Standards of Conduct for Judges and Attorneys

 

Judges

Attorneys

Judges' and attorneys' conduct is subject to written rules establishing ethical and performance standards. These written standards are enforceable by established procedures.

Judges.  

A. Impeachment. The General Assembly may utilize impeachment proceedings in seeking removal of a judge from office. Under Article VII, sections 1 and 2 of the Missouri Constitution, the House of Representatives, after conducting a hearing with opportunity to be heard, may vote impeachment charges against a judge. If approved, the judge is tried on the charge by the Supreme Court of Missouri. If, however, a judge of the Supreme Court is impeached, the trial is before "a special commission of seven eminent jurists to be elected by the Senate." This process is cumbersome, time-consuming, expensive and politically volatile, and it seldom is used.

B. Removal or discipline under special constitutional procedures. Article V, section 24, of the Missouri Constitution provides that any judge may be removed, suspended, disciplined or reprimanded by the Supreme Court of Missouri on a finding of commission of a crime, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, commission of any offense involving moral turpitude or oppression in office.

1. Rule 2 ("Code of Judicial Conduct") contains Canons which govern the conduct of all Missouri judges.

a. Each Canon states what a judge should, or should not, do in performance of the general obligation stated in that Canon.

b. Violation of provisions of the Code of Judicial Conduct has been held by the Supreme Court to constitute acts for which, under the Constitution of Missouri, Article V, section 24, a judge may be removed, suspended, disciplined or reprimanded.

2. A six-member Commission on Retirement, Removal and Discipline of Judges is created by the Constitution of Missouri, Article V, section 24.

a. The Commission is composed of:

i. Two non-lawyers appointed by the governor;

ii. Two attorneys appointed by the Board of Governors of The Missouri Bar;

iii. Two judges, one a judge of the Missouri Court of Appeals selected by the judges of that court, and the other a circuit judge selected by the state's circuit judges. (Names of members of the Commission can be obtained from the Clerk of the Supreme Court.)

b. If a member of the Commission is disqualified to participate in a proceeding, the selecting authority for that place on the Commission (Governor, The Missouri Bar or judicial group) must select a substitute for that case.

C. The procedure for processing complaints of misconduct is spelled out in Rule 12.

1. Informal Investigation. The Commission may receive information about a judge from anyone and then must make an informal investigation.

a. The Commission must notify the judge of its investigation and give him an opportunity to present his position relative to the complaint.

b. The investigation is terminated and the judge and the complainant are notified if four of the six members do not find probable cause.

2. Formal Proceeding. A formal proceeding is instituted if, on completion of the informal investigation, at least four of the six members find that there is probable cause to believe the judge is guilty of the conduct alleged in the complaint. Formal notice is then given to the judge and a hearing date is set to start the formal hearing.

a. Testimony is heard by the Commission and is recorded by a court reporter.

b. Upon completion of the hearing, if at least four members who were present and heard the testimony find that the judge should be removed or disciplined in some manner, the Commission makes written findings of fact, conclusions of law, and recommendations as to what action should be taken. That report and a transcript of the hearing testimony are filed with the Clerk of the Supreme Court.

c. Until this report is filed, the proceedings before the Commission, including all papers filed, are confidential.

d. The Supreme Court then receives briefs from the Commission and the judge and hears arguments, after which an opinion which disposes of the case is written and filed. A judge of the Supreme Court who is charged, or who was involved in the investigation, or was a prospective witness would not participate in the decision, and would be replaced by a substitute judge.

D. Retirement for disability: Requests or suggestions that a judge be retired on account of permanent sickness or physical or mental infirmity also are investigated by the Commission.

1. If a formal hearing is held and at least four of the members find the judge is unable to perform efficiently by reason of permanent illness or physical or mental infirmity, the Commission makes a report to that effect to the Supreme Court.

2. If the Court finds that the judge is unable to perform the duties of the office with efficiency because of permanent sickness or physical or mental infirmity, it shall order the judge retired.

E. Disqualification to act: A judge is disqualified from acting as a judicial officer after the Commission has filed in the Supreme Court a recommendation that he be removed or retired.

1. This disqualification continues as long as the recommendation is pending.

2. The judge continues to receive his salary during this period.

3. The Supreme Court assigns another judge or judges to handle the work of the disqualified judge.

4. The same disqualification results if articles of impeachment of a judge are voted by the House of Representatives or if there is pending against a judge an indictment or information charging the judge in any court in the United States with a crime which would be punishable as a felony under the laws of Missouri or the United States.

5. The Supreme Court shall suspend the judge without pay if he pleads guilty or no contest (nolo contendere) to, or is found guilty of, either an offense punishable as a felony under the laws of Missouri or the United States or an offense that involves moral turpitude.

a. If a judge is so suspended and his conviction becomes final, the Supreme Court shall remove the judge from office.

b. If the conviction is reversed and the charge is dismissed by order of court or prosecuting officer, with or without trial, the suspension is terminated and the judge is paid his salary for the period of suspension.

F. Funding: All operations of the Commission on Retirement, Removal and Discipline are financed by appropriations made by the General Assembly.

Attorneys.

A. Licensing: Attorneys are licensed to practice law in Missouri by the Supreme Court based on recommendations of the Board of Law Examiners appointed by the Court. Admission is based on bar examinations given by the Board of Law Examiners or on its recommendation that an attorney licensed to practice law in another state be admitted on the basis of that foreign license plus a minimum of five years' experience.

B. Standards of conduct. Standards of conduct for attorneys are found in Rule 4 (Rules of Professional Conduct).

1. This Code is adopted by the Supreme Court under its inherent authority as head of the state's judicial department.

2. Historically, attorneys have been regarded as officers of the Court. Numerous cases have established that the Supreme Court has the power, in supervising those officers, to decide who shall be admitted to practice as attorneys in Missouri, what standards of conduct they shall observe, and what action in the way of disbarment or discipline shall be imposed for violations.

3. The rules of professional conduct are binding on a lawyer. A lawyer may be disbarred or disciplined for violation of these rules.

C. Procedure: Rule 5 prescribes the procedure for filing and processing complaints against attorneys.

1. Rule 5 establishes the Advisory Committee, which administers this rule. This committee consists of a general chairman, a full-time employee, and eight members (who serve without compensation). Six of the eight are attorneys and two are non-lawyers. All are appointed by the Supreme Court. The Advisory Committee operates on a statewide basis but customarily meets in two divisions, eastern and western. (The names of the General Chairman and the members of the Committee may be obtained from the Clerk of the Supreme Court.)

a. At times, the Advisory Committee is referred to as The Missouri Bar Administration. This should be distinguished from the lawyers' organization known as The Missouri Bar, which has nothing to do with the licensing or the discipline of lawyers. These functions are handled by the Supreme Court of Missouri, operating through the Advisory Committee and the circuit bar committees.

2. Rule 5 also provides for regional disciplinary committees. Members of the committees are appointed by the Supreme Court . Each local committee operates only in the region for which it is appointed. There are 17 regions in the state.

3. Rule 5 also provides for the appointment of a Chief Disciplinary Counsel, a paid position, that serves as counsel to the Bar in all disciplinary proceedings and conducts investigations on behalf of the Bar.

4. Complaints against an attorney may be filed by anyone with the Advisory Committee or with the local regional disciplinary committee where the lawyer complained against has his office. (Names and addresses of members of regional disciplinary committees can be obtained from the Advisory Committee or the Clerk of the Supreme Court.)

a. An investigation is made after a complaint is filed. If a majority of the disciplinary committee or the chief disciplinary counsel finds probable cause to believe the attorney is guilty of professional misconduct, either an admonition or an Information may be issued.

b. The chief disciplinary counsel may elect to pursue alternative disciplinary procedures authorized by Rule 5.

c. The Information is filed with the chief disciplinary counsel and the chair of the advisory committee. The Information is served upon the lawyer accused of misconduct, and it states the specific actions that the attorney is alleged to have taken in violation of the Code of Professional Responsibility.

d. The accused attorney must answer the Information within 15 days, after which a disciplinary panel, comprised of three appointed disciplinary hearing officers, is selected. The disciplinary hearing panel hears evidence and arguments and passes judgment.

e. If the chief disciplinary counsel, the accused lawyer, or the Supreme Court disagrees with the panel’s decision, the case can be reheard de novo before the Supreme Court.

f. The Supreme Court can also hear the case initially if the information is filed directly with the Court. In such cases, the Supreme Court may arrange for testimony to be taken by a judge or attorney appointed as a special master for that purpose.

i. The special master hears the evidence and files a written report and recommendation with the Supreme Court.

ii. The case is docketed, briefed and argued before the Court.

g. If the disciplinary hearing panel or the Supreme Court finds the attorney guilty of the conduct charged, it may disbar or suspend him for a specific period of time or it may reprimand him.

h. If the disciplinary hearing panel or the Supreme Court finds the attorney is not guilty of the conduct charged, it will dismiss the proceedings.

i. All proceedings prior to the filing of an information with the Supreme Court, the finding of a disciplinary hearing of panel of a violation of the rules of professional conduct, or the acceptance of an admonition, are confidential.

D. Disqualification; reinstatement.

1. If an attorney is suspended or disbarred, she may file an application for reinstatement in the Supreme Court after that period has elapsed. The attorney's request is referred to the chief disciplinary counsel for a report and recommendation. The applicant is provided an opportunity to respond to the chief disciplinary counsel’s report. The Court then either grants or denies the application for reinstatement. If the application is granted, the attorney is permitted to resume practice.

2. Except for good cause shown,

a. A disbarred attorney must wait 5 years and retake the bar examination before seeking reinstatement.

b. A suspended attorney must wait 6 months.

E. Funding: All operations of the Advisory Committee are financed by a portion of the annual enrollment fee Missouri attorneys pay to the Supreme Court. The Advisory Committee reports annually to the Court on its handling of the funds allocated to it.

 

 

 
 
 
 
 
 
 
©2006 The Missouri Bar
 The Missouri Bar PO Box 119 Jefferson City, MO 65102
Phone: 573-635-4128 | FAX: 573-635-2811