Espionage, Bribery, and Reinstatement to the Practice of Law – Part 1

Every now and then I try to blog about aspects of the disciplinary process that aren’t as commonly understood as others. Today, a pair of recent stories spur me to highlight on one such aspect: the process by which a lawyer seeks reinstatement following suspension or disbarment.

The first involves a lawyer who was disbarred after being convicted of espionage. Last month, a committee of the D.C. Bar’s Professional Responsibility Board held a hearing on the lawyer’s petition for reinstatement.  Among others, the ABA Journal, Reuters, and the Legal Profession Blog, covered the hearing.

Then, two days ago, the Oklahoma Supreme Court reinstated a lawyer who had resigned his law license following a criminal conviction for bribery.  In a post that included a reference to my current binge – Ozark – the Legal Profession Blog reported the decision here.  The Stillwater News Press and KOSU also have coverage.

Surprised to learn that disbarment isn’t permanent?  Don’t worry, you’re not alone.  Yet, in most states, Vermont included, it isn’t.

And that gets us to the reinstatement process.

In Vermont, reinstatement is governed by Rule 26 of Supreme Court Administrative Order 9.  Per the rule, a lawyer who is disbarred may apply for reinstatement five years after the effective date of the disbarment.  Similarly, a lawyer who is suspended for 6 months or longer may apply for reinstatement when within 3 months of the suspension’s termination.[i]

Once a lawyer petitions for reinstatement, the matter is referred to a hearing panel for what is, essentially, the reverse of a disciplinary prosecution.  By rule,

  • “the respondent-attorney shall have the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency, and learning required for admission to practice law in the state, and the resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest and that the respondent-attorney has been rehabilitated.”

So, how does a lawyer meet their burden?  Well, I participated in a handful of reinstatement hearings when I was the disciplinary prosecutor. In my experience, Vermont’s reinstatement hearings have been similar to those described in the stories above.

Most start with the lawyer apologizing and expressing remorse.  For instance, according to the ABA Journal, the lawyer who was disbarred after having been convicted of espionage gave the following testimony during the reinstatement hearing:

  • “My contrition is real. My shame is real. I hurt my country. I hurt my profession. I hurt the bar I was a member of and I would like once again to apologize.”

Next, lawyers seeking reinstatement typically provide evidence of having taken sufficient CLE to demonstrate that they’re current on the law.  Indeed, in its opinion reinstating the lawyer who was convicted of bribery, the Oklahoma court noted that, since 2016, the lawyer had completed 150 hours of CLE, including 13.5 in ethics.[ii]

Finally, reinstatement hearings often include character witnesses testifying in support of the lawyer who is seeking to return. Their testimony usually focuses on the lawyer’s community involvement and potential to contribute to the legal profession if allowed to resume practicing.  The stories linked above include examples of each.

In theory, reinstatement hearings are adversarial.  Vermont’s reinstatement rule states that “in all proceedings upon a motion for reinstatement, disciplinary counsel shall conduct discovery, cross-examination, and the submission of evidence, if any, in response to the motion.” That said, it was not uncommon for me not to take a position on reinstatement and to leave the lawyer to their proof.

Once the evidence is presented, it’s up to the hearing panel to decide whether the lawyer has met their burden.  Then, Vermont’s rule allows either disciplinary counsel or the lawyer to appeal the panel’s decision to the Supreme Court. Like any disciplinary case, even if no appeal is taken, the Court can order review on its own motion.  Absent an appeal or court-ordered review, the panel’s decision becomes final after 30 days.

So, that’s how the process works.

I have additional thoughts on reinstatement. Specifically, thoughts on the tension between “believing in second chances” and “protecting clients, courts, and the integrity of the profession.” Alas, this post is too long already, so I’ll share those thoughts in a soon-to-come Part II.

Stay tuned.

legal ethics

[i] A lawyer who is suspended for fewer than 6 months may resume practicing immediately upon the expiration of the suspension without having to petition for reinstatement.

[ii] I’ll circle back to this in Part II.

3 thoughts on “Espionage, Bribery, and Reinstatement to the Practice of Law – Part 1

  1. Hi Mike, Interesting subject matter; a process that is badly understood and quite different from attorney discipline conducted against barred lawyers. There’s an excellent analysis of the process by former WA State Justice Sanders. The case link is; http://www.justicesanders.com/secretsanders/garen-ord.html.
    It’s a literate and responsible constitutional analysis of the process. Pleasureable and redemptive to read.
    Some of the things which distinguish the entry process from attorney discipline are 1) the absence of a code of conduct similar to the Rule of Professional Responsibility. As J. Beth Robinson stated, “a party could be denied admission for the same behavior for which an attorney would NOT be disbarred or even sanctioned, 2) this would violate Equal Protection and the of the Rule of Law which states criminal conduct (administrative proceedings are found to be quasi-criminal) cannot be penalized without a statute or written law. Under these conditions, punishment or deterrent practices violate Ex Post Facto standards and 3) Insufficient Due Process because of the absence, in some jurisdictions (Vermont) of an administrative style (APA) hearing if a party doesn’t get past the informal interview. 4) a vague standard (Good Moral Character) and a process which does not acknowledge changing burdens of proof and production….or even set standards for them.

    It’s almost like rushing a fraternity……the criteria becomes…”do we like him?…..Is he one of us?

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