This Legal Profession Blog article raises the interesting question of when disbarred lawyers should be reinstated.In New York, apparently, the payment of 15 or 20 bribes over a period of 13 years, to insurance company adjusters is no impediment to reinstatement for a disbarred lawyer. Thomas J. Culhane argues that no one was hurt by his actions, since the payments were only to expedite settlement, and did not increase the amounts that the insurers would have paid out to his personal injury clients.
A majority of the Appellate Division of the New York Supreme Court was content to rest its finding that Mr. Culhane “…possessed the necessary character and fitness to warrant reinstatement” based upon his claims of remorse.
The dissent found that the long period of time over which these payments occurred and “…the persistence of [Mr. Culhane's] position that the insurance companies were not harmed by that conduct…” belied any finding that he was now fit for reinstatement.
Mr. Culhane’s persistent position is plagued by at least 2 serious problems. Firstly: Assume, for the time being, that he is correct, and the insurers were not harmed by his conduct. How do we know? Attaching compensation figures to personal injuries is a discretionary exercise, which takes into account innumerable factors that differ from case to case. The fact is that there is no way to verify this claim.
Secondly: As a lawyer, Mr. Culhane is an officer of the court, and it is not enough simply to say that his conduct did not involve the courts. When he is negotiating the settlement of a personal injury claim, he implicitly or explicitly invokes the rights that the courts would likely grant his client. The payment of bribes carries with it the appearance of subverting the judicial process, and brings the administration of justice into disrepute. It does not matter whether or not the insurance company would have paid the same amount in any event. The end result is a collateral benefit to the lawyer in the form of an earlier payment of fairly substantial fees.
In the end, much depends on the type of profession we as lawyers want. In my view, the reasoning of the dissent is much to be preferred.
