Reinstatement of Disbarred Lawyers - March 2001
To: The Supreme Court of New Jersey
From: The New Jersey State Bar Association
Date: March 23, 2001
Subj: Report and Recommendations-Reinstatement of Disbarred Lawyers
The New Jersey State Bar Association hereby submits to the Supreme Court a report that recommends the adoption of rules permitting disbarred lawyers to apply for reinstatement to practice. The report was adopted by unanimous vote of the NJSBA Board of Trustees on March 9, 2001.
Pursuant to our recommended rules, the Supreme Court would have the authority to order the reinstatement of anyone who has been disbarred for at least five years and has proven that he or she has been rehabilitated and represents no threat to the public. We recommend that applications for reinstatement be permitted without regard to the misconduct that led to disbarment. The centerpiece of the NJSBA's report is a demanding reinstatement process intended to weed out all but the most deserving applicants. We anticipate that reinstatement would be ordered sparingly by the Court and that a substantial majority of disbarments will continue to be permanent. Nevertheless, the NJSBA believes that a reinstatement mechanism is in the best interests of the bar, and the public. Our findings and suggested rule amendments follow.
In October 2000, NJSBA President Barry Epstein appointed a committee for the purpose of determining whether it might be appropriate, and feasible, to alter New Jersey's current policy of permanent disbarment.
The committee examined the disbarment rules and procedures in other states, gathered statistics and information from the American Bar Association and other sources, reviewed articles and commentary on the subject, and looked at the manner in which New Jersey's professional boards impose discipline.
The committee recommended to the NJSBA Board of Trustees rules that would: (a) give the Supreme Court discretion to order reinstatement, (b) establish a rigorous reinstatement process, (c) not alter the vigilant posture of the Court in attorney disciplinary matters, and (d) serve the interests of the bar, and the public, in facilitating the reinstatement of lawyers who have been fully rehabilitated.
The Policy in Other States
New Jersey is one of a handful of states that does not permit, under any circumstances, the reinstatement of lawyers who have been disbarred. According to the American Bar Association, only ten states have some form of permanent disbarment. In New Jersey, Ohio, Oregon, Kentucky, Iowa and Indiana disbarment is truly permanent. In California and Florida, rules permit permanent disbarment where circumstances so warrant. Otherwise, reinstatement in those two states is permitted after five years. In Alabama, a second disbarment will result in permanent disbarment. In Illinois, reinstatement generally is permitted after disbarment, but there is also case law permitting permanent disbarment. In the remaining forty states, reinstatement is permitted after a lawyer has been "disbarred", usually for a period of five years. See attached the relevant portions of Survey on Lawyer Disciplinary Systems 1997 (since that survey, Kentucky switched to permanent disbarment; also we understand that Kansas is incorrectly listed as having case law permitting permanent disbarment).
Reinstatement following disbarment is, however, a rare occurrence, despite the fact that it is permitted in forty states. The ABA survey cited above reveals that in 1997 only 25 motions for reinstatement were granted nationwide. Unfortunately, the ABA survey does not state the number of motions for reinstatement filed by disbarred lawyers because many states do not keep this statistic. Instead, the survey lumps together motions for reinstatement from both suspensions and disbarment. In any event, the ABA statistics reveal that, at least in this past decade, reinstatement has become rare. We recognize that there was a period when many states were viewed as having a "revolving door" reinstatement process. This is no longer the case, and certainly would not be under the NJSBA's proposal.
However, the NJSBA did obtain some further statistics from two states with lawyer populations roughly similar to New Jersey's. In Illinois, for instance, thirty-two motions for reinstatement were filed by disbarred lawyers between 1995 and 1999. Eleven of these were granted, six denied, and fourteen withdrawn. In Maryland, between 1990 and 1999 fifty disbarred lawyers petitioned for reinstatement, and twenty-five of these applications were granted. Thus, it appears that a reinstatement process in New Jersey is unlikely to create an administrative burden for the Supreme Court or the disciplinary system.
The American Bar Association Position
The American Bar Association has adopted Model Rules for Lawyer Disciplinary Enforcement that allow a disbarred lawyer to petition for reinstatement after five years from the date of disbarment. The Model Rules require that a lawyer seeking reinstatement show rehabilitation by meeting criteria set forth in the rules. Further, the rules require a hearing at which the lawyer must prove that he or she has met the criteria by clear and convincing evidence. The rules also permit the court considering the petition to impose appropriate conditions on reinstatement, such as practicing under a mentor, or attendance at CLE courses. The commentary accompanying the rule states that "…the purpose of lawyer discipline is not to punish", therefore reinstatement may be appropriate under certain circumstances even though there is a "presumption against reinstatement."
How Other Professionals Are Disciplined in New Jersey
Discipline of the professions and occupations falling under the oversight of the Division of Consumer Affairs in the Office of Attorney General is governed by statute. N.J.S.A. 45:1-14 et seq. provides for uniform enforcement powers and procedures for the imposition of discipline. Professional and occupational boards are by statute and their own rules accorded a wide variety of alternatives ranging from license revocation and suspension to the issuance of reprimands, the imposition of monetary sanctions, and conditions on return to practice. Reinstatement is permitted following a revocation of license upon reapplication to the appropriate board. However, boards have the option of permanently revoking a license. For a comprehensive example of the variety of penalties that may be imposed, see the report of the Board of Medical Examiners, vol. 2, no. 2, Spring 1998, http://www.state.nj.us/lps/ca/home.htm.
Why a Reinstatement Policy Makes Sense
The New Jersey Supreme Court has recognized that the purpose of disciplining lawyers is not to punish an offender but to protect the public from those who fail to live up to the standards of professional responsibility that govern the bar. In re Sears, 71 N.J. 175 (1976); In re Stout, 75 N.J. 321 (1978); In re Getchius, 88 N.J. 269 (1982); In re Okoniewski , 118 N.J. 468 (1990). Yet, the fact remains that the harshest punishment - permanent banishment from the profession -- is often meted out to New Jersey lawyers. In this regard, the Court has decided a number of disciplinary cases that presented difficult choices -- Matter of Greenberg, 155 N.J. 138 (1998); In re Konopka, 126 N.J. 225 (1991); In re Warhaftig,, 106 N.J. 529 (1987); In re Hein, 104 N.J. 297 (1986) to note but a few. These matters were made all the more difficult because of the specter of permanent disbarment.
These cases make it evident to the NJSBA that despite the fact that a lawyer may have committed a serious violation of the Rules of Professional Conduct, he or she should not face the prospect of being forever denied the ability to practice law, particularly in the presence of mitigating circumstances and where rehabilitation can be established.
The public interest would not suffer if our proposal is adopted by the Supreme Court. The Court would have the authority to reject any application for reinstatement if it believed that readmission would pose a threat to clients, the profession, or the public. We do not advocate the reinstatement of all lawyers who have been disbarred. It is not our intention to create a revolving door that sweeps lawyers out of the profession, and then back in on a regular basis. That type of process would undermine the credibility of our disciplinary system. Rather, we propose a tightly structured process that would, in all probability, result in a limited number of reinstatements. Why then pursue the issue? Because even though a lawyer may have engaged in a significant breach of the Rules of Professional Conduct, the potential for rehabilitation exists in some cases, particularly those involving strong mitigating factors. Although many disciplinary matters present clear reasons for permanent disbarment, the bar, the public, and the Court should be willing to grant a second chance to those deserving of one.
As mentioned above, disbarred lawyers in most other states have the right to petition for reinstatement. Similarly, other professionals in New Jersey, while subject to a wide array of disciplinary sanctions, including license revocation, have the ability to apply for reinstatement. A reinstatement process for lawyers would open the door only to worthy candidates who prove their rehabilitation and fitness to resume practice
The premise behind permanent disbarment is to protect the public. Permanent disbarment, however, also discounts any possibility for character reform and rehabilitation that may emerge after a period of time away from the law following disbarment. The possibility of reinstatement gives a lawyer an incentive to change and again become someone in whom clients and colleagues can place their trust.
As Justice Stein stated in Matter of Greenberg, "[T]he Court should exercise caution and restraint in considering the extent to which it should apply rigid, bright-line rules in attorney disciplinary proceedings. Disbarment is the most unforgiving discipline, and it condemns every lawyer on whom it is imposed to a life sentence of professional disgrace. In New Jersey, unlike most other states, disbarment is permanent and its stigma is ineradicable." 155 N.J. at 164.
We respectfully suggest that the time has come for the Supreme Court to reconsider its long-standing position on permanent disbarment so that all disbarred lawyers do not suffer the lifelong disgrace referred to by Justice Stein. One argument against our proposal comes from those who claim that a relaxation of disbarment policy will threaten public confidence in the bar and the administration of justice. Such critics have not presented any empirical evidence that the introduction of a reinstatement process would have a negative impact on public perception of New Jersey's lawyers and courts, or that because we currently do not permit reinstatement that public perception is higher than in neighboring states. A reinstatement procedure based on compassion and redemption will not tarnish the reputation of the bar and bench, rather, it will be recognized by the public as a fair and reasonable alternative to our current inflexible rule.
What standard shall the Court use in deciding reinstatement applications? There is a long line of disciplinary cases that discuss "individualized discipline" that takes into account the nature of the misconduct, and the presence of mitigating and aggravating factors. See In re Goldberg, 142 N.J. 557 (1995); In re Messenger, 133 N.J. 173 (1993); In re Alioso, 99 N.J. 84 (1985); In re Hoerst, 135 N.J. 98 (1994); In re Weston, 118 N.J. 477 (1990); In re Silverman, 113 N.J. 193 (1988). We recommend that if the Court decides to permit reinstatement that it not apply any bright-line rules but instead use the fact-sensitive, individualized approach developed in the disciplinary cases cited above, and others.
Lawyers appropriately bear an awesome responsibility and the public has every right to expect that lawyers to whom they turn for advice are of the highest character. The NJSBA, as well as all members of the bar, does not want our profession degraded by the presence of colleagues who cannot adhere to the highest standards of professional responsibility. Yet, we believe there are lawyers who deserve a chance at redemption. The Massachusetts Supreme Court has succinctly set forth the argument against permanent disbarment in all cases. The court said that permanent disbarment is a "harsh, unforgiving position…foreign to our system of reasonable, merciful justice….The chastening effect of a severe sanction such as disbarment may redirect the energies and reform the values of even a mature miscreant. There is always the potentiality for reform, and fundamental fairness demands that the disbarred attorney have opportunity to adduce proof." In re Hiss, 333 N.E. 2d 429 at 434 (1975).
The Proposed Rules
The NJSBA therefore suggests amendments to Rule 1:20-16 and the adoption of a new Rule 1:20-21A. Copies are attached. The rules would:
- permit someone who is disbarred to seek reinstatement, but only after at least 5 years from the date of disbarment;
- require anyone seeking reinstatement to file a petition with the Supreme Court Clerk who would refer the matter for investigation by the Committee on Character;
- place the burden on the person seeking reinstatement to prove, by clear and convincing evidence, fitness to resume the practice of law;
- allow the Committee on Character to determine rehabilitation, present good character, and knowledge of the law through consideration of various factors, including:
- the nature of the conduct that resulted in disbarment
- compliance with the Order of disbarment
- the maturity and experience of the petitioner at the time discipline was imposed
- whether the petitioner recognizes the nature and seriousness of the misconduct
- conduct since disbarment
- passage of the multi-state professional responsibility examination
- candor and forthrightness in presenting evidence in support of the petition
- such additional information, records, or medical or psychiatric examinations as the committee, or Court, may order
- require the committee to hold a public hearing;
- require the committee to submit a report and recommendations to the Supreme Court;
- require a petitioner to pay an application fee and reimburse the committee for the cost of its investigation; and
- recognize that the Court has the authority to place conditions on reinstatement, such as practice under supervision of another lawyer, or participation in CLE courses.
We believe a reinstatement process would provide a ray of hope to disbarred lawyers and give the Court another opportunity to consider those very difficult and sometimes complex cases where suspension is deemed inadequate, yet permanent disbarment is a difficult alternative. In particular, we are speaking of those cases with significant mitigating circumstances and a likelihood that the offender may become rehabilitated following a lengthy absence from practice. We considered an attempt at delineating the types of offenders that may later be likely candidates for reinstatement. Because of the variables involved, the myriad of offenses to consider, and the difficulty in making clear choices, we abandoned the effort. Instead, we would leave it to the Supreme Court to determine, on an individualized basis, which disbarred lawyers are appropriate candidates for reinstatement to practice.
Currently Disbarred Attorneys
Included in our report is a proposed amendment to R. 1:20- 16 that would permit lawyers who are now disbarred to apply for reinstatement. We recommend that such applications be limited to lawyers who have been disbarred for at least five years. Of course, these lawyers must successfully complete the reinstatement process described in proposed R. 1:20-21A. As noted above, the Court will determine whether a disbarred lawyer is worthy of reinstatement, so we have not included in our draft rule any prohibition against the reinstatement of a lawyer who engaged in a specific type of misconduct.
The NJSBA believes it would be appropriate for the Supreme Court to provide the opportunity for reinstatement after disbarment, in appropriate cases. We further believe the system we propose is reasoned and fair and will not burden the Court nor be adverse to the public interest.