(a) Basis for Termination. Certification may be terminated after a finding by the Board that a certified attorney no longer demonstrates continuing competence or has engaged in conduct or omissions to discharge responsibility that are not acceptable on the part of a certified attorney.
(b) Procedures to Follow. In all cases a complaint, notice, and opportunity to be heard shall be given in accordance, so far as applicable, with the rules and administrative guidelines governing plenary ethics hearings (Rule 1:20-3(h) to -3(m), -3(o)).
(c) Effect of Determination of Unethical Conduct. Whenever an attorney has been found guilty, either as an attorney or a judge, of unethical conduct in a disciplinary proceeding in this state resulting in public discipline, a copy of the decision or opinion in that matter shall be conclusive evidence of the facts established there. The sole issue to be determined by the Board shall be the extent of the sanction to be imposed. However, a respondent may introduce relevant evidence in mitigation that is not inconsistent with the essential facts established in the disciplinary decision or opinion.
(d) Hearing Panels; Recommendation to Court. In all cases hearings may be held before a panel of no fewer than three members of the Board, which shall render a report to the full Board. In appropriate circumstances, the matter may be referred for consideration to the District Ethics Committee. The Board shall recommend to the Supreme Court the sanction to be imposed, which may include either termination or conditions imposed for a stated period. Should the Supreme Court approve the Board's recommendation to terminate certification, the Board shall notify other certifying agencies to which the attorney holds a certification of that termination.
(e) Burden of Proofs; Effect of Termination. In proceedings under this Rule, the presenter shall have the burden of proof. The respondent shall have the burden of proving all affirmative defenses, constitutional challenges, and mitigating circumstances, if any. The standard of proof for the presenter and the respondent shall be clear and convincing evidence on all issues. No person whose certification has been terminated pursuant to this Rule may be thereafter again certified except in accordance with the procedure set forth in Rule 1:39-1 to -9 and the Regulations of the Board.
(f) Lapsing of Certification. An attorney who allows his or her certification to lapse and thereafter seeks to be certified shall be required to comply with all of the requirements for making an initial application for certification. The Board shall notify other certifying organizations to which the certified attorney holds a certification that his or her certification by the Supreme Court has lapsed.
Note: Adopted January 26, 1979, as Rule 1:39-9 to be effective April 1, 1979; amended and redesignated Rule 1:39-8 May 15, 1980 to be effective September 8, 1980; amended November 2, 1987 to be effective January 1, 1988; amended and rule designated as paragraphs (a), (b), (c), (d), and (e) June 28, 1996, to be effective September 1, 1996; paragraph (d) amended and new paragraph (f) adopted July 5, 2000 to be effective September 5, 2000; paragraph (d) amended July 20, 2011 to be effective September 1, 2011.Back