Forever Resigned

The Connecticut Supreme Court has held that a resignation from the Bar with waiver of possible reinstatement precludes any subsequent petition to restore the license to practice

We conclude that we need not determine whether the provision added to Practice Book § 2-53 (b) in 2014 prohibiting attorneys from seeking reinstatement to the bar after waiving that right is substantive or procedural because, even if we were to assume that it is substantive, we agree with the trial court that the provision merely codified the preexisting common-law rule in this state that a knowing and voluntary waiver of the right to seek reinstatement after resigning is a permanent bar to reinstatement.

The purported petitioner was under investigation for trust account irregularities due to an IOLTA overdraft and subsequent efforts to audit that account

The defendant subsequently filed in the trial court a memorandum of law contending that the compelled production of the documentation sought by the committee would violate his right against self-incrimination guaranteed by the state and federal constitutions. Because of the defendant’s refusal to cooperate, the committee forwarded the defendant’s overdraft grievance and random audit files to Disciplinary Counsel for presentment to the trial court. The plaintiffs initially objected to the defendant’s resignation from the bar but, ultimately, withdrew their objections after the defendant agreed to provide certain documentation to the committee and Disciplinary Counsel.

Then

On November 12, 2008, the trial court, Adams, J., conducted a hearing on the resignation proceeding…

The court canvassed the defendant as to whether his resignation and waiver of his right to seek reinstatement were knowing and voluntary, and whether he had been advised by counsel of the ramifications of his actions. The defendant responded affirmatively to both inquiries. The court then accepted the defendant’s resignation and waiver.

Because

The reason for the rule is obvious: an attorney should not be able to waive permanently his right to apply for reinstatement to the bar to avoid disciplinary proceedings and then, after evidence pertaining to the disciplinary matter has been lost or destroyed, witnesses have disappeared and memories have faded, renege on that waiver. Indeed, although the defendant contends that the portion of Practice Book § 2-53 (b) providing that an attorney who previously has waived his or her right to apply for reinstatement to the bar is ineligible to apply for reinstatement is not retroactive because it is substantive, he does not contend on appeal that an attorney who has knowingly and voluntarily waived his right to apply for reinstatement to the bar should, nevertheless, be eligible to submit such an application. Rather, he contends only that his waiver is not binding because it was not knowing or voluntary.  Accordingly we need not decide whether the amendment to Practice Book (2012) § 2-53 was retroactive because, even if it was not, the trial court in the present case correctly held that an attorney’s knowing and voluntary waiver of the right to seek reinstatement to the bar after resignation renders that attorney permanently ineligible to seek reinstatement under the common law.

(Mike Frisch)