Moral Change Merits Reinstatement

The Minnesota Supreme Court has reinstated an attorney who was disbarred in the wake of a federal conviction.

The court majority found that he had carried his burden of proof 

We fully acknowledge the seriousness of Sand’s misconduct and the legitimate concerns raised by the dissenting panel member and our colleague. Unbeknownst to his own mother, Sand admitted to exploiting her—by using her creditworthiness—to facilitate his criminal scheme. Sand was ordered to pay over $1.2 million in restitution for his crimes. Simply put, Sand’s misconduct was worthy of disbarment.

With that said, the underlying misconduct in reinstatement petitions involving disbarred attorneys will always be quite serious. We have “reinstated attorneys to the practice of law who have been disbarred for misappropriating client funds, stealing, or dishonesty in general.” In re Anderley, 696 N.W.2d 380, 385 n.6 (Minn. 2005). If disbarment were permanent in every case, “[Rule 18] would be a cruel hoax.” Ramirez, 719 N.W.2d at 924 (Minn. 2006) (citation omitted). In other words, the seriousness of his misconduct weighs against Sand’s reinstatement, but does not preclude it.

The reinstatement is subject to three years of probation.

Justice Moore noted the petitioner’s “laudable progress” but found the evidence did not meet his heavy burden

Not including the court’s decision today, we have only reinstated six attorneys to the practice of law following disbarment since 1971, when the Office of Lawyers Professional Responsibility was established.

He compares the evidence in those cases

Here, unlike the post-1971 petitioners who secured reinstatement following disbarment, the panel stated it was solely “relying on petitioner’s testimony” to establish moral change. The absence of relied upon third-party testimony alone does not necessarily preclude Sand’s reinstatement. Nevertheless, it does meaningfully distinguish his petition from the line of successful petitioners. In my view, our case law and rules  illustrate that we find third-party testimony, particularly from members of the bar, highly probative and an important consideration in determining whether a petitioner has met the heavy evidentiary burden of showing moral change.

In addition to the paucity of Sand’s evidence, there are facts in the record that are adverse to the court’s conclusion  that Sand has sufficiently changed his conduct.

As to the passage of time

The court focuses on the 9 years since Sand pled guilty, and the 8 years that have  passed since we disbarred Sand. However, the court’s opinion does not fully consider the short amount of time that has passed since Sand completed the terms of his federal probation, which to me is the more pertinent timing issue. When the amount of time that has passed since the expiration of probation is relatively short, we have previously denied reinstatement.

(Mike Frisch)