Supreme Court of Missouri
en banc

In re:

(1) Vacation of order of June 27, 2017, regarding repeal of subdivision 5.28 of Rule 5 and adopting a new subdivision 5.28 in lieu thereof and a new Disciplinary Form A.

(2) Repeal of subdivision 5.28, entitled "Reinstatement," of Rule 5, entitled "Complaints and Proceedings Thereon," and in lieu thereof adoption of a new subdivision 5.28, entitled "Reinstatement."

(3) Adoption of a new Disciplinary Form A, entitled "Petition for Reinstatement to Practice Law Pursuant to Rule 5.28."



1. It is ordered that the order of June 27, 2017, is hereby vacated.

2. It is ordered that subdivision 5.28 of Rule 5 be and the same is hereby repealed and a new subdivision 5.28 adopted in lieu thereof to read as follows:

5.28 REINSTATEMENT

(a) A person:

(1) Who is disbarred; or
(2) Whose license to practice law is suspended, except a suspension for less than three years for either failure to pay the annual enrollment fee or failure to comply with Rule 15;

may seek reinstatement of the person's license upon the filing of a petition in this Court pursuant to this Rule 5.28. The Petition for Reinstatement to Practice Law shall be substantially in the form as set forth in Disciplinary Form A appended hereto.

(b) A petition for reinstatement shall include specific averments showing that:

(1) The cause for suspension or disbarment has abated;
(2) All persons injured as a result of the conduct that resulted in the loss of the privilege to practice law have received restitution, their claims have been discharged by operation of law, or the injured persons have been notified at least 10 days but not more than 90 days in advance of the filing of the petition for reinstatement;
(3) All special conditions for reinstatement required by this Court at the time the privilege to practice law was lost have been accomplished; and
(4) The person has taken within the two years immediately preceding filing of the petition the multistate professional responsibility examination and scored a grade at least equal to that established by the board of law examiners as passing at the time the examination was taken.

(c) A person whose license has been suspended less than three years as of the filing date of the petition for reinstatement shall include specific averments that within one year prior to the date of filing the petition for reinstatement the person has completed at least 15 hours of continuing legal education credit, including at least three hours of ethics credit. A person whose license has been suspended three years or more as of the filing date of the petition for reinstatement shall include specific averments that within two years prior to the date of filing the petition for reinstatement the person has completed at least 30 hours of continuing legal education credit, including at least six hours of ethics credit.

(d) A person who has been disbarred and is seeking reinstatement shall include specific averments that within one year prior to the date of filing the petition for reinstatement the person has taken the bar examination prescribed by Rule 8.08 and has attained a passing score.

(e) The provisions of Rules 5.28(b)(4) and 5.28(c) do not apply to a person filing a petition for reinstatement because the person's license was suspended for more than three years solely for failure to comply with Rule 15 or failure to pay the annual enrollment fee. The provisions of Rule 5.28(b)(4) do not apply to a person filing a petition for reinstatement within six months of a suspension under Rule 5.245 if the petition contains a statement that the cause of suspension under Rule 5.245 has been resolved and the department of revenue confirms that statement.

(f) Except for good cause shown, no petition for reinstatement shall be considered for a person who is:

(1) Suspended, except a person suspended under Rule 5.245, until after six months of the date discipline is imposed unless the Court provides by order for a longer time;
(2) Disbarred until after five years of the date discipline is imposed; or
(3) Notwithstanding Rule 5.28(f)(2), disbarred because the person has pleaded guilty or nolo contendere to or been found guilty of any felony of the United States, this state, any other state or any United States territory, whether sentence is imposed or not, until the date of successful completion of any period of confinement, and any subsequent or alternate period of probation or parole, as a result of the conviction, plea, or finding of guilt.

(g) In addition to the requirements of Rule 5.28(b), upon petition for reinstatement by a person suspended under the provisions of Rule 5.23, this Court may direct such action as it deems necessary or proper, including the direction of an examination of the person by such qualified medical expert as this Court shall designate. Rule 5.28(h) shall govern the cost incurred in processing such petition.

At the time of filing such a petition for reinstatement, the person shall be required to disclose the name of every psychiatrist, psychologist, physician, and hospital by whom and at which the person has been examined or treated during the disability or since the suspension and shall furnish to this Court written consent for each to divulge such information and records as ordered by this Court.

This Court may fix the compensation to be paid to any medical expert appointed by this Court, and such charges shall be a cost of investigation as that term is used in Rule 5.28(h). (h) When a person who has been disbarred or suspended petitions for reinstatement, except petitions following suspensions for less than three years made as a matter of course under Rule 6.01(f), Rule 15.06(f), and Rule 5.28(k)(2), the petition shall be accompanied by a $500 reinstatement fee. The amount paid shall be deposited to the credit of the advisory committee fund. No report or hearing shall be had on any petition for reinstatement until the required fee is paid. The reinstatement fee is in addition to any unpaid disciplinary costs assessed under Rule 5.19(h).

(i) The person must establish, by clear and convincing evidence, that the person is of good moral character, is fit to practice law, and the best interest of the public will be served by reinstatement of the person's license to practice law. Factors to consider in determining whether the person has met this burden include the following:

(1) The person's acceptance of responsibility for wrongdoing with sincerity and honesty and a lack of malice toward those who brought evidence against the person;
(2) The extent of the person's rehabilitation, as demonstrated by good current reputation for character and moral standing in the community;
(3) The nature and severity of the misconduct leading to discipline;
(4) The person's conduct since discipline, including strict compliance with the specific conditions of any disciplinary, judicial, administrative, or other order, where applicable;
(5) The time elapsed since discipline;
(6) Other instances of dishonesty, criminal behavior, professional discipline, unauthorized practice of law, academic and employment misconduct, financial irresponsibility, or involvement in or neglect of legal and professional matters;
(7) The cumulative effect of all misconduct;
(8) The person's current competency and qualifications to practice law;
(9) Restitution;
(10) Candor in the discipline and reinstatement processes; and
(11) Positive social contributions since the misconduct.

(j) Petitions for reinstatement shall be referred to the chief disciplinary counsel for a character and fitness investigation of the petitioner, and a report, and a recommendation. The chief disciplinary counsel may contract with the Board of Law Examiners for that agency to conduct a character and fitness investigation and to provide its investigative documentation and information generated to the chief disciplinary counsel for its review in connection with the report and recommendation. The report shall be served by the chief disciplinary counsel on the petitioner for reinstatement as provided in Rule 5.18. The petitioner may file a written response to the report with the chief disciplinary counsel within 15 days of the date of the mailing of the report.

The report, recommendation, and response, if any, shall be filed by the chief disciplinary counsel with this Court upon receipt of the response or the expiration of the time for making a response. The Court shall make a determination whether to reinstate the license of the petitioner on the basis of the petition, report, recommendation, and response.

When the Court denies a reinstatement petition, it may state a period of time before which another petition will be considered. It may also provide guidance to the petitioner as to particular concerns or conditions that the petitioner should address before submitting another petition for reinstatement.

(k) If the petitioner has been suspended:

(1) Indefinitely with leave to reapply in a period of six months or less and is not on probation under Rule 5.225; or
(2) Under Rule 5.245 for three years or less;

then the license shall be reinstated as a matter of course 30 days after the petition for reinstatement is referred to the chief disciplinary counsel for report and recommendation. If within this 30-day period the chief disciplinary counsel files a motion to respond to the petition for reinstatement, the license shall not issue and the matter shall proceed as otherwise provided in this Rule 5.28(j). A person automatically suspended under Rule 5.245 for three years or less who is reinstated under this Rule 5.28(j) is retroactively reinstated if the person is then in compliance with Rule 6.01 and Rule 15.

(l) In lieu of reinstating the petitioner's license, the Court may direct the advisory committee to appoint a disciplinary hearing panel to conduct a hearing into any allegations of misconduct contained in the report to which the petitioner objects. The hearing shall be conducted as provided in Rule 5.14.

The panel shall file a report. The report shall determine all matters in dispute and make a recommendation as to whether the petitioner's license should be reinstated.

3. It is ordered that a new Disciplinary Form A, entitled "Petition for Reinstatement to Practice Law Pursuant to Rule 5.28," be and the same is hereby adopted to read as attached.

Disciplinary Form ordered 08-04-17.pdf

4. It is ordered that notice of this order be published in the Journal of The Missouri Bar.

5. It is ordered that this order be published in the South Western Reporter.

Day-to-Day

_________________________
ZEL M. FISCHER
Chief Justice