Rule 25

Model Rules for Lawyer Disciplinary Enforcement

A. Generally. A lawyer suspended for more than six months or a disbarred lawyer shall be reinstated or readmitted only upon order of the court. No lawyer may petition for reinstatement until [six months before] the period of suspension has expired. No lawyer may petition for readmission until [five] years after the effective date of disbarment. A lawyer who has been placed on interim suspension and is then disbarred for the same misconduct that was the ground for the interim suspension may petition for readmission at the expiration of [five] years from the time of the effective date of the interim suspension.

B. Petition. A petition for reinstatement or readmission must be under oath or affirmation under penalty of perjury and shall specify with particularity the manner in which the lawyer meets each of the criteria specified in paragraph E or, if not, why there is good and sufficient reason for reinstatement or readmission. [Unless abated under Rule 26] the petition must be accompanied by an advance cost deposit in the amount set from time to time by the board to cover anticipated costs of the proceeding.

C. Service of Petition. The lawyer shall file a copy of the petition with disciplinary counsel and disciplinary counsel shall serve a copy of the petition upon each complainant in the disciplinary proceeding that led to the suspension or disbarment.

D. Publication of Notice of Petition. At the same time that a lawyer files a petition for reinstatement or readmission, the lawyer shall also publish a notice of the petition in the journal of the state bar and in a newspaper of general circulation in each judicial district in which the lawyer maintained an office for the practice of law when the lawyer was suspended or disbarred. The notice shall inform members of the bar and the public about the application for reinstatement or readmission, and shall request that any individuals file notice of their opposition or concurrence with the board within [sixty] days. In addition, the lawyer shall notify the complainant(s) in the disciplinary proceeding that led to the lawyer's suspension or disbarment that the lawyer is applying for reinstatement or readmission, and shall inform each complainant that he or she has [sixty] days to raise objections to or to support the lawyer's petition.

E. Criteria for Reinstatement and Readmission. A lawyer may be reinstated or readmitted only if the lawyer meets each of the following criteria, or, if not, presents good and sufficient reason why the lawyer should nevertheless be reinstated or readmitted:

(1) The lawyer has fully complied with the terms and conditions of all prior disciplinary orders except to the extent that they are abated under Rule 26.

(2) The lawyer has not engaged nor attempted to engage in the unauthorized practice of law during the period of suspension or disbarment.

(3) If the lawyer was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the lawyer's misconduct, the lawyer shall not be reinstated or readmitted unless:

(a) the lawyer has pursued appropriate rehabilitative treatment;

(b) the lawyer has abstained from the use of alcohol or other drugs for at least [one year]; and

(c) the lawyer is likely to continue to abstain from alcohol or other drugs.

(4) The lawyer recognizes the wrongfulness and seriousness of the misconduct for which the lawyer was suspended or disbarred.

(5) The lawyer has not engaged in any other professional misconduct since suspension or disbarment.

(6) Notwithstanding the conduct for which the lawyer was disciplined, the lawyer has the requisite honesty and integrity to practice law.

(7) The lawyer has kept informed about recent developments in the law and is competent to practice.

(8) In addition, a lawyer who has been disbarred must pass the bar examination and the character and fitness examination.

F. Review of Petition. Within [ninety] days after receiving a lawyer's petition for reinstatement or readmission, disciplinary counsel shall either: (1) advise the lawyer and the [board] court that disciplinary counsel will stipulate to the lawyer's reinstatement or readmission, or (2) advise the lawyer and the [board] court that disciplinary counsel opposes reinstatement or readmission and request the [board] court to set a hearing.

G. Hearing; Report. Upon receipt of disciplinary counsel's request for a hearing, the [board] court shall promptly refer the matter to a hearing committee. Within [ninety] days of the request, the hearing committee shall conduct a hearing at which the lawyer shall have the burden of demonstrating by clear and convincing evidence that he or she has met each of the criteria in paragraph E or, if not, that there is good and sufficient reason why the lawyer should nevertheless be reinstated or readmitted. The hearing committee shall file a report with the [board] court containing its findings and recommendations. [The board shall promptly review the report of the hearing committee and the record and shall file its own findings and recommendations with the court.]

H. Decision as to Reinstatement or Readmission. The court shall review the report filed by the [hearing committee] [board] or any stipulation agreed to by the lawyer and disciplinary counsel. If the court finds that the lawyer has complied with each of the criteria of paragraph E, or has presented good and sufficient reason for failure to comply, the court shall reinstate or readmit the lawyer. If the court reinstates or readmits the lawyer, the court shall issue a written opinion setting forth the grounds for its decision; if the court denies reinstatement or readmission, the court shall issue a written opinion setting forth the ground for its decision and shall identify the period after which the lawyer may reapply. Generally, no lawyer should be permitted to reapply for reinstatement or readmission within one year following an adverse judgment upon a petition for reinstatement or readmission.

I. Conditions of Reinstatement or Readmission. The court may impose conditions on a lawyer's reinstatement or readmission. The conditions shall be imposed in cases where the lawyer has met the burden of proof justifying reinstatement or readmission, but the court reasonably believes that further precautions should be taken to protect the public.

The court may impose any conditions that are reasonably related to the grounds for the lawyer's original suspension or disbarment, or to evidence presented at the hearing regarding the lawyer's failure to meet the criteria for reinstatement or readmission. Passing the bar examination and the character and fitness examination shall be conditions to readmission following disbarment. The conditions may also include any of the following: limitation upon practice (to one area of law or through association with an experienced supervising lawyer); participation in continuing legal education courses; monitoring of the lawyer's practice (for compliance with trust account rules, accounting procedures, or office management procedures); abstention from the use of drugs or alcohol; active participation in Alcoholics Anonymous or other alcohol or drug rehabilitation program; monitoring of the lawyer's compliance with any other orders (such as abstinence from alcohol or drugs, or participation in alcohol or drug rehabilitation programs). If the monitoring lawyer determines that the reinstated or readmitted lawyer's compliance with any condition of reinstatement or readmission is unsatisfactory and that there exists a potential for harm to the public, the monitoring lawyer shall notify the court and, where necessary to protect the public, the lawyer may be suspended from practice under Rule 20(B).

J. Reciprocal Reinstatement or Readmission. Where the court has imposed a suspension or disbarment solely on the basis of imposition of discipline in another jurisdiction, and where the lawyer gives notice to the court that he or she has been reinstated or readmitted in the other jurisdiction, the court shall determine whether the lawyer should be reinstated or readmitted. Unless disciplinary counsel presents evidence demonstrating procedural irregularities in the other jurisdiction's proceeding or presents other compelling reasons, the court shall reinstate or readmit a lawyer who has been reinstated or readmitted in the jurisdiction where the misconduct occurred.

Commentary

Readmission occurs when a disbarred lawyer is returned to practice. Since the purpose of lawyer discipline is not to punish, readmission may be appropriate; the presumption, though, should be against readmission. In no event should a lawyer be considered for readmission until at least five years after the effective date of disbarment.

Reinstatement occurs when a suspended lawyer is returned to practice. Reinstatement is appropriate when a lawyer shows rehabilitation. Application for reinstatement should be permitted at the expiration of the ordered period of suspension. While reinstatement should not be ordered prior to the expiration of the ordered period of suspension, application for reinstatement may be allowed up to six months preceding the expiration so that the time required for a decision on the application does not unfairly prolong the suspension.

As a condition of readmission or reinstatement, a disbarred or suspended lawyer is usually required to establish rehabilitation, fitness to practice and competence, and may be required to pay the costs of the disciplinary proceedings, to make restitution, to disgorge all or part of the lawyer's or law firm's fee, to pass an examination in professional responsibility, and to comply with court orders.

There is a compelling reason not to grant reciprocal reinstatement under paragraph J if the forum jurisdiction imposed a longer suspension than the original jurisdiction or if there was a delay between the imposition of the original discipline and the imposition of the reciprocal discipline.


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