M. Bar R. 13

(a) Evaluation. The Central Intake Office shall evaluate all

information coming to the attention of the Board by complaint or from other

sources alleging lawyer misconduct or incapacity. If the lawyer is not subject

to the jurisdiction of the Court, the Central Intake Office shall refer the matter

to the appropriate entity in any jurisdiction in which the lawyer is known to be

admitted. If the information, if true, would not constitute misconduct or

incapacity, the Central Intake Office may refer the matter to another agency

with appropriate jurisdiction, or dismiss the complaint. If the lawyer is subject

to the jurisdiction of the Court and the information alleges facts that, if true,

would constitute misconduct or incapacity, the Central Intake Office shall refer

the matter to Bar Counsel, who shall conduct an investigation.

(b) Investigation.

(1) Bar Counsel shall conduct all investigations, except as otherwise

required by these Rules. Upon the conclusion of an investigation, Bar Counsel

shall

(A) dismiss subject to review under Rules 9(e) and 13(b)(3);

(B) issue a stay;

(C) refer respondent to the Alternatives to Discipline Program,

pursuant to Rule 13(c);

(D) recommend dismissal, if a public member had previously

disapproved dismissal under Rule 9(e);

(E) recommend dismissal with a warning, subject to review under Rule

13(d); or

(F) issue a report to the Board Clerk recommending the filing of formal

charges with a Grievance Commission panel (or a Single Justice, if

authorized by these Rules).

In all cases, Bar Counsel shall briefly and generally state in writing the reasons

for the recommended disposition.

(2) Notice to Respondent. Bar Counsel may dismiss a matter or issue a

stay without providing respondent an opportunity to respond. In all other

cases, Bar Counsel shall first notify the respondent in writing of the substance

of the matter and afford him or her an opportunity to respond. Notice to the

respondent shall be pursuant to Rule 15.

(3) Dismissal Review. If Bar Counsel dismisses the complaint, Bar

Counsel shall notify the complainant and the respondent of the dismissal,

provide the reasons for the dismissal, and inform the complainant and the

respondent that any review of the dismissal must be requested within 21 days

of service pursuant to Rule 15. Any further review shall be subject to Rule 9(e).

(c) Alternatives to Discipline Program.

(1) Referral to Program. Bar Counsel may refer respondent to the

Alternatives to Discipline Program. The Alternatives to Discipline Program may

include fee arbitration, Silent Partners, Maine Assistance Program for Lawyers

and Judges, psychological counseling, continuing legal education, or any other

program authorized by the Board or the Court.

(2) Factors. The following factors may be considered in determining

whether to refer a respondent to the Alternatives to Discipline Program:

(A) whether the presumptive sanction under the ABA Standards for

Imposing Lawyer Sanctions for the alleged misconduct is likely to be no

more severe than reprimand or admonition;

(B) whether participation in the program is likely to benefit the

respondent and accomplish the goals set forth by the program; and

(C) whether aggravating or mitigating factors exist.

(3) Notice to Complainant. Bar Counsel shall notify the complainant, if

any, of the decision to refer the respondent to the Alternatives to Discipline

Program. The complainant shall have a reasonable opportunity to submit a

statement offering any new information regarding the respondent. This

statement shall be made part of the record.

(4) Contract. Bar Counsel and the respondent shall negotiate a

contract, the terms of which shall be tailored to the individual circumstances.

In each case, the contract shall be in writing and signed by the respondent and

by Bar Counsel. The contract shall set forth the terms and conditions of the plan

for the respondent and, if appropriate, shall identify the use of a practice

monitor and/or a recovery monitor and the responsibilities of the monitor(s).

The contract shall provide for oversight of fulfillment of the contract terms.

Oversight includes reporting of any alleged breach of contract to Bar Counsel.

The contract shall also provide that the respondent will pay all costs incurred

in connection with the contract. The contract shall include a specific

acknowledgment that a material violation of a term of the contract renders

voidable the respondent’s participation in the program for the original

charge(s) filed. The contract may be amended upon agreement of the

respondent and Bar Counsel. If a recovery monitor is assigned, the contract

shall include respondent’s waiver of confidentiality so that the recovery

monitor may make necessary disclosures in order to fulfill the monitor’s duties

under the contract.

(5) Effect of Non-Participation in the Program. The respondent has the

right not to participate in the Alternatives to Discipline Program. If the

respondent does not participate, the matter will proceed as though no referral

to the Program had been made.

(6) Stay. After an agreement is reached, the disciplinary complaint

may be stayed pending successful completion of the terms of the contract.

(7) Termination.

(A) Fulfillment of the Contract. Bar Counsel may terminate the contract

when Bar Counsel determines that the respondent has fulfilled the terms

of the contract, at which point the stay is lifted.

(B) Material Breach. A material breach of the contract shall be cause

for termination of the respondent’s participation in the program. After

such termination, disciplinary proceedings may be resumed or

reinstituted.

(d) Preliminary Review by Grievance Commission Panel.

(1) If a complaint is not concluded pursuant to Rules 13(b)(1)(A) to

(C), at the conclusion of Bar Counsel’s investigation, Bar Counsel shall file a

confidential report with the Board Clerk recommending disposition pursuant

to Rules 13(b)(1)(D) to (F). Bar Counsel shall also notify the parties of the

proposed recommendation.

(2) At least fourteen days in advance of the preliminary review, the

Board Clerk shall prepare and deliver to Bar Counsel a statement as to the

existence of any sanction record, reinstatement, or surrender of license

involving the respondent. Bar Counsel shall then mail the statement to the

respondent. Within 10 days, the respondent may submit a reply as to the

relevance of the prior sanction record to the present charge. The statement and

any reply from the respondent shall be provided to the panel in accordance

with Rule 13(e)(8). These procedures and filings shall not be applicable when

the respondent attorney has no prior sanction record.

(3) The Board Clerk shall assign the complaint to a three-member

panel of the Grievance Commission for a confidential review. However, with

the consent of the review panel chair, the panel may act with the concurrence

of one attorney and one public member. In the event that such a review panel

is deadlocked, a new three-member panel shall be assigned to review. The

confidential review is not open to the public. Only Bar Counsel and the panel

shall be present for the review.

(4) The panel shall review the complaint, any response submitted by

the attorney, any reply submitted by the complainant, the results of Bar

Counsel’s investigation, and Bar Counsel’s report with recommendation to (A)

file formal charges, (B) dismiss with a warning, or (C) dismiss. Within 10 days

following a review, unless otherwise extended by the Chair or Vice Chair of the

Grievance Commission, the panel shall decide whether it approves Bar

Counsel’s recommended disposition and notify the Board Clerk of its decision.

(5) The Board Clerk shall notify Bar Counsel, the respondent, and the

Complainant in writing of the panel’s decision to defer, dismiss, dismiss with a

warning, or file formal charges. The panel’s decision is final and not subject to

further review.

(6) When a respondent is the subject of a pending disciplinary

proceeding pursuant to Rule 13(g), with the consent of a Grievance Commission

review panel, Bar Counsel may bypass the preliminary review stage and

commence a disciplinary action before a Single Justice concerning any

allegations of misconduct by the same attorney that have subsequently come to

the attention of Bar Counsel.

(7) Prior to a hearing, a review panel may, for good cause shown,

rescind the directive to proceed to a public hearing and issue a dismissal or a

dismissal with a warning.

(e) Formal Charges Hearing. If a matter is to be resolved by a formal

proceeding, Bar Counsel shall prepare formal charges in writing that give fair

and adequate notice of the nature of the alleged misconduct.

(1) Bar Counsel shall file the charges with the Board Clerk.

(2) Bar Counsel shall serve a copy of the formal charges upon the

respondent in accordance with Rule 15.

(3) The respondent shall file a written answer with the Board Clerk

and serve a copy on Bar Counsel within 21 days after service of the formal

charges, unless the time is extended by the chair of the Grievance Commission

panel to which the matter is assigned for review or, in the chair’s absence, by

the Chair or Vice Chair of the Grievance Commission. If the respondent fails to

answer within the prescribed time or the time as extended, the factual

allegations and the alleged misconduct shall be deemed admitted as provided

in Rule 20(a). Bar Counsel may provide a copy of the respondent’s answer to

the complainant; provided, however, that upon a request by the respondent

and submission of a redacted version of the answer, Bar Counsel may provide

the complainant with only a redacted version of the answer.

(4) The Board Clerk shall assign the complaint to a three-member

panel of the Grievance Commission for hearing. The panel may act with the

concurrence of two members. However, one attorney and one public member

may conduct a hearing with the consent of all parties. In the event that such a

two-member panel member is deadlocked, a new three-member panel shall be

assigned to hear the matter.

(5) The Board Clerk shall serve a notice of hearing upon Bar Counsel,

the complainant and the respondent, stating the date and place of hearing at

least 25 days in advance thereof. The notice of hearing shall advise the

respondent of the right to be represented by a lawyer, to cross-examine

witnesses, and to present evidence.

(6) At least 14 days before the hearing, the Board Clerk shall prepare

and deliver to Bar Counsel a statement as to the existence or absence of any

sanction record, reinstatement, or surrender of license involving the

respondent. Bar Counsel shall then mail the statement to the respondent.

Within 10 days, the respondent may submit a reply as to the relevance of the

prior sanction record to the present charge. The statement and any reply from

the respondent shall be provided to the panel in accordance with Rule 13(e)(8).

(7) Hearing. The Grievance Commission panel shall hold a hearing in

accordance with Rule 14(a) and the following:

(A) The panel chair shall preside at the hearing, and shall have the

power to control the course of proceedings and regulate the conduct of

those individuals appearing as counsel, parties, or witnesses. The failure

of an attorney participating in such a hearing as a party, counsel for a

party, or a witness to obey an order of the chair shall constitute a

violation of Rule 8.4 of the Maine Rules of Professional Conduct, and if

committed by the respondent, may be duly considered by the Grievance

Commission panel in its disposition of the matter before it.

(B) The hearing shall be open to the public, except that to protect the

interests of a complainant, witness, third party, or respondent attorney,

the chair may, upon motion filed with the Board Clerk and for good cause

shown, issue a protective order prohibiting the disclosure of specific

information otherwise privileged or confidential and direct that the

proceedings be conducted so as to implement that order. The

deliberations of the Grievance Commission panel following the hearing

shall not be open to the public or the parties.

(C) At the hearing, Bar Counsel and the respondent may present

evidence and may cross-examine witnesses. The respondent may be

represented by counsel. The testimony of witnesses shall be by oath or

affirmation administered by the panel chair.

(D) Subject to approval by the chair, hearing formalities of this rule

may be waived by a signed, stipulated agreement of the parties. When

such a waiver includes or incorporates the parties’ submission of an

agreed proposed sanction order pursuant to Rule 25, that waiver shall

also contain the respondent attorney’s signed waiver of the right to file a

petition for review under Rule 13(f).

(8) Bar Counsel shall not divulge the statement as to the existence or

absence of any sanction record to the Grievance Commission panel until after

the panel has made a finding of misconduct, unless this statement is probative

of issues pending in the matter before the panel.

(9) Within 30 days following the hearing, unless otherwise extended

by the Chair or Vice Chair of the Grievance Commission, the Grievance

Commission panel shall issue a written report containing its findings and

decision on dismissal or sanction to the Board Clerk. The report shall set forth

the Grievance Commission panel’s findings of fact, conclusions of law, and

application of any relevant factors with respect to appropriate sanctions for

misconduct. The Board Clerk shall serve the report on respondent and Bar

Counsel, who shall provide the report to the complainant.

(10) The Grievance Commission panel’s report shall render one or more

of the following:

(A) Dismissal. The Grievance Commission panel shall dismiss the

petition if it finds, on the evidence and arguments presented, that no

misconduct subject to sanction under these Rules occurred.

(B) Admonition. If the disciplinary panel finds that misconduct subject

to sanction under these Rules has occurred, but that the misconduct is

minor; that there is little or no injury to a client, the public, the legal

system, or the profession; and that there is little likelihood of repetition

by the attorney, the panel will issue an admonition having the effect

provided in Rule 21(b)(1).

(C) Reprimand. If the disciplinary panel finds that misconduct subject

to sanction under these Rules has occurred and that all of the conditions

set forth in Rule 13(e)(10)(B) are not present, the panel may reprimand

the respondent attorney.

(D) Probation. If the disciplinary panel finds that misconduct subject

to sanction under these Rules has occurred and that all of the conditions

set forth in Rule 13(e)(10)(B) are not present, the panel may impose a

period of probation on the respondent attorney as defined in Rule

21(b)(4).

(E) Information. Upon a finding of probable cause for suspension or

disbarment, the Grievance Commission panel shall direct Bar Counsel to

file an Information pursuant to Rule 13(g).

(f) Petition for Review of Dismissal, Admonition, Reprimand, or

Probation.

(1) Petition and Answer. Within 21 days after dismissal or delivery of

a reprimand, probation, or admonition, a respondent attorney or Bar Counsel

may file a petition for review by a Single Justice. The petitioning party shall file

the petition for review with the Executive Clerk of the Court, and shall serve the

petition on the opposing party. The petition for review shall include copies of

the disciplinary petition and answer filed with the Grievance Commission and

of the panel’s decision dismissing or imposing a reprimand, probation, or

admonition, and shall contain a concise statement of the grounds upon which

the petitioning party seeks relief and a demand for the specific relief sought.

Within 21 days after service of the petition for review, the opposing party shall

file an answer with the Executive Clerk of the Court and shall transmit a copy

thereof to the petitioning party.

(2) Preparation of Record. Within 21 days after the answer is filed, the

Board Clerk shall prepare and file the complete record of the proceedings with

the Executive Clerk of the Court and provide notice thereof to the parties. If

either party believes that the record filed by the Board Clerk is incomplete or

over-inclusive, that party shall serve notice upon the opposing party within 10

days after the record is filed. The notice shall include specific proposals

regarding additions to or deletions from the record filed by the Board Clerk.

The parties shall attempt to agree upon the contents of the record. If the parties

cannot agree, either party may request that the Single Justice modify the

contents of the record.

(3) Motion for Trial of the Facts. The respondent may file a motion for

a trial of the facts with the petition for review. If, on motion, the Court finds in

its discretion that the respondent attorney ought to have a trial of the facts, the

Single Justice may order a hearing to permit the introduction of evidence that

does not appear in the record of the proceedings before the Grievance

Commission panel and that has not been stipulated. Respondent’s failure to file

such a motion shall constitute a waiver of any right to a trial of the facts. With

the motion, the respondent attorney shall also file a detailed statement, in the

nature of an offer of proof, of the evidence to be introduced at the hearing. That

statement must be sufficient to permit the Single Justice to make a proper

determination as to whether any trial of the facts as presented in the motion

and offer of proof is appropriate and, if so, to what extent. After hearing, the

Single Justice shall issue an appropriate order specifying the future course of

proceedings. The Single Justice may order that additional evidence be taken.

(4) Scope of Review. Unless otherwise provided by order of the Single

Justice, review of a Grievance Commission panel’s decision to dismiss or impose

a reprimand, probation, or admonition shall be based upon the record of the

proceedings before the panel. The judgment entered after such review may

affirm, vacate, or modify the decision of the panel. Any findings of fact of the

Grievance Commission panel shall not be set aside unless clearly erroneous.

Either party may appeal to the Court within 21 days from entry of the judgment.

(5) Finding of Probable Cause. If at any stage of the proceedings on

petition for review, the Single Justice determines that there is probable cause

that the matter be concluded by suspension or disbarment, the Single Justice

shall direct Bar Counsel to file an Information and the matter shall be conducted

as an attorney discipline action in accordance with Rule 13(g).

(g) Attorney Discipline Actions before the Court.

(1) Commencement. An attorney discipline action authorized pursuant

to this rule shall be commenced by the filing of an Information with the

Executive Clerk of the Court. The Information shall allege that the respondent

is an attorney subject to these Rules and has conducted herself or himself in a

manner unworthy of an attorney admitted to the Maine Bar for the reasons

specified in the Information. The Board shall be responsible for serving the

Information, together with a summons, upon the respondent in accordance

with Rule 15.

(2) Procedure. An attorney discipline action shall be heard by a Single

Justice assigned by the Chief Justice to hear the action. The Board shall be

treated as the plaintiff and the respondent attorney as the defendant; and the

action shall be captioned “Board of Overseers of the Bar v. [name of respondent

attorney].”

(3) Discovery. Bar Counsel shall furnish to the respondent attorney,

within a reasonable time after the filing of the Information, copies of all exhibits

presented to the Grievance Commission panel or the Board in the proceedings

leading to the information. The stenographic or electronic record, as required

by Rule 14(a)(6), and any other matter within Bar Counsel’s possession or

control that is discoverable under Rule 26 of the Maine Rules of Civil Procedure,

shall be made available to the respondent attorney at the office of Bar Counsel

at any reasonable time for inspection and, except for transcripts and portions

of transcripts, copying at the respondent attorney’s expense. Copies of

transcripts and portions of transcripts shall be obtained from the preparers of

the transcripts at the respondent attorney’s expense.

(4) Judgment and Appeal. The Single Justice may enter judgment

imposing an admonition, probation, a reprimand, suspended suspension,

suspension for a definite period, or disbarment, or may dismiss the

Information. Either party may appeal to the Court within 21 days from the

entry of the judgment.

(5) Attorney’s Status Pending Appeal. Pending appeal to the Court, a

judgment of suspension or disbarment shall, unless stayed in whole or in part

by the Single Justice or the Court, be given full force and effect.