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Getting In Trouble: The Severe Sanctions; 2008-2010, Part Two

Part Two:  You’re Suspended!

Even if you don’t get disbarred in Massachusetts, you’re not home free.  You might still be suspended by the Massachusetts BBO.  Suspension is no laughing matter.  While on suspension, you cannot “engage in legal or paralegal work” – and how many of us have a non-legal fallback career? You won’t even be allowed to perform legal duties as a corporate executive. (Though you can of course still represent yourself.)
Perhaps even more jarring:  within fourteen days of being suspended, you must – just as you must if you’d been disbarred – file notices of withdrawal on every matter.  You must resign as guardian, trustee, executor, and all other such fiduciary positions.  You must notify all your clients, and all opposing counsel, in writing that you’ve been suspended.  You must close all IOLTA accounts and return all prepaid fees.
Then, after sitting on the sidelines, possibly unemployed, for the duration of the suspension, you must petition for reinstatement.  This is easier said than done, and will be discussed further in a later section of this series.

Even if you can get reinstated, you’ve already had to withdraw from every representation and notify all clients of your suspension. You can once again “engage in legal work” – but it might be hard to find anyone willing to engage you to represent them.

The following is a straightforward list of the things you must do, can do, and can’t do during a period of suspension or following Massachusetts disbarment.

Some examples of suspensions from 2010:

•    An attorney with no disciplinary history got in trouble for serving a motion for summary judgment on opposing counsel even though he knew that opposing counsel had died.  He probably thought he was being rather clever.  This bit of cleverness, combined with getting caught in a lie to the court, earned him a six-month-and-one-day suspension.
•    An Assistant United States Attorney was found to have been grossly incompetent in prosecuting six felony drug and gun cases.  After failing to respond to the bar counsel’s requests for information, he was suspended for a year and a day.
•    A lawyer who practiced personal injury and real estate law was suspended for three years for misusing fee advances,  neglecting several cases, and presenting a fabricated back-dated withdrawal letter to bar counsel as though it was legitimate. (She pled for lenience based on her clinical depression, but the BBO refused to consider this as mitigation because of her attempts to cover up her misdeeds.)
•    One young lawyer was caught committing fraud on her application for admission to the bar.  Already not good.  But it was her lack of candor and remorse about what she’d done that led to her one-year-one-day suspension.  Not the way one wants to begin one’s legal career.
•    An attorney was caught having lied for eight years to a bar association referral service about having liability insurance to get referrals from a referral service.  He said that he had the insurance.  In reality, he did not.  Worse, he forged documents to support his lie, and then, when confronted with the truth, he showed no remorse.  Suspended for a year and a day.
•    Embarrassingly, one lawyer was suspended for a year and a day for falsely using a disability placard to get out of parking tickets.

“And a Day” Term Suspensions

Why the penchant suspending lawyers for “one year and one day”?  Would 364 days be too light a punishment, while one year and two days would be clearly excessive? Not exactly. The reason for the dramatic-sounding term suspension of one year and one day (or the less dramatic but odder-sounding “six months and one day”) has to do with what’s required for reinstatement.

After a suspension of six months or less, you will be reinstated once you file and serve an affidavit stating that you (i) fully complied with the requirements of the suspension order, (ii) paid any required fees and costs, and (iii) repaid the Clients’ Security Board any funds awarded on account of your misconduct.

If you’re suspended for more than six months (for example, six months and one day), but less than one year, you must do all the above and also take — and earn a passing grade on — the Multistate Professional Responsibility Exam.

In either case, your reinstatement will be automatically effective ten days after you file your affidavit, unless Bar Counsel files a notice of objection first.

Suspensions of more than one year fall into the category of “long-term suspension,” which is lumped in with indefinite suspensions, resignations, and disbarments.  If you’re one of the unhappy few suspended for one year and one day (or more), reinstatement will require all the above, and then some.

Which is to say:  An affidavit won’t be enough, and your reinstatement will not be automatic.  You will need to petition for reinstatement.  The petition will need to fulfill all the above requirements, plus state whether you’ve made restitution (or otherwise made whole) any clients or others that you’ve harmed.  You may need to post a bond to cover the costs of the petition, including the costs of a hearing.  And far from being an automatic reinstatement, you will have the burden of convincing the BBO that you have the moral qualifications, competency, and learning in law required for admission to practice law, and that your resumption of practice will not be detrimental to the integrity and standing of the bar, to the administration of justice, or to the public interest.

It’s not hard to see that such a burden of proof would not be easy to overcome.
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Neil Burns has been representing victims of legal malpractice and personal injury in Massachusetts since 1985.

Ezra Reinstein, a solo practitioner in Boston, concentrates his practice on renewable energy transactions and litigation, and is licensed to practice in California, New York and Massachusetts.