Office of Presiding Disciplinary Judge, 1216 COBJ, Vol. 45, No. 12 Pg. 59
| Author | William R. Lucero, J. |
William R. Lucero, J.
Coming Back to the Fold: Reinstatement and Readmission to the Bar
Suspension or disbarment from the practice of law divests a lawyer of his source of income, group of colleagues, and, often, identity. Some lawyers who are stripped of their licenses move on to other pursuits; others long to again practice law and rejoin their fellow practitioners. Those who seek reentry into the profession after suspension or disbarment bear a heavy burden to show they deserve a second chance and should be permitted to resume legal practice. Unfortunately, many lawyers who seek reinstatement or readmission do not understand the applicable law and procedural rules. This article explains the hurdles a lawyer must clear to be reinstated or readmitted to the bar after suspension or disbarment.
Types of Sanctions
Lawyers disciplined for violations of the Colorado Rules of Professional Conduct face possible sanctions that vary in severity.1 In general, sanctions decisions are made on a case-by-case basis by a hearing board—a three-member panel comprising the Presiding Disciplinary Judge (PDJ) and two members of the hearing board pool (including at least one lawyer).2 In imposing sanctions, a hearing board takes into account the misconduct, the lawyer’s mental state, and a host of aggravating and mitigating factors.3 The least severe sanctions—private admonition and public censure—usually do not restrict the lawyer’s ability to practice law. The next step up in sanctions, a fully stayed suspension contingent on successful completion of probation, likewise does not require the lawyer to cease practicing law; rather, the lawyer must fulfill conditions such as practice monitoring, financial auditing, or counseling. A yet more severe sanction is a served suspension of a lawyer’s license for up to a year. With this type of sanction, the lawyer can be reinstated by summary order of the PDJ if she timely files an affidavit attesting that she fully complied with the suspension order and disciplinary rules.4
The two most severe sanctions a lawyer can face are suspension for more than a year and disbarment. Not only must the lawyer’s practice be shuttered (between one and three years for suspended lawyers, and at least eight years for disbarred lawyers), but in either case the lawyer must formally petition for reentry to the bar.5 To gain reentry, the petitioner must prove by clear and convincing evidence that he should be permitted to practice law, despite having engaged in serious misconduct.
The Petition
The foundation for a successful petition for reinstatement or readmission must be established long before the lawyer drafts and files the petition itself. Ideally, a lawyer should begin planning for the reinstatement or readmission process as soon as possible after sanctions have been imposed. For example, if disciplined for mismanaging client funds, the petitioner should develop a plan for showing that she should be entrusted with client funds in the future. This might entail establishing that she has developed a track record of living within her means or has been entrusted with others’ money and honestly handled those funds.
The formal reinstatement or readmission process begins when a lawyer files a verified petition with the PDJ.[6] Petitions must be accompanied by a deposit of $500 to cover the costs of the proceedings.7 If the costs ultimately incurred exceed $500, the petitioner must provide additional funds; if any portion of the deposit is unused, it will be refunded after the hearing.8
A petition for reinstatement must include, among other things:
• the facts other than the passage of time and the absence of other misconduct that establish the petitioner possesses all qualifications required of applicants to the bar;
• evidence of compliance with applicable disciplinary orders;
• evidence of efforts to maintain professional competence; and
• a description of any restitution paid as ordered.9
The content and form of the petition is particularly important for pro se petitioners. It is their first opportunity to demonstrate knowledge of the applicable rules, articulate them in a competent manner, and properly analyze them.
After an initial investigation, the Office of Attorney Regulation Counsel (OARC) answers the petition on behalf of the State of Colorado.10 OARC often elects to conduct further investigation before deciding whether to contest the petition.
Stipulating to Reinstatement
A petitioner and OARC may stipulate to the petitioner’s reinstatement in lieu of litigating the case before a hearing board.11 The stipulation is subject to the PDJ’s review and approval.12 In conducting such reviews, the PDJ independently determines whether the stipulated facts show that the petitioner is fit to practice law, has been rehabilitated, and has complied with disciplinary rules and orders. The PDJ presumes, however, that OARC has conducted a thorough investigation and has satisfied itself that the interests of the public will be protected. Stipulations on petitions for readmission following disbarment are presented to a hearing board for its consideration.13
The Hearing
The hearing procedures for disciplinary cases also apply to reinstatement and readmission proceedings.[14] The PDJ sets deadlines for discovery, for exchange of prehearing materials such as expert reports, and for submission of dispositive and pretrial motions. A hearing board—again, the PDJ and two members of the hearing board pool—is empaneled for the hearing. [15]
At the hearing, petitioners must prove by clear and convincing evidence that they: (1) have complied with all disciplinary orders and rules; (2) have been rehabilitated; and (3) are fit to practice.16 Failure to prove even one of these prongs is fatal to the petition.17 In addition, disbarred lawyers must have passed the bar examination to be eligible for readmission. 18Suspended lawyers must do the same if they have remained suspended for five years or longer.19
As in any adversarial proceeding, the strength or weakness of the petitioner’s case depends on the credibility of witnesses and the persuasiveness of the admitted exhibits. After the hearing, the hearing board issues a public written opinion with findings of fact and legal conclusions as to the three prongs, which are described in more detail below.20
Compliance with Disciplinary Rules and Orders
A petitioner must prove that he (1) timely notified clients and opposing counsel in pending matters of the suspension or disbarment via certified mail, (2) served upon OARC a list of the clients notified, and (3) returned to clients all papers and documents to which the clients are entitled.21
Petitioners are expected to demonstrate compliance with other orders tied to the imposition of discipline. For instance, lawyers must pay costs of the underlying disciplinary proceeding and any ordered restitution before petitioning for reinstatement or readmission.22 Petitioners must also continue to comply with all disciplinary rules.23 In some circumstances, however, technical violations of the disciplinary orders and rules may not be fatal.[24] For example, a hearing board recently concluded that a lawyer who attested that he did notify clients of his suspension, but not by certified mail, committed only a technical violation of the disciplinary rules.25 This violation, standing alone, did not bar the lawyer’s reinstatement.26
Rehabilitation
Proof of rehabilitation requires much more than simply serving out a period of suspension or disbarment without further misconduct.27 Likewise, it requires much more than bald declarations that the lawyer has learned a lesson or will never again engage in misconduct. Instead, the petitioner must prove through positive action that the deficiencies that caused the original misconduct have been eliminated so that similar misconduct is...
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