Wednesday, January 7, 2009

No Restitution, No Reinstatement

The decision whether or not to reinstate a suspended or disbarred lawyer involves a balancing between our interest in the possibility of redemption with our concern that past lapses may reflect the danger of future harm. The balance must always be struck with an understanding that any decision regarding reinstatement must be in the public interest and not diminish the integrity of the legal profession. Courts tend to list a series of factors governing the reinstatement decision, evaluate those factors and make the judgment call.

The balancing is on display in a recent recommendation of the Illinois Review Board to the Supreme Court rejecting a hearing board's favorable treatment of a reinstatement petition and sustaining the Administrator's objection. The petitioner had been convicted of conspiracy to defraud insurance companies and been struck from the roll of attorneys in 1988. He unsucessfully petitioned for reinstatement in 2002 and the matter before the review board was filed in 2006. He had failed to make an attempt to identify and make restitution to the defrauded companies:

While we commend Mr. McClurkin for the efforts he has made, the factors that weigh in his favor are not sufficient to justify reinstatement in light of the extremely serious nature of his misconduct and his failure to satisfy his obligation to make restitution or to conclusively show that restitution is impossible. We do not believe that we are placing undue importance upon the factor of restitution, given the supreme court’s holding that it is a condition of reinstatement except in rare instances. See Berkley, 96 Ill.2d at 412, 451 N.E.2d 848. The evidence that Mr. McClurkin presented to the Hearing Board did not clearly and convincingly establish that this is one of those rare instances.

A dissenting member would accept the hearing board's proposal to reinstate or to remand to allow a "further opportunity to establish restitution or its conclusive impossibility." (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/01/the-decision-wh.html

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