General procedures

(a) Screening and evaluation. The ODC shall screen and evaluate all information coming to its attention by complaint or otherwise concerning possible misconduct by or incapacity of a lawyer. (i) Screening. If the lawyer is not subject to the disciplinary jurisdiction of the Court, the matter shall be dismissed and referred to the appropriate entity in the jurisdiction in which the lawyer is admitted. (ii) Evaluation. If the lawyer is subject to the disciplinary jurisdiction of the Court, the ODC shall conduct an evaluation of the information regarding the lawyer, utilizing the following general procedure: (A) If the information regarding the lawyer, on its face, is not sufficient to raise a reasonable inference of misconduct or incapacity, the ODC shall dismiss the matter; (B) If the information regarding the lawyer, on its face, is sufficient to raise a reasonable inference of misconduct or incapacity, the ODC shall gather supplemental information; (C) If the aggregate of information gathered by the ODC is not sufficient to raise a reasonable inference of misconduct or incapacity, the ODC shall dismiss the matter; (D) If the aggregate of information gathered by the ODC is sufficient to raise a reasonable inference of misconduct or incapacity, the ODC shall conduct a formal investigation of the matter. (b) Formal investigation and consideration by the PRC. The ODC shall conduct all formal investigations subsequent to the screening and evaluation procedures described in Rule 9(a). Following the receipt of sufficient information, the ODC shall dismiss the matter or present the matter to the PRC. (1) If the matter is to be presented to the PRC, the ODC shall notify the respondent in a timely manner prior to the scheduled meeting of the PRC, and shall inform the respondent that the respondent may submit to the ODC any further written information for consideration by the PRC at such meeting. Neither the respondent nor the respondent’s counsel shall have the right to appear at a meeting of the PRC. (2) The ODC may recommend to the PRC one or more of the following: (A) dismissal of the matter with or without conditions; (B) the offer of a private probation not to exceed two years with or without conditions; (C) the offer of a private admonition with or without conditions; (D) a stay; (E) the filing of a petition for discipline with the Board; or (F) conditional diversion. (3) The PRC shall review the ODC’s recommendation and any written information submitted by the respondent. Disciplinary matters involving the same respondent may be consolidated by the PRC as it deems appropriate. The PRC shall determine whether there is probable cause to conclude that the respondent has engaged in professional misconduct. The PRC may approve, disapprove, or modify the ODC’s recommendation, and may request additional information and investigation as it deems appropriate. (4) Where the PRC determines that an offer of conditional diversion, a private probation or a private admonition is appropriate, the ODC shall send a letter to the respondent or the respondent’s counsel, which shall contain the following: (A) a description of the facts and legal issues considered by the PRC; (B) the PRC’s conclusion that there is probable cause that the respondent committed at least one specified disciplinary violation; (C) a description of any conditions attached to the offer of conditional diversion, a private probation or a private admonition; and (D) a certification of acceptance and imposition of conditional diversion, a private probation or a private admonition. If the respondent desires to accept the offer of conditional diversion, a private probation or a private admonition, the respondent shall execute the certification attached to the letter and return the certification in a timely manner to the ODC. In the case of a conditional diversion the respondent shall submit a signed conditional diversion agreement and an executed release of information through an approved monitor including but not limited to the Delaware Lawyers Assistance Program to enable the ODC to verify the satisfaction of the conditions of the conditional diversion. The respondent’s acceptance of the imposition of a private admonition under this Rule means that the respondent does not contest the findings of the PRC that there was probable cause that the respondent engaged in professional misconduct, and that such sanction may be treated for all other purposes as if the sanction had otherwise been imposed after the filing of a petition for discipline with the Board. The respondent’s acceptance of the imposition of conditional diversion or a private probation under this Rule means that the respondent does not contest the findings of the PRC that there was probable cause that the respondent engaged in professional misconduct; however, if the respondent is not subsequently found by a panel of the PRC to have engaged in professional misconduct within the probationary period, the conditional diversion or probation will be removed from the respondent’s formal disciplinary record and cannot be used in any subsequent disciplinary proceeding. Whenever the PRC concludes that an offer of conditional diversion or a private probation or a private admonition is appropriate, the PRC shall also concurrently approve the filing of a petition for discipline, which may contain additional or different disciplinary violations than those specified in the letter, and which shall be filed with the Board if the respondent does not accept the offer of conditional diversion, a private probation, or a private admonition. If the conditions of the conditional diversion agreement are satisfied, including that the respondent is not subsequently found by a panel of the PRC to have engaged in professional misconduct within the period of conditional diversion, the disciplinary matter shall be removed from the respondent’s record. If the conditions of the conditional diversion agreement are not satisfied, the ODC shall file the petition for discipline with the Board. (c) Disposition prior to formal charges. The respondent may accept or reject any offer of conditional diversion or a private probation or a private admonition prior to the filing of a petition for discipline. Upon receipt by the ODC of the signed certificate of acceptance and imposition, and the payment of costs, the matter shall be closed. If the respondent rejects the offer of conditional diversion or a private probation or a private admonition or does not timely respond thereto, the offer shall be deemed rejected, and the ODC shall proceed to file a petition for discipline with the Board containing charges that have been approved by the PRC. (d) Formal proceedings.(1) Formal disciplinary proceedings before the Board shall be instituted by the ODC by filing with the Administrative Assistant, and serving upon the respondent, after approval by a panel of the PRC, a petition which is sufficiently clear and specific to inform the respondent of the alleged misconduct. The filing of a petition with the Administrative Assistant commences the official Board record in the matter. (2) The respondent shall serve an answer upon the ODC and file the original with the Administrative Assistant within 20 days after service of the petition, unless the time is extended by the Chair or Vice Chair of the Board. In the event the respondent fails to serve an answer within the prescribed time, all of the allegations and charges in the petition shall be deemed admitted, such that the sole remaining issue to be determined by the Board shall be the appropriate disciplinary sanction. (3) The Administrative Assistant shall serve a notice of hearing upon the ODC and the respondent, identifying the members of the Board assigned to the matter, and the date and place of the hearing. The notice shall be given at least 20 days in advance of the date of the hearing. The notice of hearing shall state that the respondent is entitled to be represented by a lawyer at the respondent’s expense, to cross- examine witnesses, and to present evidence. (4) All hearings before the Board shall be recorded. Following a hearing, briefs, memoranda, and oral argument may be permitted in the discretion of the Board. If the Board initially finds that the respondent has engaged in professional misconduct, the Board shall then make a separate finding as to the appropriate disciplinary sanction. The Board may conduct a separate hearing on sanctions in order to evaluate evidence of possible aggravating and mitigating factors. (5) The Board shall submit to the Court a final report containing its findings, reasons, and recommendations within 60 days after the conclusion of its proceedings. A copy of the report shall be served on the ODC and the respondent. If a matter is held under advisement by the Hearing Panel for more than 60 days, then the chair of the Hearing Panel, either before or immediately upon the expiration of the 60 day period, shall submit to the Court a written request for an extension of time to complete the final report. The written request shall contain the following information: (A) The Board case number(s); (B) The date the matter was taken under advisement; (C) The specific reason for the delay; and (D) A target date on which the chair of the Hearing Panel reasonably expects the final report to be issued. The Court may grant an extension for completing the final report for good cause shown. (e) Review by the Court. Upon the submission by the Board of its report and recommendations to the Court for review, the Clerk of the Court shall notify the ODC and the respondent of their respective rights to file objections to the Board’s report and recommendations within 20 days from the date of service, except for reports filed pursuant to Rule 17. The respondent and the ODC may waive the right to file objections. No further briefing will be permitted unless ordered by the Court for good cause. (f) Witnesses and evidence. (1) All witnesses shall be sworn in all proceedings. The court reporter or any member of the Board or the ODC may administer oaths and affirmations. (2) The Delaware Uniform Rules of Evidence shall be followed as far as practicable, provided that evidence may be admitted and considered which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs, or as otherwise provided in these Rules. (3) Where the respondent is or has been a party to or a participant in a proceeding, whether administrative, criminal, civil, or otherwise, the relevant portions of the transcript of the proceedings, exhibits, findings of fact, conclusions of law, opinions, decisions, and judgments, shall be admitted in evidence, if offered, and shall be accorded such weight as the Board shall deem appropriate; provided, however, that evidence of a conviction of the respondent for any crime shall be deemed conclusive as to the fact that such crime was committed, and evidence of the imposition of a disciplinary sanction in a foreign jurisdiction shall be deemed conclusive as to the fact of the disciplinary violation upon which such sanction was predicated. Relevant correspondence among and between the ODC, the respondent, and the complainant shall also be admitted in evidence, if offered, and shall also be accorded such weight as the Board shall deem appropriate. Evidence of conduct or statements made in compromise negotiations prior to a hearing shall not be admitted, unless there is no objection by any party. (4) Information relating to prior discipline of a respondent shall not normally be divulged until after there is a finding of misconduct in the pending matter, unless the prior discipline is relevant to the current proceedings. (5) After conviction of a felony or of any other form of criminal conduct demonstrating a significant threat of substantial harm to the public or to the orderly administration of justice, the sole issue to be determined by the Board shall be the discipline to be imposed, if any, provided that a disciplinary proceeding on such basis shall not be brought to a hearing until all appeals from the conviction are concluded, unless the respondent requests that the matter not be deferred. (g) Dismissals with warning. When a disciplinary matter is dismissed, whether by the ODC, the PRC, or the Court, the written notice of dismissal that is sent to the respondent, whether in the form of a letter, report, order, or otherwise, may contain cautionary language directed to the respondent, for the purpose of directly informing and educating the respondent as to conduct which, while not violative of a disciplinary rule or worthy of a disciplinary sanction, nevertheless has raised professional concerns. (h) Retention of disciplinary files. Files of the ODC, the PRC, and the Board in individual disciplinary matters in which no disciplinary sanction was imposed shall be retained for 5 years after the date that the matter was resolved, after which time such files may be destroyed; provided, however, that this requirement shall not apply to recordkeeping dockets and other listings of disciplinary matters, general tabulations of information, or statistical reports or summaries. Files in which a disciplinary sanction has been imposed shall be retained. (i) Limited expungement of disciplinary record. A lawyer who has received a single private admonition and has received no other disciplinary sanction for a period of 10 years after the imposition of that sanction may request that the sanction be expunged from the lawyer’s disciplinary record, for the sole purpose of precluding reference to that sanction in any future disciplinary proceeding. Any such request shall be in writing and shall be directed to the Administrative Assistant, who shall take the appropriate steps in having the sanction expunged from the lawyer’s disciplinary record; provided, however, that no request for expungement shall be granted when there is a disciplinary matter relating to the lawyer that is pending at any stage of the proceedings described in these Rules. History. Amended, June 5, 2001; effective July 18. 2007; effective May 14, 2008.