Monday, February 17, 2014

Suspension Without Automatic Readmission = Much Lengthier Suspension and Effective Disbarrment for Most Attorneys

Marcia Oddi of The Indiana Law Blog last week published an excellent article on what the real effect is of the Indiana Supreme Court increasingly common ]practice of imposing "suspension without automatic readmission" (SWAR)onto an attorney's punishment.  When SWAR is tacked onto the end of a suspension it generally gets little attention.  Instead the focus is on the length of the suspension.   Clearly after reading Oddi's article, it is clear that SWAR should get a lot more attention.

The Indiana Law Blog article reports on research done by Craig Smith, an Indiana attorney doing a federal clerkships in Texas.  According to Smith, one effect of SWAR is a much lengthier suspension.  Even if an attorney given SWAR reapplies, it takes 8-16 months to go through the process and be readmitted.  Thus an attorney who receives let's say a one month suspension with SWAR, the attorney will actually be suspended for at least 9 months possibly as long as 1 1/2 years. While a 1 month suspension may not sidetrack an attorney's career or cause him to lose a job with a law firm, it is very likely that a nine month or 1 1/2 year suspension would.

But that is for the SWAR attorneys who reapply.  While attorneys who do reapply generally make it through the process, most don't even attempt it.  Instead most attorneys who receive SWAR simply walk away from the practice of law.  According to Smith's research, of the 119 attorneys who received SWAR since 2000, only 22 (18.5%) have been reinstated.  68 of the 119 simply walked away without even trying to get their licenses back.  It says something about the value of a law license today that so many people simply leave the practice rather than invest the time and effort to go through the SWAR process.

Thanks to Marci Oddi for publishing this important research.  My guess is the Indiana Supreme Court has never studied the actual impact of imposing SWAR on the attorneys they discipline.

Disclaimer:  In my case in which the Commission is asking that I be suspended for a year for criticizing a judge in private emails, the Commission is also asking for SWAR.   The Hearing Officer has recommended the same.  As I've said previously, I realize if I receive SWAR, that is effectively disbarment and I'll have no choice but to walk away from the practice of law.  The statistics produced by Craig Smith have confirmed that belief.

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