In re Application of Morton J. Dimenstein
File No. 160312
Superior Court of Connecticut, Judicial District of New Haven
36 Conn. Supp. 41;
410 A.2d 491;
1979 Conn. Super. LEXIS 177
July 3, 1979, Memorandum Filed
PRIOR HISTORY:
[***1]
Memorandum of decision on application of Morton J. Dimenstein for reinstatement
to the bar.
DISPOSITION:
Application granted.
COUNSEL:
Joseph B. Morse, for the grievance committee of the judicial district of New Haven.
JUDGES: Quinn, Cioffi, Dupont, Js.
OPINIONBY: QUINN (IN PART); CIOFFI (IN PART); DUPONT (IN PART)
OPINION:
[*42]
[**492] This is an application for
reinstatement to the bar by Morton Dimenstein, who was
disbarred in December, 1968. He had been sentenced to prison for a term of two to five
years, after pleading guilty to a charge of conspiracy to bribe a public
official. Prior to that time, he had been practicing law for eleven years. He
was released on parole in April, 1970. It is the third application for
readmission filed by the applicant as of record appears. The status and history of the
prior applications have no bearing on this panel and its ultimate decision.
A hearing on the present application was held before the New Haven
standing committee on
recommendations for admission to the bar, and its report was filed, favorable in its findings,
regarding the applicant's conduct and character. The committee, however,
declined to recommend
reinstatement
[***2] because the 1968 order of
disbarment stated that the applicant was
"permanently"
disbarred. The initial issue before this court involves the meaning of the term
"permanently" as used in the
disbarment proceedings. More particularly, the question is whether
"permanent"
disbarment
forever precludes the applicant from gaining
readmission
[*43] to the bar. Although the statutes and case decisions of Connecticut make it
clear that
disbarment is a recognized disciplinary procedure, the precise issue of the instant case
has not previously been decided.
Disbarment of attorneys is provided for in
§ 51-84 of the General Statutes, which states that
"attorneys admitted by the Superior Court shall be attorneys of all courts and
shall be subject to the rules and orders of the courts before which they act,
which may fine them for transgressing such rules and orders, not exceeding one
hundred dollars for any offense, and may
suspend or displace them for just cause." Section 29 of the 1978 Practice Book provides that
"[t]he superior court may, for just cause,
suspend or disbar attorneys . . . ."
The courts, in interpreting
§
51-84, have distinguished
suspension from
disbarment.
[**493]
[***3] Inherent in
suspension is a fixed time period for the inability to practice law;
Grievance Committee v. Sinn, 128 Conn. 419, 422; whereas
disbarment is equivalent to an
indefinite hiatus in the
practice of law.
In re Application of Koenig, 152 Conn. 125, 131-32.
The above quoted statute is devoid of any reference to gradations of
disbarment. Neither it nor the Practice Book distinguishes between
permanent
disbarment and some lesser degree of
disbarment, implying instead that every
suspended or
disbarred attorney may seek
reinstatement.
"Any application for
reinstatement or
readmission to the bar shall be referred, by the court to which it is brought, to the
standing committee on
recommendations for admission . . . ." Practice Book, 1978,
§ 36. At one time, the
reinstatement procedures of the Practice Book did distinguish between persons
suspended for failure to pay
certain bills and those
suspended or
disbarred for other reasons. This suggests that had the authors of the present section
[*44] wished to create a distinction between
permanent as opposed to some lesser category of
disbarment, they could have done so.
Although there is no Connecticut case which
[***4] has addressed the issue of the present case, other states have reviewed the
question of the meaning and impact of the term
"permanent" in the context of a
disbarment order. Those decisions uniformly negate the concept of an absolute or
irrevocable
disbarment, and construe the word
"permanent" as meaning
"indefinite," until circumstances warrant a change. Even in those jurisdictions which,
unlike Connecticut, provide by law for
permanent
disbarment for some crimes, extreme caution is exercised before concluding that
"permanent" means
forever. Although
disbarment is not punishment for a crime, but, rather, the withdrawal of a privilege, it
cannot be denied that the requirement of
permanent,
irrevocable
disbarment, is, in
effect, a consequence so severe that it partakes of the nature of punishment,
and a statute providing for the same must be interpreted in the light of the
fundamental canon that penal statutes must be strictly construed.
Matter of Donegan, 282 N.Y. 285, 292;
Matter of Rouss, 221 N.Y. 81. A Mississippi statute provides that a
disbarred attorney
"shall never
afterward be permitted to act as an attorney or counselor in any court of this state," and there is
[***5] no statutory provision for
reinstatement. Miss. Code
§ 223 (1906). Despite this language and the lack of a procedure for
reinstatement, the Mississippi Supreme Court has held that, although a
disbarred attorney may not practice while the judgment of
disbarment stands, that judgment may be opened if in the opinion of the court
reinstatement is warranted.
Ex parte Redmond, 120 Miss. 536. Thus, even the
"never
afterward"
language of the statute was found not to preclude
readmission.
[*45] A Tennessee case addresses the question of reinstating two attorneys whose
disbarment order stated that
"'the defendants . . . be and they are hereby
permanently
disbarred, and that their names be
permanently stricken from the roll of attorneys and that they and each of them be and they
are hereby
forever enjoined and prohibited from engaging in the profession of lawyers or in the
practice of law in any form or manner whatsoever directly or indirectly, in the state of
Tennessee.'"
Cantor v. Grievance Committees, 189 Tenn. 536, 541. The court held that the right to
reinstatement was not denied, in spite of the language of the
disbarment order. See also
Matter of H___ S___
[***6] ,
236 Mo. App. 1296.
Courts in Kentucky and Texas have also examined the question of whether
disbarment is a
permanent disability, and have answered it in the negative.
In re Stump, 272 Ky. 593; see also
Burns v. State, 76 S.W.2d 172 (Tex.
Civ. App.). It is a well settled principle that
disbarment is not res adjudicata or necessarily
permanent, and that a
disbarred attorney may be
reinstated for reasons satisfactory to the court. See 5 Am. Jur., Attorneys at Law
§ 301; 6 C.J., Attorney and Client
§ 97; 7 C.J.S., Attorney and Client
§ 41.
[**494] The applicant here relies on the recent Florida case of
In re Rassner, 265 So. 2d 363. In
Rassner, the court echoed the reluctance noted in the
Donegan and
Redmond cases, supra, to find an
irrevocable
disbarment.
"We deny a motion of the Florida Bar contending that because petitioner was
permanently
disbarred he is
forever precluded from seeking
reinstatement and being
reinstated. It is our view that a former attorney, whether 'permanently'
disbarred or permitted to resign on the condition that he will never seek
reinstatement is not thereby
forever
[*46] precluded at some future date from seeking
[***7]
reinstatement."
In re Rassner, supra, 363. Similar statements were made by a federal court hearing an appeal from a
judgment of
disbarment.
"[A]lthough the order is
permanent in form it is not
irrevocable. It does not necessarily prevent the appellant from
reinstatement upon proof of 'a sincere and timely change of attitude.'"
Levenson v. Mills, 294 F.2d 397, 399 (1st Cir.), cert. denied,
368 U.S. 954.
Finally, courts have looked to public policy to determine whether a
disbarment should be
irrevocable.
"It is not the policy of the law, and is not considered to be in the interest of
justice, that an attorney who has been
disbarred for
misconduct
shall never under any circumstances be
readmitted to practice." (Emphasis added.)
In re Nisbet, 77 Cal. App. 260, 261.
"[I]t is not the policy of the law, nor is it in the interest of justice, that
an attorney who has been
disbarred shall
never be
readmitted to practice."
Wettlin v. State Bar, 24 Cal. 2d 862, 868.
The circumstances surrounding the applicant's
disbarment underscore the need for construing the term
"permanent" as meaning something less than
irrevocable, as it was construed by the courts
[***8] in
Redmond, Rassner,
Levenson and
Nisbet. This interpretation is reinforced by Connecticut law, which provides no
basis for distinguishing between revocable and
irrevocable
disbarments. It is also implied by the
reinstatement provisions, which place no qualifications on who may make application for
reinstatement. Furthermore, the purpose of
disbarment would not be served by an
irrevocable order.
Disbarment and
suspension from practice are not a means of punishment, but are steps taken by the court
for its own protection and for the protection of the public from the
misconduct of
[*47] untrustworthy practitioners. The ultimate question is the present fitness of
the applicant for
reinstatement.
In re Kone, 90 Conn. 440, 442.
In the present case, the purposes of
disbarment have already been served. The applicant's present conduct demonstrates the
requisite reformation of character to entitle him to resume his role as
attorney.
Application granted.
