Section 18 - Additional Sections of ProcedureA.Nature of Proceedings. Disciplinary proceedings are neither civil nor criminal but are sui generis.B.Application of the Code of Civil Procedure and the Code of Evidence. Except as otherwise provided in these rules, the Louisiana Code of Civil Procedure applies in proceedings conducted pursuant to this rule. The Louisiana Code of Evidence shall guide, but not restrict the development of a full evidentiary record. To facilitate the development of a full evidentiary record, dispositive motions by the respondent such as those seeking summary judgment or dismissal prior to completion of the evidentiary record on both charges and defenses shall not be permitted. If a hearing committee chair makes a ruling pursuant to section 15(B) of these rules, said ruling shall be interlocutory and shall not be appealed prior to the entry of the final order. No provision of the Louisiana Code of Evidence shall prevent the introduction of sworn testimony from administrative proceedings, civil or criminal trials, or hearings of a contradictory nature where the respondent has cross-examined or had the opportunity to cross-examine the witnesses whose testimony is sought to be introduced.C.Standard of Proof. Formal charges of misconduct, petitions for reinstatement and readmission, and petitions for transfer to and from disability inactive status, petitions to revoke conditional admission, and petitions to revoke probation shall be established by clear and convincing evidence. Petitions for interim suspension shall be established by sufficient evidence.D.Burden of Proof. The burden of proof in proceedings seeking discipline and interim suspension is on disciplinary counsel. The burden of proof in proceedings seeking reinstatement or readmission is on the petitioning lawyer. The party seeking transfer to or return from disability inactive status bears the burden of proof. The burden of proof in revocation of conditional admission and revocation of probation matters is on respondent.E. Prehearing Conference. A pre-hearing conference shall be ordered for the purpose of obtaining admissions or otherwise narrowing the issues presented by the pleadings, unless both respondent and disciplinary counsel jointly agree that such conference is not necessary. The conference shall be held before the chair of the hearing committee or another member of the committee designated by the chair and may be conducted by phone. Both Respondents and disciplinary counsel shall file pre-hearing memorandums in all instances where hearings are to be held. The pre-hearing memorandum shall set forth the following information:
(a) The names of witnesses and whether the testimony will be in person or by deposition;(b) A list of exhibits that will likely be introduced at the hearing;(c) Any anticipated evidentiary or legal issues which may be presented at the hearing; and(d) Recommendations for sanctions with citations of relevant authority in the event that a clear and convincing case is presented against the respondent. The pre-hearing memoranda shall be filed with the board with copies forwarded by the board to the hearing committee members not less than ten (10) days prior to the hearing.
F.Hearings Recorded. The hearing shall be recorded. Upon respondent's request, the board shall make the record of a hearing available to the respondent at the respondent's expense.G.Related Pending Litigation. Upon a showing of good cause to the board or to the hearing committee chair assigned to the matter after formal charges have been filed and prior to the hearing on the formal charges, the processing of a disciplinary matter may be stayed because of substantial similarity to the material allegations of pending criminal or civil litigation or disciplinary action.H.Delay Caused by Complainant. Neither unwillingness nor neglect of the complainant to sign a complaint or prosecute a charge or settlement or compromise between the complainant and the lawyer or restitution by the lawyer, shall, in itself, justify abatement of the processing of any complaint.I.Effect of Time Limitations. Except as is otherwise provided in these rules, time is directory and not jurisdictional. Failure to observe prescribed time intervals may result in sanctions against the violator but does not justify abatement of any discipline or disability investigation or proceeding.J.Complaints Against Disciplinary Agency Members. If a complaint is filed against disciplinary counsel or disciplinary counsel's staff, a member of a hearing committee, or a member of the board, the matter shall proceed in accordance with these rules except that: (1) If a complaint is filed against chief disciplinary counsel or chief disciplinary counsel's staff, the complaint shall be forwarded for screening consistent with the internal operating procedures of the agency. If the complaint alleges facts that if true would reflect violations of the Rules of Professional Conduct, it shall be forwarded to the administrative committee of the board for review and determination. In its discretion, and if warranted, the administrative committee may appoint special counsel to investigate the complaint and take such action as may be appropriate.(2) If the respondent is a member of a hearing committee, the chair of the board shall appoint a special hearing committee for the case; or(3) If the respondent is a member of the board, the chief justice shall appoint a special board for the case.Amended April 25, 2019, effective 5/15/2019.