FSM SUPREME COURT
APPELLATE DIVISION
Cite as In re Attorney Disciplinary Proceeding ,
9 FSM Intrm. 165 (App. 1999)

[9 FSM Intrm. 165]

In re ATTORNEY DISCIPLINARY PROCEEDING.

APPEAL CASE NO. P5-1998
DPA 002-1997

OPINION

Argued:  April 26, 1999
Decided:  June 24, 1999

BEFORE:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Judah C. Johnny, Temporary Justice, FSM Supreme Court*

*Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:
For the Appellant:           Douglas Parkinson, Esq.
                                          P.O. Box 2069
                                          Kolonia, Pohnpei FM 96941

Disciplinary Counsel:     Elizabeth M. McCormick, Esq.
                                          Chief of Litigation
                                          FSM Department of Justice
                                          P.O. Box PS-105
                                          Palikir, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Attorney, Trial Counselor and Client
     Rule 1.16(d) requires that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 170 n.3 (App. 1999).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions
     A disbarment proceeding is adversarial and quasi-criminal in nature and the moving party bears the burden of proving all elements of a violation.  The same is true when an attorney disciplinary proceeding results in a lesser sanction.  Any disciplinary proceeding has the potential to end in disbarment or suspension.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 171 (App. 1999).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions; Evidence ) Burden of Proof
     The disciplinary counsel's burden is to prove attorney misconduct by clear and convincing evidence.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 171 (App. 1999).

[9 FSM Intrm. 166]

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions
     The FSM Disciplinary Rules do not encourage settlement or compromise between disciplinary counsel and the respondent attorney.  Settlements between a complainant and the respondent attorney do not, in themselves, justify abatement of the disciplinary proceeding.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 171 (App. 1999).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions
     The reviewing justice has every right to reject a sanction proposed by the disciplinary counsel and respondent attorney.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 172 (App. 1999).

Constitutional Law ) Due Process; Evidence
     Any reliance on the contents of a further investigation that have never been a part of the record is improper.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 172 (App. 1999).

Evidence
     It is improper for counsel to argue facts only within the counsel's knowledge and not in the record.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 172 (App. 1999).

Evidence
     Counsel's statements concerning an answer constitute argument of counsel, not evidence.  Only the answer itself is admissible evidence.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 172 (App. 1999).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions; Evidence
     Any reliance on a "proposed disposition" to prove the respondent attorney's misconduct is improper when the respondent attorney's statements show that any admissions of misconduct were only for the purpose of the reviewing justice's approval of the proposed disposition and if it was not accepted, the respondent attorney would have to call defense witnesses.  Such equivocation is not an admission of professional misconduct.  It is thus inadmissible under FSM Evidence Rules 410 and 408, which bar the admission of pleas, plea discussions, and related statements and compromises and offers to settle, respectively.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 172 (App. 1999).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions; Evidence ) Burden of Proof
     The standard of proof for establishing allegations of attorney misconduct is clear and convincing evidence.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 173 (App. 1999).

Evidence ) Burden of Proof
     Clear and convincing evidence is a higher burden of proof than mere preponderance of the evidence, but not quite as high as beyond a reasonable doubt.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 173 (App. 1999).

Evidence ) Burden of Proof
     The clear and convincing evidence standard is the most demanding standard applied in civil cases.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 173 (App. 1999).

Evidence ) Burden of Proof
     To be clear and convincing evidence must be of extraordinary persuasiveness.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 173 (App. 1999).

Evidence ) Burden of Proof
     Clear and convincing evidence means evidence establishing that the truth of the facts asserted

[9 FSM Intrm. 167]

is highly probable.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 173 (App. 1999).

Evidence ) Burden of Proof
     The clear and convincing evidentiary standard is that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 173 (App. 1999).

Evidence ) Burden of Proof
     A proposition proved by a preponderance of the evidence is one that has been found to be more probably true than not.  Clear and convincing evidence, on the other hand, reflects a more exacting standard of proof.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 173 (App. 1999).

Evidence ) Burden of Proof
     Although stated in terms of reasonable doubt, clear and convincing evidence is considered to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 173 (App. 1999).

Evidence ) Burden of Proof
     The spectrum of increasing degrees of proof, from preponderance of the evidence, to clear and convincing evidence, to beyond a reasonable doubt is widely recognized, and it has been suggested that the standard of proof required would be clearer if the degrees of proof were defined, respectively, as probably true, highly probably true and almost certainly true.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 173-74 (App. 1999).

Evidence ) Burden of Proof
     Evidence may be uncontroverted, and yet not be clear and convincing. Conversely, evidence may be clear and convincing despite the fact it has been contradicted.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 174 (App. 1999).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions; Constitutional Law ) Due Process
     A hearing cannot qualify as the full evidentiary hearing contemplated by Disciplinary Rule 5(b) when neither side had an opportunity to present evidence.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 174 (App. 1999).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions; Constitutional Law ) Due Process
     A hearing cannot qualify as the full evidentiary hearing contemplated by Disciplinary Rule 5(b) when the decision finding the allegations of misconduct proven had been made and announced before the hearing was held.  Such a hearing must take place before the decision is made.  Otherwise it is a denial of due process.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 174 (App. 1999).

Appeal and Certiorari; Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions
     Although 4 F.S.M.C. 121 mandates the publication of FSM Supreme Court appellate opinions, confidentiality in the spirit of the rules can been maintained in a continuing attorney disciplinary matter by the omission of names and identifying characteristics.  In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 175 (App. 1999).

[9 FSM Intrm. 168]
*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This appeal arises from the reviewing justice's orders of September 2, and 14, 1998 in Disciplinary Proceeding No. 002-1997.  The central issue presented is whether the respondent attorney was afforded the right to a hearing prior to the reviewing justice's finding of misconduct and the imposition of a sanction.  We conclude that neither the due process requirements under Article IV, section 3 of the Constitution nor the formal hearing requirement under Rule 5 of the Disciplinary Rules and Procedures were met.  We therefore vacate the reviewing justice's September 2nd and 14th orders and remand the matter.

     Part of the respondent attorney's contentions on appeal is that the reviewing justice's finding was not supported by clear and convincing evidence in the record. To assist the parties and the reviewing justice on remand, we also discuss the disciplinary counsel's burden of proof and what was before the reviewing justice when the misconduct finding was made.
 
I.  Background
     A former client of the respondent attorney complained to the FSM Supreme Court that the respondent attorney had withdrawn from representing the client in a case without first providing reasonable notice to the client or assisting the client in obtaining substitute counsel or otherwise protecting the client's interests and that the respondent attorney had represented another client in an unrelated case where that other client's interests were directly adverse to the complainant's.  Pursuant to FSM Disciplinary Rule 4(b), the assigned reviewing justice undertook a preliminary review of the matter, determined that it was not plainly without merit, and appointed disciplinary counsel to investigate further.  Disciplinary counsel investigated and filed a report and recommendation.  Pursuant to Disciplinary Rule 5(b), the reviewing justice then directed the disciplinary counsel to file a formal complaint against the respondent attorney.

II.  Proceedings
     Three hearings were held before the September 14th sanction order was issued.  We describe in detail each hearing and each order to determine whether the respondent attorney had an opportunity to be heard.

A.  First Hearing, April 13, 1998
     Due to delays in serving the formal complaint on the respondent attorney, the twenty days allowed to answer the complaint by Disciplinary Rule 5(c) had not yet elapsed by the scheduled time of the formal hearing, April 13, 1998, which under Rule 5(b) was set within 30 days of the formal complaint's filing.  That hearing then largely became a scheduling conference.  Both the disciplinary counsel and the respondent attorney were present.  Disciplinary counsel discussed the need for further discovery.  Early in the hearing, the reviewing justice stated that "the Rules also provide for possible compromises or settlement."  Tr. at 4 (Apr. 13, 1998). Later the justice added that "I think the rule provides for) what compromises or settlement) it's always possible and always encouraging."  Id. at 9.  Dates were set for discovery cutoff and for the formal hearing.  The respondent attorney filed a pro se answer on April 30, 1998.

[9 FSM Intrm. 169]

B.  Second Hearing, August 17, 1998
     At the August 17, 1998 formal hearing the respondent attorney and disciplinary counsel presented the court with an agreed disposition of the complaint by which the respondent would not contest the charges and in return only a private reprimand would be imposed.  The disciplinary counsel announced that, based on the respondent attorney's answer and disciplinary counsel's further investigation, that there was a factual basis for the complaint's charges.  Tr. at 2 (Aug. 17, 1998). The reviewing justice inquired about the agreed disposition.  The disciplinary counsel described the proposed sanction and agreed that the reviewing justice was not obligated to accept it if the justice found the allegations of misconduct proven.  The respondent attorney's response was

to respectfully remind the Court that during our last hearing, there was a mention to the effect that the parties can, by agreement dispose of the case.  This is not the correct phraseology used but at least I was led to believe that, if there was an agreed disposition of the case, the party could make that proposal to the court.  And so I hope that the proposed disposition of the case it's in line with the instructions of this court during the last hearing.

Id. at 10.  The respondent attorney further stated, "I agreed to both recommendations based on the fact that I did not have time to verify the facts.  So I'd rather have this case just disposed of, even without going through the checking."Id. at 11.  The respondent added, "I opted) if my recollection serves me well, I did withdrawal [sic] before I represent) . . . .  But that's besides the point, because I already accepted the proposed disposition."  Id. at 12.  The respondent attorney acknowledged that the reviewing justice was not bound by the agreed disposition and could reject it, but assumed that the reviewing justice would accept it because the justice had "alluded to possible settlement of the matter."  Id. at 13.

     The reviewing justice inquired what would happen if the agreed disposition was not accepted.  The respondent attorney replied that "I, indicated to the Disciplinary Counsel that I'll would have ) if the hearing is proceeded then I would have to call some witnesses."  Id. at 15.  The disciplinary counsel stated that "Disciplinary Counsel would be ready because the essential allegations have been admitted in the answer.  So that as far as having to put on witnesses, the Disciplinary Counsel have to call witnesses based on the admissions and statements in the record."  Id. The disciplinary counsel then asked, "So for clarification, would the Court be suggesting that we proceed on both elements?  I guess I'm not clear as to would be the purpose of the hearing."  Id. at 16.  The reviewing justice's response was that the court could "take several actions one of which could be a rejection of the proposal and even that [sic] what do we do . . . to [sic] we go ahead with the hearings or to reschedule for future hearings or discussions[?]  I'm just thinking aloud."  Id.  In reply, the disciplinary counsel stated that there had been no discussion with the respondent attorney about "what would be done if the Court rejected the proposed sanction."  Id.  The justice made no ruling and, ending the hearing, took the matter under advisement.  Id. at 16-17.

C.  Order of September 2, 1998
     The reviewing justice's September 2, 1998 order found the charges that the respondent attorney had violated FSM MRPC Rules 1.7 and 1.16(d) were proven by clear and convincing evidence.  The reviewing justice stated that this finding was based upon "the complaint, the respondent's answer to the complaint, and the `proposed disposition' of the case which was presented to the Court during the August 17, 1998 hearing as well as the additional statements made by the disciplinary counsel and respondent attorney during the August 17, 1998 hearing." Order at 3 (Sept. 2, 1998).  The reviewing justice also stated that this conclusion was "[b]ased upon the statements made during the August 17,

[9 FSM Intrm. 170]

1998, hearing as well as the complaint . . . and [the] answer to that complaint."  Id. at 12.  The reviewing justice rejected the proposed disposition and set a hearing for September 9, 1998 to determine the appropriate discipline for the respondent attorney.  Id. at 20.

D.  Third Hearing, September 9, 1998
     Before that hearing, but on the same day, the respondent attorney filed a motion that explained that the former disciplinary counsel1 had agreed to recommend a private reprimand if the respondent attorney admitted to violating Model Rules 1.7 and 1.16, but that since that proposal had been rejected the respondent attorney now sought to present evidence to show that Model Rules 1.7 and 1.16(d) had not been violated.  Attached to the motion was a file-stamped copy of a Notice of Withdrawal as Counsel2 with a date that the respondent attorney said showed that there had been no simultaneous representation of the complainant and of another client in a different case where that other client's interests were directly adverse to the complainant's and thus no conflict of interest.  The respondent attorney elaborated on the motion orally and asserted that the complainant had been given advance notice3 of the withdrawal and that the withdrawal had taken place before the representation of someone adverse.  Tr. at 2-3 (Sept. 9, 1998).  No one presented any witnesses.  The new disciplinary counsel's position was that the issue of proof of the respondent attorney's misconduct had already been decided by the justice's September 2nd order and recommended a year's suspension and other conditions.  The reviewing justice ended the hearing by taking the matter under advisement.

E.  Order of September 14, 1998
     On September 14, 1998, the reviewing justice issued a second order.  It recited the events at the hearing and concluded that even after considering the respondent attorney's information there was still clear and convincing evidence of the respondent attorney's misconduct.  The order suspended the respondent attorney from the practice of law for one year and imposed other discipline.  The respondent attorney then obtained counsel and appealed.

III.  Respondent Attorney's Contentions
     The respondent attorney contends on appeal that the suspension from the practice of law and other discipline was imposed without the respondent attorney first being afforded the constitutional right to due process of law because the respondent attorney was denied the opportunity to present a defense at a full evidentiary hearing, because the respondent attorney was denied the presumption of

[9 FSM Intrm. 171]

innocence in a quasi-criminal hearing, because documentary evidence and testimony against the respondent attorney were not disclosed on the record, because the respondent attorney was deprived of the due process guaranteed by the Civil Rules and the Disciplinary Rules generally, because the rules governing admissibility of evidence were not applied, and because the reviewing justice suspended the respondent attorney without the respondent attorney's alleged misconduct having been proven by clear and convincing evidence and without the support of any evidentiary or factual record.  For relief the respondent attorney asks that the reviewing justice's orders finding ethical violations by, and imposing discipline on, the respondent attorney be vacated and that the matter be remanded for further action.

IV.  Discussion
     "A disbarment proceeding is adversarial and quasi-criminal in nature and the moving party bears the burden of proving all elements of a violation."  In re Medrano, 956 F.2d 101, 102 (5th Cir. 1992); see also In re Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 1226, 20 L. Ed. 2d 117, 122 (1968).  We hold that the same is true when an attorney disciplinary proceeding results in a lesser sanction.  See In re Thalheim, 853 F.2d 383, 388 (5th Cir. 1988) (attorney suspension hearing). Any disciplinary proceeding has the potential to end in disbarment or suspension. The disciplinary counsel's burden is to prove attorney misconduct by clear and convincing evidence.  FSM Dis. R. 5(e).  These principles are important to the following discussion.

A.  The First Hearing
     During the first hearing, the reviewing justice alluded to the rules providing for, and appeared to encourage, a compromise or settlement of the disciplinary charges.  But the FSM Disciplinary Rules do not encourage settlement or compromise between disciplinary counsel and the respondent attorney.  The only place either word is mentioned is in Rule 6, which only refers to settlements between a complainant and the respondent attorney and provides that such settlements, in themselves, do not justify abatement of the disciplinary proceeding. The suggestion of settlement and compromise was thus a plain error of law. Nevertheless, both attorneys followed this suggestion and "settled" the case with a proposed disposition, which they presented at the second hearing.

B.  The Second Hearing
     The second hearing was scheduled as the formal hearing required by the rules. FSM Dis. R. 5(d).  It was at this hearing that the disciplinary counsel and the respondent attorney presented their proposed disposition of the case.  We conclude that this hearing cannot qualify as the formal hearing required by the rules.

     When the reviewing justice inquired about what would happen if he did not accept the proposed disposition, both the respondent attorney and the disciplinary counsel indicated that each would need to call witnesses.  The hearing ended without any indication whether the proposed sanction would be accepted.  Thus neither the respondent attorney nor the disciplinary counsel had the opportunity to present the witnesses that each indicated they might have to if the proposed disposition was rejected by the reviewing justice.  (Apparently, neither came to the hearing prepared to present such witnesses or evidence,4 evidently relying on the assumption, which may have come from the first hearing, that the reviewing justice would accept the proposed disposition.)  The transcript shows that both the

[9 FSM Intrm. 172]

respondent attorney and disciplinary counsel seemed to expect that there would be an evidentiary hearing if the reviewing justice rejected the proposed disposition. Even the justice seemed uncertain whether to go ahead with a hearing if the proposal was rejected.  The August 17th hearing obviously was not the full evidentiary hearing contemplated by Rule 5(b).

C.  September 2, 1998 Order's Conclusion
     The reviewing justice's September 2, 1998 order rejected the proposed sanction, as the reviewing justice had every right to do.  But that order did not then schedule a formal hearing that would allow the respondent attorney to call defense witnesses, which the respondent attorney had indicated would be needed, or the disciplinary counsel to present evidence.  That order instead concluded that the allegations of the respondent attorney's misconduct had been proven by clear and convincing evidence.

     1.  Disciplinary Counsel's Second Hearing Statements
     As already mentioned, the reviewing justice based this conclusion in part on the disciplinary counsel's statements at the August 17, 1998 hearing.  Order at 3, 12 (Sept. 2, 1998).  The disciplinary counsel's statements were based on the respondent attorney's answer to the complaint and the disciplinary counsel's further investigation.  Tr. at 2 (Aug. 17, 1998).  As evidence of this further investigation's results, the disciplinary counsel invited the court to take judicial notice of the absence of a substitution of counsel in the state court's records of a case.  Id. at 4. The contents of the disciplinary counsel's further investigation have never been a part of the record.  Any reliance on the further investigation would thus be improper.Thomson v. George, 8 FSM Intrm. 517, 523 (App. 1998) (violation of litigant's constitutional right to due process to rely on map not a part of the record); Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 669 (App. 1996) (violation of constitutional due process for trial court to rely on a special master's report, not a part of the record).  It is also improper for counsel to argue facts only within the counsel's knowledge and not in the record.  75A Am. Jur. 2d Trial 613 (1991). Thus any reliance by the reviewing justice on the disciplinary counsel's statements about the further investigation is improper.

     The respondent attorney's answer is, of course, a part of the record.  The disciplinary counsel's statements concerning that answer constitute argument of counsel, not evidence.  Only the answer itself is admissible evidence.  Accordingly, any reliance by the reviewing justice on the disciplinary counsel's August 17th hearing statements would be improper.

     2.  Proposed Disposition Presented August 17, 1998
     Other evidence upon which the reviewing justice's September 2nd order was based was the proposed disposition presented at the August 17, 1998 hearing. Order at 3 (Sept. 2, 1998).  At the August 17th hearing the respondent attorney either denied actually committing the alleged misconduct or was unsure without checking.  Tr. at 11-12 (Aug. 17, 1998).  Such equivocation is not an admission of professional misconduct.  The respondent attorney's statements show that any admissions of misconduct were only for the purpose of the reviewing justice's approval of the proposed disposition ) if it was not accepted, the respondent attorney would have to call defense witnesses.  Id. at 15.  Any reliance on the "proposed disposition" to prove the respondent attorney's misconduct would thus be improper.  It is inadmissible under FSM Evidence Rules 410 and 408, which bar the admission of pleas, plea discussions, and related statements and compromises and offers to settle, respectively.

[9 FSM Intrm. 173]

     3.  The Other Evidence
     This leaves only the complaint, its answer, and the respondent attorney's statements at the August 17th hearing as evidence that the reviewing justice might properly have relied on to prove the respondent attorney's professional misconduct.  Assuming, as the disciplinary counsel contends, that the reviewing justice relied only on this evidence, would it meet the standard of proof?  "The standard of proof for establishing allegations of misconduct shall be clear and convincing evidence."  FSM Dis. R. 5(e).  Clear and convincing evidence is a higher burden of proof than mere preponderance of the evidence, Meitou v. Uwera, 5 FSM Intrm. 139, 142 (Chk. S. Ct. Tr. 1991); Idaho State Bar v. Topp, 925 P.2d 1113, 1115 (Idaho 1996); Estate of Ragen, 398 N.E.2d 198, 203 (Ill. App. Ct. 1979); In re Martin, 538 N.W.2d 399, 410 (Mich. 1995) ("the clear and convincing evidence standard [is] the most demanding standard applied in civil cases"), but not quite as high as beyond a reasonable doubt.  United States v. Barnett, 986 F. Supp. 385, 403 (W.D. La. 1997); Pate v. Columbia Mach. Inc., 930 F. Supp. 451, 466 (D. Idaho 1996); Miller v. Commissioner of Corrections, 700 A.2d 1108, 1132 (Conn. 1997); In re K.A., 484 A.2d 992, 995 (D.C. App. 1984); In re Caulfield, 683 So. 2d 714, 717 (La. 1996); Louisiana State Bar Ass'n v. Edwins, 329 So. 2d 437, 442 (La. 1976).  "To be `clear and convincing' evidence must be of `extraordinary persuasiveness.'"  State v. Gjerde, 935 P.2d 1224, 1226 (Or. Ct. App. 1997); State v. Sea, 904 P.2d 182, 184 (Or. Ct. App. 1995).  "`Clear and convincing evidence' means evidence establishing that the truth of the facts asserted is highly probable."  In re Cohen, 853 P.2d 286, 287 (Or. 1993) (appellate court reversed lower tribunal finding of no sanction and disciplined attorney with reprimand).

The "clear and convincing" evidentiary standard is . . . that weight of proof which "produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts" of the case.

In re Medrano, 956 F.2d at 102 (attorney disbarment reversed because preponderance of the evidence standard used instead of clear and convincing standard) (quoting Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 285 n.11, 110 S. Ct. 2841, 2855 n.11, 111 L. Ed. 2d 224, 246 n.11 (1990)); see also In re Jobes, 529 A.2d 434, 441 (N.J. 1987); State v. Hodge, 471 A.2d 389, 393 (N.J. 1984); In re Chiorero, 570 A.2d 57, 60 (Pa. 1990) (judicial disciplinary proceeding).  Perhaps the concept of clear and convincing evidence and its relationship to the other burdens of proof is best explained by the following:

A proposition proved by a preponderance of the evidence is one that has been found to be more probably true than not.  Clear and convincing evidence, on the other hand, reflects a more exacting standard of proof.

While it has been defined as evidence which leaves the mind well-satisfied of the truth of a proposition, strikes all minds alike as being unquestionable, or leads to but one conclusion, proof by clear and convincing evidence has most often been defined as the quantum of proof which leaves no reasonable doubt in the mind of the trier of fact as to the truth of the proposition in question.  It is apparent, however, that, although stated in terms of reasonable doubt, clear and convincing evidence is considered to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense. The spectrum of increasing degrees of proof, from preponderance of the evidence, to clear and convincing evidence, to beyond a reasonable doubt is widely recognized, and it has been suggested that the standard of proof required would be clearer if the degrees of proof were defined, respectively, as probably true,

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     highly probably true and almost certainly true.

Estate of Ragen, 398 N.E.2d at 203 (citations omitted); see also Edward W. Cleary et al., McCormick on Evidence 340 (3d ed. 1984) ("a more exacting measure of persuasion").  Would the remaining admissible evidence ) the respondent attorney's answer to the complaint and the respondent attorney's statements at the August 17th hearing ) meet the clear and convincing standard?

     The key allegations in the disciplinary counsel's formal complaint were contained in paragraphs nine and eleven through fifteen.  The respondent attorney's answer denied paragraph fifteen outright, admitted some of the facts in paragraphs eleven, twelve and thirteen but denied the relevant dates that are key to the issue of simultaneous representation, and denied that the allegations in paragraphs thirteen and fourteen constituted violations of the Model Rules of Professional Conduct while admitting the filing of papers alleged in paragraph thirteen and the representation of persons alleged in paragraph fourteen.  The answer also admitted paragraph nine but gave a lengthy series of reasons of why it would have been unreasonable to consult with the complainant before filing the notice of withdrawal.  As seen above, the respondent attorney's statements at the August 17th hearing also contained a denial of simultaneous representation as well as statements that the disposition was agreed to in order to end the case and that the respondent attorney had every reason to believe that the agreement would end the case and to believe that that is how the court wanted the case ended.

     Could the respondent attorney's answer and August 17th hearing statements constitute clear and convincing evidence of professional misconduct when those "admissions" were each and every time coupled with denials, excuses, justifications, or qualifications?  "Evidence may be uncontroverted, and yet not be `clear and convincing.'"  In re Jobes, 529 A.2d at 441.  "Conversely, evidence may be `clear and convincing' despite the fact it has been contradicted."  Id.  We do not resolve this issue because the respondent attorney prevails on the following procedural due process issue.

V.  Due Process
     Neither the August 17, 1998 hearing nor the September 9, 1998 hearing can qualify as the full evidentiary hearing contemplated by Rule 5(b).  The August 17th hearing cannot qualify because it was not an evidentiary hearing ) neither side had an opportunity to present evidence.  Admittedly, neither side seemed to come fully prepared to present evidence, evidently expecting that the reviewing justice would accept the proposed disposition.  Both sides were at fault there.  The September 9th hearing cannot qualify because the decision finding the allegations of misconduct proven had been made and announced before the hearing was held. Such a hearing must take place before the decision is made.  Otherwise it is a denial of due process.  Cf. Senda, 7 FSM Intrm. at 669 (constitutional error for trial court to rely on report, without prior notice to and opportunity for the parties to comment on it); Moore v. California Minerals Prods. Corp., 252 P.2d 1005, 1007 (Cal. Dist. Ct. App. 1953) (party against whom the decision impends is denied due process if not afforded opportunity to be heard before decision is announced). The September 2nd order not only cut off the respondent attorney's opportunity to present a defense it also denied the disciplinary counsel an opportunity to present what further evidence there was to support the misconduct allegations.

     Accordingly, we conclude that the respondent attorney was not afforded the procedural due process provided for in the FSM Disciplinary Rules.

VI.  Conclusion
     The reviewing justice's orders of September 2, and September 14, 1998 are hereby vacated with the exception of the reviewing justice's rejection of the proposed disposition.  That rejection may stand.  

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This matter is remanded to the reviewing justice.  The reviewing justice shall within 30 days of the issuance of the mandate, or as soon thereafter as reasonably practicable, schedule the formal hearing on this disciplinary complaint.  At that hearing, the disciplinary counsel shall come prepared to present its case and the evidence and witnesses, if any, in support of the allegations.  The respondent attorney shall come prepared to present evidence and witness, if any, in defense of the charges.  The proceedings shall be in conformity with the FSM Disciplinary Rules and the FSM Rules of Evidence.

     Pursuant to the Congressional mandate of 4 F.S.M.C. 121 this appellate opinion shall be published.  Since this is a continuing disciplinary matter, confidentiality has been maintained in the spirit of the rules, FSM Dis. R. 5(a) (proceedings before reviewing justice to be confidential); FSM Dis. R. 5(h) (confidentiality of reviewing justice's decision), by the omission of names and identifying characteristics.
 
 
Footnotes:
 
1.  A new disciplinary counsel had been appointed on August 27, 1998 because the first one had left the country.

2.  This document was alleged in the formal complaint and admitted in the answer.

3.  The reviewing justice found that the respondent attorney had withdrawn from representing the complainant without giving advance notice.  Order at 14 (Sept. 2, 1998).  Rule 1.16(d) requires that "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client . . . ."  We express no view whether and under what circumstances there can be reasonable notice upon termination that is not advance notice.  We note that the rule requires only reasonable notice and that, although they were termed "irrelevant assertions," Order at 5 (Sept. 14, 1998), the respondent attorney's personal safety fears may have some bearing on interpreting and applying the "take steps to the extent reasonably practicable" and the "giving reasonable notice" clauses in Rule 1.16(d).

4.  The disciplinary counsel, evidently completely confident that the reviewing justice would accept the proposed disposition and that no presentation of witnesses or further evidence would be necessary, had asked that the August 17th hearing be held by telephone.  That request was denied.
 
                                                                                                                                                                                                                                                                                                           
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