April 2020 • Volume 108 • Number 4 • Page 10
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Down and Pretty Much Out
Disbarred Illinois attorneys face an uphill battle to be reinstated, partly because of the due process already afforded them.
After ex-Gov. Rod blagojevich was impeached, unanimously removed from office, convicted of multiple felonies, and sentenced to 14 years in prison, some may have been surprised that, shortly after President Trump commuted Blagojevich’s sentence earlier this spring, a hearing needed to be held on whether Blagojevich should be disbarred.
Indeed, the Illinois Attorney Registration and Disciplinary Commission (ARDC) did recommend disbarment, leaving the Illinois Supreme Court with the final say after a 21-day appeal period runs its course. (At the time the Illinois Bar Journal went to press, Blagojevich had not appealed the ARDC’s determination and was not expected to). But presuming Blagojevich is officially disbarred by the Supreme Court, he will still be able to request reinstatement in five years.
Among the many privileges of practicing law in Illinois is the deliberately thorough due process by which disciplinary matters are decided and the theoretically temporary nature of disbarment. Whatever the ethical lapse or misdeed, an attorney can neither be automatically nor permanently disbarred in Illinois. Even when disbarment is the verdict, the passage of time allows for the possibility of reinstatement (granted, the possibility of reinstatement in many cases will be slim).
“Disbarment in Illinois is neither automatic nor permanent,” says Steven Splitt, senior appeals counsel and spokesperson for the ARDC. Splitt says even with the possibility of reinstatement after disbarment, it’s unlikely that attorneys who have committed the most egregious of acts will have much luck getting reinstated. But at least there’s a process for trying.
“In a lot of criminal conviction cases, an individual will enter into discipline or disbarment upon consent. So, even for serious misconduct, if an attorney voluntarily accepts punishment, it’s not only quicker and cheaper, there is another upside: You can try to come back sooner,” Splitt says. An attorney who accepts voluntary disbarment can seek reinstatement after three years of losing his or her license. A disbarred attorney who fights through disciplinary hearings and appeals and still gets disbarred faces a five-year exodus from the profession, after which reinstatement can be sought.
Although reinstatement is possible, it’s not easy. “It is an arduous and expensive process with a relatively low success rate,” says Sari Montgomery, a Chicago-based ARDC defense attorney, member of the ISBA Standing Committee on Professional Conduct, and a former ARDC litigator. “Generally, in the criminal context, the more severe a crime, particularly those related to the practice of law, the less chance the lawyer has of getting his or her license back.”
Where the hammer falls faster
Not all states provide due process for disciplinary matters. A lawyer who is convicted of a felony in New York, for example, is automatically disbarred—no hearing or questions asked. An infamous recent example is that of the New York attorney Michael Cohen, whose law license essentially vanished the moment he was convicted of tax fraud and lying charges.
The closest “automatic” action imposed on an attorney in Illinois is an interim suspension, which is enforced by the Illinois Supreme Court in response to an ARDC petition.
“This is pretty common in discipline cases involving criminal conduct because the disciplinary proceedings are generally stayed if the lawyer appeals—as Blagojevich did. So, the interim suspension at least keeps the lawyer from practicing until the appeals are completed,” Montgomery says.
“A lawyer can file a motion to strike his or her name from the Master Roll per Illinois Supreme Court Rule 762(a)—which is also known as voluntary disbarment. Many lawyers who have been convicted of felonies will disbar themselves because it indicates cooperation and also shortens the time before the lawyer can apply for reinstatement of their license—three versus five years, if disbarred after a hearing. This process involves the ARDC preparing a ‘statement of charges’ and the lawyer signing an affidavit that the charges could be proved if the matter proceeded to hearing,” she says.
“Interim suspensions involve cases where either the attorney is perceived as a danger to the public or clients or the misconduct is so horrendous that the public would be shocked if the attorney wasn’t suspended,” Splitt says.
There is one option that closes the door for good on an attorney, Splitt adds—“permanent retirement,” from which there is no return.
“This is meant for attorneys who are under investigation, but not for criminal reasons, conversion, or harming the client,” Splitt says. “Permanent retirement is a way for lawyers who might be considering retirement and who are facing probable discipline for misconduct that’s not too egregious to avoid formal disciplinary proceedings. It’s not a get-out-of-jail-free card for serious misconduct. The downside is there’s no reinstatement.”
Pete Sherman is Managing Editor of the Illinois Bar Journal.