ELC 10.6
                     DEFAULT PROCEEDINGS


(a) Entry of Default.

  (1) Timing.  If a respondent lawyer, after being
     served with a notice to answer as provided in rule
     10.4, fails to file an answer to a formal complaint or
     to an amendment to a formal complaint within the time
     provided by these rules, disciplinary counsel may serve
     the respondent with a written motion for an order of
     default.

  (2) Motion.  Disciplinary counsel must serve the
     respondent with a written motion for an order of
     default and a copy of this rule at least five days
     before entry of the order of default.  The motion for
     an order of default must include the following:

     (A) the dates of filing and service of the notice to
         answer, formal complaint, and any amendments to the
         complaint; and

     (B) disciplinary counsel’s statement that the
         respondent has not timely filed an answer as
         required by rule 10.5 and that disciplinary counsel
         seeks an order of default under this rule.

  (3) Entry of Order of Default.  If the respondent
     fails to file a written answer with the Clerk within
     five days of service of the motion for entry of an
     order of default, the hearing officer, or if no hearing
     officer or panel has been assigned, the chief hearing
     officer, on proof of proper service of the motion,
     enters an order finding the respondent in default.

  (4) Effect of Order of Default.  Upon entry of an
     order of default, the allegations and violations in the
     formal complaint and any amendments to the complaint
     are deemed admitted and established for the purpose of
     imposing discipline and the respondent may not
     participate further in the proceedings unless the order
     of default is vacated under this rule.

(b) Proceedings After Entry of an Order of Default.

  (1) Service.  The Clerk serves the order of default
     and a copy of this rule under rule 4.2(b).

  (2) No Further Notices.  After entry of an order of
     default, no further notices must be served on the
     respondent except for copies of the decisions of the
     hearing officer or hearing panel and the Board.

  (3) Disciplinary Proceeding.  Within 60 days of the
     filing of the order of default, the hearing officer
     must conduct a disciplinary proceeding to recommend
     disciplinary action based on the allegations and
     violations established under section (a).  At the
     discretion of the hearing officer or panel, these
     proceedings may be conducted by formal hearing, written
     submissions, telephone hearing, or other electronic
     means.  Disciplinary counsel may present additional
     evidence including, but not limited to, requests for
     admission under rule 10.11(b), and depositions,
     affidavits, and declarations regardless of the
     witness’s availability.

(c) Setting Aside Default.

  (1) Motion To Vacate Order of Default.  A respondent
     may move to vacate the order of default and any
     decision of the hearing officer or panel or Board
     arising from the default on the following grounds:

     (A) mistake, inadvertence, surprise, excusable neglect,
         or irregularity in obtaining the default;

     (B) erroneous proceedings against a respondent who was,
         at the time of the default, incapable of conducting
         a defense;

     (C) newly discovered evidence that by due diligence
         could not have been previously discovered;

     (D) fraud, misrepresentation, or other misconduct of an
         adverse party;

     (E) the order of default is void;

     (F) unavoidable casualty or misfortune preventing the
         respondent from defending; or

     (G) any other reason justifying relief from the
         operation of the default.

  (2) Time.  The motion must be made within a reasonable
     time and for grounds (A) and (C) within one year after
     entry of the default.  If the respondent's motion is
     based on allegations of incapability of conducting a
     defense, the motion must be made within one year after
     the disability ceases.

  (3) Burden of Proof.  The respondent bears the burden
     of proving the grounds for setting aside the default.
     If the respondent proves that the default was entered
     as a result of a disability which made the respondent
     incapable of conducting a defense, the default must be
     set aside.

  (4) Service and Contents of Motion.  The motion must
     be filed and served under rules 4.1 and 4.2 and be
     accompanied by a copy of respondent's proposed answer
     to each formal complaint for which an order of default
     has been entered.  The proposed answer must state with
     specificity the respondent's asserted defenses and any
     facts that respondent asserts as mitigation.  The
     motion to vacate the order of default must be supported
     by an affidavit showing:

     (A) the date on which the respondent first learned of
         the entry of the order of default;

     (B) the grounds for setting aside the order of default;
         and

     (C) an offer of proof of the facts that the respondent
         expects to establish if the order of default is
         vacated.

  (5) Response to Motion.  Within ten days of filing and
     service of the motion to vacate, disciplinary counsel
     may file and serve a written response.

  (6) Decision.  The hearing officer or panel decides a
     motion to vacate the order of default on the written
     record without oral argument.  If the proceedings have
     been concluded, the chief hearing officer assigns a
     hearing officer or panel to decide the motion.  Pending
     a ruling on the motion, the hearing officer or panel
     may order a stay of proceedings not to exceed 30 days.
     In granting a motion to vacate an order of default, the
     hearing officer or panel has discretion to order
     appropriate conditions.

  (7) Appeal of Denial of Motion.  A respondent may
     appeal to the Chair a denial of a motion to vacate an
     order of default by filing and serving a written notice
     of appeal stating the arguments against the hearing
     officer or panel's decision.  The respondent must file
     the notice of appeal within ten days of service on the
     respondent of the order denying the motion.  The appeal
     is decided on the written record without oral argument.
     Pending a ruling on the appeal, the Chair may order a
     stay of proceedings not to exceed 30 days.  In granting
     a motion to vacate an order of default, the Chair has
     discretion to order appropriate conditions.

  (8) Decision To Vacate Is Not Subject to Interim
     Review.  An order setting aside an order of default is
     not subject to interim review.

(d) Order of Default Not Authorized in Certain Proceedings.
The default procedure in this rule does not apply to a
proceeding to inquire into a lawyer's capacity to practice
law under title 8 except as provided in that title.


[Adopted effective October 1, 2002.]