(a) When Probation Appropriate
Probation is appropriate when the respondent has problems requiring supervision, but can still perform useful legal services. Probation may be an appropriate discipline in certain cases of disability, if the condition is temporary or minor and capable of treatment without transfer to disability inactive status. Probation should be used only in those cases where there is little likelihood that the respondent will harm the public during the period of rehabilitation and the conditions of probation can be adequately supervised.
(b) Petition
On petition of the General Counsel, supported by an affidavit demonstrating facts personally known to the affiant, showing that the respondent has a disability conforming to the above standard, the Disciplinary Commission may issue an order imposing temporary conditions of probation on the respondent for a specified period, not to exceed two (2) years. The conditions of probation shall be in writing. The Disciplinary Commission will appoint a member of the Bar or a suitable layperson as probation supervisor to monitor the respondent during the period of probation.
(c) Dissolution or Amendment of Probation
Where probation is imposed pursuant to paragraph (b) of this rule, the respondent may request dissolution or amendment of a probation order issued by filing a petition with the Disciplinary Board, a copy of which shall be served on the General Counsel. The petition shall be set for hearing before the Disciplinary Board within seven (7) days of its filing. The Disciplinary Board shall decide the petition with the utmost speed consistent with due process. The Disciplinary Board may modify the probation order, if appropriate, and may continue such provisions of the order as may be appropriate until final disposition of all disciplinary charges against the lawyer. An appeal may be taken from decisions of the Disciplinary Board as provided in Rule 12(f) and (g); however, the probation will not be stayed during the appeal process.
(d) Probation After Formal Hearing
Probation may also be imposed by the Disciplinary Board after formal hearing held pursuant to Rule 12(e) and in conformity with Rule 8(h). In such a case, the initial period of probation may not exceed two (2) years but may be extended at the discretion of the Disciplinary Board for an additional period not to exceed two (2) years.
(e) Conditions
The order placing a lawyer on probation shall specify the conditions of probation. The conditions shall take into consideration the nature and circumstances of the lawyer’s misconduct and the history, character, and health status of the lawyer, and shall include as a condition that the lawyer commit no further violations of the Alabama Rules of Professional Conduct. The conditions may include, but are not limited to, the following, where appropriate: (1) Making periodic reports as directed by the Disciplinary Commission, the Disciplinary Board, the Disciplinary Hearing Officer, or the Office of General Counsel;
(2) Monitoring of the lawyer’s practice or accounting procedures;
(3) Establishing a relationship with an attorney-mentor, and regularly reporting with respect to the development of that relationship;
(4) Completing a specified course of study;
(5) Retaking and passing all of, or any portion of, the bar examination;
(6) Refunding and/or making restitution;
(7) Submitting to medical evaluation and/or treatment;
(8) Submitting to mental health evaluation and/or treatment;
(9) Submitting to evaluation or treatment in a program that specializes in treating disorders related to sexual misconduct;
(10) Submitting to evaluation or treatment in a program that specializes in treating matters relating to family violence, including, but not limited to, violence inflicted on a domestic partner, an elder, or a child;
(11) Submitting to substance-abuse evaluation and/or treatment; or
(12) Abstaining from alcohol and/or drugs.
(f) Costs
The lawyer shall be responsible for all costs of evaluation, treatment, and supervision. Failure to pay these costs before probation is terminated shall constitute a violation of probation.
(g) Monitoring
The Office of General Counsel, the Disciplinary Commission, or the Disciplinary Board shall monitor the attorney’s compliance with the conditions of probation imposed under these Rules. When appropriate, the Office of General Counsel, the Disciplinary Commission, or the Disciplinary Board may delegate the monitoring role to a responsible lawyer or mentor. In cases in which monitoring is so delegated, the designated monitor shall submit such reports as the Office of General Counsel requests.
(h) Violation
If, during the probationary period, the Office of General Counsel, the Disciplinary Board, or the Disciplinary Commission receives information that a condition of probation may have been violated, the Office of General Counsel may file a motion specifying the alleged violation and seeking an order requiring the respondent to show cause why probation should not be revoked. The filing of such a motion shall toll any period of probation until final action is taken on the motion. A hearing shall be held on motion of either party before the Disciplinary Board or the Disciplinary Commission. At the hearing, the Office of General Counsel has the burden of establishing, by a preponderance of the evidence, the violation of a condition of probation. In a revocation hearing, when the alleged violation of a condition is the respondent’s failure to pay restitution or costs, the evidence of the failure to pay shall constitute prima facie evidence of a violation. Any evidence having probative value shall be admissible, regardless of its admissibility under the Alabama Rules of Evidence, provided that the respondent is accorded a fair opportunity to rebut that evidence. At the conclusion of a hearing, the Disciplinary Hearing Officer or chair of the Disciplinary Commission shall prepare a report setting forth findings of fact and the decision.
(i) Termination
Unless otherwise provided in the order of probation, within thirty (30) days and not less than fifteen (15) days prior to the expiration of the period of probation, the respondent shall file an affidavit with the Disciplinary Clerk and serve a copy of the affidavit on the Office of General Counsel, stating that he or she has complied with all terms of probation. Upon receipt of this notice and absent objection from the Office of General Counsel, the Disciplinary Board or the Disciplinary Commission shall forthwith issue an order showing that the probation was successfully completed. The order shall become effective upon the expiration of the period of probation, unless otherwise stated therein.
(j) Independent Charges
A motion for revocation of a respondent’s probation shall not preclude the Office of General Counsel, the Disciplinary Commission, or the Disciplinary Board from filing independent disciplinary charges based on the same conduct as alleged in the motion.
(k) Prerogatives of the General Counsel
With respect to probation, the General Counsel may investigate to determine whether the probation should be terminated. The General Counsel may recommend to the Disciplinary Commission or to the Disciplinary Board that the probation be terminated; that the period of probation be extended for a period not to exceed two years; or that other discipline be imposed.
(l) Trust Account
An order of probation that restricts the lawyer from maintaining a trust account, when served on any bank maintaining a trust account against which the lawyer may make withdrawals, shall prevent the bank from making further payments from that account.
“Note from the reporter of decisions: The order amending Rule 21, effective August 1, 2000, is published in that volume of Alabama Reporter that contains Alabama cases from ____So.2d.”
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