N.D. R. Law. Disc. 4.2

As amended through March 18, 2024

Rule 4.2 - Discipline by Consent

A. Conditional Admission to Hearing Panel. A lawyer may tender a conditional admission in exchange for a stated form of discipline. The tendered admission must be submitted to counsel and approved or rejected by the hearing panel, subject to final approval or rejection by the court if the stated form of discipline includes disbarment or suspension. If the stated form of discipline is rejected by the hearing panel, the admission must be withdrawn and cannot be used against the lawyer in any subsequent proceedings. After approval by the hearing panel of the proposed discipline and, if required, by the court, the final order of discipline must be entered in accordance with the conditional admission tendered.

B.Stipulation of Consent. Any disciplinary matter may be resolved by stipulation at any time after investigation and an opportunity for any complainant to have been heard. The stipulation must set forth the stated form of discipline, which may include terms and conditions of probation, and any other appropriate provisions. The stipulation, must be signed by the lawyer and disciplinary counsel, stating that the lawyer desires to consent to the discipline and that:

(1) Consent is freely and voluntarily rendered; there is no coercion or duress; the lawyer is fully aware of the implications of the consent;

(2) The lawyer is aware that there is presently pending an investigation into, or a proceeding involving, allegations that grounds for discipline exist, the nature of which must be specifically set forth;

(3) The lawyer acknowledges that the material facts are true;

(4) The lawyer knows that the charges cannot be successfully defended; and

(5) The lawyer waives procedural rights that may be available in the absence of the stipulation, including as appropriate the right to a complaint specifying the allegations of misconduct, the right to answer the allegations in writing, the right to have the allegations reviewed by the inquiry committee, the right to a formal petition for discipline, the opportunity to answer the petition for discipline, and the right to defend against the petition for discipline in a disciplinary hearing before a hearing panel.

C. Form. A stipulation must:

(1) provide sufficient detail regarding the particular acts or omissions of the lawyer to permit the entity considering the stipulation to form an opinion regarding the propriety of the proposed resolution and, if approved, to ensure the stipulation is useful in any subsequent disciplinary proceeding against the lawyer;

(2) set forth the lawyer's prior disciplinary record or its absence; and

(3) fix the amount of costs and expenses to be paid by the lawyer.

D. Approval of Stipulation.

(1) Approval by inquiry committee. If the complaint is under consideration by the inquiry committee, and the proposed sanction is an admonition or consent probation, or a combination of both, the stipulation may be approved or rejected by the committee as a whole or the chair may expedite consideration of the stipulation by appointing a three-member panel of not more than two lawyer members and at least one public member to approve or reject the stipulation.

(2) Approval by disciplinary board. If the proposed sanction is a reprimand, suspension, or disbarment, the chair of the board shall appoint a three-member panel of not more than two lawyer members and at least on public member to approve or reject the stipulation. Approval may be granted at any point before entry of an order or recommendation by the hearing panel under Rule 3.1F. If the proposed sanction is a reprimand by the court, suspension, or disbarment, the approval must be in the form of a recommendation to the court in the manner specified in Rule 3.1F(2).

(3) Approval by the court. All stipulations agreeing to a reprimand by the court, suspension, or disbarment must be submitted to the court. Following review in the manner specified in Rule 3.1F(2), the court shall enter the order regarding the stipulation. The stipulation may be sealed only by order of the court.

E. Stipulation rejected. An order rejecting a stipulation must state the reasons for the rejection. A rejected stipulation has no force or effect and neither it nor the fact of its rejection is admissible in evidence in any disciplinary, civil, or criminal proceeding.

F. Failure to comply. A lawyer's failure to comply with the terms of an approved stipulation may be grounds for discipline.

N.D. R. Law. Disc. 4.2

Amended effective 7/1/1999. Adopted effective 1/1/1995; amended effective 3/1/2017.

EXPLANATORY NOTE

Rule 4.2 was adopted effective January 1, 1995; amended effective July 1, 68 1999; March 1, 2017.

Section A was amended effective March 1, 2017 to relate to submission of a conditional admission to a hearing panel.

Section B was amended effective March 1, 2017 to provide for resolution of a disciplinary matter by stipulation at any time after investigation and an opportunity for any complainant to have been heard and to describe the elements of the stipulation, including an acknowledgment by the lawyer of the waiver of certain, described procedural rights.

New Section C was created effective March 1, 2017 to set out the contents of the stipulation.

Section C was amended effective March 1, 2017 to become new Section D and describe approval of a stipulation by the inquiry committee, disciplinary board, or court.

New Section E was created effective March 1, 2017 to require that an order rejecting a stipulation must state the reasons for the rejection, to provide that a rejected stipulation has no force or effect, and to provide that the rejected stipulation is not admissible in any disciplinary, civil, or criminal proceeding.

New Section F was created effective March 1, 2017 to provide that failure to comply with an approved stipulation may be grounds for discipline.