Attorney Discipline: Reinstatements in a Nutshell
Reinstatement proceedings arise from disciplinary revocations or
suspensions and administrative suspensions. Here's how the procedure
works for reinstatements from discipline.
By Gerald C. Sternberg
Editor's Note: Mr. Sternberg expresses his personal views
and not those of the BAPR board.
Reinstatement proceedings in Wisconsin are of two types:
- 1) those that arise from disciplinary revocations or suspensions;
and
- 2) those that arise from administrative suspensions, namely, failure
to pay dues to the State Bar of Wisconsin or failure to take required
continuing legal education courses.
A petition for reinstatement is required to be filed with the
Wisconsin Supreme Court in revocations, disciplinary suspensions of six
or more months and administrative suspensions of three or more years. In
a revocation, a petition cannot be filed prior to five years after the
revocation's effective date.
Where a suspension is less than six months, a petition to the court
is not required; rather, an affidavit showing compliance with all the
conditions of the suspension order must be filed with the Board of
Attorneys Professional Responsibility (BAPR), pursuant to SCR 22.28(2).
BAPR then notifies the court of whether compliance has been made.
Both disciplinary and administrative reinstatement petitions are
assigned to BAPR for investigation. This article focuses primarily upon
petitions for reinstatement from discipline.
The most obvious difference between a disciplinary proceeding and a
reinstatement proceeding is that the burden in the former is on BAPR; in
the latter, it is on the petitioner. 1 SCR
22.28 sets out the procedure for reinstatement petitions.
In cases requiring petitions, BAPR sends the petitioner a
questionnaire and upon its completion, assigns the petition to a
professional responsibility committee for investigation, pursuant to SCR
22.28(5). While a petition may be filed three months before a suspension
expires in order to start the process, the hearing by the professional
responsibility committee is not held until the suspension period
expires.
The professional responsibility committee chair assigns the petition
to a lead investigator, a subcommittee or the whole committee to conduct
a public hearing on the petition. Before the hearing, notice is given in
a newspaper of general circulation and in the Wisconsin Lawyer so that
interested persons may attend.
The petitioner must establish that he or she has not practiced law
during the suspension or revocation. The petitioner also must have
abstained from any law work activity customarily done by law students or
law clerks, except that the petitioner may have engaged in law-related
work for a commercial employer not itself engaged in the practice of
law. The petitioner must demonstrate that his or her conduct has been
exemplary and above reproach during the suspension or revocation. The
petitioner must show that he or she has given sufficient notice to
clients who had pending matters at the time of the discipline as to the
discipline's effect, and notice to courts in which matters were pending.
The petitioner also must demonstrate that he or she has made restitution
to persons injured or harmed by the misconduct that caused the
suspension or revocation or settled all claims in that regard.
The hearing held before the professional responsibility committee is
a matter of public record and is a public hearing that anyone may
attend. Because the petitioner has the burden of proof, he or she has an
opportunity to testify. Any witnesses who wish to testify as to relevant
facts or to character also may do so. The committee members then
question the petitioner and any witnesses who may appear in favor of or
opposed to the petition. The hearing is focused upon the petitioner's
rehabilitation and his or her activities during the suspension or
revocation.
At the hearing's end, the committee evaluates whether the petitioner
has met his or her burden and provides its report to the petitioner.
That report, the hearing transcript, the petition and the petitioner's
comments to the committee report are sent to BAPR. BAPR then reports to
the court as to its recommendation of whether the petitioner has met the
burden. The court may but usually does not refer the petition to a
referee. If the court denies reinstatement, another petition may not be
filed until nine months after the denial.
In reinstatements from administrative suspensions, assignment to a
professional responsibility committee usually is not necessary, unless
it is alleged that the suspended lawyer may have practiced law during
the suspension.
While there have been numerous reinstatements during the last 15
years, only five lawyers whose licenses were revoked during that time
have been reinstated. Two of those reinstated lawyers were later revoked
a second time.
 |
Gerald C. Sternberg is the administrator of the Supreme Court Board
of Attorneys Professional Responsibility.
|
Two recent cases illustrate that the court gives great weight to the
"exemplary and above reproach" standard in SCR 22.28(4)(e) in deciding
whether a suspended or revoked lawyer's license should be reinstated.
They are the reinstatement proceedings of George R. Keskey Jr. and
Donald S. Eisenberg, decided on Nov. 27, 1996, and Dec. 27, 1996,
respectively. Keskey focused in part upon Keskey's attempted
intimidation of witnesses who had been subpoenaed to testify at a
hearing on his petition. 2 That conduct,
along with petitioner's knowing and willful violation of a domestic
abuse restraining order, was part of his failure to meet his burden of
proof. In Eisenberg, petitioner's statement on a TV program in September
1990 concerning the guilt of a former client, and his failure to repay a
fee to a former client whom he had represented in the presence of a
conflict of interest, formed the basis for the court's denial of his
reinstatement petition .3
For detailed information about the requirements of SCR 22.28 as it
relates to reinstatements from disciplinary or administrative
suspensions, please contact BAPR in Madison at (608) 267-7274, or
Milwaukee at (414) 227-4623.
Endnotes
1 See SCR 22.28(6).
2 In the Matter of Reinstatement of
License of George R. Keskey Jr., 205 Wis. 2d 178 (1996).
3 In the Matter of Reinstatement of
License of Donald S. Eisenberg, 206 Wis. 2d 263 (1996).
Wisconsin Lawyer
