Muldoon, Getz & Reston

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Reinstatement After Disbarment
Gary Muldoon
Muldoon & Getz
Rochester, NY
(585) 262-5130
www.muldoongetz.com


 

After being disbarred, a former attorney may apply for reinstatement. The rules for seeking reinstatement are contained at 22 NYCRR § 603.14(b) (First Dept), § 691.11 (Second Dept), § 806.12 (Third Dept), and § 1022.28(a) (Fourth Dept). See 6A NYJur2d, Attorneys at Law, § 411.


Section 1022.28 of the Fourth Department rules has separate procedures for reinstatement after disbarment (subd. a), suspension for misconduct (subd. b), suspension for mental incapacity or incompetency (subd. c), and voluntary resignation (subd. d). The following describes the procedure for seeking reinstatement in the Fourth Department after disbarment.


Time of re-application

After disbarment, an attorney must wait a minimum of seven years to reapply for reinstatement. Judiciary Law § 90(5)(b); § 1022.28(a)(1).


Bar examination

In seeking reinstatement, the disbarred attorney does not need to take the bar examination again, but must pass the ethics portion (Multistate Professional Responsibility Examination). § 1022.28(a)(3). The Appellate Division may deny the application with leave to renew upon proof of passing the New York State bar exam. § 1022.28(a)(1).


Process and papers

The process for seeking reinstatement after disbarment is to file a motion returnable in the Appellate Division. Twelve copies are required to be filed. The papers must include: notice of motion; order of disbarment; the Appellate Division’s per curiam opinion of disbarment; a completed questionnaire (see petition for reinstatement in Appendix to § 1022.28); proof of successful completion of the Multistate Professional Responsibility Examination; and proof of service upon the chief attorney of the Grievance Committee. § 1022.28(a)(3).


One copy of the moving papers is to be served on the legal staff of the Grievance Committee. § 1022.28(a)(3).


The former attorney must appear on the return date of the motion, unless otherwise ordered by the Appellate Division.


Responding papers

The legal staff’s responding papers are an affidavit or affirmation, served and filed by the Friday before the return date of the motion. Twelve copies of responding papers are filed.


Investigation

The Appellate Division may refer the application for reinstatement to the Grievance Committee or the Committee on Character and Fitness. See also, Matter of Kowaloff, 256 AD2d 180, 683 NYS2d 832 (1st Dept 1998). However, the disbarred attorney has no right to a hearing on reinstatement, and approval or denial of attorney's application is matter wholly within discretion of Appellate Division. Matter of Rowe, 73 NY2d 336, 540 NYS2d 231, 537 NE2d 616 (1989).


On application for reinstatement to practice law, the applicant’s misconduct that resulted in the disbarment may be considered. As long as rules permit reinstatement in cases such as disbarment for conversion of client's funds and/or conviction of a felony, due process must afford a hearing in an appropriate case involving genuinely disputed factual issues. In re Licato, 104 AD2d 20, 481 NYS2d 690 (1st Dept 1984).


Burden of proof

It should be emphasized that after disbarment, a petition for readmission is not readily granted and is, in fact, rare: the disbarred attorney has the burden of proof by clear and convincing evidence to demonstrate four factors:

  • compliance with the order of disbarment;
  • compliance with the rules of the Appellate Division (including not having practiced law during the period of disbarment); 
  • the requisite character and fitness to practice law; and
  •  it would be in the public interest to be reinstated to the practice of law. § 1022.28.
Order of restitution

The Appellate Division’s disbarment order may have included a requirement that the former attorney make restitution. Where the person made no genuine effort to pay restitution until shortly before seeking readmission, the petition for readmission was denied. In re Argientieri, 287 AD2d 193, 732 NYS2d 511 (4th Dept 2001).


© 2008 by Gary Muldoon