The best thing about the future is it comes one day at a time.
-Abraham Lincoln-
Lawyers are human. Let me say it again. Lawyers . . . are . . . human. They are subject to all the entrapments of the human condition: desire, greed, power, lust, and yes, addiction. These enticements can lead a lawyer down the wrong path and often the path is distant and dark and the walk does not end for a very long time. At the other end of the path, a lawyer can find him or herself on the wrong side of a disciplinary complaint which could include harm to a client, the courts, the legal system, and most certainly themselves and their family. It is often too late to rectify the harm, especially while battling an ongoing addiction. This may lead to the suspension of the lawyer’s law license. The suspension order may include payment of restitution, costs, requirement of a practice monitor, or a TLAP assessment and monitoring agreement, if applicable. The rules also prohibit a suspended attorney from working in a law firm in any capacity1.
The immediate concern, of course, is for the lawyer to address his or her addiction and get healthy. Without that piece, there can be no recovery. This can often be a long and grueling process. The lawyer will likely be unemployed or working for wages below his or her prior income. The financial and emotional stress can be devastating. This is not a solo journey. Support is an essential step. With perseverance and hard work, a lawyer can find and utilize the necessary tools toward a successful recovery. The Tennessee Lawyers Assistance Program2 can help and, at a minimum, lawyers should make contact with the organization and seek an evaluation. At some point, thoughts will turn toward the future.
The decision to seek reinstatement of a law license can be a difficult one. Like addiction, there can be a long and difficult road to recovery of the privilege to practice law. The financial piece can seem overwhelming. The legal requirements are many. The Board of Professional Responsibility requires a $2,000.00 cost bond just to get started3 and the burden of proof rests upon the petitioning lawyer by a clear and convincing evidentiary standard.4 Similar to recovery from addiction, lawyers must take things one day at a time.
Acceptance of responsibility is a crucial step in moving forward. Lawyers who point fingers at others or who fail to acknowledge their past mistakes do not present well before a hearing panel. Lawyers must learn that accepting responsibility for their actions is not a weakness, but a strength, and a good sign of recovery. Lawyers should be willing to talk about their mistakes to other attorneys and educate them about the perils of addiction and abuse. Additionally, lawyers should seek out guidance and mentorship from other attorneys and/or judges and be willing to discuss their mistakes and ways to avoid such mistakes in the future.
Part of accepting responsibility is rectifying past behavior when possible. Seeking forgiveness from those who may have been hurt by the lawyer’s conduct shows a sense of caring. Apologies, however, offer little in the form of substance and can be viewed as letting a lawyer “off the hook” for his or her misconduct. Instead, the lawyer should consider a simple act of service to those he or she may have harmed as a makeup for such behavior. Examples are limitless, but include: simple repair projects, preparing a favorite meal, walking the dog, washing a car, or writing a poem. These are not meant to make the victim whole, but to provide a meaningful step toward repairing a relationship that was torn. Some may not be amenable to forgiveness, especially if the damage was significant, but it is never a bad idea to make amends when possible.
Payment of disciplinary costs is a condition precedent to filing a reinstatement petition5 . . . and then there’s restitution. Where to begin? This is a number that can be quite daunting. A lawyer should make reasonable and regular payments toward outstanding restitution pursuant to the Order of Enforcement filed by the Tennessee Supreme Court. This may be paid directly to the former client or through subrogation to the Lawyers Fund for Client Protection if appropriate.6 In any event, lawyers should keep a good record of all payments made and be ready to provide all necessary proof to the Board of Professional Responsibility prior to the filing of a reinstatement proceeding. Lawyers should make good faith efforts to pay a substantive portion of any outstanding restitution prior to the filing of a reinstatement proceeding. Although it is implied that restitution does not have to be fully satisfied prior to such filing,7 a lawyer will be in a much better position if it has.
Lawyers must also keep abreast of the law and continue their legal education despite their inability to practice law. Any continuing legal education obligations not satisfied during a suspension period must be made up and all fines and costs paid to the Commission on Continuing Legal Education before reinstatement will be considered.8 Lawyers should also read appellate and other legal decisions regularly, especially in the areas of law they intend to practice if reinstated. A showing of competency and learning in the law is a necessary element in a reinstatement proceeding.9 Lawyers who have been suspended for a period in excess of five (5) years may be required to re-take and pass the bar exam.10
In some cases, a lawyer’s conduct may “strike at the very heart and soul of the judicial system”11 which the Tennessee Supreme Court noted would have a detrimental impact on the integrity and standing of the bar, the administration of justice and the public interest. Examples include federal conviction for perjury and obstruction of justice,12 convictions for bribery and conspiracy to commit bribery in a first degree murder case,13 and federal conviction of attempted extortion in an attempt to broker witness testimony in a civil proceeding.14 The court has denied reinstatement in these types of cases without signaling whether a successive petition for reinstatement may have any chance of success. Perhaps the recent rule change implementing permanent disbarment and an increase in maximum suspension to ten (10) years will resolve that conundrum.15
Lawyering can be difficult and is one of the most stressful jobs in this country.16 The stress can often be aggravated by external factors such as a health crisis, reduction in income, or family strife. Despite the pitfalls associated with the practice of law, lawyers should be held accountable for their actions. The law profession is a self-regulating industry and it is important that high standards be held for the protection of the public and the integrity of the legal system. However, there must be consideration for redemption and a path forward to reinstatement for those willing to endure the hardships of such process. You may know a lawyer who has redeemed him or herself after a fall from grace. I surely do, and they make some of the best lawyers in the profession because they recognize just how very precious the privilege to practice law can be.
1 See Tenn. Sup. Ct. R. 8, RPC 5.5(h) and Tenn. Sup. Ct. R. 9, Sec. 28.8.
2 https://tlap.org/
3 Tenn. Sup. Ct. R. 9, Sec. 30.4(d)(9).
4 Tenn. Sup. Ct. R. 9, Sec. 30.4(d)(1).
5 Tenn. Sup. Ct. R. 9, Sec. 31(f).
6 See Tenn. Sup. Ct. R. 9, Sec. 12.7.
7 See Tenn. Sup. Ct. R. 9, Sec. 30.4(d)(7) in which a hearing panel can impose the condition of making restitution as part of a petitioning attorney’s reinstatement.
8 Tenn. Sup. Ct. R. 21, Sec. 7.10.
9 Tenn. Sup. Ct. R. 9, Sec. 30.4(d)(1).
10 Tenn. Sup. Ct. R. 9, Sec. 30.3(i).
11 In Re: Ira H. Murphy v. Bd. of Prof. Resp., 924 S.W.2d 643 (Tenn. 1987).
12 Id.
13 Dennis J. Hughes v. Bd. of Prof. Resp., 259 S.W.3d 631 (Tenn. 2008).
14 Walter Ray Culp, III v. Bd. of Prof. Resp.,407 S.W.3d 201 (Tenn. 2013).
15 Tenn. Sup. Ct. R. 9, Sec. 12.1 and 12.2(a)(2).
16 Williams, G. (2021, March 15). The 25 Most Stressful Jobs. money.usnews.com/careers/company-culture/slideshows/the-most-stressful-jobs?slide=7