United States: But Why Though?

Last Updated: September 27 2019
Article by Brian S. Faughnan

This past week the Tennessee Supreme Court proposed revisions to the rules of disciplinary enforcement that would transform disbarment into an irrevocable form of discipline in Tennessee and that would extend the potential length of a suspension from 5 years maximum to 10 years maximum.

Which leads me to the highly-technical title of this post: But why though?

Under Tennessee’s current approach, the maximum length of suspension is 5 years, and the only harsher punishment is disbarment. At present, in Tennessee, if you are disbarred it is not a “death penalty” as to your license because you can apply for reinstatement after 5 years has passed.

What is going on that would make anyone think this was a needed change in Tennessee?

I assume that if this change were enacted what it would mean is that some percentage of lawyers who are presently finding themselves disbarred might now instead just end up receiving suspensions in the 6-10 year range and some other percentage of lawyers who are already going to end up disbarred will still be disbarred but will have it be a new “disbarment is forever” standard.

But … why? I admittedly do not have access to all information about what is going on in the world of discipline in Tennessee, but I have some decent insight, and I’m simply not attuned to what the problem is that this seeks to fix.

Lawyers who get disbarred do not just get automatically reinstated after spending 5 years disbarred. They have to apply for reinstatement. They have the burden of proving that being permitted to return to the practice of law will not be detrimental to the public and the profession. Disciplinary counsel has the opportunity to zealously advocate against the requested reinstatement and marshal whatever evidence they can get their hands on to demonstrate why the person involved has not changed sufficiently to be given the privilege to practice law once again.

By the way, that is also how it works if you get a 5-year suspension (or a 3-year suspension or a 1-year suspension). You have to apply to be reinstated; you have to prove the required elements to demonstrate why you should be reinstated. If you can’t, you stay suspended for 6 or 7 or 8 or even 10 years until you can prove you should be able to practice law again. Based on other revisions to the rules not too long ago, that is also how it works even if you only get suspended for 30 days. You still have to get yourself reinstated by way of a petition.

Why doesn’t that work? Why does Tennessee need to add itself to the list of a handful or so other states to have permanent, irrevocable disbarment? Why does Tennessee need to double the length of available periods of suspension up to 10 years?

It has now been more than 10 years since our Court issued its decision in Hughes v. BPR but it certainly knows that it already has the precedent to deny a lawyer reinstatement if it thinks it should not happen even in the face of significant evidence of rehabilitation.

The statistics that are easily accessible also do not seem to indicate anything is horribly awry with the current approach. If you look at the most recent annual report from the TBPR, there were 21 lawyers disbarred, 18 lawyers receiving disciplinary suspensions (which would be anywhere between the 30-day minimum and the 5-year maximum), and 7 lawyers reinstated. If you look at the report for the year before that, there were 23 lawyers disbarred, 28 lawyers receiving suspensions, and 14 lawyers reinstated. The year before that, 23 disbarments, 18 suspensions, and only 5 lawyers managed to get reinstated.

And, also, while I think that what I’ve discussed above is the big and truly weighty question at play here, even if one decided there should be a change, why in the world would it ever make sense to pick a future date when disbarments would become permanent and not indicate that it is for disbarments arising from disciplinary proceedings commenced on or after that date?

The proposed revision would change Section 30.2 of Tenn. Sup. Ct. R. 9 to read as follows:

30.2. Individuals disbarred on or after July 1, 2020, are not eligible for reinstatement. Individuals disbarred under Rule 9 prior to July 1, 2020, may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment.

Why inject a questionable level of due process deficiency into this situation by proposing to revise the rule so that people who already have cases in the system would have a different meaning for the outcome of disbarment depending on whether it was complete by June 30, 2020? Lawyers on their way to disbarment are admittedly not sympathetic characters, but if they have begun being investigated and prosecuted under one set of rules, there seems no really good reason to change those rules on them in the middle of the process.

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