COLLATERAL PAYMENTS

In accordance with Fed. R. Crim. P. 58(d)(1), payment of a fixed sum may be accepted in suitable types of misdemeanor cases in lieu of appearance and as authorizing the termination of the proceedings. Such fixed sums may be increased or decreased from time to time by the Court, provided such fixed sums shall not exceed the maximum fine which could be imposed upon conviction. 75 LOCAL ADMIRALTY RULES LOCAL ADMIRALTY RULE (a) AUTHORITY AND SCOPE (1) Authority. The Local Admiralty Rules of the United States District Court for the Eastern District of Virginia are promulgated by a majority of the judges as authorized by and subject to the limitations of Fed. R. Civ. P. 83.

Any reference to Federal Rule or Federal Rules shall be to the Federal Rules of Civil Procedure. (2) Scope. The Local Admiralty Rules apply only to civil actions that are governed by Supplemental Rule A of the Supplemental Rules for Certain Admiralty and Maritime Claims. All other local rules are applicable in these cases, but to the extent that another local rule is inconsistent with the applicable Local Admiralty Rules, the Local Admiralty Rules shall govern in admiralty cases.

Effective March 26, 2007, all documents filed with the Court must be filed through the Electronic Case Filing System, except as provided otherwise in the Court’s Electronic Case Filing Policies and Procedures manual (“manual”) which is promulgated and revised by the Clerk. The manual governs if there is a conflict between it and these Local Rules as to the technicalities of electronic case filing. These Local Rules govern where the manual provides for filing paper documents, and in all other matters not involving electronic case filing. (3) Citation.

The Local Admiralty Rules may be cited by the letters "LAR" and the lower case letters and numbers in parentheses that appear at the beginning of each section. The lower case letter is intended to associate the Local Admiralty Rule with the Supplemental Rule that bears the same capital letter. (4) Officers of Court. As used in the Local Admiralty Rules, "judicial officer" means a United States District Judge or a United States Magistrate Judge; "Clerk" or "Clerk of Court" means the Clerk of the District Court and includes deputy Clerks of Court; and "Marshal" means the United States Marshal and includes deputy Marshals.

76 LOCAL ADMIRALTY RULE (b) IN PERSONAM ACTIONS: ATTACHMENT AND GARNISHMENT (1) "Not Found Within the District" Defined. A defendant is considered to be "not found within the district" if, in an action in personam, service upon the defendant cannot be effected in person or upon an authorized officer or agent within the Commonwealth or if the only effective service is through the Clerk of the State Corporation Commission, the Secretary of the Commonwealth, or under the Virginia Long Arm Statute. (2) Affidavit That Defendant is Not Found Within the District. The affidavit required by Supplemental Rule (B)(2) to accompany the complaint shall list every effort made by and on behalf of plaintiff to find and serve the defendant within the district.

(3) Ownership of Property. In an action where the debts, credits, or effects named in the process of maritime attachment or garnishment are not delivered up to the process server by the defendant or the garnishee, or are asserted by the possessor not to be the property of the defendant, the process shall be served sufficiently by leaving a copy of the process with the defendant, garnishee and possessor, at his or her residence or usual place of business. When the return of service shows that process was so served, and when the plaintiff shows to the satisfaction of the Court that the property does belong to the defendant or the garnishee, the Court may proceed to hear and decide the case. (4) Use of State Procedures.

When the plaintiff invokes a state procedure in order to attach or garnish property under Fed. R. Civ. P. (4)(n)(2), the process of attachment or garnishment shall so state. 77 LOCAL ADMIRALTY RULE (c) ACTIONS IN REM: SPECIAL PROVISIONS (1) Undertaking in Lieu of Arrest. If, before or after commencement of an action by arrest, all parties accept a written undertaking to respond on behalf of the vessel or other property in return for foregoing the arrest, or stipulating to the release of the vessel or other property, the undertaking shall be filed, shall become the party in place of the vessel or other property, and shall be deemed the subject referred to when a pleading, motion, order, or judgment in the action refers to the vessel or property. (2) Intangible Property.

The summons issued pursuant to Supplemental Rule C(3) shall direct the person having control of the specified funds or other intangible property to show cause no later than 10 days after service why the funds or other property should not be delivered to the Marshal to abide the judgment. A judicial officer for good cause shown may lengthen or shorten the time. Service of the summons has the effect of an arrest of the property and brings it within the control of the Court. The person who is served may deliver or pay over to the Marshal (or other person or organization having a warrant for the arrest of the property) the property or funds proceeded against to the extent sufficient to satisfy the plaintiff's claim.

If such delivery or payment is made, the person served is excused from the duty to show cause. A claimant of the property may show cause why the property should not be delivered or should be returned by serving and filing a claim as provided in Supplemental Rule C(6) within the time allowed to show cause and by serving and filing an answer to the complaint within twenty-one (21) days thereafter. If a claim is not filed within the time stated in the summons, or an answer is not filed within the time allowed under this rule, the person who was served shall deliver or pay to the Marshal the property or funds proceeded against, or a part thereof sufficient to satisfy plaintiff's claim. (3) Publication of Notice of Action and Arrest.

The notice required by Supplemental Rule C(4) shall be published once in a newspaper of general circulation within the Division where arrest is to occur , and plaintiff's attorney shall file a copy of the notice as it was published with the Clerk. The notice shall contain: (a) the Court, title, and number of the action; (b) the date of the arrest; (c) the identity of the property arrested; (d) the name, address and telephone number of the attorney for plaintiff; (e) (i) a statement that a person who asserts an interest in or right against the property that is the subject of the civil forfeiture must file a verified statement identifying the interest or right, in compliance with Admiralty Rule C(6)(a), within twenty-one (21) days of the earlier of (1) receiving actual notice of execution of process, or (2) publication of the notice; or (ii) a statement that a person who asserts a right of possession or any ownership interest in the property that is the subject of the Maritime Arrest or Other Proceeding must file a verified statement of right or interest, in compliance with Admiralty Rule C(6)(b), within 78 10 days of the earlier of (1) execution of process, or (2) publication of the notice. (f) (g) a statement that a person who files a statement of interest in or right against the property subject to the civil forfeiture or a person who asserts a right of possession or any ownership interest in the property subject to Maritime Arrest and Other Proceedings must file an answer within twenty-one (21) days of filing the verified statement under LAR (c)(3)(e)(i) or (ii). a statement that applications for intervention under Federal Rule 24 by persons claiming maritime liens or other interests shall be filed within the 10 days allowed for claims for possession; and (h) the name, address and telephone number of the Marshal or deputy Marshal. (4) Default in Action In Rem.

(a) Notice Required. A party seeking a default judgment in an action in rem must satisfy the judicial officer that due notice of the action and arrest of the property has been given (1) by publication in a newspaper of general circulation within the Division where arrest occurred, (2) by service under Fed. R. Civ. P. 5(a) upon the master or other person having custody of the property, and (3) by service under Fed. R. Civ. P. 5(b) upon every other person who has not appeared in the action and is known to have an interest in the property. (b) Persons With Recorded Interests. (1) (2) (3) If the defendant property is a vessel documented under the laws of the United States, plaintiff must obtain a current Certificate of Ownership or General Index or Abstract of Title from the United States Coast Guard and give notice to the persons named therein claiming a current interest in or lien against the defendant vessel.

If the defendant property is a vessel numbered as provided in the Federal Boat Safety Act, plaintiff must obtain information from the issuing authority and give notice to the persons named in the records of such authority. If the defendant property is of such character that there exists a registry of recorded property interests and/or security interests in the property (whether governmental or private), the party must obtain information from each such registry and give notice to the persons named in the records of each such registry. (5) Entry of Default and Default Judgment. After the time for filing an answer has expired, the plaintiff may move for entry of default under Fed. R. Civ. P. 55(a), unless there be an understanding between the parties or counsel to the contrary.

Default will be entered upon showing that: (a) notice has been given as required in LAR (c)(4); (b) the time for answer has expired; and 79 (c) no one has filed an appearance to claim the property. The plaintiff may move for the entry of default judgment under Fed. R. Civ. P. 55(b)(2) at any time after default has been entered. Default judgment may be entered under Fed. R. Civ. P. 55(b)(1) in admiralty proceedings only after the Clerk shall have consulted with the Court. 80 LOCAL ADMIRALTY RULE (d) POSSESSORY, PETITORY AND PARTITION ACTIONS There is no Local Admiralty Rule (d).

81 LOCAL ADMIRALTY RULE (e) ACTIONS IN REM AND QUASI IN REM: GENERAL PROVISIONS (1) Itemized Demand for Judgment. The demand for judgment in every complaint filed under Supplemental Rule B or C shall allege the dollar amount of the debt or damages for which the action was commenced; and the demand for judgment shall also allege the dollar amount of every claim for interest, costs, attorneys' fees, and other items of damage. The amount of the special bond posted under Supplemental Rule E(5) may be based upon these allegations. (2) Salvage Actions Complaints.

In an action for a salvage reward, the complaint shall allege the dollar value of the vessel, cargo, freight, and other property salved, and the dollar amount of the reward claimed. (3) Verification of Pleadings. Every complaint in Supplemental Rule B, C and D actions shall be verified on oath or solemn affirmation by a party or by an authorized officer of a corporate party. If no party or authorized corporate officer is available, verification of a complaint may be made by an agent, attorney-in-fact, or attorney of record, who shall state the sources of the knowledge, information, and belief contained in the complaint; declare that the document verified is true to the best of that knowledge, information, and belief; state why verification is not made by the party or an authorized corporate officer; and state that the affiant is authorized so to verify.

Such a verification will be deemed to have been made by the party to whom a document might apply as if verified personally. Any interested party may move the Court, with or without requesting a stay, for the personal oath of a party or of all parties, or the oath of an authorized corporate officer. If required by the Court, such verification shall be procured by commission or as otherwise ordered. (4) Review by Judicial Officer.

Unless otherwise required by a judicial officer, the review of complaints and papers called for by Supplemental Rules B(1) and C(3) does not require the affiant party or attorney to be present. The applicant for review shall include a form of order from the Clerk to the Marshal or other person or organization which, upon signature by the judicial officer, will set in motion the arrest, attachment or garnishment sought by the applicant. (5) (A) Service of Warrants and Process of Attachment. Warrants for the arrest of a vessel, or cargo aboard a vessel, and process to attach a vessel or property aboard a vessel, shall be served only by the Marshal.

If other property, tangible or intangible is the subject of the action, the warrant shall be delivered by the Clerk to a person or organization authorized to enforce it, who may be a Marshal, a person or organization contracted with by the United States, a person specially appointed by the Court for that purpose, or, if the action is brought by the United States, any officer or employee of the United States. (B) If the tangible property to be attached or arrested is a vessel, the Marshal shall affix a copy of the process on the forward bulkhead of the wheelhouse, and at the head of one accommodation where it is visible to people embarking or disembarking the vessel at the ladder. In addition, if the vessel is moored at a shoreside facility, the Marshal shall notify the owner or manager of the facility of the fact of the arrest or attachment. (6) Marshal's Forms.

The party who requests a warrant of arrest or process of attachment or garnishment shall provide instructions to the Marshal or other process server on forms supplied by the 82 Marshal and available from the Marshal's Office. (7) Property in Possession of United States Officer. When the property to be attached or arrested is in the custody of an employee or officer of the United States, the Marshal will deliver a copy of the complaint and warrant of arrest or summons and process of attachment or garnishment to that officer or employee if present, and otherwise to the custodian of the property. The Marshal will instruct the officer or employee or custodian to retain custody of the property until ordered to do otherwise by the Court.

(8) Security for Costs. In an action under Supplemental Rule E, a party may file and serve upon an adverse party a notice to post security for costs. Unless otherwise ordered by the Court, the amount of security shall be $500.00. The party notified shall post security within five days after service.

A party who fails to post security when due may not participate further in the proceedings, except for the purpose of seeking relief from the order. (9) Increased Security for Costs. A party may apply to the Court for an order increasing the amount of security for costs. The Marshal shall notify the Court if a party fails to advance sums as requested, after property has been arrested, attached or garnished, and the Marshal may apply to the Court for directions if a question arises concerning the obligation of a party to advance moneys required under this rule.

(10) Marshal's Fees and Expenses. The party who first seeks arrest or attachment of property in an action under Supplemental Rule E or Fed. R. Civ. P. 4(n) shall deposit a sum of money with the Marshal to cover fees, expenses of arrest, and safekeeping charges for ten days. The Marshal is not required to execute process until the deposit is made. The sum of $5,000.00 shall suffice in any case, subject to increase or to reduction following execution, and the party shall advance additional sums from time to time as requested to cover the Marshal's estimated fees and expenses until the property is released or disposed of as provided in Supplemental Rule E. (11) Appraisal.

An order for appraisal of property so that security may be given or altered will be entered by the Clerk at the request of any interested party. If the parties do not agree in writing upon an appraiser, a judicial officer will appoint the appraiser. The appraiser shall be sworn to the faithful and impartial discharge of the appraiser's duties before any federal or state officer authorized by law to administer oaths. The appraiser shall give one day's notice of the time and place of making the appraisal to counsel of record.

The appraiser shall promptly file the appraisal with the Clerk and serve it upon counsel of record. The appraiser's fee normally will be paid by the moving party, but it is a taxable cost of the action. (12) Adversary Hearing. The adversary hearing following arrest or attachment and garnishment that is called for in Supplemental Rule E(4)(f) shall be conducted by a judicial officer.

(13) Intervenors' Claims. (a) When a vessel or other property has been arrested, attached, or garnished and is in the hands of the Marshal or custodian substituted therefore, anyone having a claim against the vessel or property is required to present the claim by filing an intervening complaint, and not by filing an original complaint, unless otherwise ordered by a judicial officer. Upon the filing of an intervening complaint, the Clerk shall forthwith deliver a conformed copy to the Marshal, who shall deliver the copy to the vessel or custodian of the property, but the Marshal need not re-arrest or re-attach the vessel or property. 83 Intervenors shall thereafter be subject to the rights and obligations of parties.

(b) (c) No party may intervene without first obtaining leave of Court if intervention is sought within 15 days prior to the date for which a sale of the vessel or property has been set by the Court. An intervenor shall share the deposit for Marshal's fees and expenses in the proportion that its claim bears to the sum of all the claims. (14) Custody of Property. (a) (b) (c) (d) Safekeeping of Property.

When a vessel or other property is brought into the Marshal's custody by arrest or attachment, the Marshal shall arrange for adequate safekeeping, which may include the placing of keepers on or near the vessel, or the appointment of a facility or person as custodian of the property in place of the Marshal. Cargo Handling, Repairs, and Movement of the Vessel. Following arrest or attachment of a vessel, no cargo handling, repairs, or movement may be made without an order of Court. The applicant for such an order shall give notice to the Marshal and to all parties of record.

Upon proof of adequate insurance coverage of the applicant to indemnify the Marshal for his liability, the Court may direct the Marshal to permit cargo handling, repairs, movement of the vessel, or other operations. Motion for Change in Arrangements. Before or after the Marshal has taken custody of a vessel, cargo, or other property, any party of record may move for an order to dispense with keepers or to remove or place the vessel, cargo or other property at a specified facility, to designate a substitute custodian, or for similar relief. Notice of the motion shall be given to the Marshal and to all parties of record.

The judicial officer will require that adequate insurance on the property will be maintained by the successor to the Marshal, before issuing the order to change arrangements. Insurance. The Marshal may order insurance to protect the Marshal, his deputies, keepers, and substitute custodians, from liabilities assumed in arresting and holding the vessel, cargo, or other property, and in performing whatever services may be undertaken to protect the vessel, cargo, or other property, and to maintain the Court's custody. The party who applies for arrest or attachment of the vessel, cargo, or other property shall reimburse the Marshal for premiums paid for the insurance.

The party who applies for removal of the vessel, cargo, or other property to another location, for designation of a substitute custodian, or for other relief that will require an additional premium, shall reimburse the Marshal therefor. The premiums charged for the liability insurance are taxable as administrative costs while the vessel, cargo, or other property is in custody of the Court. (e) Claims by Suppliers for Payment of Charges. A person who furnishes supplies or services to a vessel, cargo, or other property in custody of the Court who has not been paid and claims the right to payment as an expense of administration shall submit an invoice to the Court for approval in the form of a verified claim at any time before the vessel, cargo, or other property is released or sold.

The supplier must serve copies of the 84 claim on the Marshal, substitute custodian (if one has been appointed), and all parties of record. The Court may consider the claims individually or schedule a single hearing for all claims. (15) Sale of Property Not Subject to Admiralty – Rule E (9)(b) Interlocutory Sales. (a) (b) (c) (d) (e) Notice.

Unless otherwise ordered upon good cause shown or as provided by law, a notice of sale of property in an action in rem, including the terms of sale, shall be published daily for a period of six days prior to the day of sale in a newspaper of general circulation in the Division where arrest occurred and sale is to take place. Sale and Report. All sales shall be made by the United States Marshal or his authorized deputy Marshal in the name of the Marshal or by other person or organization authorized to execute the warrant or by any other person assigned by the Court. All sales are subject to confirmation by the Court.

The Marshal may, without leave of Court, decline to knock down a vessel or other property to the highest bidder when the highest bid is, in his or her opinion, grossly inadequate. On the day of the sale, the Marshal shall file his report with the Clerk giving all pertinent information, including the fact of the sale, the date, the price obtained and how paid or to be paid, and the name and address of the successful bidder. Objection to Sale. An interested person may object to the sale by filing a written objection with the Clerk within two Court days following the sale, serving the objection on all parties of record, the successful bidder, and the Marshal.

The Marshal is authorized to demand and receive from the objecting party a sum sufficient to pay the expense of keeping the property for at least seven days. The written objection must be endorsed by the Marshal prior to filing with the Clerk, as evidence of the acknowledgment of receipt of the deposit of the required expense funds. Confirmation of the Sale Without Motion. A sale shall stand confirmed as of course without any action by the Court unless (1) written objection is filed with the Court within the time allowed under these rules, or (2) the purchaser is in default for failure to pay the balance due to the Marshal.

The purchaser in a sale so confirmed as of course shall present a form of order reflecting the confirmation of the sale for entry by the Clerk on the fourth Court day following the sale or after the balance of sale funds have been paid, whichever last occurs. The Marshal shall transfer title to the purchaser upon presentation of such order signed by the Clerk. Confirmation of the Sale Upon Motion. If an objection has been filed or if the successful bidder is in default, the Marshal, the objector, the successful bidder, or a party, may move the Court for relief.

The motion will be heard summarily by a judicial officer. The person seeking the hearing on such a motion shall apply to the Court for an order fixing the date and time of the hearing and directing the manner of giving notice and shall give written notice of the motion to the Marshal, all parties, the successful bidder, and the objector. The Court may confirm the sale, order a new sale, or grant such other relief as justice requires. Notice of any hearing on such motion may be informal and, if approved by the Court, by telephone.

The parties are expected to be prepared to go forward with any hearing so ordered. 85 (f) Disposition of Deposits. (1) (2) Objection Sustained. If an objection is sustained, sums deposited by the successful bidder will be returned to the bidder forthwith.

The sum deposited by the objector will be applied to pay the fees and expenses incurred by the Marshal in keeping the property until it is resold, and any balance remaining shall be returned to the objector. The objector will be reimbursed for the expense of keeping the property from the proceeds of a subsequent sale. Objection Overruled. If the objection is overruled, the sum deposited by the objector will be applied to pay the expense of keeping the property from the day the objection was filed until the day the sale is confirmed, and any balance remaining will be returned to the objector forthwith.

86 LOCAL ADMIRALTY RULE (f) LIMITATION OF LIABILITY (1) Security for Costs. The amount of security for costs under Supplemental Rule F(1) shall be $1,000.00, and it may be combined with the security for value and interest, unless otherwise ordered. (2) Order of Proof at Trial. Where the vessel interests seeking statutory limitation of liability have raised the statutory defense by way of answer or complaint, the plaintiff in the former or the damage claimant in the latter, shall proceed with its proof first, as is normal at civil trials.

(3) Compliance With Supplemental Rule F(4). The owner shall file within seven (7) days after the date named in the notice proof of compliance with the notice requirement of Supplemental Rule F(4). 87 APPENDIX APPENDIX A PLAN FOR THIRD YEAR PRACTICE RULE I. Activities A. B. C. An eligible law student may appear before the judges, magistrate judges, and bankruptcy judges in this Court on behalf of any person if the person on whose behalf he or she is appearing has indicated in writing consent to that appearance and the supervising lawyer, who must be counsel of record for the person on whose behalf the law student is appearing, has also indicated in writing approval of that appearance, in the following matters: 1. 2.

Any civil or criminal matter. Any bankruptcy matter. Any eligible law student may appear in any criminal or civil matter on behalf of the Government with the written approval of the United States Attorney or his authorized representative as the supervising lawyer. In all matters before the judges, magistrate judges or bankruptcy judges, the supervising lawyer must be personally present unless permission to the contra is granted by the Court.

II. Requirements and Limitations In order to make an appearance pursuant to this rule, the law student must: A. B. C. D. E. Be duly enrolled in a law school approved by the American Bar Association or Virginia Board of Bar Examiners. Have completed legal studies amounting to at least four (4) semesters, or the equivalent if the school is on some basis other than a semester basis. Be certified by the dean of his law school as being of good character and competent legal ability, and as being adequately trained to perform as a legal intern.

Be introduced to the Court in which he or she is appearing by an attorney admitted to practice in same. Neither ask for nor receive any compensation or remuneration of any kind for services from the person on whose behalf he or she renders services, but this shall not prevent a 88 lawyer, legal aid bureau, law school, public defender agency, or the State, or federal government, from paying compensation to the eligible law student, nor shall it prevent any agency from making such charges for its services as it may otherwise properly require. F. Certify in writing that he or she has read and is familiar with the Virginia Code of Professional Responsibility.

III.

Certification The certification of a student by the law school dean: A. B. C. Shall be filed with the Clerk of this Court and, unless it is sooner withdrawn, it shall remain in effect until the expiration of eighteen (18) months after it is filed, or until the announcement of the results of the first bar examination following the student's graduation, whichever is earlier. For any student who passes that examination or who is admitted to the bar without taking an examination, the certification shall continue in effect until the date he or she is admitted to the bar. May be withdrawn by the dean at any time by mailing a notice to that effect to the Clerk of this Court. It is not necessary that the notice state the cause for withdrawal.

May be terminated by this Court at any time without notice or hearing and without any showing of cause. IV. Other Activities A. In addition, an eligible law student may engage in other activities, under the general supervision of a member of the bar of this Court, but outside the personal presence of that lawyer, including: 1. 2.

3. 4. Preparation of pleadings and other documents to be filed in any matter in which the student is eligible to appear, but such pleadings or documents must be signed by the supervising lawyer. Preparation of briefs, abstracts and other documents to be filed, but such documents must be signed by the supervising lawyer.

Except when the assignment of counsel in the matter is required by any constitutional provision, statute or rule of this Court, assistance to indigent inmates of correctional institutions or other persons who request such assistance in preparing applications for and supporting documents for post-conviction relief. If there is an attorney of record in the matter, all such assistance must be supervised by the attorney of record, and all documents submitted to the Court on behalf of such a client must be signed by the attorney of record. Each document or pleading must contain the name of the eligible law student who has participated in drafting it. If he participated in drafting only a portion of it, that fact may be mentioned.

89 B. Nothing contained herein shall be construed to permit the law student to participate in the taking of depositions in the absence of his supervising attorney. V. Supervision The member of the bar under whose supervision an eligible law student does any of the things permitted by this rule shall: A. B. C. D. E. Be a lawyer whose service as a supervising lawyer for this program is approved by a judge of this Court. Such approval may be given upon application of any attorney who is a member of the bar of the Court. Such approval may be given by a judge of this Court by formally or informally advising the Clerk of such approval.

No approval shall be granted, however, unless and until approval by the dean of the law school in which the law student is enrolled is also obtained. Assume personal professional responsibility for the student's guidance in any work undertaken and for supervising the quality of the student's work. Assist the student in his or her preparation to the extent the supervising lawyer considers it necessary. Agree to notify the dean of the appropriate law school of any alleged failure on the part of the student to abide by the letter and spirit of this order.

The Clerk of the Court shall maintain a roll of approved law students and supervising attorneys. VI. Miscellaneous Nothing contained in this rule shall affect the right of any person who is not admitted to practice law to do anything he or she might lawfully do prior to the adoption of this Rule. 90 APPENDIX B FEDERAL RULES OF DISCIPLINARY ENFORCEMENT FRDE RULE I ATTORNEYS CONVICTED OF CRIMES A. B. C. D. E. F. 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. The term "serious crime" shall include any felony and 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 any other to commit a "serious crime." 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. Upon the filing of a certified copy of a judgment of conviction of an 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.

This Rule shall not be applicable if the attorney has surrendered his license to practice law and has submitted a letter to the Clerk withdrawing his or her name from the Roll of Attorneys. 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 references with respect to convictions for minor offenses. 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 91 A. B. C. D. available evidence pertaining to both guilt and the extent of discipline to be imposed.

FRDE RULE II DISCIPLINE IMPOSED BY OTHER COURTS

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. Upon the filing of a certified or exemplified copy of a judgment or order demonstrating that an attorney admitted to practice before this Court has been disciplined by another Court, this Court shall forthwith issue a notice directed to the attorney containing: 1. 2. A copy of the judgment or order from the other Court; and An order to show cause directing that the attorney inform this Court within 30 days after service of that order upon the attorney, personally or by mail, of any claim by the attorney predicated upon the grounds set forth in (D) hereof that the imposition of the identical discipline by the Court would be unwarranted and the reasons therefor.

In the event the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in this Court shall be deferred until such stay expires. Upon the expiration of 30 days from service of the notice issued pursuant to the provisions of (B) above, this Court shall impose the identical discipline unless the respondent-attorney demonstrates, or this Court finds, that upon the face of the record upon which the discipline in another jurisdiction is predicated it clearly appears: 1. 2. 3.

4. That the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or 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 That the imposition of the same discipline by this Court would result in grave injustice; or 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 other order as it deems appropriate. E. 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 92 in the Court of the United States.

F. This Court may at any stage appoint counsel to prosecute the disciplinary proceedings. FRDE RULE III A. B. A. B. A. DISBARMENT ON CONSENT OR RESIGNATION IN OTHER COURTS 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. 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.

FRDE RULE IV STANDARDS OF PROFESSIONAL CONDUCT

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 other disciplinary action as the circumstances may warrant. 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 Virginia 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 any attorney-client relationship. The Rules of Professional Conduct adopted by this Court are the Rules of Professional Conduct adopted by the highest Court of the state in which this Court sits, as amended from time to time by that state Court, except as otherwise provided by specific Rule of this Court after consideration of comments by representatives of bar associations within the state.

FRDE RULE V DISCIPLINARY PROCEEDINGS

When misconduct or allegations of misconduct which, as 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 93 recommendation as may be appropriate.

B. C. D.

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 the 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 therefor. 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. 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 prompt hearing 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 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 is the complainant, by the Chief Judge of the Court of Appeals for this Circuit. FRDE RULE VI DISBARMENT ON CONSENT WHILE UNDER DISCIPLINARY INVESTIGATION OR PROSECUTION A. 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: 1.

2. 3. 4. 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; the attorney is aware that there is a presently pending investigation or proceeding involving allegations that there exist grounds for the attorney's discipline, the nature of which the attorney shall specifically set forth; the attorney acknowledges that the material facts so alleged are true; and 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. B. Upon receipt of the required affidavit, this Court shall enter an order disbarring the attorney.

94 C. 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 proceeding except upon order of this Court.

FRDE RULE VII REINSTATEMENT A. B. C. D. E. F.

After Disbarment or Suspension. An attorney suspended for three 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 three months or disbarred may not resume practice until reinstated by order of this Court. 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 the disbarment. 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 prompt hearing 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 for 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 by clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for admission to practice law before this Court and that his 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 of the public interest. 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. 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. 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 him, 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 95 date of suspension or disbarment.

G. 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.

FRDE RULE VIII 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.

FRDE RULE IX 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 last address of record. Service of any other papers or notices required by these Rules shall be deemed to have been made if such paper or notice is addressed to the respondent-attorney at the last address of record; 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.

FRDE RULE X APPOINTMENT OF COUNSEL

Whenever counsel is to be appointed pursuant to these Rules to investigate allegations of misconduct or prosecute disciplinary proceedings or in conjunction with a reinstatement petition filed by a disciplinary agency of the highest Court of the state wherein the Court sits, or the attorney maintains his or her principal office in the case of the Courts of appeal, or other disciplinary agency having jurisdiction, 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 under these rules, 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 in any matter. Counsel, once appointed, may not resign unless permission to do so is given by this Court.

FRDE RULE XI DUTIES OF THE CLERK A.

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. 96 B. C. 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 copy or exemplified copy of the disciplinary judgment or order and file it with this Court. 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 ten 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 or 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.

D. 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.

FRDE RULE XII JURSDICTION

Nothing contained in these Rules 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.

FRDE RULE XIII EFFECTIVE DATE

Any amendments to these disciplinary enforcement rules shall become effective immediately upon the entry and filing of any Order, provided that any formal disciplinary proceedings then pending before this Court shall be concluded under the procedure existing prior to the effective date of these amendments. 97