NJ State Bar: Lauds Recommendations of Supreme Court’s Report on Duration of Certain Disbarments

 

August 7, 2023

New Jersey State Bar Association Lauds Recommendations of Supreme Court’s Report on Duration of Certain Disbarments

New Jersey State Bar Association President Timothy F. McGoughran lauded the state Supreme Court Special Committee on the Duration of Disbarment for Knowing Misappropriation’s Report recommending implementation of a path for readmission from disbarment.  Many of the recommendations were consistent with the longstanding position of the NJSBA to offer attorneys a “chance at redemption and rehabilitation, while maintaining public faith in the legal system and holding legal professionals to the highest ethical standards.”

“We urge the Court to follow the path of the vast majority of other states and adopt a reinstatement policy, as the Committee notes, that reflects the contemporary notions of redemption, reconciliation and restorative justice,” said McGoughran.

The NJSBA supported all of the committee’s recommendations, with one suggestion to amend a recommendation requiring full reimbursement of any funds paid by the Lawyers Fund for Client Protection to allow for reinstatement if the person is compliant with a repayment plan.

The committee focused its efforts on designing a path back for attorneys who had been found to violate the standards set in In re Wilson, 81 N.J. 451 (1979), but ultimately concluded a similar readmission process should be available for any disbarred attorney. In Wilson, the Court held that despite the presence of mitigating factors, an attorney who knowingly misappropriates funds must be disbarred. The committee’s recommendations include:

• A rigorous vetting process and a determination on a case-by-case basis of whether the disbarred attorney is eligible for a path back;
• An attorney must wait five years before applying for readmission;
• An attorney must meet the present burden and standard of proof set forth in R. 1:20-21;
• An attorney may have to retake the bar exam if they have been out of practice for many years if disbarment was related to performance and would be required to take the MPRE;
• An attorney should keep up with CLEs during the term of disbarment; and
• Notice should be provided to the grievant whose complaint resulted in the disbarment, as well as any grievants with docketed complaints that were dismissed as a result of the disbarment.

The committee further recommended that there only be one opportunity for readmission following a disbarment. In addition, an attorney must wait six months after an adverse decision to file a renewed petition for reinstatement.

Finally, the committee noted the Court could choose to include additional conditions tailored for specific cases, such as:

• Annual audits by the state Office of Attorney Ethics or its designee for a period determined by the Court;
• Disclosure in writing to prospective clients of the attorney’s earlier disbarment for knowing misappropriation;
• Prohibiting the reinstated attorney from maintaining an attorney trust account and instead requiring that they partner with at least one other attorney who would be responsible for the account;
• Requiring the reinstated attorney to obtain and maintain professional liability insurance in an amount set by the Court;
• Requiring a blanket fidelity bond or dishonest insurance policy in an amount set by the Court;
• Requisite CLEs on attorney bookkeeping, including requirements for maintaining an attorney trust account;
• For reinstated attorneys with a history of alcohol or drug abuse, the attorney must actively participate in alcohol or drug rehabilitation programs;
• For reinstated attorneys who have a history of mental health conditions, the attorney must actively participate in mental health treatment;
• For reinstated attorneys who have a history of gambling or other addiction issues, the attorney must actively participate in a gambling or other addiction treatment program;
• Practice with supervision by either a Court-appointed monitor or a monitor selected by the attorney but approved by the Court per R. 1:20-19; and
• Additional reasonably related conditions based upon the attorney’s original disbarment.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.