The Narrow Path Back From Disbarment: 'You Have to Really Want to Be a Lawyer Again'
Being barred from practice for five years is career-ending for most lawyers, one ethics attorney said, adding that he believes suspension is a more appropriate punishment for lawyers who qualify for reinstatement.
November 07, 2024 at 11:53 AM
5 minute read
Now that the New Jersey Supreme Court has allowed a possible path back from disbarment, ethics practitioners are sharing their mixed feelings on the new rules.
"This is almost like putting somebody on probation," Steven M. Richman, a member with Clark Hill who serves on the Lawyers Advisory Committee for the District of New Jersey, said. "The path to redemption is a strict and rigorous one and there really is no room for error."
In October, the state's highest court issued an administrative determination, allowing disbarred attorneys a chance to regain their law license for the first time in 45 years.
As part of that new rule, the court laid out 10 prerequisites and numerous other conditions for readmission, including saying a five-year waiting period will apply before an attorney can be considered for readmission. Candidates will also be required to retake and pass the New Jersey Bar Examination and the Multistate Professional Responsibility Examination.
The court further held that petitioners for readmission will bear the burden of proof, and the standard will be clear and convincing evidence. Continuing legal education courses will be required along with intensive coursework for new attorneys.
Any aggrieved parties must be notified by public notice and by actual notice, and all aggrieved parties must be made financially whole. Reinstatement will also require a $1,500 fee. The final three rules cover successive petitions for readmission, what happens if an attorney is disbarred twice, and conditions regarding permanent disbarment.
Richman said he agrees with the court's notion that there should be room for redemption in appropriate circumstances, but noted that the administrative determination said a minority of lawyers on the committee reviewing the issue voted that there should be no path back after losing your license. He said that while he respects those who feel transgressions could be unforgivable, history is filled with examples of "reformed sinners."
"The fact that you have to make everybody whole again, and reimburse the client security fund means you really have to want to be a lawyer again," Richman said. "That ensures that the person really understands the commitment."
Roger Plawker, chair of the attorney ethics and professional misconduct practice group at Pashman Stein Walder Hayden, said the new rules are a good start. He said he has not heard from any of his clients looking to take this path yet but acknowledged that he has clients who fear their cases will result in disbarment and are relieved by this news.
"I would rather see the discretion on whether or not disbarment is appropriate on the front end," Plawker said. "More likely than not, reinstatement will be granted where cases were murky to begin with and where intent to steal was not shown."
Plawker also said that being barred from practice for five years is career-ending for most lawyers. He added that he believes suspension is a more appropriate punishment for lawyers who qualify for reinstatement.
He also noted that attorneys who have moved funds around to cover shortfalls often have restored the funds before their case has been investigated.
"Often in those cases, the clients suffered no harm," Plawker said. "Those cases have to be distinguished from cases of knowing misappropriation."
The court's decision to allow attorneys a possible path back from disbarment followed a June 2023 report issued by the top court's Special Committee on the Duration of Disbarment for Knowing Misappropriation, also known as the Wade Committee. The report said that a majority of the body—21 lawyers—voted for another chance for disbarred attorneys, while five voted against it, and two abstained.
The committee was named for Dionne Laurel Wade, a solo practitioner in Paterson who lost her law license after she mismanaged her finances. Wade is a Black female solo practitioner who lost her law license after a random audit revealed a $12,000 shortfall in her trust account.
However, Wade spent her career representing a historically underserved community, often for free or at a low fee, helping people through bankruptcy or divorce.
According to Marc Garfinkle, a solo ethics practitioner in Morristown, Wade's case was very extreme in a sense. He said that he never thought of the permanency of disbarment as a terrible thing, as many of his colleagues did. However, in Wade's case, he could see she had a history of contributing to the profession that may entitle her to a second chance.
"You had an attorney who had done a whole lot of really good things," Garfinkle said. "In ethics, it is usually a balancing act between mitigating and aggravating factors."
Garfinkle said his first reaction to the news that attorneys can come back from disbarment was "lukewarm" and that he did not really agree on providing a second chance. He said he initially thought the court was backtracking and possibly eroding long-standing precedent from In re Wilson, which says attorneys should always be disbarred for knowing misappropriation of funds.
However, he said the new rules don't change the fact that attorneys will be disbarred for knowingly misappropriating client money, and maintaining that high standard will be good for the overall reputation of the bar.
"The New Jersey Supreme Court is very concerned about the reputation of lawyers and how that has been eroded," Garfinkle said. "I think letting people back in after rehabilitation and restitution, who are potentially really good attorneys, makes sense."
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