The public and some lawyers may not realize this — but when it comes to lawyer disbarment — in most states, it’s not permanent. In Arizona and in 34 other states plus the District of Columbia, disbarred lawyers are permitted to apply for reinstatement. Which is not to say it’s easy to get back in.
Indeed, as the ABA Journal wrote last August, “Disbarred lawyers who seek reinstatement have a rough road to redemption.” According to that ABA Journal story, “While it’s not impossible for a disbarred lawyer to gain reinstatement, the odds are not in the lawyer’s favor, and few even try.”
Per a 2011 ABA Survey on Lawyer Disciplinary Systems reported by the ABA Journal, of the jurisdictions responding, only 67 reinstatement applications were approved out of 674 filed petitions, motions or requests for reinstatement or readmission.
Every jurisdiction takes pains to affirm how attorney discipline is meant to protect the public and the courts; instill public confidence in the integrity of lawyer regulation; and deter attorney misconduct. It’s not a criminal proceeding. Nor is it supposed to supplant a civil remedy.
And since it’s repeated so often that those who say it believe it, lawyer discipline is also not supposed to be punitive — even if for those on the receiving end it’s a distinction without a difference as they mouth “spare me through your mercy, don’t punish me through your justice.”
Besides, as the late Admiral Rickover once admonished, “If you are going to sin, sin against God, not the bureaucracy. God will forgive you but the bureaucracy won’t.”
So 3 years and 9 days after Arizona adopted new attorney disciplinary rules modeled on Colorado’s purported “Best in Class” system, Arizona’s presiding disciplinary judge has petitioned the state’s high court to amend the existing rules so that “a lawyer who has been disbarred many not apply for reinstatement.”
A solution in search of a problem? Who can say? And why now? But no matter, in light of the Arizona Bar’s reputation among ethics defense counsel for its prosecutorial zealotry, it’s the logically predictable terminus.
Yes, disbarment is not currently permanent in Arizona. It’s a suspension with possibility of reinstatement after 5 years. But reinstatement is uncertain, difficult, time-consuming, onerous and expensive. And depending on the nature of the suspension, some lawyers even face a rebuttable presumption of disqualification for reinstatement. “Sinners in the Hands of an Angry God” may have it easier.
Ohio, Oregon, New Jersey, Kentucky, and Indiana require that all disbarments be permanent. Eight other states, California, Louisiana, Alabama, Arkansas, Minnesota, Florida, Illinois, and West Virginia, impose permanent disbarment but only for what they deem the most egregious cases. And two other states, Iowa and Kansas, have constructively adopted a permanent disbarment policy since reinstatement there is rarer than a hen with a toothbrush.
In his petition, Judge William J. O’Neil wrote it’s not his intent “to advocate for either of the proposed changes but rather to assure both public discussion and clarity within the rules regarding disbarment.”
The petition asserts the proposed amendments are offered “to initiate a fuller discussion regarding the sanction of disbarment arising out of Rule 58, discipline matters. The amendment offers discussion points for alternative changes to the reinstatement process for disbarred lawyers.” It also asserts there’s a need for greater clarity.
Although as for the ‘clarity’ of those ‘alternative’ proposals, it’s not clear how they’re fundamentally different. One amends Rule 64 (d) to now state, “A lawyer who has not been disbarred may not apply for reinstatement.” And the other alternative, Permanent Disbarment as an Alternative Sanction, adds permanent disbarment as an additional discipline.
And quite superfluously, given the Constitutional unseemliness of imposing ex post facto sanctions on the already disbarred, Judge O’Neil further explains that he isn’t suggesting “that in the event of approval . . . that the changes be applied retroactively to those members present disbarred.” No doubt this means disbarred former county attorney Andrew Thomas can breathe easier as he plans his comeback.
Meantime, I wouldn’t bet against this sua sponte move that institutionalizes a professional ‘death penalty’ on Arizona lawyers who run seriously afoul of their professional ethical rules — in“the most egregious circumstances.” Moreover, by adopting permanent disbarment, does Arizona now aspire to place itself ahead of the “Best in Class” Centennial State when it comes to sanctioning lawyers?
I doubt, however, the folks in Colorado will much care. Disbarred Colorado lawyers already have a waiting period as long as 8 years before trying reinstatement so it might as well be permanent. No wonder, then, that former head of Colorado’s Office of Attorney Regulation Counsel John Gleason cavalierly told the ABA Journal, “My experience is that lawyers who are disbarred are generally unhappy with their work as a lawyer. They’ve probably found a position they’re happy in and have no interest in coming back. It’s a fairly low percentage of lawyers who seek reinstatement.”
Photo Credits: Rembrandt van Rijn, The Return of the Prodigal Son, c. 1661–1669, at Wikipedia Commons, public domain.