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04/25/2014 (All day)

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§ 3-309. Procedure: Committee on Inquiry; Counsel for Discipline; Disciplinary Review Board.

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   (A) All allegations of misconduct must be filed with the office of the Counsel for Discipline. All allegations of misconduct received by any other person shall be transmitted forthwith to the Counsel for Discipline.

   (1) Upon receipt of information indicating an abuse of alcohol or drugs by a member or the existence of a mental health or gambling problem, the Counsel for Discipline shall release such information to the Nebraska Lawyers Assistance Program. The release of this information shall not be a violation of the confidentiality requirements of § 3-318.

   (2) Upon receipt of a grievance against a member arising out of conduct in a pending or closed federal case, including civil, criminal, bankruptcy, grand jury, or  federal proceeding in which the lawyer may be a witness, Counsel for Discipline shall disclose and refer such grievance to the federal judge assigned to the case for consideration of discipline under the federal attorney discipline rules. Any investigation of such grievance by Counsel for Discipline shall be held in abeyance until the federal court resolves the matter, provided, however, that if the federal court fails to resolve the grievance in a timely manner, Counsel for Discipline may take further action without regard to the referral to the federal court. Discipline by the federal court under its disciplinary rules does not preclude discipline under these rules pursuant to the Nebraska Rules of Professional Conduct. Referral under this subsection shall not be a violation of the confidentiality requirements of § 3-318.

   (B) All investigations, whether upon allegations of misconduct or otherwise, shall normally be initiated by the Counsel for Discipline.

   (C) When it appears to the Counsel for Discipline that allegations of misconduct do not have merit or that the allegations, if true, would not constitute grounds for discipline, he or she may decline to investigate and shall so advise the Complainant in writing with a proper explanation. In making a determination, the Counsel for Discipline may make such preliminary inquiry regarding the underlying facts as he or she deems appropriate. This may include requests for information from the Complainant and the member. All doubts shall be resolved in favor of an investigation. The Counsel for Discipline shall decline to investigate allegations of misconduct against current court-appointed attorneys in active criminal and juvenile cases. Such allegations and allegations of conflict of interest and ineffective assistance of counsel should be considered within the context of the underlying case. A declination by the Counsel for Discipline to investigate and dismissal pursuant to this rule are not appealable to the Committee on Inquiry or the Disciplinary Review Board.

   (D) If it appears to the Counsel for Discipline that allegations of misconduct may have merit and, if true, would constitute grounds for discipline, he or she shall notify the member against whom the allegations are directed that the member is the subject of a Grievance, and within fifteen days of its receipt furnish the member a copy thereof by certified mail, return receipt requested, at the member’s last known address.

   (E) Upon receipt of notice of a Grievance from the Counsel for Discipline, the member against whom the Grievance is directed shall prepare and submit to the Counsel for Discipline, in writing, within fifteen working days of receipt of such notice, an appropriate response to the Grievance, or a response stating that the member refuses to answer substantively and explicitly asserting constitutional or other grounds therefor. For good cause, the Counsel for Discipline may grant additional time for the filing of a response.

   (F) If, upon conclusion of any investigation, the Counsel for Discipline determines there are not reasonable grounds for discipline of a member against whom a Grievance is directed, he or she shall dismiss the Grievance and shall so advise the Complainant in writing with a proper explanation. The Counsel for Discipline shall further advise such Complainant that an appeal may be taken to the Disciplinary Review Board pursuant to § 3-314(A).

   (G) If, upon conclusion of any investigation, the Counsel for Discipline determines there are reasonable grounds for discipline of a member against whom a Grievance is made, he or she shall reduce the Grievance to a Complaint specifying with particularity the facts which constitute the basis thereof and the grounds for discipline which appear to have been violated. The Complaint shall be forwarded by the Counsel for Discipline to the member by regular mail at the member’s last known address. The member shall have ten working days from the date the Complaint is mailed to submit an additional written explanation of the facts or circumstances for inclusion in the Counsel for Discipline’s investigative file. The Complaint and either the investigation file, or a copy thereof, shall then be immediately forwarded to the proper Committee on Inquiry.

   (H) Upon receipt of the Complaint and file from the Counsel for Discipline, the Chairperson of the Committee on Inquiry shall appoint an Inquiry Panel pursuant to § 3-307(F) which shall within thirty days review the Complaint and either:

   (1) Determine that the Complaint, if true, would not constitute grounds for discipline and dismiss the Complaint.

   (2) Determine that there are not reasonable grounds for discipline of the Respondent, and dismiss the Complaint.

   (3) Determine that there are reasonable grounds for discipline of the Respondent but that no public interest would be served by the institution of a Formal Charge. The Panel thereupon shall prepare and issue to the Respondent a private reprimand which shall be made a permanent part of the file in the office of the Counsel for Discipline, and this reprimand shall be received as evidence in any subsequent disciplinary proceeding against the Respondent only after a finding of misconduct in the subsequent disciplinary proceeding.

   (4) Determine that there are reasonable grounds for discipline of the Respondent and that a public interest would be served by the filing of a Formal Charge. The Counsel for Discipline shall thereafter prepare and sign Formal Charges for filing with the Court. The Formal Charge shall be made in the name of the State of Nebraska on the relation of the Counsel for Discipline of the Nebraska Supreme Court.

   (I) The Respondent or the Counsel for Discipline may appeal the actions of the Inquiry Panel to the Disciplinary Review Board in conformity with §§ 3-306(D)(5) and (6), and 3-314(D).

Rule 9(C) and (D) amended March 13, 1998; Rule 9(A) and (B) amended February 28, 2001; Rule 9(C) amended June 25, 2008, effective July 9, 2008. Renumbered and codified as § 3-309, effective July 18, 2008; § 3-309(A)(1)-(2) amended March 16, 2011.

Supreme Court Rules

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