(a)    Attorneys Convicted of Crimes

 

(1)   Upon the filing with this Court of a certified copy of a judgment of conviction demonstrating that any attorney admitted to practice before the Court has been convicted 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, the Court shall enter an order immediately suspending that attorney, whether the conviction resulted from a plea of guilty, or nolo contendere, or from a verdict after trial or otherwise, and regardless of the pendency of any appeal, until final disposition of a disciplinary proceeding to be commenced upon such conviction. A copy of such order shall immediately be served upon the attorney.  Upon good cause shown, the Court may set aside such order when it appears in the interest of justice to do so.

 

(2)   The term "serious crime" shall include any felony or any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction where the judgment was entered, involves false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a "serious crime."

                                   

(3)   A certified copy of a judgment of conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that attorney based upon the conviction.

 

(4)   Upon the filing of a certified copy of a judgment of conviction of any attorney for a serious crime, the Court shall in addition to suspending that attorney in accordance with the provisions of this rule, also refer the matter to counsel for the institution of a disciplinary proceeding before the Court in which the sole issue to be determined shall be the extent of the final discipline to be imposed as a result of the conduct resulting in the conviction, provided that a disciplinary proceeding so instituted will not be brought to final hearing until all appeals from the conviction are concluded.

 

(5)   Upon the filing of a certified copy of a judgment of conviction of an attorney for a crime not constituting a "serious crime," the Court may refer the matter to counsel for whatever action counsel may deem warranted, including the institution of a disciplinary proceeding before the Court; provided, however, that the Court may in its discretion make no reference with respect to convictions for minor offenses.

 

(6)   An attorney suspended under the provisions of this rule will be reinstated immediately upon the filing of a certificate demonstrating that the underlying conviction of a serious crime has been reversed but the reinstatement will not terminate any disciplinary proceeding then pending against the attorney, the disposition of which shall be determined by the Court on the basis of all available evidence pertaining to both guilt and the extent of discipline to be imposed.

 

 

(b)    Discipline Imposed by Other Courts

 

(1)   Any attorney admitted to practice before this Court shall, upon being subjected to public discipline by any other court of the United States or the District of Columbia, or by a court of any state, territory, commonwealth, or possession of the United States; promptly inform the Clerk of this Court of such action. Unless otherwise ordered by this Court, any such attorney who has been temporarily or permanently prohibited from practicing law by order of any other court, whether by suspension, revocation, or disbarment, shall automatically forfeit his or her right to practice law before this Court during the same period that such attorney has been prohibited from practicing law by such other court. The Clerk of Court shall send a written notice to the attorney, together with a copy of this section of the Local Rules, informing the attorney of the forfeiture of his or her right to practice law before this court; but, any failure or delay with regard to the sending of such notice shall not affect the automatic forfeiture provisions of this section.

 

(2)   If an attorney who has been prohibited from practicing law by order of some other court believes that he or she should not be required to forfeit his or her right to practice law before this Court, then such attorney may petition this Court seeking relief from the automatic forfeiture provision of subsection (b)(1). Any such petition shall be made in writing and shall be delivered to the Chief Judge of this Court. Such petition shall fully set forth the reason(s) that the relief requested should be granted. The petition shall also include a copy of the complete record of the disciplinary proceedings from the court that disciplined the attorney -- to the extent that such materials are reasonably available to the petitioning attorney.

 

(3)   Within 7 days after the Chief Judge receives a petition seeking relief from the automatic forfeiture provision of subsection (b)(1), the matter shall be set for hearing before one or more Judges of this Court, unless the petitioning attorney consents to having the hearing conducted at some mutually convenient later date. Within 7 days after such hearing has been completed, the Court shall rule on the petition by granting or denying the relief sought, or by entering any other order that may be deemed appropriate. If the Court should fail to take any required action within the time periods prescribed by this subsection, for any reason not attributable to the petitioning attorney, then the petitioning attorney shall retain his or her right to practice law before this Court until the Court does take such required action.

           

Upon receiving a petition seeking relief from the automatic forfeiture provision of subsection (b)(1), the Chief Judge may, for good cause shown, temporarily suspend the automatic forfeiture provision and allow the petitioning attorney to continue to practice law before this Court pending the Court's final ruling on the petition. In the absence of such temporary relief, the automatic forfeiture provision of subsection (b)(1) shall remain in effect pending the Court's final ruling on the petition.

 

(4)   A petition seeking relief from the automatic forfeiture provisions of subsection (b)(1), shall not be granted unless the petitioning attorney has demonstrated, or this Court finds, that on the face of the record upon which the discipline by another court is predicated it clearly appears:  

 

(A)        that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

 

(B)        that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this Court could not, consistent with its duty, accept as final the conclusion on that subject; or

 

(C)       that the imposition of the same discipline by this Court would result in grave injustice; or

 

(D)       that the misconduct established is deemed by this Court to warrant substantially different discipline.

 

Where this Court determines that any of said elements exist, it shall enter such order as it deems appropriate.

 

(5)   In all other respects, a final adjudication in another Court that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in any other Court of the United States.

 

(6)   This Court may at any stage appoint counsel to prosecute the disciplinary proceedings.

 

(c)    Disbarment on Consent or Resignation in Other Courts

 

(1)   Any attorney admitted to practice before this Court who shall be disbarred on consent or resign from the bar of any other Court of the United States or the District of Columbia, or from the bar of any state, territory, commonwealth, or possession of the United States while an investigation into allegations of misconduct is pending, shall, upon the filing with this Court of a certified or exemplified copy of the judgment or order accepting such disbarment on consent or resignation, cease to be permitted to practice before this Court and be stricken from the roll of attorneys admitted to practice before this Court.

 

(2)   Any attorney admitted to practice before this Court shall, upon being disbarred on consent or resigning from the bar of any other Court of the United States or the District of Columbia, or from the bar of any state, territory, commonwealth, or possession of the United States while an investigation into allegations of misconduct is pending, promptly inform the Clerk of this Court of such disbarment on consent or resignation.

 

(d)    Standards for Professional Conduct

 

(1)   For misconduct defined in these rules, and for good cause shown, and after notice and opportunity to be heard, any attorney admitted to practice before this Court may be disbarred, suspended from practice before this Court, reprimanded or subjected to such other disciplinary action as the circumstances may warrant.

 

(2)   Acts or omissions by an attorney admitted to practice before this Court, individually or in concert with any other person or persons, which violate the rules of professional conduct adopted by this Court shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship.  The Minnesota Rules of Professional Conduct adopted by the Supreme Court of Minnesota as amended from time to time by that Court are adopted by this Court except as otherwise provided by specific rules of this Court.

 

(e)    Disciplinary Proceedings.

 

(1)   When misconduct or allegations of misconduct which, if substantiated, would warrant discipline on the part of an attorney admitted to practice before this Court shall come to the attention of a Judge of this Court, whether by complaint or otherwise, and the applicable procedure is not otherwise mandated by these rules, the Judge shall refer the matter to counsel for investigation and the prosecution of a formal disciplinary proceeding or the formulation of such other recommendation as may be appropriate.

 

(2)   Should counsel conclude after investigation and review that a formal disciplinary proceeding should not be initiated against the respondent-attorney because sufficient evidence is not present, or because there is pending another proceeding against the respondent-attorney, the disposition of which in the judgment of counsel should be awaited before further action by this Court is considered or for any other valid reason, counsel shall file with the Court a recommendation for disposition of the matter, whether by dismissal, admonition, deferral, or otherwise setting forth the reasons therefore.

           

(3)   To initiate formal disciplinary proceedings, counsel shall obtain an order of this Court upon a showing of probable cause requiring the respondent- attorney to show cause within 30 days after service of that order upon that attorney, personally or by mail, why the attorney should not be disciplined. The order to show cause shall include the form certification of all Courts before which the respondent-attorney is admitted to practice, as specified in Form 1 appended to these Rules.

 

(4)   Upon the respondent-attorney's answer to the order to show cause, if any issue of fact is raised or the respondent-attorney wishes to be heard in mitigation, this Court shall set the matter for hearing within 60 days before one or more Judges of this Court, provided, however, that if the disciplinary proceeding is predicated upon the complaint of a Judge of this Court, the hearing shall be conducted before a panel of at least two Judges of this Court appointed by the Chief Judge, or, if there are less than three Judges eligible to serve or the Chief Judge is the complainant, by the Chief Judge of the Court of Appeals for this circuit.  The respondent-attorney shall execute the certification of all Courts before which that respondent-attorney is admitted to practice, on the form specified, and file the certification with his or her answer.

 

(f)       Disbarment on Consent While Under Disciplinary Investigation or Prosecution

 

(1)   Any attorney admitted to practice before this Court who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may consent to disbarment, but only by delivering to this Court an affidavit stating that the attorney desires to consent to disbarment and that:

 

(A)        the attorney's consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of so consenting;

                             

(B)        the attorney is aware that there is presently pending an investigation or a proceeding involving allegations that there exist grounds for the attorney's discipline, the nature of which the attorney shall specifically set forth;

 

(C)       the attorney acknowledges that the material facts so alleged are true; and

 

(D)       the attorney so consents because the attorney knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, the attorney could not successfully defend himself or herself.

 

(2)   Upon receipt of the required affidavit, this Court shall enter an order disbarring the attorney.

 

(3)   The order disbarring the attorney on consent shall be a matter of public record.  However, the affidavit required under the provisions of this rule shall not be publicly disclosed or made available for use in any other proceedings except upon order of this Court.

 

(g)      Reinstatement

 

(1)   After Disbarment or Suspension. An attorney suspended for six months or less shall be automatically reinstated at the end of the period of suspension upon the filing with the Court of an affidavit of compliance with the provisions of the order.  An attorney suspended for more than six months or disbarred may not resume practice until reinstated by order of this Court.

 

(2)   Time of Application Following Disbarment. A person who has been disbarred after hearing or by consent may not apply for reinstatement until the expiration of at least five years from the effective date of disbarment.

 

(3)   Hearing on Application. Petitions for reinstatement by a disbarred or suspended attorney under this rule shall be filed with the Chief Judge of this Court.  Upon receipt of the petition, the Chief Judge shall promptly refer the petition to counsel and shall assign the matter for hearing within 60 days before one or more Judges of this Court, provided, however, that if the disciplinary proceeding was predicated upon the complaint of a Judge of this Court, the hearing shall be conducted before a panel of three other Judges of this Court appointed by the Chief Judge, or if there are less than three Judges eligible to serve, or the Chief Judge was the complainant, by the Chief Judge of the Court of Appeals of this circuit.  The Judge or Judges assigned to the matter shall, within 30 days after referral, schedule a hearing at which the petitioner shall have the burden of demonstrating clear and convincing evidence of the moral qualifications, competency, and learning in the law required for admission to practice law before this Court, and that resumption of the practice of law will not be detrimental to the integrity and standing of the bar, or to the administration of justice, or subversive to the public interest.

 

(4)   Duty of Counsel.  In all proceedings upon a petition for reinstatement, cross-examination of the witnesses of the respondent-attorney and the submission of evidence, if any, in opposition to the petition shall be conducted by counsel.

 

(5)   Deposit for Costs of Proceeding.  Petitions for reinstatement under this rule shall be accompanied by an advance cost deposit in an amount to be set from time to time by the Court, to cover anticipated costs of the reinstatement proceeding.

 

(6)   Conditions of Reinstatement.  If the petitioner is found unfit to resume the practice of law, the petition shall be dismissed.  If the petitioner is found fit to resume the practice of law, the judgment shall reinstate the attorney, provided that the judgment may make reinstatement conditional upon the payment of all or part of the costs of the proceedings, and upon the making of partial or complete restitution to parties harmed by the petitioner whose conduct led to the suspension or disbarment.  Provided further, that if the petitioner has been suspended or disbarred for five years or more, reinstatement may be conditioned, in the discretion of the Judge or Judges before whom the matter is heard, upon the furnishing of proof of competency and learning in the law, which proof may include certification by the bar examiners of a state or other jurisdiction of the attorney's successful completion of an examination for admission to practice subsequent to the date of suspension or disbarment.

 

(7)   Successive Petitions.  No petition for reinstatement under this rule shall be filed within one year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person.  No more than two petitions for reinstatement may be filed.

 

(h)      Attorneys Specially Admitted.  Whenever an attorney applies to be admitted or is admitted to this Court for purposes of a particular proceeding (pro hac vice), the attorney shall be deemed thereby to have conferred disciplinary jurisdiction upon this Court for any alleged misconduct of that attorney arising in the course of or in the preparation for such proceeding.

 

(i)       Service of Papers and Other Notices.  Service of an order to show cause instituting a formal disciplinary proceeding shall be made by personal service or by registered or certified mail addressed to the respondent-attorney at the address shown in the most recent registration.  Service of any other papers or notices required by this rule shall be deemed to have been made if such paper or notice is addressed to the respondent-attorney at the address shown on the registration statement or to counsel or the respondent's attorney at the address indicated in the most recent pleading or other document filed by them in the course of any proceeding.

 

(j)       Appointment of Counsel.  Whenever counsel is to be appointed pursuant to this rule to investigate allegations of misconduct or prosecute disciplinary proceedings or in conjunction with a reinstatement petition filed by a disciplined attorney, this Court may instead refer the matter to the Minnesota Lawyers Professional Responsibility Board for appropriate investigation, prosecution or other proceedings.  If the Board for any reason declines appointment, or if such referral is clearly inappropriate, this Court shall appoint as counsel one or more members of the bar of this Court to investigate allegations of misconduct or to prosecute disciplinary proceedings provided, however, that the respondent-attorney may move to disqualify an attorney so appointed who is or has been engaged as an adversary of the respondent-attorney.  This provision, however, does not apply to counsel of the Minnesota Lawyers Professional Responsibility Board.  Counsel, once appointed, may not resign unless permission to do so is given by this Court.

                                                           

(k)      Duties of the Clerk.

 

(1)   Upon being informed that an attorney admitted to practice before this Court has been convicted of any crime, the Clerk of this Court shall determine whether the Clerk of the Court in which such conviction occurred has forwarded a certificate of such conviction to this Court.  If a certificate has not been so forwarded, the Clerk of this Court shall promptly obtain a certificate and file it with this Court.

 

(2)   Upon being informed that an attorney admitted to practice before this Court has been subjected to discipline by another Court, the Clerk of this Court shall determine whether a certified or exemplified copy of the disciplinary judgment or order has been filed with this Court and, if not, the Clerk shall promptly obtain a certified or exemplified copy of the disciplinary judgment or order and file it with this Court.

 

(3)   Whenever it appears that any person convicted of any crime or disbarred or suspended or censured or disbarred on consent by this Court is admitted to practice law in any other jurisdiction or before any other Court, the Clerk of this Court shall, within 14 days of that conviction, disbarment, suspension, censure, or disbarment on consent, transmit to the disciplinary authority in such other jurisdiction, or for such other Court, a certificate of the conviction or a certified exemplified copy of the judgment or order of disbarment, suspension, censure, or disbarment on consent, as well as the last known office and residence addresses of the defendant or respondent.

 

(4)   The Clerk of this Court shall, likewise, promptly notify the National Discipline Data Bank, operated by the American Bar Association, of any order imposing public discipline upon any attorney admitted to practice before this Court.

                                                           

(l)       Jurisdiction.  Nothing contained in this rule shall be construed to deny to this Court such powers as are necessary for the Court to maintain control over proceedings conducted before it, such as proceedings for contempt under Title 18 of the United States Code or under Rule 42 of the Federal Rules of Criminal Procedure.

 

[Adopted effective February 1, 1991; amended December 18, 1997; amended December 1, 2009.]

 

1991 Advisory Committee's Note to LR 83.6

 

The following preface preceded the text of former D.Minn. Local Rule 1(F) (1987), which was the predecessor of LR 83.6.  The Advisory Committee adopts it as its Note to LR 83.6:

 

Statement of Need for Adopting a Rule of Disciplinary Enforcement

 

Membership in good standing in the bar of a Court of the United States constitutes a continuing proclamation by the Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the Court.

 

It is the duty of every attorney admitted to practice before a Court of the United States to conform at all times with the standards imposed upon members of the bar as conditions for the privilege to practice law.

 

It is the duty of the Court to supervise the conduct of the members of its bar in order to assure the public that those standards are scrupulously adhered to.  The proper discharge of that duty requires that the Court have the assistance of counsel to investigate and prosecute where there are appropriate allegations that those standards have been violated.  To assure competent and knowledgeable counsel, and to avoid unnecessary duplication of systems and personnel, this rule provides for the appointment of the state disciplinary agency whenever appointment of counsel is required hereunder and such appointment is appropriate.

In order to be admitted to practice in the United States District Court for the District of Minnesota, an attorney must demonstrate membership in good standing before the Minnesota Supreme Court.  Consequently, for the purposes of admitting attorneys to practice before this Court, it may and does rely upon the standards for admission of the State Supreme Court.  Insofar as discipline of admitted attorneys is concerned, however, the Supreme Court of the United States has held that revocation of a license to practice by state or other Courts may not automatically be relied upon by the Courts of the United States.  Theard v. United States, 354 U.S. 278 (1957).  In Theard, the Supreme Court held that while discipline imposed by a state "brings title deeds of high respect," it is not conclusively binding on the federal courts, which, in substance, must satisfy themselves that the attorney's underlying conduct warranted the discipline imposed.  Id. at 282.  For that reason, if there is to be effective discipline within the federal system, effective and appropriate procedures must be developed.  This rule is proposed to achieve that purpose as well as to achieve uniformity of procedure by the various federal courts.