SUPREME COURT OF LOUISIANA

Commentary of the Court

to accompany Order dated July 19, 2001 amending Rule XIX

In the public interest, the Court has amended Louisiana Supreme Court Rule XIX to codify Permanent Disbarment as an available sanction for attorney misconduct. While the Court has always had the discretion to deny an application for readmission after the requisite five (5)-year waiting period after disbarment, an attorney who is permanently disbarred under these circumstances will be prohibited from applying for readmission to the bar. The amendments reflect the judgement of the Court that in some instances lawyer misconduct may be so egregious as to warrant a sanction of permanent disbarment based on the facts of an individual case and in consideration of the guidelines set forth in Appendix E to the Rules of Lawyer Disciplinary Enforcement. The amendments are substantially similar to the recommendations of the Office of Disciplinary Counsel and the House of Delegates of the Louisiana State Bar Association.

In adopting these amendments to Rule XIX, the Court has carefully considered the differences between the sanctions of disbarment and suspension, which differences are both substantive and significant. A suspended lawyer remains a lawyer during the period of suspension, retains a license to practice, but cannot practice law during the term of the suspension. However, one who has been disbarred loses his license to practice law. A suspension is imposed for a limited time, currently a maximum of three (3) years. An attorney who has been disbarred but not declared to be "permanently" disbarred under these amendments may apply for readmission after a period of five (5) years. The granting of readmission is within the sole discretion of the Court and is based upon the strict criteria enumerated in Rule XIX, Section 24 (E). Unless such readmission is petitioned for and is granted, a disbarment is effectively permanent.

The amendments we now adopt recognize that there are some types of misconduct that are so serious that where the sanction of disbarment is imposed, an application for readmission will not be considered.



SUPREME COURT OF LOUISIANA

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ORDER

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KIMBALL, Justice, concurring in part and dissenting in part

I concur in part and dissent in part from this court's Order, dated July 19, 2001, which amends the Rules for Lawyer Disciplinary Enforcement to provide for permanent disbarment. Prior to this amendment, there was no provision in the Rules allowing this court to permanently disbar an attorney. Rather, a "disbarred" lawyer could petition the court for readmission to the practice of law after five years. The amendment retains this procedure, but allows the court, in its discretion, to effectively override this provision and impose "permanent disbarment," whereby the attorney is permanently prohibited from being readmitted to the practice of law. While I commend the majority for initiating a type of disbarment that is permanent in nature, in my view, the Rules should not provide for different categories of disbarment.

Although the sanction of disbarment under the Rules has always provided that an attorney can be readmitted after five years, the term "disbarment" imparts a notion of permanency to the public and leads the public to believe that such sanction is permanently imposed. I believe that "disbarment" with the option for readmittance in five years is essentially a suspension and, therefore, misleads the public as to the ramifications of the sanction. The current rule still obfuscates the reality that attorneys who are "disbarred" will none-the-less be able to apply for readmission in five years. In my opinion, the public would be better served if this court were to increase the time an attorney guilty of misconduct may be suspended (1) and provide that all disbarments are permanent. I believe that suspension should be used in those cases where it is believed an attorney may be successfully rehabilitated and able to resume the practice of law, and I would reserve the sanction of disbarment, which by its very terms conveys an idea of permanency, for situations involving the most egregious misconduct.

1. Supreme Court Rule XIX, §10(A)(2) .