The New Jersey Rules of Professional Conduct, in a sense, represent the Supreme Court's expectations for lawyers and contains the enforcement provisions when those expectations are not realized. Sanctions for violation of ethics norms are, in ascending order, admonition, reprimand, censure, suspension for a term not less than three months nor more than three years, and disbarment (the name of the attorney is “permanently stricken” from the roll). In other words, it represents a professional death sentence.

New Jersey is one of only three states (the others are Ohio and Oregon) that prohibit re-admission to the bar after disbarment. Can punishment for egregious offenses be handled effectively and more compassionately in some other manner than permanent disbarment? We think the answer to that question is yes.

In a 1998 case, the Supreme Court disbarred an attorney whose defense to the charge of misappropriating firm funds was that he suffered from a chronic low-grade form of depression which, according to his medical experts, prevented him from forming the requisite intent to steal from his law firm. The Disciplinary Review Board found that the lawyer had knowingly committed misappropriation, and a majority recommended disbarment. Four members of the court joined in Chief Justice Poritz' opinion disbarring the respondent under In re Wilson, which had been applied consistently in cases of theft despite persistent arguments that it might not always be the right remedy.

In a lengthy dissenting opinion, joined in by Justice O'Hern, Justice Stein challenged the automatic disbarment rigidity of the Wilson rule, arguing that mitigating evidence of the attorney's conduct might more reasonably lead to a lesser sanction. But at that time there was no other sanction that would fill the bill.

In 2002 additional discussions within the court led to the adoption of the indeterminate suspension alternative to permanent disbarment. This provides for a minimum five-year suspension from the practice of law, after which the respondent might seek reinstatement, unless the court's order provides otherwise. In announcing its adoption, the court noted that indeterminate suspension was intended to be for attorneys “on the cusp of disbarment” but who had at least a hope of eventual re-admittance to the bar. It was first imposed in the 2014 case of In re Cohen, where respondent pleaded guilty to endangering the welfare of a child by possessing child pornography. In that case, the court ruled that reinstatement, if applied for after the suspension period, would be conditioned on a finding of fitness to practice law, which the court noted would be subject to “vigorous review” and might be subject to additional conditions.

In Cohen, the respondent took no active steps to contact children or engage in any activity other than the perverse titillation enjoyed through his viewing habits. This picture differs from the recent cases of Legato and Kenyon, in which each of the attorneys targeted underage children and made arrangements for a meeting with them. In Legato and Kenyon, a majority of the court applied the indeterminate suspension rule. Justice Albin dissented, arguing for disbarment because the sexual exploitation or abuse of children is such an egregious violation of societal norms that no discipline short of disbarment could ensure public confidence in the bar and the judiciary. These circumstances certainly test to the limit our belief that there is no good reason for a permanent disbarment rule.

We believe, however, that the general disbarment rule, draconian in its absoluteness, is not necessary. The same policy objective of the court, to assure the public of its seriousness in dealing with egregious or criminal overreaching that exploits clients and others, can be accomplished by indefinite suspension with application for reentry into the profession after the five-year period.

The indeterminate suspension rule is reasonable in that it provides a substantial penalty with the key to readmission still held by the Supreme Court, which may determine to deny readmission or grant it on whatever terms or conditions it feels appropriate in the specific case. Indeterminate suspension is compassionate because it allows further future review to assess the attorney's rehabilitation efforts and proof of a change in character since the time the offense was committed. If the respondent on application for readmission, a high bar, can show rehabilitation such that the court is satisfied that he or she can represent future clients honorably and without financial or other danger to them or any non-client, then we submit readmission is not an improper remedy and satisfies the court's concern as to public perception. Indeterminate suspension, with the potential for readmission, also lines up with the practice in all but two other states that also have the same concern as the New Jersey Supreme Court: Protection of the public and preservation of public confidence in the judicial system.

Imposition of an unalterable lifetime disbarment prevents the court from assessing the attorney's rehabilitation at any time in the future, irrespective of substantial proofs presented to the court. Why should such an opportunity for service to the public not be given to attorneys after the five-year prohibition from practicing law if the attorney can then meet that high standard of proof? Automatic professional death visited on a lawyer is, in its own way, analogous to a life sentence without parole even with compelling later evidence of the good that the prisoner has done, and the change in his or her character during the years thereafter. That is why there are parole boards to assess rehabilitation of a prisoner after a certain period of incarceration. In this case, the Supreme Court is the parole board for lawyers.

We urge the court to eliminate the permanent disbarment rule and rely instead on indeterminate suspension in cases of egregious attorney misconduct.

Editorial Board member Anne Singer recused from this editorial.

The New Jersey Rules of Professional Conduct, in a sense, represent the Supreme Court's expectations for lawyers and contains the enforcement provisions when those expectations are not realized. Sanctions for violation of ethics norms are, in ascending order, admonition, reprimand, censure, suspension for a term not less than three months nor more than three years, and disbarment (the name of the attorney is “permanently stricken” from the roll). In other words, it represents a professional death sentence.

New Jersey is one of only three states (the others are Ohio and Oregon) that prohibit re-admission to the bar after disbarment. Can punishment for egregious offenses be handled effectively and more compassionately in some other manner than permanent disbarment? We think the answer to that question is yes.

In a 1998 case, the Supreme Court disbarred an attorney whose defense to the charge of misappropriating firm funds was that he suffered from a chronic low-grade form of depression which, according to his medical experts, prevented him from forming the requisite intent to steal from his law firm. The Disciplinary Review Board found that the lawyer had knowingly committed misappropriation, and a majority recommended disbarment. Four members of the court joined in Chief Justice Poritz' opinion disbarring the respondent under In re Wilson, which had been applied consistently in cases of theft despite persistent arguments that it might not always be the right remedy.

In a lengthy dissenting opinion, joined in by Justice O'Hern, Justice Stein challenged the automatic disbarment rigidity of the Wilson rule, arguing that mitigating evidence of the attorney's conduct might more reasonably lead to a lesser sanction. But at that time there was no other sanction that would fill the bill.

In 2002 additional discussions within the court led to the adoption of the indeterminate suspension alternative to permanent disbarment. This provides for a minimum five-year suspension from the practice of law, after which the respondent might seek reinstatement, unless the court's order provides otherwise. In announcing its adoption, the court noted that indeterminate suspension was intended to be for attorneys “on the cusp of disbarment” but who had at least a hope of eventual re-admittance to the bar. It was first imposed in the 2014 case of In re Cohen, where respondent pleaded guilty to endangering the welfare of a child by possessing child pornography. In that case, the court ruled that reinstatement, if applied for after the suspension period, would be conditioned on a finding of fitness to practice law, which the court noted would be subject to “vigorous review” and might be subject to additional conditions.

In Cohen, the respondent took no active steps to contact children or engage in any activity other than the perverse titillation enjoyed through his viewing habits. This picture differs from the recent cases of Legato and Kenyon, in which each of the attorneys targeted underage children and made arrangements for a meeting with them. In Legato and Kenyon, a majority of the court applied the indeterminate suspension rule. Justice Albin dissented, arguing for disbarment because the sexual exploitation or abuse of children is such an egregious violation of societal norms that no discipline short of disbarment could ensure public confidence in the bar and the judiciary. These circumstances certainly test to the limit our belief that there is no good reason for a permanent disbarment rule.

We believe, however, that the general disbarment rule, draconian in its absoluteness, is not necessary. The same policy objective of the court, to assure the public of its seriousness in dealing with egregious or criminal overreaching that exploits clients and others, can be accomplished by indefinite suspension with application for reentry into the profession after the five-year period.

The indeterminate suspension rule is reasonable in that it provides a substantial penalty with the key to readmission still held by the Supreme Court, which may determine to deny readmission or grant it on whatever terms or conditions it feels appropriate in the specific case. Indeterminate suspension is compassionate because it allows further future review to assess the attorney's rehabilitation efforts and proof of a change in character since the time the offense was committed. If the respondent on application for readmission, a high bar, can show rehabilitation such that the court is satisfied that he or she can represent future clients honorably and without financial or other danger to them or any non-client, then we submit readmission is not an improper remedy and satisfies the court's concern as to public perception. Indeterminate suspension, with the potential for readmission, also lines up with the practice in all but two other states that also have the same concern as the New Jersey Supreme Court: Protection of the public and preservation of public confidence in the judicial system.

Imposition of an unalterable lifetime disbarment prevents the court from assessing the attorney's rehabilitation at any time in the future, irrespective of substantial proofs presented to the court. Why should such an opportunity for service to the public not be given to attorneys after the five-year prohibition from practicing law if the attorney can then meet that high standard of proof? Automatic professional death visited on a lawyer is, in its own way, analogous to a life sentence without parole even with compelling later evidence of the good that the prisoner has done, and the change in his or her character during the years thereafter. That is why there are parole boards to assess rehabilitation of a prisoner after a certain period of incarceration. In this case, the Supreme Court is the parole board for lawyers.

We urge the court to eliminate the permanent disbarment rule and rely instead on indeterminate suspension in cases of egregious attorney misconduct.

Editorial Board member Anne Singer recused from this editorial.