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Here’s your chance to speak up

By James O. Heiting
President, State Bar of California

James O. Heiting

Permanent disbarment. Should it be encouraged? Standardized? Applied by generalized categories or specific crimes? Would specific convictions support permanent disbarment? If so, what crimes? If no conviction, would it be sufficient to prove supporting facts by a preponderance? By clear and convincing evidence? By other standard(s)? Would there be any mitigating circumstances that would support a lesser penalty? 

How would the rules affect those who seek reinstatement? Should any rules be applied retroactively, effectively permanently disbarring those with hopes of eventually filing a petition for reinstatement? Should reinstatement rules be tougher (such as requiring the applicant to pass the attorneys’ bar exam)? These and other very important questions are currently being addressed and will be open to your input over the next few months. 

Currently the State Bar Court can recommend to the Supreme Court sanctions for attorney misconduct ranging from public reproval to disbarment. A proposal circulating for public comment would permit the bar court to add permanent disbarment under certain circumstances as a possible sanction.

The Board of Governors’ Committee on Regulation, Admissions and Discipline Oversight (RAD) heard arguments and proposals put forth last month by the Office of Chief Trial Counsel (the State Bar’s prosecutorial arm), complete with a schedule of offenses and acts/omissions meant to define the type and extent of wrongdoing supporting permanent disbarment.

After consideration and debate, RAD sent the proposal out for public comment . . . your comment. This will not mean that the final product encompasses such a schedule, or even that the committee recommends adoption of the proposals (or any proposal. The Supreme Court is expected to consider the issue with input from the board). It does mean that the State Bar is very serious about making a recommendation and would like to hear from you beforehand.          

Permanent disbarment has been historically disfavored and to date, the California Supreme Court has not permanently disbarred any lawyer. Individual rehabilitation is a goal, but not the exclusive or most important goal of the system. 

According to research by State Bar staff, in 1928 no time limit for an original petition was mentioned in the rules. In 1943, the board, by rule of procedure, established a two-year waiting period for a disbarred attorney’s initial petition for reinstatement.

In 1947, the rule was amended to require a minimum waiting period of five years following disbarment unless the board, in its discretion, shortened the waiting period to not less than two years.

In 1980, further amendment limited discretion to shorten the waiting period to not less than three years following disbarment. In 1992, discretion to shorten time for filing a petition for reinstatement was transferred from the board to the State Bar Court. In 1995, the rules were amended to eliminate the discretionary three-year period.

Thereafter, Rule 662 provided for a minimum five-year waiting period following disbarment or resignation with no discretion to shorten the waiting period. This is the current rule.

The average time from disbarment to successful reinstatement is 10 years. Since 1990, 72 petitions have been granted and 101 have been denied.

The reinstatement petitioner bears a heavy burden of proving, by clear and convincing evidence, that he or she meets all the requirements for readmission, including rehabilitation. The petitioner need not demonstrate perfection, but “overwhelming proof of reform” is necessary. Stronger proof of the petitioner’s present honesty and integrity is required than for a person seeking first-time admission whose character has never been in question.

The evidence of present character must be considered in light of the moral shortcomings that resulted in the disciplinary action. In the reinstatement proceeding, the petitioner must be able to show, by sustained exemplary conduct over an extended period of time, that he or she has reattained the standard of fitness to practice law, including current learning in the law.

In Indiana, Kentucky, Mississippi, New Jersey, Ohio, Oregon and Washington, disbarments, resignations or both are permanent. In Alabama, Arkansas, Connecticut, Florida, Illinois, Louisiana, Minnesota and West Virginia, disbarments, resignations or both may be permanent at the court’s discretion.

In Kansas and Iowa, reinstatement is not prohibited, but is reportedly rarely granted.

Another 33 states and the District of Columbia permit reinstatement after disbarment or resignation with charges pending.

Some of the provisions being advanced by the OCTC as calling for permanent disbarment include 1) specific criminal convictions beyond those which currently result in summary disbarment, 2) other acts of “engaging” in certain conduct, or 3) that one has committed a disciplinary offense of some nature after being reinstated. The committee, as an alternative to specifying certain crimes and acts, proposed a separate list of more general “factors” that could be considered, including prior discipline, the nature of the misconduct and the likelihood of rehabilitation. Reinstatement would require a waiting period of at least seven years and passage of the attorneys’ bar exam.

Whatever your thoughts are, please participate in this debate and this very important process. Look for announcements of the invitation to comment on permanent disbarment (and other important issues). Each and every comment submitted is made available to the board of governors for consideration.

On a different topic, I just returned from a conference of the American Bar Association Commission on Lawyer Assistance Programs. It is amazing, and very gratifying, that so much good and so much work is done for bar members and the bar as a whole by volunteers, and not only in this very important field.

I want to make sure that all of you who volunteer and give of yourselves to the benefit of all of us, including the public, know that you are greatly appreciated. We do a lot, but we could do very little without you. Thank you! 

And just a reminder: a little pro bono work goes a long way. What a difference we can make in someone’s life with just a minor commitment of time, talent and knowledge.

Let’s go out and do some good.

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