State bars, which participate in professional discipline of attorneys, are not elected by the people
and therefore are subject to capture by special interests. In contrast, the Attorney General is
elected and accountable to the people. This law gives the Attorney General investigative and
enforcement authority for attorney [and legal paraprofessional] discipline and licensing. It retains
the Supreme Court’s role to ultimately adjudicate any such matters. This preserves the separation
of powers and provides democratic accountability for this process.
Summary: AN ACT relating to the discipline and licensing of attorneys [and legal paraprofessionals]; providing for an effective date.
Section 1. Definitions
- “Attorney General” means the attorney general of this state or that person’s designee, who shall be an employee who serves at-will within the Attorney General’s Office.
- “Licensee” means a person who has been admitted to practice law in this state[, has received a license to practice as a legal paraprofessional related to the practice of law,] or has otherwise engaged in conduct that is governed by the rules of professional conduct.
- “Rules of professional conduct” mean the rules codified at [insert citation to statute or supreme court rules].
- “Supreme Court” means the highest court of this state. The Supreme Court may delegate authority under this Act only to an employee of the Supreme Court who is subject to at will removal by a simple majority of the Court, and whose final determinations are reviewable by the Supreme Court through an appeal or similar process.
Section 2. Attorney [and Legal Paraprofessional] Discipline
- The Attorney General shall be responsible for receiving and investigating complaints that a licensee has violated one or more rules of professional conduct. Except as provided under subsection (E) of this section, the Attorney General shall have sole investigative and enforcement authority related to such violations, and no other governmental or private organization may exercise such authority.
- B. The Attorney General may issue a summary dismissal of a complaint, which shall not be subject to any further review by a court. In connection with an investigation under this section, the Attorney General may issue requests for documents to any person, inspect all books and records of any licensee or affiliate of a licensee, and conduct examinations under oath. The Attorney General may petition any court for an order that may aid an investigation, including to enforce an investigatory request, and a recipient of an investigatory request may petition a court 2 to quash such a request. Complaints and investigations under this section shall be confidential and not subject to release under the [state Public Records Act].
- If the Attorney General determines that there is probable cause that a licensee has violated one or more rules of professional conduct, and intends to seek a fine or costs of investigation over $1,000, suspension, or disbarment, then the Attorney General must present the determination and supporting evidence to the probable cause review panel established by this section. If the probable cause review panel returns an affirmative vote that there is probable cause, then the Attorney General shall file formal charges relating to such potential misconduct with the Supreme Court, and the matter shall proceed according to rules provided by the Supreme Court. Unless the probable cause review panel issues an affirmative vote finding probable cause, the Attorney General shall not file any charges, publicize the complaint, or take any further action in such matters other than, at the Attorney General’s discretion, to further investigate the matter and resubmit it to the probable cause review panel. In matters other than a summary dismissal where the Attorney General does not intend to seek a fine or costs of investigation over $1000, suspension, or disbarment, the Attorney General may proceed directly to the Supreme Court.
- The probable cause review panel shall be housed within the Attorney General’s Office and consist of 18 citizens of this state. The Attorney General’s Office shall provide administrative support to the panel, which shall convene upon the call of the Attorney General. The [Governor], [President of the Senate], and [Speaker of the House] shall each appoint six
members.
- A member of the probable cause review panel may not be a current licensee under this Act.
- Each member shall serve for a two-year term, is eligible for reappointment, and can only be removed for cause by the other members of the panel if the person 1) is charged or convicted of a crime, 2) declares bankruptcy, 3) absents themselves from the state for a period of 90 days or more, or 4) misses two or more consecutive meetings that the person is called to attend without justification. If a member is removed, then the person holding the same office that appointed the removed member shall appoint the replacement for the remainder of the removed member’s term.
- The probable cause review panel shall select by lot at least six of its members to attend each meeting. A probable-cause determination requires the affirmative vote of two-thirds of the members selected to attend a meeting. In the case of a recusal by one or more members of a panel, a matter may be continued to the next meeting of the probable cause review panel.
- If a complaint arises out of the actions of the Attorney General or any other licensee employed or contracted with the Attorney General’s Office related to any act or omission by such person related to their conduct in connection with Attorney General’s Office, then the Attorney General shall recuse from processing that complaint further and refer the complaint to a [County Attorney/District Attorney] to proceed as provided in this section. The Attorney General may recuse in other matters and refer a complaint to a [County Attorney/District Attorney] to proceed as provided in this section. Nothing in this section divests any court or officer of this State from jurisdiction over matters that are not licensing matters, including criminal and civil matters.
Section 3. Attorney [and Legal Paraprofessional] Licensing
- The Attorney General shall have sole responsibility for receiving and processing applications
for a license to practice law [and any other license related to the practice of law approved by
the Supreme Court] within this state. The Attorney General shall review such applications pursuant to rules prescribed by the Supreme Court and shall issue a determination within 60 days
pursuant to subsection (B) or (D) of this section. - If the Attorney General determines, by a preponderance of the evidence, that an applicant who
has submitted materials under this section has established each of the requirements for an applicable license, then the Attorney General shall issue a determination that the applicant shall be granted licensure, and forward the completed application and all relevant supporting material
to the Supreme Court. - If the Attorney General issues a determination under subsection (B) of this section, then the Supreme Court shall review and act on the determination as follows:
- Within 60 days after receiving the determination and supporting materials, the Supreme Court shall review the record for substantial evidence. Unless the Supreme Court determines within that time period that one or more requirements for a license is not supported by substantial evidence, it shall issue the applicable license. The Supreme Court shall maintain the official roll of persons who have been admitted to practice law [or as a legal paraprofessional] in this state and the good standing of such persons, and the Supreme Court shall issue certificates of good standing upon request pursuant to rules it establishes.
- If the Supreme Court determines that one or more requirements for a license is not supported by substantial evidence, then it shall issue a written decision explaining which requirements are not supported. An applicant may move for reconsideration within 21 days of such decision, and may provide additional information or materials responsive to the decision. If an applicant does not move for reconsideration within that time period, or
the Supreme Court determines the applicant has not cured any defect and could not cure the defect through further reconsideration, then it shall vacate the Attorney General’s determination and, if appropriate, remand the matter to the Attorney General.
- If the Attorney General determines that an applicant who has submitted materials under this section has not proven by a preponderance of the evidence that each requirement for a license is met, then the Attorney General shall issue a decision explaining the basis for its determination. An applicant may move for reconsideration within 21 days, and may provide additional information or materials responsive to the Attorney General’s decision. If an applicant does not move for reconsideration within that time period, or the Attorney General determines the applicant’s motion for reconsideration has not cured a defect and could not cure a defect through further reconsideration, then the Attorney General shall issue final agency action denying the application for license. An applicant may appeal such final agency action to the Supreme Court.
- The procedures provided herein are the sole requirements for obtaining a license to practice law [or to practice as a legal paraprofessional] and no other person may exercise any authority related to such licensing. Proceedings under this section at the Attorney General’s Office, other than the final determination to grant or deny a license, shall be confidential and not subject to release under the [state Public Records Act]. The Attorney General may share information obtained under this section, subject to confidentiality, with other licensing or law enforcement agencies in this state or in other states.
Section 4. Effective Date and Transition.
- Once this Act becomes effective, it shall immediately apply to all pending complaints and disciplinary actions that have not become final in the Supreme Court. Unless the respondent in such action requests otherwise, the Supreme Court shall remand such disciplinary actions to the Attorney General for proceedings consistent with Section 2 of this Act.
- All persons who are licensed to practice law in this state [or to practice as a legal paraprofessional] at the time of the effective date of this Act, shall be deemed to have been approved under Section 3 of this Act by the Attorney General and the Supreme Court for their respective license, including pro hac vice. All persons who have applications for a license to practice law [or a license to practice as a legal paraprofessional] that have not yet been acted on by the Supreme Court shall have such applications forwarded to the Attorney General for action consistent with Section 3 of this Act.