the expense incurred by the fund in processing the claim. An attorney's failure to make satisfactory arrangements for restitution shall be cause for suspension, disbarment, or denial of an application for reinstatement.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-81. --Restitution and Subrogation

(a) An attorney whose dishonest conduct results in reimbursement to a claimant shall be liable to the fund for restitution; and the client security fund committee may bring such action as it deems advisable to enforce such obligation.

(b) As a condition of reimbursement, a claimant shall be required to provide the fund with a pro tanto transfer of the claimant's rights against the attorney, the attorney's legal representative, estate or assigns; and of the claimant's rights against any third party or entity who may be liable for the claimant's loss.

(c) Upon commencement of an action by the client security fund committee as subrogee or assignee of a claim, it shall advise the claimant, who may then join in such action to recover the claimant's unreimbursed losses.

(d) In the event that the claimant commences an action to recover unreimbursed losses against the attorney or another entity who may be liable for the claimant's loss, the claimant shall be required to notify the client security fund committee of such action.

(e) The claimant shall be required to agree to cooperate in all efforts that the client security fund committee undertakes to achieve restitution for the fund.

(Adopted June 29, 1998, to take effect Jan. 1, 1999.)

COMMENTARY:

No changes are proposed to this section.

(New) Sec. 2-82. Admission of Misconduct; Discipline by Consent

(a) A respondent against whom a complaint has been filed and in connection with which probable cause has been found that the respondent is guilty of misconduct may tender a conditional admission to the complaint, or a portion thereof, to the disciplinary counsel to whom the case has been referred. The disciplinary counsel shall review the complaint and the conditional admission, shall determine the sanctions to which the respondent may be subject, and shall discuss and may negotiate a disposition of the complaint with the respondent or, if the respondent is represented by an attorney, with the respondent’s attorney. The complaint, the record in the matter and the conditional admission shall be submitted to the court for approval in matters involving suspension or disbarment and to a reviewing committee of the statewide grievance committee in all other matters. If, after a hearing, the conditional admission is accepted by the court or the reviewing committee, the discipline to be imposed shall be determined by the court or reviewing committee and shall be as prescribed by these rules. If the conditional admission is not accepted by the court or the reviewing committee, it shall be withdrawn, shall not be made public and shall not be used against the respondent in any subsequent proceedings.

(b) If a respondent has tendered to the disciplinary counsel a conditional admission to the complaint, or a portion thereof, and if the disciplinary counsel and the respondent agree to the form of discipline to be imposed, the complaint, the record in the matter, the conditional admission and the agreement concerning the form of discipline to be imposed shall be submitted to the court for approval in matters involving suspension or disbarment and to a reviewing committee of the statewide grievance committee in all other matters. If, after a hearing, the form of discipline agreed to is approved by the court or the reviewing committee, the imposition of discipline shall be made public in the manner prescribed by these rules. If the form of discipline agreed to is rejected by the court or the reviewing committee, the conditional admission and the agreement shall be withdrawn, shall not be made public and shall not be used against the respondent in any subsequent proceedings.

(c) A respondent who tenders a conditional admission to the complaint and, if applicable, his or her consent to the form of discipline, shall present to the court or the reviewing committee an affidavit stating the following:

(1) The conditional admission and, if applicable, the consent to the form of discipline are freely and voluntarily submitted; the respondent is not being subjected to coercion or duress; the respondent is fully aware of the implications of such submissions;

(2) The respondent is aware that there is presently pending a complaint or an investigation into, or proceeding involving, allegations that there exist grounds for discipline, the nature of which shall be specifically set forth, and;

(3) The respondent acknowledges that the material facts so alleged are true.

(d) Prior to acceptance by the court or the reviewing committee of the conditional admission and the imposition of any discipline, the complainant will be given the right to comment thereon.

(e) The conditional admission and, if applicable, the consent to the form of discipline shall not be submitted to the judicial authority or reviewing committee before which the underlying complaint is pending.

COMMENTARY: This new section is based on Rule 21 of the ABA’s Model Rules for Lawyer Disciplinary Enforcement and is proposed to give the disciplinary counsel the discretion to determine that an agreed upon resolution to the complaint may be appropriate. It is anticipated that such resolution will be reached more quickly than if the complaint was required to proceed through the entire grievance process, and that such resolutions will allow the statewide grievance committee to focus its time on contested matters.

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