Josh J.T. Byrne ()
The Disciplinary Board is fairly clear about what it expects from attorneys seeking reinstatement. Reinstatement is generally controlled by Pennsylvania Rule of Disciplinary Enforcement 218. A suspended attorney may seek reinstatement nine months before the expiration of the suspension. A disbarred attorney must wait at least five years before seeking reinstatement. The mandatory requirements of the rule include: 36 hours of CLE credits, including the “Bridge the Gap” course and 12 ethics credits taken within one year of filing the petition for reinstatement; costs of prior discipline paid; all payments made to the Client Security Fund; and the appropriate reinstatement petition, reinstatement questionnaire, and waivers of confidentiality. When seeking reinstatement, the attorney is required to provide copies of a number of materials related to their discipline, including copies of board recommendations, orders and proof that notice of discipline was sent to their clients.
Equally as important a consideration as the mandated materials is what the Disciplinary Board is looking for the attorney to establish. Pursuant to Pa. R.D.E. 218(c)(3), for attorneys seeking reinstatement after disbarment or a suspension of at least one year: The hearing committee shall promptly schedule a hearing at which a disbarred or suspended attorney shall have the burden of demonstrating by clear and convincing evidence that such person 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 by such person will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.
Pursuant to Pursuant to Pa. R.D.E. 218(c)(3), for attorneys seeking reinstatement after retirement/inactive status of at least three years “have the burden of demonstrating that such person has the moral qualifications, competency and learning in the law required for admission to practice in the Commonwealth.” As the Supreme Court of Pennsylvania has noted: A reinstatement proceeding is a searching inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer’s suspension or disbarment, but rather the nature and extent of the rehabilitative efforts he has made since the time the sanctions were imposed, and the degree of success achieved in the rehabilitative process, as in Philadelphia Newspapers v. Disciplinary Board of Supreme Court, 468 Pa. 382, 385-86, 363 A.2d 779, 780-81 (1976). The court continued: “A determination of an individual’s moral fitness to engage in the practice of law requires an exposure of sensitive aspects of the individual’s personal life and an airing of all charges or rumors of improprieties which have been raised against him before or since the original imposition of discipline.”
Recently, formerly admitted attorney Andrew J. Ostrowski gave what can best be described as a master class in how not achieve reinstatement. In February 2010, Ostrowski was suspended from practice by the commonwealth of Pennsylvania for one year and one day. In March 2010, Ostrowski was suspended by the U.S. District Court for the Middle District of Pennsylvania for a concurrent period of one year and one day. Ostrowski was suspended for “failing to provide competent representation to a client, failing to provide an accounting to that client or refund the unearned fees until contacted by the Office of Disciplinary Counsel, and failing to stay current with continuing legal education (CLE) credits, resulting in his transfer to inactive status, following which he did not meet his obligation to file a statement of compliance with the board, pursuant to Pa.R.D.E. 217(e).”
Ostrowski applied for reinstatement in the Middle District in 2013, which led to an opinion in which Judge Matthew W. Brann stated: “Music expresses that which cannot be said and on which it is impossible to be silent. Petitioner, Ostrowski, frequently and publicly has trumpeted his displeasure with the bench of the U.S. District Court for the Middle District of Pennsylvania. The air behind Ostrowski’s groundless statements is more appropriately relegated to the wind section of an orchestra—his fantastical prevarications are calumniatory and indicate that Ostrowski is not fit to practice law in this court,” as in In re Ostrowski, No. 1:10-MC-0064, 2014 U.S. Dist. LEXIS 23058, at *1 (M.D. Pa. 2014). The extensive opinion cites to Ostrowski’s “vitriolic denunciations of the members of this court” and repeated discussion of “the size of the genitals of one of the judges of this district.”
In 2014, Ostrowski ran for Congress, and wrote in his campaign materials: “I was suspended because I am a civil rights lawyer who became a target of a corrupt attorney disciplinary system because of the nature of the cases I handled, and the people I represented and worked with.” Ostrowski continued: “I did nothing for which I should have been disciplined.” In 2014, Ostrowski also sued disciplinary counsel Paul Killion, the Supreme Court of Pennsylvania, and the Disciplinary Board, among others. Ostrowski asserted the “defendants violated his constitutional rights by intimidating him and removing him from the courtroom during the disciplinary hearings of attorney Don Bailey,” according to Ostrowski v. Killion, No. 14-1727, 2015 U.S. Dist. LEXIS 120705, at *1-2 (M.D. Pa. 2015). Ostrowski’s claims were dismissed on a motion to dismiss.
In 2015, Ostrowski filed a petition for reinstatement with the commonwealth of Pennsylvania. On March 22, 2017, the Supreme Court issued its order on the petition for reinstatement.
In seeking reinstatement, Ostrowski asserted mitigating factors including a diagnosis of post-traumatic stress disorder and a former medical provider’s alleged failure to diagnose that disorder. Ostrowski did not present expert testimony to support the PTSD claim, but a 2013 note from a Dr. Stephen Schwartz that stated Ostrowski was “quite early in treatment, he has been responding well, and appears to be doing the appropriate things to get his life back on track.” It is worth noting that the Middle District wrote: “Dr. Schwartz has no specialized training in psychotherapy or psychology … he and his wife have operated a family practice for the past 25 years, the last 10 of which have focused on holistic healing, including traditional Chinese medicine and acupuncture.” The Middle District also noted Schwartz did not diagnose Ostrowski with PTSD and testified “we try not to get too hung up on diagnoses.”
The Disciplinary Board found Ostrowski “demonstrated no remorse and has failed to recognize the misconduct that led to his suspension … he has denied that his misconduct and the subsequent discipline rendered him unfit to practice law.” At the reinstatement proceeding, Ostrowski questioned whether he violated the Rules of Professional Conduct by accepting a flat fee and placing it directly into his personal accounts, disputed he received appropriate discipline, and asserted discipline was imposed because of the type of work he did and “there is a motive at play that underlies my prior discipline that wasn’t communicated.”
The Disciplinary Board found Ostrowski “remained very much engaged in the law and judiciary system,” largely based on his own testimony that he had “remained very engaged in the legal field. … I have become an advocate for, you know, people who have felt disenfranchised by the court system and mistreated by lawyers and judges.” Ostrowski acknowledged he had provided legal advice during the period of his suspension for which he received payment. Ostrowski acknowledged regular use of marijuana and a period of amphetamine abuse. Ostrowski acknowledged significant outstanding debt including several defaults and a judgment. Ostrowski called no witnesses other than
Needless to say, the Disciplinary Board denied the reinstatement petition, finding Ostrowski “failed to demonstrate genuine remorse, failed to accept responsibility for his prior wrongdoing, failed to show rehabilitation, failed to make attempts to pay his outstanding debt and engaged in conduct during his suspension that threatened the legal system by his baseless statements about members of the judiciary.” The Rules of Disciplinary Conduct are clear about what is required for reinstatement. Our courts have consistently held genuine remorse is essential to the reinstatement inquiry. The Ostrowski opinion is a roadmap on how not to establish eligibility for