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Search Terms: 4.5(F)

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*** THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH JANUARY 15, 2000 ***

NORTH DAKOTA RULES FOR LAWYER DISCIPLINE
PART IV. DISCIPLINARY PROCEDURES

NDRLD, Rule 4.5 (2000)

Review Court Orders which may amend this Rule

Rule 4.5. Reinstatement.

A. Proof of rehabilitation. Reinstatement following suspension of six months or less does not require proof of rehabilitation. Reinstatement following suspension of more than six months or disbarment requires that proof of rehabilitation be demonstrated in a reinstatement proceeding culminating in a court order of reinstatement.

B. Short suspension. A lawyer suspended for six months or less may resume practice at the end of the period of suspension by filing with the court and serving upon counsel an affidavit stating that the lawyer has fully complied with the requirements of the suspension order and has paid all required fees, costs, and expenses.

C. Long suspension. A lawyer who has been suspended for more than six months may not apply for reinstatement until 60 days before the expiration of the period set forth in the suspension order.

D. Following disbarment. A lawyer who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment. Reinstatement must be conditioned upon the certification by the bar examiners of the successful completion, after the order for reinstatement, of an examination for admission to practice not including a character and fitness investigation.

E. Successive petitions. A petition for reinstatement may not be filed for one year following an adverse judgment upon a petition for reinstatement.

F. Hearing on application. Petitions for reinstatement of a disbarred or suspended lawyer under this rule must be filed with the board and served upon counsel. Upon receiving the petition the board shall promptly refer the petition to a hearing panel. Notice that a petition for reinstatement is pending must be mailed by counsel to the last known address of the complainant in the proceeding leading to the lawyer's disbarment or suspension, and any other known or ascertainable victim of the lawyer's misconduct, and any known immediate family member of a deceased complainant or a deceased other victim. Each person receiving notice under this section is entitled to submit comments or other information concerning the petition for reinstatement. The hearing panel shall conduct a hearing at which the petitioner has the burden of demonstrating the petitioner's qualifications for reinstatement or readmission. Factors that may be considered include evidence of the following:

1. The petitioner's fitness and competence to practice law;

2. The petitioner has fully complies with the terms and conditions of all applicable disciplinary orders and rules;

3. The petitioner has not engaged or attempted to engage in the unauthorized practice of law during the period of suspension or disbarment;

4. Where alcohol or drug abuse was a causative factor in the lawyer's misconduct, the petitioner must show that the petitioner has been successfully rehabilitated or is pursuing appropriate rehabilitative treatment;

5. The petitioner recognizes the wrongfulness and seriousness of the misconduct for which the petitioner was suspended or disbarred;

6. The petitioner has not engaged in any other professional misconduct since suspension or disbarment; or

7. Notwithstanding the conduct for which the petitioner was disciplined, the petitioner has the requisite honesty and integrity to practice law.

The hearing panel shall file a report containing findings, recommendations, and the record with the court. A copy of the report must be served upon the lawyer and counsel. Within 20 days of service of the report, the lawyer and counsel may file objections to the report. Within 50 days after service of the report, the lawyer and counsel may file briefs. Oral arguments may be set on the court's own motion. Briefing and oral argument will be as provided in the North Dakota Rules of Appellate Procedure.

G. Deposit for costs. Petitions for reinstatement under this rule must be accompanied by an advance cost deposit in an amount to be set from time to time by the board to cover anticipated costs of the reinstatement proceeding.

H. Conditions of reinstatement. If the petitioner fails to establish qualification for reinstatement, the petition must be dismissed. If the court determines that the petitioner is qualified to again practice law, the court shall order reinstatement, provided that the court may impose conditions upon the petitioner's reinstatement or readmission where the court reasonably believes that full precautions should be taken to ensure that the public will be protected upon the petitioner's return to practice.

The court may impose any conditions that are reasonably related to the grounds for the petitioner's original suspension or disbarment, or to evidence presented at the hearing regarding the petitioner's failure to meet the criteria for reinstatement or readmission. Conditions imposed by the court may include any of the following:

1. Payment of all or part of the costs of the proceedings;

2. Restitution;

3. Proof of competency, including certification by the bar examiners of the successful completion of an examination for admission to practice administered subsequent to the order for reinstatement;

4. Limitation upon practice to one area of law or through association with an experienced supervising lawyer;

5. Compliance with continuing legal education requirements of the admission to practice rules, which may include participation in specific continuing legal education courses;

6. Monitoring of the lawyer's practice for compliance with trust account rules, accounting procedures, or office management procedures;

7. Abstention from the use of drugs or alcohol;

8. Active participation in Alcoholics Anonymous or other alcohol or drug rehabilitation program; or

9. Monitoring of the lawyer's compliance with any other orders, such as abstinence from alcohol or drugs, or participation in alcohol or drug rehabilitation programs. If the monitoring lawyer determines that the reinstated or readmitted lawyer's compliance with any condition of reinstatement or readmission is unsatisfactory and that there exists a potential for harm to the public, the monitoring lawyer shall notify the court and counsel and, where necessary to protect the public, the lawyer may be suspended from practice under Rule 3.4.

I. Reciprocal reinstatement or readmission. If the court has imposed a suspension or disbarment solely on the basis of imposition of discipline in another jurisdiction and the lawyer gives notice to the court that the lawyer has been, without condition or probation, reinstated or readmitted in the jurisdiction, the court shall determine whether the lawyer should be reinstated or readmitted. Unless disciplinary counsel presents evidence demonstrating procedural irregularities in the other jurisdiction's proceeding or presents other compelling reasons, the court shall reinstate or readmit a lawyer who has been reinstated or readmitted in the jurisdiction where the misconduct occurred.

NOTES:
Source: Amended effective July 1, 1999.

ANALYSIS

Reinstatement Following Disbarment.
Suspension upon Relicensing.

Reinstatement Following Disbarment.

A disbarred attorney petitioning for reinstatement bears a heavy burden of proof. Montgomery v. Disciplinary Bd., 1997 ND 148, 566 N.W.2d 426 (1997).

The language "Notwithstanding the conduct for which the petitioner was disciplined" in N.D.R. Lawyer Discipl. 4.5(F) requires the petitioner to prove by clear and convincing evidence he currently has the requisite honesty and integrity to practice law, in spite of the misconduct committed in the past. Montgomery v. Disciplinary Bd., 1997 ND 148, 566 N.W.2d 426 (1997).

Suspension upon Relicensing.

The question of implementing suspension in the case of a lawyer not presently licensed in this state presented some special concerns; it was ordered that the attorney be suspended from the practice of law for a period of 30 days, effective upon the date of his relicensing in this state, for neglecting legal matters entrusted to him, failing to seek lawful objectives of his clients through reasonable means, failing to carry out a contract of employment, prejudicing his clients during the course of their professional relationship, and failing to act with reasonable diligence and promptness when representing a client. Disciplinary Bd. v. Jones, 487 N.W.2d 599 (N.D. 1992).

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