- A lesser misconduct is a misconduct that does not warrant a sanction restricting the respondent’s license to practice law.
- A misconduct shall not be considered as a lesser misconduct if it involves one of the following:
- the misappropriation of funds;
- it results in or is likely to result in substantial prejudice to a client or other person;
- the respondent has been publicly disciplined in the last three years;
- it is of the same nature as misconduct for which the respondent has been disciplined in the last five years;
- it involves dishonesty, deceit, fraud or misrepresentation by the respondent;
- it constitutes a “serious crime” as defined in Article 109 of this Proclamation; or
- it is part of a pattern of similar misconducts.
A “serious crime” is any crime that adversely reflects on an advocate’s honesty, trustworthiness or fitness as an advocate in other respects or any crime a necessary element of which, as determined by the statutory definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt, conspiracy or solicitation of another to commit a serious crime.
- Misconducts shall be grounds for one or more of the following sanctions:
- Disbarment by the Disciplinary Tribunal;
- Suspension for an appropriate fixed period of time not in excess of three years;
- Probation; or
- Written conditions may be attached to an admonition or a reprimand.
- Failure to comply with the written conditions shall be grounds for reconsideration of the matter and prosecution of formal charges against the respondent.
- In imposing a sanction after a finding of an advocate’s misconduct, the following factors shall be considered:
- Whether an advocate has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- Whether an advocate acted intentionally, knowingly, or negligently;
- The amount of the actual or potential injury caused by an advocate’s misconduct; and
- The existence of any aggravating or mitigating factors.
- The disposition of an advocate disciplinary action shall be public in cases of disbarment, suspension, probation, and reprimand.
- In all cases of public disciplinary action by the Disciplinary Tribunal, the latter shall issue a written opinion setting forth its justification for imposing the sanction in that particular case.
Sub-section Six – Disciplinary Proceedings
Procedural and Evidentiary Rules
- Disciplinary proceedings are neither civil nor criminal but are sui generis.
- Except as otherwise provided in this Proclamation, the rules of civil procedure and the rules of evidence in civil matters apply in the discipline proceedings taking into account the parties’ due process rights.
- Formal charges of misconduct, lesser misconduct, petitions for reinstatement and readmission, and petitions for transfer to and for disabling inactive status shall be established by clear and convincing evidence.
- The burden of proof in proceedings seeking disciplinary actions lies on the Disciplinary Tribunal.
Discipline by Consent
- An advocate against whom formal charges have been made may tender to the Disciplinary Tribunal a conditional admission to the petition or to a particular count thereof in exchange for a stated form of disciplinary action.
- A tendered conditional admission shall be approved or rejected by the Disciplinary Tribunal.
- If the stated form of disciplinary action is rejected by the Disciplinary Tribunal, the admission shall be withdrawn and cannot be used against the respondent in any subsequent proceedings.
- The extent of disciplinary action to be imposed shall be subject to review.
- If an agreement providing for admonition or probation is reached prior to the filing of formal charges, it shall be approved by the chair of Disciplinary Tribunal.
- A advocate who consents to a stated form of discipline shall present to the Disciplinary Tribunal an affidavit stating that he or she consents to the disciplinary action and that:
- The consent is freely and voluntarily rendered and that the advocate is not being subjected to coercion or duress and the advocate is fully aware of the implications of submitting the consent;
- The advocate is aware that there is presently pending an investigation into, or proceeding involving, allegations that there exist grounds for disciplinary action, the nature of which shall be specifically set forth;
- The advocate acknowledges that the material facts so alleged are true; and
- The advocate consents because the advocate knows that, if charges predicated upon the matters under investigation were filed, or if the pending proceeding were prosecuted, the advocate could not successfully defend against them.
- In all other instances in which proposed disciplinary action has been approved, the Disciplinary Tribunal shall enter the order disciplining the advocate on consent.