To The Legal:

As an attorney who practices exclusively in attorney ethics and disciplinary law, I read with interest your article titled “Is Pennsylvania Becoming Less Forgiving of the Disbarred?” in the September 25 issue of Legal sibling publication Pennsylvania Law Weekly.

The article cited statistics kept by the Disciplinary Board that indicated that in 2010 and 2011, a total of 23 suspended or disbarred attorneys sought reinstatement, 22 of which were granted reinstatement. This might lead one to believe that a suspended or disbarred attorney has a 96 percent chance of being reinstated should he or she decide to petition for reinstatement. This, in turn, implies leniency on the part of both the disciplinary system and our Supreme Court in giving attorneys “second chances.” Nothing could be further from reality.

There are two factors with respect to reinstatement of which most people are unaware. First, very few suspended attorneys ever seek reinstatement, and even fewer disbarred attorneys seek reinstatement. Essentially, for the most part, those suspended/disbarred attorneys who are not fit to resume the practice of law know it, and therefore do not even seek reinstatement. Pursuant to Rule 218(c)(3) of the Pennsylvania Rules of Disciplinary Enforcement, a disbarred or suspended attorney has the burden of proving, by clear and convincing evidence, that he or she has the “moral qualifications, competency and learning in law required for admission to practice law in this commonwealth and that the resumption of the practice of law within the commonwealth … will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.” That is a difficult burden to meet, but pursuant to case law, a disbarred attorney (as opposed to one who has been suspended) has an additional threshold burden to meet. (See Office of Disciplinary Counsel v. Keller, 506 A.2d 872 (Pa. 1986).)

Under Keller, before even reaching the burden imposed by Rule 218(c)(3), a disbarred attorney must first show that the misconduct leading to the disbarment was not so egregious that the attorney can never hope to be reinstated, and if that burden is satisfied, the attorney must show that sufficient time has passed that he or she can even be considered for reinstatement. Most suspended or disbarred attorneys, recognizing the difficulty they will encounter in meeting their burden of proof in seeking reinstatement, simply never bother to seek reinstatement. This is corroborated by statistics.

As indicated in the article, 19 suspended and four disbarred attorneys sought reinstatement during 2010 and 2011. During that same period, 83 attorneys were suspended and 77 attorneys were disbarred. These statistics are fairly representative of the number of formerly admitted attorneys who seek reinstatement on a yearly basis and the number of attorneys who are suspended or disbarred on a yearly basis over the past few decades. The statistics clearly reflect that less than 20 percent of suspended attorneys and less than 10 percent of disbarred attorneys ever even seek reinstatement.

Another factor that is not revealed in the article is that the Office of Disciplinary Counsel has the option of whether or not to oppose a petition for reinstatement. An attorney who petitions for reinstatement must first complete an extensive questionnaire, after which the Office of Disciplinary Counsel conducts a very thorough investigation of the petitioner. If Disciplinary Counsel is aware of or uncovers anything that militates against reinstatement, it will vigorously oppose the petition for reinstatement, which in and of itself discourages many suspended or disbarred attorneys from seeking reinstatement.

The bottom line is that the disciplinary system itself, by virtue of the enforcement rules governing reinstatement, relevant case law, and Disciplinary Counsel’s option to oppose reinstatement, weeds out the vast majority of suspended or disbarred attorneys who might otherwise consider seeking reinstatement. Therefore, by only relying upon statistics relating to those very few suspended or disbarred attorneys who actually do seek reinstatement, the disciplinary system and our Supreme Court are unfairly portrayed as being lenient with respect to the reinstatement of disbarred or suspended attorneys, when in reality quite the opposite is true. Again, less than 20 percent of suspended attorneys and less than 10 percent of disbarred attorneys are ever reinstated to the practice of law.

Craig Evan Simpson
Law Office of Craig Simpson