Governance of The Missouri Bar Complaint Resolution Program and The Missouri Bar Lawyer-to-Lawyer Dispute Resolution Program shall be in accordance with the guidelines established for each program and approved by this Court.
THE MISSOURI BAR COMPLAINT RESOLUTION PROGRAM GUIDELINES
Pursuant to Rule 5.10, the chief disciplinary counsel's office will refer to the complaint resolution program those complaints it believes may be resolved through an alternative resolution process rather than through formal disciplinary proceedings. Such complaints shall be processed as provided by these guidelines.
The complaint resolution program shall be administered by a five-person complaint resolution committee that will oversee the activities and proceedings in the program. The complaint resolution committee shall be appointed by The Missouri Bar Board of Governors, with the chair designated by the president of The Missouri Bar. The terms of the complaint resolution committee appointees shall be for four years. No committee member shall be requested to serve more than two successive terms.
The panel of volunteers serving the program will be referred to as facilitators. Terms of the facilitators shall be for four years. Facilitators may be reappointed to successive terms provided they agree to serve. Lawyers will be nominated to serve as facilitators by the complaint resolution committee, which will forward names to the Board of Governors for consideration for appointment to the complaint resolution program.
The complaint resolution administrator shall have the duties of maintaining all files received; assignment of facilitators; giving notices; making arrangements for all conferences; record keeping; compiling of reports to The Missouri Bar and chief disciplinary counsel; and handling administrative tasks. The complaint resolution administrator shall be designated by the executive director of The Missouri Bar.
The chief disciplinary counsel will first determine whether the complaint appears appropriate for referral to the complaint resolution program. After a complaint is referred to the complaint resolution program, the lawyer respondent will be asked to file a written answer and give written consent to participate in a resolution conference with a facilitator and the person bringing the complaint. Once the answer and consent are received from the lawyer respondent and the person bringing the complaint has signed a written consent, the complaint resolution program chair or complaint resolution administrator will assign the matter to a facilitator who may solicit further information from the parties and hold a mediation-like conference.
Following the conference, the facilitator will prepare an appropriate report to be returned to the complaint resolution program administrator for review by the complaint resolution committee chair, which will be forwarded to the chief disciplinary counsel's office. If the respondent lawyer does not participate, or if there is new information revealed whereby it appears that the respondent has engaged in serious misconduct, the complaint resolution committee shall return the matter to the chief disciplinary counsel. If the complainant does not participate, the complaint resolution committee will refer the complaint back to the chief disciplinary counsel noting such.
The goal of this program is to assist the chief disciplinary counsel in the resolution of grievances and to assure the public and the legal profession that such grievances can be resolved in a just fashion and in accordance with the participation and reasonable expectations of all parties.
In order to keep The Missouri Bar apprised of the complaint resolution program's work, the complaint resolution program will make semi-annual and annual reports to the Board of Governors concerning the progress of the complaint resolution program.
Panel Procedures
1. The first step in the process is the referral of the complaint to the complaint resolution program. After the chief disciplinary counsel has determined that the complaint is appropriate for referral, the chief disciplinary counsel or designee will send a letter to the complainant and the respondent advising them that the matter is being forwarded to the complaint resolution program. The chief disciplinary counsel will send to the complaint resolution administrator the chief disciplinary counsel file to the extent that the same relates to the complaint against this lawyer, including the complaint and the letter advising the parties of the reference to the complaint resolution program.2. After receiving the file, the complaint resolution administrator will set up the complaint resolution program file. The complaint resolution administrator will assign a chronological docket number to the matter using as a prefix the year the file was received. The complaint resolution administrator will prepare a manual index for each matter. The complaint resolution administrator will also maintain a computerized record of each matter, which will contain the same information as on the manual index.3. The complaint resolution administrator will set up a confidential file for each matter, which will contain the original documents submitted to the complaint resolution program by the chief disciplinary counsel, the complainant, the respondent lawyer or third parties. This file will remain at all times under the custody of the complaint resolution program. The matter file and the manual index will all be prominently marked "confidential," and the computerized docket will be password protected. The complaint resolution administrator will take all reasonable steps to maintain such confidentiality. Absent an order from the Supreme Court of Missouri, the only persons who shall have access to the confidential files of the complaint resolution program are the complaint resolution committee, the complaint resolution administrator, the complaint resolution program secretary, members of staff of the chief disciplinary counsel, personnel authorized by the Supreme Court of Missouri, and, except as to internal memoranda, the complainant and respondent lawyer and their respective counsel, if any.4. Promptly after receipt of the file from the chief disciplinary counsel, the complaint resolution administrator will send a letter to the respondent lawyer with a copy to the complainant notifying the respondent of the receipt of the file from the chief disciplinary counsel and requesting a written response to the complaint within twenty days. In addition, both parties will be asked to sign an agreement form developed by the complaint resolution program committing to voluntarily participate in the complaint resolution conference. All written communications from the complaint resolution program to the parties shall bear the legend, "ALL PROCEEDINGS OF THE COMPLAINT RESOLUTION PROGRAM ARE CONFIDENTIAL, AND ANY UNAUTHORIZED DISCLOSURE RELATING THERETO IS PROHIBITED BY LAW." In addition, all envelopes should be marked "PERSONAL AND CONFIDENTIAL."5. If the complaint resolution committee does not receive a reply from the respondent, the complaint resolution administrator will send a second letter advising the respondent that failure to respond within ten days will result in the case being returned to the chief disciplinary counsel.6. If the respondent does not answer after an additional ten days, or if the respondent does not sign the form consenting to participate in a resolution conference, the complaint resolution administrator will return the file, after the matter is reviewed by the complaint resolution program chair, to the chief disciplinary counsel, with a closing memorandum. The complaint resolution administrator will send a letter to the respondent, with a copy to the complainant, advising the respondent that the matter has been returned to the chief disciplinary counsel and enclose a copy of the closing memorandum. The appropriate notation will be made in the complaint resolution program records.7. If the complainant does not agree to participate in the resolution conference by returning the signed consent form, a second notice will be sent giving the complainant an additional ten days to respond. If the complainant does not respond to the second notice, the complaint resolution committee chair will review the matter before returning it to the office of chief disciplinary counsel with an appropriate recommendation. The complaint resolution administrator will send a letter to the complainant, with a copy to the respondent, advising the complainant that the matter has been returned to the chief disciplinary counsel and enclose a copy of the closing memorandum. The appropriate notation will be made in the complaint resolution program records.8. If the respondent files a response and both parties agree in writing to participate in the resolution conference, the complaint resolution administrator will assign the matter to a facilitator. Facilitator assignments will be made on a rotating basis, by geographic location. Facilitators will keep the complaint resolution administrator informed if they expect to be unavailable for any extended period of time.9. Before determining the facilitator's availability to serve, the complaint resolution administrator shall advise the facilitator of the identities of the complainant and respondent lawyer in order to determine the possibility of conflicts of interest between the facilitator and the parties. The facilitator should attempt to determine whether members of the facilitator's firm or organization have an adversarial relationship with either party. In doing so, the facilitator should keep in mind that the complaint resolution process is confidential, and any inquiries concerning conflicts should be made discreetly. If the facilitator does not believe that he or she can serve as an impartial neutral, the complaint resolution administrator should be advised to assign the matter to another facilitator. Additionally, prior to the start of the conference process, either party may timely object by giving notice to the complaint resolution administrator, within ten days of the receipt of notification of the name of the assigned facilitator, and exercise a peremptory challenge to the person serving as the facilitator for good cause, at which time the facilitator must be excused. A new facilitator must be assigned to the case. Only one such challenge shall be allowed to each party.10. Once the facilitator has decided that he or she can serve, the facilitator and the complaint resolution administrator will set a date for the conference within a period from 20 to 40 days after the date of the facilitator 's assignment to the matter and coordinate the location of the conference. If the prospective facilitator is unavailable during this interval, the complaint resolution administrator will choose another facilitator in consultation with the complaint resolution program chair.11. The complaint resolution administrator will send a letter to the facilitator, confirming the facilitator's assignment to the matter, enclosing a copy of the complaint, the response, the consent forms, and the notice of the complaint resolution conference, setting forth the proposed conference date, time, and location. The complaint resolution administrator will send a copy of this letter together with a copy of the complaint and the response to the complainant and the respondent. This letter and all other communications between the complaint resolution program and facilitator will bear the legend: "PERSONAL AND CONFIDENTIAL: TO BE OPENED BY ADDRESSEE ONLY."12. The conference may be held at a private conference room in the facilitator's offices, at The Missouri Bar Center, or at another convenient location chosen by the facilitator. Conferences will be held in circumstances that assure confidentiality. The complaint resolution administrator will make arrangements for the use of the facilities for the conference. The facilitator should determine, prior to the conference, whether there are any documents, witnesses or information that the parties should bring to the conference that would assist the process. The complaint resolution administrator will schedule all conferences and send a notice of the complaint resolution conference to the parties; this notice will contain the date, time and place of the conference. The facilitator should advise the parties to forward all documentary evidence to the facilitator five days prior to the conference date.13. The complaint resolution administrator will consult with the facilitator about requests to postpone a scheduled conference or requests for adjournment. The facilitator shall consider and decide all requests for adjournments, but adjournments should be granted sparingly. In no event should the conference be adjourned more than 75 days after the complaint resolution program has referred it to the facilitator. If the respondent does not appear, the facilitator will refer the matter back to the complaint resolution program, which will in turn refer it back to the chief disciplinary counsel after a review by the complaint resolution committee chair. If the complainant does not appear, the facilitator will refer the matter back to the complaint resolution program for referral to the chief disciplinary counsel after a review by the complaint resolution committee chair.14. The facilitator may recommend, after consultation with the complaint resolution committee, that the matter be disposed of without a conference. Although the complaint resolution committee may review such recommendation and consent to it, the complaint resolution program discourages such dispositions. However, if the complaint resolution committee agrees to such a decision, the complaint resolution committee will prepare a closing memorandum setting forth the reasons for this decision and will return it with the file to the complaint resolution administrator. The complaint resolution committee chair will send a letter to the complainant, with a copy to the respondent, advising of the disposition and enclosing a copy of the closing memorandum. The complaint resolution administrator will return the file with the closing memorandum to the chief disciplinary counsel and will make an appropriate notation in the complaint resolution programs records.15. The facilitator will conduct the conference informally. At the outset, the facilitator should make clear to the parties that the facilitator is not serving as a judge. The facilitator's role is to promote communication and suggest ways of resolving the dispute; the facilitator is not to impose a settlement on the parties. The facilitator shall make every effort to hear all the relevant facts, review all the documents, be familiar with any controlling relevant legal principles, and seek to bring about an acceptable resolution between the parties. The facilitator should refrain from using legal terminology that may not be understandable to the complainant. The facilitator should advise the lawyer respondent before the conference begins that the facilitator must report any serious ethical violations as outlined under Supreme Court Rule 4-8.3 . If notes are taken by the facilitator during the conference, they should be either destroyed immediately thereafter or returned in a marked sealed envelope to the complaint resolution administrator's office to be stored in a secure location for five years. The facilitator should make sure that any proposal offered for resolution of the matter is clearly understood by the parties, perceived to be fair, and freely entered into by the parties. If the parties cannot reach an agreement, the facilitator should return the matter to the compliant resolution administrator with the instructions that it be forwarded to the chief disciplinary counsel.16. The facilitator should have the parties sign an agreement setting forth the terms of the resolution of the complaint. The facilitator should keep in mind that performance of the agreement should take place within a reasonably short time after the conference so that the complaint resolution program is able to close the file. The facilitator should advise the parties that they may contact the facilitator if they have any difficulty enforcing the agreement. However, if one of the parties refuses to abide by the agreement, the matter should be returned to the complaint resolution program so that it may be referred back to the chief disciplinary counsel. In accordance with Supreme Court Rule 4-1.8(h) , the lawyer respondent shall not make an agreement in the conference that limits the lawyer respondent's liability to the complainant for malpractice unless permitted by law and the complainant is independently represented in making the agreement, or settle a claim for such liability with un-represented client or former client without first advising that person in writing that independent representation is appropriate.
17. At any time, the facilitator may refer the complaint back to the complaint resolution program for review by the committee if the respondent will not participate in the complaint resolution program or if the facilitator believes that the respondent has engaged in misconduct warranting proceedings pursuant to Supreme Court Rule 5 . Following the committee's review, the complaint will be referred back to the office of chief disciplinary counsel.18. At the conclusion of the conference, or if the matter is closed prior to the conference, the facilitator will prepare a brief report reflecting the disposition of the matter, which will promptly be sent to the complaint resolution administrator. The complaint resolution administrator will prepare the closing memorandum reflecting the resolution reached, if any, along with a copy of the signed resolution or comments from the facilitators if a resolution was not reached, which will be forwarded to the complaint resolution committee chair for a final review. The complaint resolution committee chair will review and sign the closing memorandum and return it to the complaint resolution administrator within ten days. The complaint resolution administrator will close the file and forward the closing memorandum, resolution agreement, if any, or the report from the facilitator, and lawyer respondent's response to the chief disciplinary counsel. The complaint resolution administrator will then forward a copy of the closing memorandum, appropriate disposition letter, and agreement to the person bringing the complaint and respondent. THE MISSOURI BAR LAWYER-TO-LAWYER DISPUTE RESOLUTION PROGRAM GUIDELINES
Overview
Complaints or disputes arising among lawyers concerning financial, property, or professional matters unrelated to any lawyer-client relationship among those lawyers may be submitted to the Lawyer-to-Lawyer Dispute Resolution Program. That complaint or dispute may be:
1) submitted by any lawyer involved in the complaint or dispute, or2) referred pursuant to Rule 5.10 by the office of chief disciplinary counsel where it believes the complaint or dispute may be resolved through alternative resolution rather than formal disciplinary procedures. All complaints and disputes shall be processed as these guidelines provide.
The program shall be administered by a five-person Lawyer-to-Lawyer Dispute Resolution Committee that will oversee the activities and proceedings in the program. The committee shall be appointed by The Missouri Bar Board of Governors, with the chair designated by the president of The Missouri Bar. The terms of the committee appointees shall be four years. No committee member shall be requested to serve more than two successive terms.
The committee shall solicit and maintain a list of Missouri attorneys who will serve as a panel of neutrals. In compiling the list of neutrals, the committee shall consider the following criteria:
(2) years of practice in Missouri; (3) specific training or experience; (4) specific training provided by The Missouri Bar on the relevant Missouri Rules of Professional Conduct; (5) minority representation, and (6) other relevant factors. The neutrals of the program shall be appointed to four-year terms and may be reappointed to successive terms, provided they agree to serve. Unless the parties stipulate otherwise, disputes will be assigned to a neutral from outside the parties' geographic regions. For this purpose, the neutral may neither reside nor maintain an office in the county in which any of the parties practice or reside unless the parties, in their agreement for facilitation, agree that the neutral from that geographic region be appointed.
All program proceedings are confidential. All inquiries, all proceedings, and all communications with the committee, the administrator, the parties, and the neutral are not subject to discovery or production in any other forum or for any other purpose. See section 435.014.2 , RSMo. Even information as to the identity of the parties and the fact of a dispute is confidential. No neutral or candidate for appointment as a neutral shall disclose to any person any confidential information acquired as a result of or in connection with a complaint or dispute processed under these guidelines except with the consent of the parties or as required by Rule 4-8.3 or other law.
The dispute resolution administrator shall be responsible for maintaining all files received, assigning neutrals, giving notices, making arrangements for all conferences, record keeping, compiling reports to The Missouri Bar and chief disciplinary counsel, and handling administrative tasks. The administrator shall be designated by the executive director of The Missouri Bar. The administrator may delegate program administrative tasks as appropriate and as approved by the executive director of The Missouri Bar.
By participating in the program and submitting to these rules, the parties agree that The Missouri Bar, its agents and employees, and any assigned neutral shall not be liable to any person for any act or omission in connection with any proceeding conducted under these guidelines. The parties further agree that The Missouri Bar, its agents and employees, and the assigned neutral shall have the same immunity from civil suit or claim in connection with any conduct or actions under the proceedings described herein that a judicial officer or body would have in a court proceeding.
The goal of this program is to provide an efficient, private, cost-effective, and voluntary mechanism for resolving economic and professional disputes between and among lawyers. This program is intended to protect the interests of clients and benefit the judicial system, the public, and the profession by preventing additional burdens on an already over-burdened court system.
Procedures
The Missouri Bar offers the parties non-binding facilitation as the preferred mechanism for dispute resolution. In the event that non-binding facilitation is not successful in resolving any complaint or dispute, binding arbitration will be offered. Submission of the dispute to non-binding facilitation shall be a prerequisite to the offer of binding arbitration.
1. The first step in the process is the submission of the complaint or dispute to the program by any party to the dispute by the filing of a notice of dispute and request for facilitation with the administrator or referral of the complaint or dispute to the program by the chief disciplinary counsel.2. Upon receiving the complaint or dispute, the administrator shall open a dispute resolution program file. The administrator shall assign a chronological docket number to the matter using as a prefix the year the complaint was received; prepare a manual index for each matter; and maintain a computerized record of each matter that shall contain the same information as the manual index.3. For each matter, the administrator shall open a confidential file, which shall contain the original of all documents submitted to the program. This file shall remain at all times in the custody of the program. The file and manual index will each prominently be marked "confidential," and the computerized docket will be password protected. The administrator will take all reasonable steps to maintain confidentiality. Absent an order from the Supreme Court of Missouri, the only persons who shall have access to the program's confidential files are the committee, the administrator, the program secretary, personnel authorized by the Supreme Court of Missouri, the parties, and their respective counsel, if any. The office of chief disciplinary counsel also shall have access to the confidential files, except for internal memoranda, if the complaint or dispute was referred by that office.4. All written communications from the program to the parties shall bear the legend, "ALL PROCEEDINGS OF THE DISPUTE RESOLUTION PROGRAM ARE CONFIDENTIAL, AND ANY UNAUTHORIZED DISCLOSURE RELATING THERETO IS PROHIBITED." In addition, all envelopes should be marked, "PERSONAL AND CONFIDENTIAL."5. Promptly after receipt of the submission or referral, the administrator shall contact all parties or their counsel by facsimile or mail and advise them regarding all appropriate administrative agreements and the neutral selection process. All parties will be asked to sign an agreement for facilitation, developed by the committee, agreeing voluntarily to participate in the program.6. If any party fails to sign the agreement for facilitation, the administrator shall mail a second written inquiry as to the willingness to execute the agreement. If any party initially failing to sign an agreement does not do so within 10 days after the administrator mails the second written inquiry, the file shall be closed, and all parties shall be notified of such closure.7. Upon execution of all agreements for facilitation, the administrator will assign a neutral from the panel.8. Before determining the neutral's availability to serve, the administrator shall advise the neutral of the parties' identities to determine if conflicts of interest exist. The neutral should attempt to determine whether members of the neutral's firm or organization have any relationship with any party. In doing so, the neutral should keep in mind that the process is confidential and that any inquiries concerning conflicts should be made discreetly. If the neutral does not believe that he or she can serve as an impartial neutral, the administrator should be advised to assign the matter to another neutral. Within 10 days of the receipt of notification of the name of the assigned neutral, any party may exercise a peremptory challenge to the assigned neutral, at which time the neutral must be excused. A new neutral must be assigned to the case. Only one peremptory challenge shall be allowed to each party for each process initiated under this program. Upon application within such 10-day period by any party who has previously exercised its peremptory challenge and an opportunity for all other parties and the assigned neutral to respond, the committee may disqualify an assigned neutral for good cause. Upon such disqualification, a new neutral will be assigned.
9. The assigned neutral shall make the initial contact with each party to ascertain the nature of the dispute and the parties' respective positions. The neutral shall request such information from all parties as may be reasonably necessary to promote a thorough understanding of the issues and to produce meaningful suggestions for resolving the dispute.10. All sessions shall be scheduled at the earliest date practicable. Sessions shall take place at a site mutually agreed upon by the parties and the neutral. If the parties are unable to agree upon a site, the neutral shall designate a neutral site. The neutral's offices, courthouses, and the offices of the state and county bar associations shall be considered neutral sites for this purpose. Any neutral may request the administrator's assistance in scheduling sessions and notifying parties of the time and place of such sessions.11. Time shall be provided at each facilitation session for the frank exchange of all parties' views. At the request of any party or the neutral, the neutral may caucus individually with one party at a time. All statements made during the caucus shall be kept confidential between the neutral and the caucusing party, except insofar as the caucusing party permits the neutral to disclose such statements to the other parties. There shall be no limitation on the duration or the number of facilitation sessions. After the first session, additional sessions may be scheduled by mutual agreement of the parties and the neutral. If a party fails to appear at a facilitation session, the remaining parties may agree to proceed with the session if they feel that progress can be made in the absence of a party.12. Parties shall be entitled to legal representation if they choose. Parties shall be responsible for arranging and paying for their own legal representation. Subject to other of these guidelines, additional persons may be allowed to attend the facilitation sessions; however, the neutral shall have the discretion to exclude from any session any person who he or she considers counterproductive to the process and may limit the number of legal representatives who may speak for each side.13. The neutral shall not be considered legal counsel for any party and shall not provide legal advice to any party. The neutral may, however, identify legal issues as they arise during the course of the session. The neutral shall attempt to alert the parties to the requirements of the Rules of Professional Conduct and other applicable ethical codes and shall not knowingly participate in the formation of a resolution of a complaint or dispute in violation of any such codes.14. The services of the neutral shall be on a volunteer basis, and the neutral's expenses shall be reimbursed by The Missouri Bar.15. The administrator will consult with the neutral about requests to postpone a scheduled session or requests for adjournment. The neutral shall consider and decide all requests for adjournments, but adjournments should be granted sparingly.16. The neutral will conduct all facilitation sessions informally. At the initial session, the neutral should make clear to the parties that the neutral is not serving as a judge. The neutral's role is to promote communication and suggest ways of resolving the dispute; the neutral is not to impose a settlement on the parties. The neutral shall make every effort to hear all the relevant facts, review all the documents, be familiar with any controlling relevant legal principles, and seek to bring about an acceptable resolution for the parties. The neutral should advise all lawyers before the initial session begins that the neutral must report any serious ethical violations, pursuant to Supreme Court Rule 4-8.3 . If the neutral takes notes during the conference, they should be either destroyed immediately thereafter or returned in a marked sealed envelope to the administrator's office to be stored in a secure location for five years. The neutral should make sure that any proposal offered for resolution of the matter is clearly understood by the parties, perceived to be fair, and freely entered into by the parties.17. The neutral shall suspend any facilitation session upon any of the following occurrences: the parties reach an agreement; one of the parties refuses to continue with the process; the neutral assesses that nothing meaningful is to be gained in continuing the process; or upon the request of all parties.18. The neutral shall attempt to complete the facilitation process within 30 days after its initiation. If the parties reach an agreement, the neutral may assist the parties in reducing their agreement to a written settlement agreement, which shall be binding upon the parties. If the parties fail to reach an agreement, the neutral may recommend binding arbitration.Mo. R. Gov. Bar Jud. 7.16
Adopted May 31, 2022 effective 1/1/2023; amended November 22, 2022, eff. 1/1/2023.