REINSTATEMENT . . . DENIED
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (September
2008)
When negotiating with an attorney in a public
disciplinary matter, there are definite lines of demarcation between levels of
discipline. The lines between a public
reprimand and suspension, between a suspension requiring a reinstatement
petition and a suspension without, or between suspension and disbarment, act as
clear hurdles that must be overcome in order to reach a stipulated disposition. Perhaps the line most frequently discussed,
once the parties agree that a suspension is warranted, is whether the attorney
will be required to petition for reinstatement from suspension.
Rule
18, Rules on Lawyers Professional Responsibility (RLPR), sets out the
requirements and procedures to be followed for a disbarred or suspended lawyer
to be reinstated to the practice of law.
Lawyers seeking to be reinstated from disability status also are subject
to the rule.Ftn 1 A significant aspect of Rule 18 is that
suspensions of more than 90 days are subject to a reinstatement petition,
investigation by the Director’s Office, and an evidentiary hearing before a
Lawyers Board panel. The petitioner must
present clear and convincing evidence, the nature of which can vary depending
on the disposition of the original proceeding.Ftn 2 Attorneys
suspended for 90 days or fewer, on the other hand, are required only to file an
affidavit of compliance.
Obviously
the length of time involved in the reinstatement process increases
significantly if a petition and hearing are required. Depending upon the level of cooperation from
the petitioner, the reinstatement process realistically takes on average 4-8
months, usually on top of the period of suspension actually imposed.Ftn 3
On the Rise
In
the years preceding 2005, on average 3-4 reinstatement hearings were held each
year before panels of the Lawyers Professional Responsibility Board. Since 2005, that number has increased on
average to six per year, and there currently are seven petitions pending before
panels this year. In part, that reflects
the fact that there has been an increase in the number of suspensions requiring
a reinstatement hearing. It likely also
reflects that lawyers generally seek to practice to an older age than in the
past, and thus foresee a longer career still ahead of them if they can attain
reinstatement.
Additionally,
at least in my opinion, reinstatement petitions also have increased in the past
four years because lawyers may believe their chances of success in a
reinstatement proceeding have increased.
This belief seems to have begun after the Minnesota Supreme Court reinstated
David Anderley in 2005.Ftn 4 Anderley was
disbarred for misappropriation of funds that led to his criminal conviction. Prior to Anderley’s petition, no Minnesota
attorney had been reinstated to the practice of law following such misconduct. The following year, the Court reinstated
Sharon Ramirez, another lawyer disbarred for misappropriation with a criminal
conviction.Ftn 5
The
perception may have been born that reinstatement from suspension or disbarment
was no longer quite as impossible a task as may have been previously presumed. Especially if the lawyer rightly or wrongly
perceived that their initial misconduct was not as heinous as that of those
recently reinstated, or if they had not studied these cases to determine the
extent of and types of evidence those two lawyers had presented in order to
convince the Court of their rehabilitation,Ftn 6 they might have been inspired to give it a try.
Currently,
two disbarred and five suspended lawyers have petitions for reinstatement
pending before Lawyers Board panels. One
suspended lawyer’s petition recently was denied by the Supreme Court,Ftn 7 and another suspended
lawyer’s petition is under advisement by the Supreme Court. In both of these latter instances, the panel
recommended denial of the petition. One
was challenged by the petitioner and the other initially as well, but then
later that attorney withdrew his challenge.
Another petition from a suspended lawyer presently is under advisement
by a panel and may be recommended for denial as well. In the past three years, six other petitions
for reinstatement have been denied or withdrawn following either the Director’s
investigation revealing facts that could preclude reinstatement or an adverse
panel recommendation.
Has
there been a shift in direction of Board panels in regard to reinstatement? Are they imposing more stringent standards
since the Anderley and Ramirez matters? I believe not.
Rather, the unique facts of these more recent cases and the steps taken,
or more often not taken, by these particular petitioners have led to the
recommendations that reinstatement be denied.
While the original misconduct of these individuals may not have been as
egregious as in disbarment matters, their conduct while suspended and
preparation for a possible return to practice were not as exemplary as the
Court found in those matters in which reinstatement was allowed. These recommendations reveal just how well
prepared and unique Anderley and Ramirez were.
Those two were exceptions and not a new norm.
Possible Rule
Changes
The
increase in reinstatement matters has resulted in review of the reinstatement
process by the Lawyers Board. There is
pending before the Minnesota Supreme Court a petition to amend the Rules on
Lawyers Professional Responsibility, which contains proposed amendments to Rule
18 (Reinstatement) from the Lawyers Board along with one sought by the MSBA. On an administrative level, the Court is
being asked to raise the fee for filing a petition for reinstatement to $500
(it is currently $300) to match the fee charged by the Board of Law Examiners
to initial bar applicants. The petition
also asks that the current requirement that a copy of the petition be served upon
the Bar Association president be eliminated.
The MSBA has requested this change; it does seem to reflect an
antiquated perception of the practice of law.
The Court also is being asked to codify the Director’s practice of
publishing notice of reinstatement petitions and seeking comment, and of
providing immunity protection to those who may respond.
Finally,
the Court is asked to amend the part of Rule 18 requiring disbarred lawyers to
take and pass the full bar examination as a condition for reinstatement. At present, an attorney may petition and go
through the entire reinstatement process, including a hearing, briefing, and
oral argument before the Supreme Court, without first taking and passing the
exam. Such an attorney then can only be
conditionally readmitted pending successful completion of the full bar exam.Ftn 8 There is no identified time limit placed upon
the attorney, however, nor a limit to the number of attempts that may be made. Thus, it is possible that such an attorney
never will be fully reinstated, yet the system expended considerable resources
investigating the attorney’s petition and conducting the hearing process. This seems unnecessarily wasteful. The proposed amendment will require a
disbarred attorney seeking reinstatement in the future to successfully pass the
bar exam before being eligible to apply for reinstatement. The Court will hear argument on these
proposed rule changes this fall.
Conclusion
Reinstatement
remains a very real possibility for those who take the time to prepare
themselves, first during the period of suspension or disbarment and then for
the reinstatement process. Experienced
counsel can often assist with the latter.
As recent decisions have shown, reinstatement should never be assumed as
being automatic, and if a petitioner is not ready the petition will be denied.
Notes
4 In re Reinstatement of Anderley,
696 N.W.2d 380 (Minn. 2005).
5 In re Reinstatement of Ramirez,
719 N.W.2d 920 (Minn. 2006).
7 In re Reinstatement of Mose, A07-0437
(Minn.S.Ct., August 7, 2008).
8 In re Reinstatement of Ramirez,
719 N.W.2d 920, 926 (Minn. 2006).