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Friday, February 14, 2014

Ind. Courts - How bad is "suspension without automatic reinstatement" by the Supreme Court; can it be the kiss of death for an attorney?

This week we have seen two Supreme Court disciplinary orders containing the statements:

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement.
The details required for reinstatement are spelled out in the orders:
At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney's remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).
The requirements of Rule 23(4)(b) are long and include requirements such as:
(9) The petitioner has taken the Multistate Professional Responsibility Examination (MPRE) within six (6) months before or after the date the petition for reinstatement is filed and passed with a scaled score of eighty (80) or above.
At the end of this Feb. 12th post the ILB wrote:
ILB Comment: "Without automatic reinstatement" - one wonders over a period of time, such as the past 10 or 20 years, how many attorneys have received such a discipline, how many of them (or how few) have been reinstated, and how long it has taken.
Craig Smith, an Indiana attorney currently doing a federal clerkship in Texas, undertook to find the answers, which as it turned out involved quite a lot of research. Here are his results:
I found 119 attorneys since 2000 who were given SWAR (suspension without automatic reinstatement). I did not include attorneys who were given probation and told that violations would result in SWAR. However, I did include attorneys who were given SWAR after being found to have violated that probation.

For a majority of the attorneys, SWAR is de facto disbarment simply because they have not applied for reinstatement. By using the Roll of Attorneys and the appellate docket, I was able to check the status of their disciplinary cases and 68 of the 119 attorneys simply have not filed a petition for reinstatement.

There have been 22 attorneys who have been reinstated after being given SWAR. The total time those attorneys spent on suspension was almost always at least double the amount of time listed on the Supreme Court's order. After applying for reinstatement, it usually took 8 to 16 months for those attorneys to be reinstated (a hearing officer is appointed to hear evidence and make a recommendation to the Supreme Court). I found only six attorneys who have had the Supreme Court outright deny their petition for reinstatement.

ILB note: This information is current as of 2/13/2014, and is based on reported court data. Notify us of any errors.

Posted by Marcia Oddi on February 14, 2014 01:14 PM
Posted to Ind. Sup.Ct. Decisions