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The publicity surrounding Robert Simone’s petition for reinstatement has raised some interesting questions about the disciplinary process. One such question, which we will leave to another day, is how Simone was reinstated in federal court before he even sought reinstatement at the state level. But first we would like to clarify some issues about where exactly his reinstatement petition stands. The hearing committee’s unanimous recommendation that Simone be reinstated is not, as reported, the final step in the process nor is it the step that immediately precedes consideration by the Supreme Court. Rather, the hearing committee’s report and recommendation is the first hurdle of a three part deliberative process. A closer look reveals that Simone’s petition for reinstatement is several steps, and probably several months, away from a final disposition. The purpose of attorney discipline is twofold: first, to protect the public, and second, to uphold the integrity of the bar. The practice of law is a privilege that provides access to an enormous power to affect the lives of others. The disciplinary system is designed to ensure that this power is wielded wisely, to accomplish positive and beneficial goals. How does the system work to ensure the public’s safety and the bar’s good reputation? As the Disciplinary Board’s Web site states: “The disciplinary system is created and governed by the Pennsylvania Rules of Disciplinary Enforcement, a broad set of rules by which the Supreme Court of Pennsylvania carries out its constitutional authority to regulate the practice of law in Pennsylvania.” The Office of Disciplinary Counsel (ODC) is the investigative and prosecutorial arm of the Disciplinary Board. ODC has four district offices, each of which is responsible for a distinct geographical region. Statewide, there are 18 disciplinary counsel, who each handle approximately 200 cases each year. On average about 12 percent of all complaints received by ODC result in a letter from disciplinary counsel (Form DB-7). A DB-7 letter describes the complaint and requires an explanation. Disciplinary proceedings fall into two categories: petitions for discipline, in which the ODC is the petitioner and the attorney is the respondent; and petitions for reinstatement, in which the position of the parties is reversed. Any attorney suspended for over one year, inactive more than three years, transferred to inactive status as the result of sale of a practice, or disbarred, must petition for reinstatement before resuming the practice of law. This column focuses on reinstatement following disbarment. A disbarred attorney must wait five years before seeking reinstatement. This is regarded as the minimum length of time necessary to “dissipate the detrimental impact of his misconduct on the public trust.” The petition for reinstatement is filed with the Office of the Secretary of the Disciplinary Board, located in Lemoyne, Pa. The board is composed of 14 lawyers and two nonlawyers. Appointments to the board are voluntary, unpaid positions for no more than two three-year terms. The current composition of the board includes attorneys from Allegheny, Philadelphia, Lackawanna, Delaware, Cumberland, Erie, Montgomery, Susquehanna, Delaware and Dauphin counties. (The names of the board members can be found on the Disciplinary Board Web site.) The petition itself is a brief document, laying out the bare procedural facts and praying for relief. However, the petition must be accompanied by a questionnaire, known as Form DB-36 (found on the Web site). The questionnaire requires the attorney to give a thorough description of the cause(s) of disbarment and how the attorney has spent the intervening years, including employment, residence, financial status, and whether the petitioner has any unfinished business relating to the offenses leading to disbarment. The questionnaire also requires that the petitioner include proof of 36 CLE credits taken within the year prior to the hearing on the petition, 12 of which must be ethics credits. Once the petition is filed, ODC has 60 days to file a response to the board indicating whether they will oppose the petition. If ODC opposes, their response must provide detailed reasons for their opposition. Once ODC files its response, the board secretary refers the petition and response to a hearing committee, who must “promptly” schedule a hearing. Hearing committee members are appointed by the board. Each district must have at least 18 committee members; each committee must be composed of at least one senior member and another senior or experienced member. Only a senior member may be designated as the chair of the committee. A hearing committee member must be an attorney admitted to practice in Pennsylvania with an office in the district in which he is appointed. Committee members are respected attorneys, representing a wide variety of practices and coming from large, midsized and small firms. The hearing is where the rubber hits the road in this process. Unlike a suspended attorney, a disbarred attorney has no right to expect the restoration of his license. He must first answer the threshold question laid out in Keller, Costigan and Verlin: Was the misconduct that resulted in disbarment so egregious that the attorney has lost the right to practice law permanently? Keeping in mind that there is no per se discipline in Pennsylvania for any specific act of misconduct, it is interesting to note that there is only one case in which the court has permanently disbarred an attorney: In re Phillips. Phillips was convicted in federal court in 1988 of participating in a scheme to bribe certain judges in Philadelphia. The hearing committee in Phillips determined that he could not pass the Keller threshold. Exercising its de novo review of the facts and the law, the Disciplinary Board, with several members dissenting, voted in favor of reinstatement. The Supreme Court, exercising its own de novo review, denied reinstatement in a per curiam opinion which held that Phillips was “forever barred from the practice of law in the commonwealth of Pennsylvania.” Assuming a lawyer seeking reinstatement following disbarment meets the Keller threshold, he or she then has the burden of proving by clear and convincing evidence that the resumption of the practice of law at this time would not have a detrimental impact on the reputation of the bar, the administration of justice or the public interest, and that the lawyer has the moral qualifications, competency and learning in the law required for admission to practice law in Pennsylvania. The court and the Disciplinary Board have spoken repeatedly about what type of proof justifies reinstatement, but the hearing comes down to whether the attorney can demonstrate the following: A complete understanding of the events leading to disbarment, including the causes and consequences; A sincere, honest and thorough effort to remedy any harm that was caused, including payment of back taxes owed, repayments to clients or to injured law firms; and A solid plan to prevent misconduct from ever recurring. Testimony of fellow attorneys, family members, and responsible, credible witnesses who can testify to the before, during and after of the misconduct, emphasizing the remorse and rehabilitation of the attorney are necessary and persuasive. In our experience, the committees, the board, and the court are interested in both the quality and quantity of witnesses. The most important evidence is the attorney’s own testimony. In addition, if the conduct was partially caused by addiction, alcoholism or some other psychological illness, an expert must provide evidence supporting the diagnosis and its causal relationship to the offense. As we discussed above, the hearing committee is only the first step of review. Before the committee issues its report, the parties receive the notes of testimony and submit briefs on their respective positions. After the committee issues its report to the Disciplinary Board, the objecting party has 20 days to file exceptions to the report. Briefs opposing exceptions are due 20 days after the filing of the exceptions. (These time periods can be extended by continuances granted by the chairman of the Disciplinary Board.) The parties can also request oral argument before a three-member panel of the board. Once the record is complete, it is transmitted to the board for adjudication. The board meets every two months in two-day sessions and adjudicates approximately 15 cases in each session. Within 60 days of the adjudication, the board must either “affirm or change in writing the recommendation of the hearing committee.” The board then transmits the record, the briefs, and the board’s report to the Supreme Court for final review. The rules set no time limit for the court’s review. This brief review of the substance and process of reinstatement after disbarment demonstrates that Robert Simone has taken only one significant step down a road that takes many months to travel. Two more significant hurdles must be confronted before he’s done: de novo review by the Disciplinary Board and by the Supreme Court. For every attorney facing these hurdles, whatever the cause of misconduct, the attorney has to provide compelling evidence of emotional growth, remorse, and restitution to convince these three levels of scrutiny that he can responsibly be given access to the power of a license to practice law. Although there has been only one permanent disbarment in Pennsylvania, reinstatement is a long, difficult process that puts the attorney’s rehabilitation to the test. We wouldn’t want it any other way. ELLEN C. BROTMAN recently joinedMontgomery McCracken Walker & Rhoads as ofcounsel to its white collar crime and governmentinvestigations group and chairwoman of its professional responsibility group after several years of being a principal in the firm of Carroll & Brotman. Brotman is also a former assistant federal defender with the Philadelphia Community Defenders Organization. MICHAEL B. HAYES is a senior litigation associate at Montgomery McCracken Walker & Rhoads and is a member of the firm’s professional responsibility practice group. Prior to joining the firm, Hayes served as a law clerk to Justice Russell Nigro of the Pennsylvania Supreme Court.

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