Monday, October 6, 2014

"Permanent Disbarment" has led us exactly to... where inevitably it would go

I (Alan) wrote a detailed post here years ago (here) on how permanent disbarment--as opposed to disbarment that allows someone to reapply upon a showing of moral fitness and rehabilitation--would inevitably become the go-to punishment of first reaction. Now it has, in a case reported by Mike this morning here. A man convicted, for this appeal, only of possession of drug paraphernalia (a misdemeanor that I doubt even constitutes a crime of "moral turpitude") whose crime does not even fit the guidelines for permanent disbarment now is told don't even bother trying to enter rehabilitation or changing your life: there's no hope for you.

I don't think readmission after disbarment should be often given. This might be such a case where it wouldn't be and should not be (I am not ignoring his previous disbarment and actions). But these Justices are saying they don't even want the application, ever, and they can't trust themselves to say No. Really, is it so hard to say No to an unworthy application three years from now, ten years from now? Must we say No forever no matter what? To a man whose current appeal of discipline has one conviction only of a misdemeanor? Then won't every case that should be disbarment be given permanent disbarment? Aren't there lawyers given suspension more of a threat to the public in the practice of law than this guy? His crime for this discipline is not even in the representation of a client!

It seemed back then, when I first screeded, to be a PR stunt and an abdication of judicial responsibility. I still think so. I have no particular focus on this one person whom I would understand that they would not readmit after disbarment a second time, but if we keep this up we create no incentive for improvement, no mercy for changing in five years, no responsibility to weed the unworthy cases from the worthy, no use of previously published guidelines, and no place to go with punishment because anything worth disbarring may as well be permanently so -- to show you're tough on ... those who fully cooperated with the police when they were pulled over and later were convicted of a possession charge??

When I wrote before, the crimes and actions being given permanent disbarment usually involved misuse of trust funds, improper acts in the role of a lawyer, crimes that put people away longer than a year, that sort of thing. But I also noted that more and more it was applied to people whose personal lives were a mess -- that if we could fix the person problem the bar problem would easily be fixed too. I think the current case bore out that prediction. While we have bar-sponsored drug programs built on the idea of rehabilitation and changing lives, we have a court unable to imagine any such thing working to the satisfaction of their future selves.

John Dean changed his life. I'd be proud to have had the new Dean in my bar. [Alan Childress]

Bar Discipline & Process, Childress | Permalink

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