What Happens If Your Attorney Gets Disbarred?

By Brian Farkas, Attorney
What to do if you discover that your lawyer wasn't much of a lawyer after all.

To change attorneys in the middle of a case or other legal matter is disruptive, time-consuming and stressful. It can also negatively affect your case, depending on when, in the course of the litigation or other matter, you need to make the change.

The situation is even worse if you’re forced to change attorneys because your lawyer has been disbarred. Knowing that the attorney did something egregious enough to require disciplinary action, you’re likely to wonder whether you might have been receiving sub-par legal representation. It helps to understand what disbarment is, and how it can happen.

What Is Disbarment?

Not everyone can call themselves an attorney. In most states, you need to graduate from a three-year law school, take a difficult bar examination, and attend annual classes so as to obtain continuing legal education credits, in order to gain and keep a license to practice law in that state. An attorney who is disbarred loses that professional license, and is banned from practicing law.

Disbarment normally occurs when the state bar association determines, typically after numerous complaints by clients, other lawyers, or judges, that a lawyer is unfit to continue practicing law. The attorney may, for example, have grossly mishandled cases (failed to file important court documents by the deadline, for example), lied to a jury or the client, failed to act diligently (for example, failed to file promised articles of incorporation), or stolen client funds held in trust.

Disbarment is an extreme punishment, requiring the attorney to literally change careers. (Reinstatement is possible, but extremely difficult for the lawyer to obtain.) That's why disbarment is usually a punishment of last resort. The bar association usually will take one or more other disciplinary actions first. The attorney might be censured, privately reprimanded, fined, suspended, put on probationary status, required to undergo counseling or drug/alcohol rehabilitation, or required to take certain classes.

Some circumstances are nevertheless serious enough that an attorney will be disbarred immediately, without first receiving a lesser punishment. These circumstances vary from jurisdiction to jurisdiction. In many states, for example, the attorney's convicted of a felony or other serious crime will be grounds for immediate disbarment. (Yes, though it's rare, even attorneys have been known to commit murder.)

Because lawyers may be licensed in several jurisdictions, disbarment in one jurisdiction doesn’t automatically mean a lawyer is disbarred nationwide.

Interestingly, disbarment is not always permanent. A disbarred attorney can petition to have his or her license reinstated. For this reason, before hiring an attorney, it is prudent to contact your state’s bar association or the commission that licenses attorneys in your area to ask whether your prospective attorney has previously been subject to disciplinary action, and also to ensure that the attorney is currently licensed in good standing.

Disbarred Attorneys' Obligation to Notify Current Clients

Pursuant to Rule 27 of the American Bar Association’s Model Rules for Attorney Disciplinary Enforcement, a lawyer who is disbarred or suspended from the practice of law must, within ten days of the date when discipline was imposed, send a notice to all clients, opposing counsel, and any co-counsel, notifying them that the lawyer is no longer able to act as a lawyer in the matter. Attorneys are usually required to notify clients (as well as co-counsel and opposing counsel) within ten days of being disbarred or suspended. Most jurisdictions require clients to be notified by certified mail.

If you paid in advance for legal work that hasn't yet been performed, those fees should be automatically refunded. The attorney is also required to return any case files to you. You will have to hire a new attorney to represent you, and those case files should help bring that lawyer up to up to speed on your legal matters.

In rare instances, a disciplined attorney may not follow the required steps to notify clients and return case files. If that happens, a judge will usually appoint another lawyer to carry out those responsibilities and notify clients. This trustee is not is not your new attorney, but is simply facilitating the process so you can find a new attorney.

What Happens to Your Legal Matter

You will surely wonder: What will happen to your case? Whether you are a plaintiff, defendant, or seeking help with some other legal matter, you will likely need to retain new counsel quickly.

Your new lawyer should promptly notify the appropriate parties (such as the court, administrative agency, or other involved parties) of the situation. Most will be sympathetic and realize that your lawyer’s disbarment was not your fault. If your case is in court, watch out for any hard-and-fast statutes of limitations that might eventually cut off your right to relief. If not, the court is likely to give you a short delay in the proceedings (sometimes called an adjournment or stay) in order for your new attorney to get up to speed.

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