Reinstatement: Small Change, Still Tough

"No Admittance," Eva Critescu (CC-BY-2.0)

“No Admittance,” Eva Critescu (CC-BY-2.0)

by Jim Doppke

A recent blog post by Brian Faughnan concerning potential changes to Tennessee’s disciplinary system highlighted disbarment and reinstatement – what they mean, and whether and how lawyers can return to practice after discipline. Faughnan discusses a proposal to create permanent disbarment in his state, and to lengthen times within which certain lawyers can seek reinstatement. Thankfully, no such proposal appears to be on the horizon here, meaning that even lawyers receiving the ultimate penalty of disbarment can petition to be reinstated after five years have elapsed from the effective date of the discipline. The reinstatement process will remain taxing and difficult, but it will remain.

But rather than make reinstatement more difficult, as Tennessee might, our Court recently made a minor amendment to our Supreme Court Rule 767 that helps to clarify and streamline the reinstatement process for those eligible for it.

Reinstatement in Illinois is principally governed by two rules: Supreme Court Rule 767, and Commission Rule 402. The former sets forth the basic structure of reinstatement proceedings, and the factors the Court will consider in determining whether reinstatement should be granted. The latter is promulgated by the ARDC itself, and it sets forth with great specificity the form of a reinstatement petition, and the materials that an indefinitely suspended or disbarred lawyer must provide to the ARDC as part of a reinstatement petition. The petition is filed with the Court per Rule 767; but the petitioner must also comply with Rule 402. Reinstatement petitions therefore tend to be lengthy and detailed. They are difficult to compile, file, and serve. The hard work of the process becomes (intentionally, I have always thought) a part and a symbol of the process, emblematic of the magnitude of the losses before and the effort ahead.

The burden of proof in reinstatement cases rests with the petitioner, and it is intentionally a high burden: demonstrating, clearly and convincingly, that the petitioner is fit to resume the practice of law. The Court has held that while its rules provide a method by which a disciplined attorney may petition for reinstatement, “there is no requirement that the petition be granted. Clearly, there are certain infractions that are so serious that the attorney committing them should never be readmitted to the practice of law…Simple protestations of reform supported by a brief period of acceptable conduct are not sufficient to convince this court that petitioner’s past deficiencies which brought the legal profession into disrepute have been eradicated.” In re Rothenberg, 108 Ill.2d 313, 326 (1985).

Taking a cue from Faughnan’s data-based presentation, a search of the ARDC’s online records indicates that the Court has granted reinstatement – either outright or with conditions – 44 times, and it has denied reinstatement 48 times. The modern-day reported decisions begin in 1976, with one exception dating all the way back to 1930 (reinstatement not allowed). That more petitions have been denied than granted itself indicates the difficulty of gaining reinstatement; also, there may be, and likely are, many more petitions that were served or filed, but withdrawn before hearing in the face of insurmountable odds.

The Court’s September 20 order will not alter the essential difficulty of the proceeding, instead making a minor procedural change. In the order (effective January 1, 2020), the Court clarified that the petitioner need not provide copies of the materials required by Rule 402 to the Court, but need only certify via affidavit that she “has [provided] or will provide that information to the Administrator” of the ARDC. In one way, the Court’s simplification of its procedures in this way benefits of its own staff, who now no longer have to administer large filings or handle documents truly extraneous to the Court’s functions in the early part of a reinstatement case.
But it is also a boost, however small, to reinstatement petitioners.

Streamlining the Court’s filing requirements is helpful to petitioners and their lawyers, who will now have a clearer view of how to assemble and serve the appropriate documents on the appropriate parties. That could help avoid procedural foul-ups, or inadvertent omissions of relevant and responsive records. That, in turn, allows the petitioner to concentrate on the most important task: the candid submission of clear and convincing proof that resumption of the practice of law is appropriate.

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