Disciplinary Complaint After Missed Hearings
Advocate Marat, licensed for eight years, accepts a divorce and property case with a total fee of 120,000 som. The client pays 50,000 som upfront. Marat misses hearings on 12 May and 26 May without notifying the court. On 12 May he says he was hospitalised from 10 to 20 May, but he produces no sick note and does not ask for an adjournment. On 26 May he was in another region on a different case and sent no substitute. The client files a disciplinary complaint with the Chamber. The commission schedules a hearing for 10 June and sends notice by email on 8 June; Marat says he did not see it. The client has paid no balance. Marat now wants to withdraw from the case and keep the 50,000 som.
1. Assess Marat’s disciplinary liability and the fairness of the scheduled hearing. What should the commission examine before deciding?
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Marat’s conduct prima facie breaches professional duties: he missed two hearings without notifying the court, failed to arrange a substitute or adjournment, and left the client unrepresented. The first absence may be mitigated if he was genuinely hospitalised, but he must prove it and should have notified the court as soon as practicable. The second absence is harder to excuse: being in another region on another case is a scheduling choice, not an emergency, and he still had a duty to inform the court and client. Repeated non-appearance can amount to neglect and justify a disciplinary sanction.
Procedural fairness: notice sent by email only two days before the hearing may be insufficient, especially if the rules require a longer period or personal delivery. The commission should check its notice rules, whether Marat had agreed to email service, whether the email bounced, and whether he had an opportunity to prepare. A disciplinary sanction imposed without adequate notice is vulnerable. The commission should grant a short postponement if Marat shows he did not receive notice, while preserving the complaint.
The commission should examine: the court file and hearing records; any hospital evidence; Marat’s notifications to the court and client; the fee agreement; whether the client suffered prejudice, such as a default or lost evidence; and whether Marat has a prior disciplinary record. It should distinguish negligence from dishonesty and from a mere fee dispute.
2. What sanctions and fee consequences are proportionate, and how should mitigation be weighed?
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Proportionality depends on harm, intent and history. A first disciplinary finding for missed hearings with no proven dishonesty may justify a warning, reprimand or a fine, rather than suspension. Suspension is more defensible if Marat repeatedly failed to appear, concealed the absences, or caused the client to lose the case. The commission should explain why the chosen sanction fits the facts; a blanket suspension for a single excused absence would be disproportionate.
Mitigation: eight years without prior complaints; genuine hospitalisation for the first absence if documented; cooperation with the commission; willingness to remediate. Aggravation: the second absence was foreseeable; no substitute was arranged; the client was left uninformed; Marat now seeks to keep the entire advance despite not completing the work.
Fee consequences: the 50,000 som is an advance, not automatically earned. Marat is entitled only to reasonable remuneration for work actually and properly performed. If he withdraws, he must account for the unused portion and return it. He cannot unilaterally keep the full sum as a penalty. The commission may not be the body that finally decides the civil fee dispute, but it can consider whether retention of the advance is compatible with professional conduct and refer the parties to civil proceedings if needed. A refund offer is strong mitigation; a demand to keep everything is aggravating.
3. What should Marat do now, and what should the commission decide at the 10 June hearing?
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Marat should immediately: (1) write to the court explaining the absences, provide any medical evidence and request permission to withdraw only if substitute counsel is in place or the client consents; (2) write to the client with an accounting of the 50,000 som, offer a refund of the unearned portion and explain the status of the case; (3) ask the commission for a postponement if he did not receive timely notice, attaching evidence of non-receipt; (4) attend the hearing even if he seeks a postponement, because absence worsens the record; (5) consider a colleague to cover the case so the client is not prejudiced.
At the 10 June hearing, the commission should first decide the notice issue. If notice was defective, it should adjourn to a new date with proper service and a clear warning that further absence may be treated as waiver. If notice was adequate, it should hear both sides, examine the court file and medical evidence, and decide whether the first absence was excused and the second was not. It should issue a reasoned decision on sanction and address the fee complaint separately or refer it to civil dispute resolution. The commission should not allow Marat to use withdrawal as a way to escape scrutiny, and should protect the client’s right to a continuing representative.