Ethics. Rough Road to Reinstatement

• Author: David L. Hudson Jr.
• Pages: 30-31

Practice Matters | ETHICS

It’s often said the ability to prac-

tice law is a privilege, not a right.

It’s difcult enough to obtain a

law license, and losing one can

be devastating both personally and

professionally. Attorneys who face the

ignominy of disbarment and later seek

reinstatement face high hurdles that are

sometimes insurmountable.

Not all states treat the reinstatement

process the same. Most states require

disbarred attorneys to wait a certain

number of years before they may le

petitions for reinstatement. For exam-

ple, New York requires a disbarred

attorney to wait a full seven years

before ling a reinstatement petition.

On the other hand, California requires

a disbarred attorney to wait ve years

before applying for reinstatement.

A few states, like Nevada and Ken-

tucky, have permanent disbarment. This

means attorneys subject to the ultimate

professional disciplinary penalty of

disbarment can never apply for rein-

statement.

ETHICS

Rough Road

to Reinstatement

Disbarred attorneys trying to get their licenses back face an uphill battle

BY DAVID L. HUDSON JR.

the former attorney’s

current character, and

the steps the former attor-

ney has taken to establish

their qualications and

competence in the law.

Attorneys seeking reinstatement

usually must prove to the state licensing

board’s satisfaction, by clear and con-

vincing evidence, that they are morally

t to resume the practice of law. This

can be an onerous burden.

“In many jurisdictions, the clear and

convincing evidence standard must be

met to demonstrate that the lawyer

engaged in misconduct,” explains ethics

expert Leslie C. Levin, who teaches at

the University of Connecticut School of

Law. “I suppose there is a symmetry to

applying the same standard and shifting

the burden to the lawyer seeking read-

mission. But it seems virtually impossi-

ble to prove something as uncertain as

‘rehabilitation’ by clear and convincing

evidence.”

Readmission applicants often

submit a series of character references

from practicing attorneys. Sometimes

applicants will submit afdavits from

a variety of other individuals as well.

These can include letters from current

employers, ministers or co-workers.

However, as Frisch explains, “the char-

acter witnesses need to know what the

person did.”

“Usually disbarment is reserved for

such deeply problematic behavior that it

Showing rehabilitation

Attorneys seeking reinstatement from

a disbarment have a rocky road to

redemption. Generally, they must show

they have the moral qualications, com-

petency and up-to-date legal training

necessary for reinstatement. Sometimes

they must retake the bar exam to show

they are qualied. They also must estab-

lish their readmission will not harm the

public.

It can be nearly impossible for an at-

torney to show they have the necessary

moral qualications if the underlying

offense involved rank dishonesty or a

serious felony conviction.

“What you did is the most import-

ant factor in these cases,” says Michael

S. Frisch, ethics counsel and adjunct

professor at Georgetown University

Law Center.

Disciplinary review committees and

courts often consider the underlying

nature and seriousness of the original

misconduct, whether the former attor-

ney expresses remorse for past conduct,

Michael

Frisch

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ABA JOURNAL | APRIL–MAY 2020