Should disbarred lawyers be given second chances?
Illustration by Sara Wadford/ABA Journal/Shutterstock.
In 2017, New Jersey attorney Dionne Larrel Wade was one of more than 600 lawyers in the state subjected to a random audit by the Office of Attorney Ethics.
Wade, a solo practitioner who was admitted to the bar in 2002, had devoted her career to representing underserved clients in matters ranging from bankruptcy to criminal proceedings to personal injury lawsuits. She also did pro bono work for Northeast New Jersey Legal Services, conducted free legal seminars and volunteered.
“Everything I’ve done in my life was to become an attorney and to help people,” Wade says.
The audit uncovered discrepancies in her books, and Wade acknowledged that she sometimes borrowed money from client trust funds to pay bills. She always repaid the money, and she had never previously been the subject of a disciplinary proceeding.
The Office of Attorney Ethics, an investigative and prosecutorial arm of the Supreme Court of New Jersey, began disbarment proceedings. At her hearing, character witnesses—including one of the clients whose money Wade borrowed—testified on her behalf.
In New Jersey, a knowing misappropriation of client funds results in permanent disbarment. Accordingly, in June, the supreme court ordered Wade stricken from the roll of attorneys.
“When clients place money in an attorney’s hands, they have the right to expect the funds will not be used intentionally for an unauthorized purpose,” Chief Justice Stuart Rabner wrote.
But in a first, the court left open the possibility that Wade and other disbarred attorneys might resume practicing law. As part of the ruling, Rabner convened a committee tasked with evaluating whether disbarment should be permanent in every case involving knowing misappropriation of client funds. He also invited the committee’s comments on whether attorneys disbarred for reasons other than misappropriation of funds should be able to apply for reinstatement.
Currently, disbarment is always permanent in New Jersey and a minority of other states—including Indiana, Kentucky, Nevada, New Mexico, Ohio, Oregon and Tennessee. In some other states, including Louisiana, disbarment can either be permanent or temporary.
But in the majority of states and in the District of Columbia, disbarred lawyers may apply for readmission after a period of time—often at least five years. Similarly, Rule 25 of the ABA Model Rules for Lawyer Disciplinary Enforcement says lawyers who have been disbarred should not be able to apply for reinstatement for at least five years after the effective date of the disbarment.
The New Jersey court’s move to revisit its stance comes after decades of criticism by the organized bar.
While disbarment always has been permanent in New Jersey, it wasn’t inevitably imposed on all attorneys who knowingly misappropriated funds until a 1979 decision involving Wendell Wilson. He was the subject of eight complaints filed with the local ethics committee, including two that involved misappropriation.
The state’s highest court not only stripped Wilson of his license but also said disbarment was “the only appropriate discipline” in misappropriation cases.
“Maintenance of public confidence in this court and in the bar as a whole requires the strictest discipline in misappropriation cases,” then-Chief Justice Robert Nathan Wilentz wrote.
Before that decision, the court sometimes merely suspended lawyers who misappropriated funds, depending on whether there were mitigating factors—such as whether lawyers made restitution.
After Wilson, the state supreme court invariably disbarred lawyers who knowingly misappropriated client funds—though the court imposed lesser sanctions when the misappropriation was negligent, meaning the lawyer was careless or sloppy with bookkeeping.
Some lawyers in New Jersey have long argued the state’s disbarment approach is too inflexible. “There are a tremendous amount of talented people who have been disbarred permanently,” says Wade’s attorney, Donald Lomurro.
Ronald Chen, a law professor at Rutgers Law School, says the current rigid standard is somewhat anomalous for the Supreme Court of New Jersey.
“This court generally is not known for adopting bright-line rules in any of its jurisprudence,” he says.
The New Jersey State Bar Association filed an amicus brief in Wade’s case urging the supreme court to rule that disbarment in misappropriation cases should be required only when the lawyer committed fraud or theft.
Disbarment in other states
Louisiana changed its rules in 2001 to allow the option of permanent disbarment in some cases where lawyers engaged in “egregious misconduct”—including insurance fraud, intentional homicide, armed robbery and “repeated or multiple instances of intentional conversion of client funds with substantial harm,” among other examples.
Louisiana courts can only impose permanent disbarment after finding both that the lawyer’s conduct is “so egregious as to demonstrate a convincing lack of ethical and moral fitness to practice law,” and that “there is no reasonable expectation of significant rehabilitation in the lawyer’s character in the future.”
Wisconsin mulled a rule change that would have allowed for permanent disbarment but rejected it in 2019. Justice Annette Kingsland Ziegler (who is now chief justice) authored a dissent in that case joined by Justices Rebecca Grassl Bradley and Brian Hagedorn.
“We continue to use the term ‘revocation,’ but in reality we just suspend lawyers, call it revocation and allow these most heinous offenders to petition for readmittance after a period of five years,” Ziegler wrote. “This creates false perceptions both to the public and to the lawyer seeking to practice law again.”
Legal ethics experts offer varying opinions on permanent disbarment.
“I believe it is appropriate to provide an opportunity for redemption,” says Kathleen Clark, a Washington University in St. Louis School of Law professor who has served on the District of Columbia Bar’s Rules of Professional Conduct Review Committee.
“There are some really remarkable redemption stories I have seen of lawyers who have been either disbarred or suspended, and then essentially have a revelation or epiphany about their past conduct and become absolutely upstanding members of the bar—and of society,” Clark adds.
Seton Hall University School of Law professor Michael Ambrosio, who has written about legal ethics, says he favors maintaining New Jersey’s current standard of permanent disbarment for lawyers who raid client accounts.
“A client trust account is sacrosanct,” he says. It’s better for the court “to err on the side of disbarment,” he adds, than risk losing the public’s confidence in the legal system.
Second chances
Another New Jersey lawyer seeking reinstatement is John Koufos, who is recovering from alcoholism. He was disbarred after pleading guilty to leaving the scene of an accident, hindering apprehension or prosecution, and witness tampering.
His guilty plea stemmed from a crash on June 17, 2011, in which Koufos, then a criminal defense attorney, struck and seriously injured a 17-year-old pedestrian. Koufos fled the scene. The next day, he persuaded a friend who had worked with him off and on for five years to confess to the police, according to an opinion by the Disciplinary Review Board of the Supreme Court of New Jersey.
Several days after the crash, Koufos turned himself in. He pleaded guilty in March 2012, was sentenced to six years and served approximately 17 months.
The Disciplinary Review Board voted 6-2 to suspend Koufos from practice for three years, but the New Jersey Supreme Court disbarred him in 2015 by a 4-2 vote.
Since leaving prison, Koufos has advocated for former prisoners, including serving as executive director of the nonprofit New Jersey Reentry Corp. and as national director of reentry initiatives for Right on Crime, which says it supports conservative approaches to “reducing crime, restoring victims, reforming offenders and lowering taxpayer costs.”
Koufos also was temporarily suspended from practice in the U.S. District Court for the District of New Jersey in 2013 and is fighting disbarment proceedings in that court. Koufos’ lawyer in the federal matter, Lawrence Lustberg, says his client “really should be able to have the benefit of a second chance.” He adds that Koufos is trying to get his record in New Jersey expunged.
“There are legal service programs I would like to create and lead, which I can’t do as a disbarred person,” Koufos says.
The committee to reexamine disbarment will be headed by former New Jersey Supreme Court Justice Virginia Long and will include lawyers and nonlawyers. The group will examine issues such as how long disbarred attorneys should have to wait before seeking reinstatement, what factors should be considered, and whether disbarred attorneys should have to retake the bar exam or classes on ethics and record-keeping.
Wade, for one, she says she would do anything to regain her license.
“It was everything I worked so hard for, and I put so much into,” she says.
This story was originally published in the December 2022-January 2023 issue of the ABA Journal under the headline: “Back After Disbarment? Some jurisdictions are weighing whether to give lawyers second chances.”
