Thursday, September 30, 2010

"Deeply Flawed" But All Is Forgiven

A rather remarkable reinstatement case decided today by the Wisconsin Supreme Court rejected an unfavorable recommendation and granted the return to practice of a former attorney. The court really could not point to much that favored reinstatement. The attorney had been a State Senator.

The findings below were entirely adverse--the petitioner had been suspended for four years and three months after a criminal conviction. He had denied that he had done anything wrong and was still under court supervision. He had been less than diligent on restitution. The referee had recomended against reinstatement. Nonetheless, the court found on de novo review:

We begin by acknowledging that some of Attorney...'s past conduct has been deeply flawed.  He has been professionally disciplined and criminally prosecuted for that bad conduct.  He has been less than forthcoming with information about his activities while under suspension.  He has steadfastly maintained that he did nothing wrong and that his criminal prosecution was politically motivated.  He appears to operate under the misapprehension that he is somehow entitled to reinstatement upon the expiration of his license suspension.  Indeed, Attorney...'s approach to this entire reinstatement proceeding has made it a more difficult and time-consuming inquiry than it might otherwise have been.

However, we focus on the specific question before us today: Whether Attorney... has demonstrated by clear, satisfactory, and convincing evidence that his license to practice law should be reinstated at this time.  After careful review of the entire record, we conclude the answer to this question is, "Yes."

This is so because the a disbarred attorney need not admit guilt to achieve reinstatement (the District of Columbia has taken a contrary view in the case of William Borders, convicted in the attempted bribery of Alcee Hastings) and a reinstatement is not a retrial of the criminal case. I agree, but so what?

The court's rationale in toto: a high-profile individual whose criminal and professional misconduct has been well publicized.  However, we must guard against a temptation to "re-try" the disciplinary case or revisit the criminal conduct for which Attorney...has been punished.  At the same time, Attorney... is not "entitled to reinstatement" simply because the period of suspension has lapsed. (citation omitted)

Upon careful consideration of the entire record, we conclude Attorney...has met his burden of proof with respect to the elements necessary to justify reinstatement.  We conclude Attorney...can safely be recommended to the legal profession, the courts, and the public as a person fit to be consulted by others as a lawyer.

That's a comfort.

This report on the court's decision comes from the Milwaukee Journal Sentinel.

(Mike Frisch)

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You are misreading Borders. Borders stands for the proposition that a pardon does not require automatic reinstatement. I don’t think that the Court of Appeals has ever said that a disbarred attorney must admit guilt before he can be reinstated (though that might very well be the unwritten rule).


Posted by: FixedWing | Sep 30, 2010 10:23:18 AM

My Borders comment is based on my familiarity with his various attempts to obtain reinstatement without acknowledging guilt rather than the particular case to which Stephen refers. Another example from D.C. of the problem caused by the petitioner's refusal to acknowledge misconduct may be found in the many failed attempts of John Stanton to obtain reinstatement for almost 30 years after a year and a day suspension.

Posted by: Mike Frisch | Sep 30, 2010 5:24:06 PM

Yes, John Stanton is another great example. As I recall, in Stanton’s case, the Board and Court stated that unless Stanton were to accept that their interpretation of a lawyer’s ethical duty was the correct one, then he obviously would not be able to correctly follow the ethical rules in the future. All of this is a façade. The true issue here is Stanton’s (and Border’s) failure to show fealty to the courts. This is simply an issue of power. Those who refuse to kowtow to the power of the court must be banished until they reconsider.


Posted by: FixedWing | Sep 30, 2010 5:47:51 PM

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