November 22, 2019

The Illinois Supreme Court holds inherent power to regulate the practice of law in Illinois, including ordering the reinstatement to the practice of law of attorneys who have been disbarred, disbarred on consent or suspended until further order of the Court. The procedure for reinstating a disciplined attorney is the same as the procedure for disciplinary cases, in that a hearing panel considers the disciplined attorney’s petition for reinstatement and recommends whether the Court should reinstate the person to the practice of law. One significant difference between reinstatement and disciplinary proceedings is who bears the burden of proof. In disciplinary proceedings, the Administrator of the Attorney Registration and Disciplinary Commission bears the burden of proving by clear and convincing evidence that an attorney has violated the Rules of Professional Conduct. Ill. Sup. Ct. R. 753(c)(6). In reinstatement proceedings, the disciplined attorney bears the burden of proving “his or her qualification for reinstatement by clear and convincing evidence.” In re Mitan, 119 Ill.2d 229, 246 (1987) (citing In re Carnow, 114 Ill.2d 461, 469 (1986)).

Pursuant to Court Rule 767(a), a disciplined attorney cannot file a petition for reinstatement within five years after the Court’s order of disbarment, within three years after the Court’s order allowing disbarment on consent, or, if the attorney was suspended until further order of the Court, until the period of suspension has elapsed. The waiting period is recognition of the seriousness of the sanction imposed upon the attorney, and the need for a sufficient period of time for the disciplined attorney to demonstrate rehabilitation. In re Wonias, 78 Ill.2d 121, 123 (1979). 

The Court has defined rehabilitation as “a matter of one’s ‘return’ to a beneficial, constructive and trustworthy role.” In re Wigoda, 77 Ill.2d 154, 159 (1979). Clear and convincing evidence of rehabilitation demonstrates to the Court that reinstating the disciplined attorney to the practice of law is consistent with the purposes of the disciplinary system: to safeguard the public, to maintain the integrity of the profession, and to protect the administration of justice from reproach. In re Rothenberg, 108 Ill.2d 313, 323 (1985). In addition to rehabilitation, the disciplined attorney must demonstrate present good character and current knowledge of the law.  Ill. Sup. Ct. R. 767(f).

Rule 767 lists six factors to be considered in determining the petitioner’s rehabilitation, present good character and current knowledge of the law. Those factors are not necessarily dispositive, in that a hearing panel may consider other factors that the panel deems appropriate. Rule 767(f). The first of the six factors is the nature of the misconduct for which the petitioner was disciplined. Here, the hearing panel reviews the misconduct resulting in the petitioner’s removal from the practice of law, keeping in mind that “the mere passage of time is not a sufficient ground for reinstatement.” In re Thomas, 76 Ill.2d 185, 193 (1979). There may be “certain infractions that are so serious that the attorney committing them should never be readmitted to the practice of law.” Rothenberg, 108 Ill.2d at 326. In In re Alexander, 128 Ill.2d 524 (1989), the Court found that the serious nature of the petitioner’s misconduct precluded his reinstatement “at this time.” Alexander had been disbarred on consent after he paid bribes to public officials to benefit his firm’s clients. Alexander’s criminal conduct was particularly reprehensible because bribery undermines the integrity of our system of government. Alexander, 128 Ill.2d at 535. The Court denied Alexander’s petition for reinstatement, finding that his “reinstatement at [that] time would have seriously devalue[d] the importance of restoring the public and the legal profession's confidence in the fair administration of justice.” 128 Ill.2d at 539. But see In re Alexander, 97 RT 3002, M.R. 13340 (March 23, 1999) (Alexander reinstated about 15 years after he was disbarred on consent, and about 10 years after his initial effort to be reinstated).

The second factor is the maturity and experience of the petitioner at the time discipline was imposed. This factor contributed to the delay in Alexander’s reinstatement. He had been practicing law for 18 years when he committed misconduct. He concentrated in real estate tax litigation and paid bribes to persons with the Board of Appeals of Cook County, which reviewed real estate assessments. He also developed his experience in tax litigation when he was an assistant state’s attorney representing the interests of Cook County. Alexander was a mature and experienced attorney when he bribed public officials.

The third factor is whether the petitioner recognizes the nature and seriousness of the misconduct that resulted in the petitioner’s removal from the practice of law. An attorney’s failure to recognize the grievous nature of wrongful conduct is an important consideration, because an attorney who does not appreciate the nature and seriousness of wrongful conduct may again victimize members of the public, bring the legal profession into disrepute or undermine the administration of justice. See In re Mason, 122 Ill.2d 163, 174 (1988).

The fourth factor that the hearing panel is to consider in a reinstatement proceeding is whether the petitioner has made restitution for an improper benefit to the petitioner or a loss to some victim. In re Fleischman, 135 Ill.2d 488, 497-98 (1990). In Alexander, where the petitioner had been disciplined for bribing public officials, he argued that restitution was not possible. The Court found, however, that Alexander had to make restitution, even though his misconduct by itself did not result in real estate assessment reductions, and the law firm of which he was a partner received the fees generated from those cases. The firm received $240,000 in improper fees, but Alexander, as a partner, was entitled to partnership profits based on those fees. In addition, Cook County incurred a loss due to Alexander’s misconduct because his actions contributed to a loss of tax revenue. Alexander was thus liable for making $51,874 (his share of partnership profits to which he was entitled) in restitution to Cook County.

The fifth factor is the petitioner’s conduct since discipline was imposed.  In In re Livingston, 133 Ill.2d 140 (1989), the petitioner sought reinstatement after he had been suspended until further order of the Court for commingling his own funds with client funds, misappropriating client funds, and failing to refund a fee to a client. The suspended attorney’s petition was denied for several reasons, one of which was his conduct during his suspension. When he was not authorized to practice law, he held himself out as authorized to do so, he performed legal services as an attorney, and he falsely denied that he had been present at a real estate closing for which he, on behalf of the seller, had conversations with the buyers’ attorney about the transaction. By doing so, he failed to exhibit the level of conduct that the Court expects from a disciplined attorney who wishes to be readmitted to the Illinois bar. Livingston, 133 Ill.2d at 145.

The sixth and final factor is the petitioner’s candor and forthrightness in presenting evidence in support of the petition. In In re Powers, 122 Ill.2d 18, 21 (1988), the petitioner did not fully disclose information required in a petition for reinstatement. He failed to disclose certain residences and provide complete employment information. A petitioner who lacks candor in their own reinstatement proceedings is not ready to return to a trustworthy role as an attorney.

Reinstatement proceedings recognize that a disciplined attorney may be rehabilitated. The above factors assist the boards of the Attorney Registration and Disciplinary Commission in recommending to the Court whether an attorney should be reinstated. The Court makes the final decision. Careful consideration is essential since reinstated attorneys may resume the practice of law as a representative of clients, as well as an officer of the legal system and a public citizen with special responsibility for the quality of justice. Ill. Rules Prof’l Conduct, Preamble.