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.

Two recent cases illustrate that the court gives great weight to the "exemplary and above

Gerald C. Sternberg is the administrator of the Supreme Court Board of Attorneys Professional Responsibility.

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).