Judicial clemency and

reinstatement
Problem Areas in Legal Ethics
Arellano University School of Law Arellano Law
Foundation
2015-2016

Forms of clemency
Reinstatement
Commutation
Lifting of disqualification

Presumption should be against

readmission
[B]ecause the purpose of lawyer discipline is not
punishment, disbarred attorneys may be readmitted
to practice. Nevertheless, the ABA believes that the
presumption should be against readmission.
We agreed with this presumption because "[t]he
purpose behind the presumption is protection of the
public. This reflects the purpose of the disciplinary
process: to protect the public, not to punish the
lawyer. - In the reinstatement matter involving
Wiederholt, 295 P.3d 396 (2013)

Feeling of sympathy or pity is not

material
As a final word, while the Court sympathizes with the
respondent's unfortunate physical condition, we stress that in
considering his application for reinstatement to the practice of
law, the duty of the Court is to determine whether he has
established moral reformation and rehabilitation, disregarding its
feeling of sympathy or pity. - Que v. Atty. Anastacio E. Revilla,
Jr.A.C. No.7054 November 11, 2014

Basic inquiry in a petition for

reinstatement
The basic inquiry in a petition for reinstatement to the practice
of law is whether the lawyer has sufficiently rehabilitated
himself or herself in conduct and character. Whether the
applicant shall be reinstated in the Roll of Attorneys rests to a
great extent on the sound discretion of the Court.
The Court will take into consideration his or her character and
standing prior to the disbarment, the nature and character of
the charge/s for which he or she was disbarred, his or her
conduct subsequent to the disbarment, and the time that has
elapsed in between the disbarment and the application for
reinstatement. - Re: Petition for reinstatement of Rolando S.
Torres as a member of the Philippine Bar, A.C. No. 5161, August
25, 2015

Ultimately the question is whether

the applicant will again engage in
unprofessional conduct
"The concept of rehabilitation cannot be framed around a set of
specific principles but will vary depending on the particular facts
of a given case. Rehabilitation, ultimately, is demonstrated by a
course of conduct that enables the Court to conclude there is
little likelihood that after such rehabilitation is completed and the
applicant is readmitted to the practice of law he will engage in
unprofessional conduct. - In Re Arrotta, 96 P.3d 213 (Ariz. 2004)

 The major consideration in reinstatement proceedings

is whether the disbarred attorney has shown that
those weaknesses which produced the earlier
misconduct have been corrected.- In Re Arrotta, 96
P.3d 213 (Ariz. 2004)

 Because a petitioner for reinstatement must demonstrate moral

fitness and good character sufficient to be trusted again, the
petitioner must make a showing of these characteristics that
overcome[s] the court's former adverse judgment on the
petitioner's character.- In the reinstatement matter involving
Wiederholt, 295 P.3d 396 (2013)

Special power comes heightened

moral requirements
Two points about good moral character underlie this
discussion. First, the court recognized that a lawyer's
special place in society gives the lawyer special
power but with that special power comes heightened
moral requirements. Second, the court applied this
heightened moral character to itself.- Scott DeVito,
Justice and the Felonious Attorney, 48 Santa Clara L.
Rev. 155 (2008).

Burden of proving good moral

character
When applicants seek admission to the bar, they have
placed their character at issue. Therefore, the
applicant bears the burden of producing
information proving good moral character. - Mitchell

Simon , Nick Smith and Nicole Negowetti

The lawyer has to demonstrate and prove by clear

and convincing evidence that he or she is again
worthy of membership in the Bar. - Re: Petition for
reinstatement of Rolando S. Torres as a member of
the Philippine Bar, A.C. No. 5161, August 25, 2015

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Seriousness of misconduct and

rehabilitation
The Court was guided by the principle that the more
serious the misconduct, the greater the showing of
rehabilitation that will be required. . . . [and] in the case
of extremely damning past misconduct, a showing of
rehabilitation may be virtually impossible to make.In re Dortch, 860 A.2d 346 (D.C. 2004)

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Remorse and rehabilitation

Once an applicants conduct raises an issue of fitness
to practice law, especially if prior misconduct
involved unlawful acts, he or she may be obliged to
demonstrate rehabilitation. One significant factor in
determinations of rehabilitation and fitness is
whether the applicant expresses and demonstrates
remorse.

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Two-part inquiry
When an applicant previously convicted of a serious
crime applies for admission to the [] Bar, the court
conducts a two-part inquiry. First, the court
determines whether the applicant has proven
complete rehabilitation from the character deficits
that led to the commission of the crime.
If the applicant meets this prerequisite, the court
must then decide whether the applicant presently
possesses good moral character.
- In re Hamm, 123 P.3d 652, 662 (Ariz. 2005)

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Proving/establishing rehabilitation
To prove rehabilitation, the [applicant] must identify
the weakness that caused him to engage in criminal
misconduct and then demonstrate that he has
overcome that weakness.- In the Matter of the
Application of Lee Keller King, 136 P.3d 878 (2006)
Accepting responsibility for past misdeeds constitutes
an important element of rehabilitation. In the Matter
of a Disbarred Member of the State Bar of Arizona,
Richard B. Arrotta, 96 P.3d 213 (2004)

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..
To establish rehabilitation, [applicant] must show "that he has both
(1) accepted responsibility for his past criminal conduct," and "(2)
identified and overcome the weakness that led to the unlawful
conduct. - In the Matter of the Application of Alejandro Lazcano,
222 P.3d 896 (2010)
The Court will take into consideration his or her character and
standing prior to the disbarment, the nature and character of the
charge/s for which he or she was disbarred, his or her conduct
subsequent to the disbarment, and the time that has elapsed in
between the disbarment and the application for reinstatement. -

Re: Petition for reinstatement of Rolando S. Torres as a member of

the Philippine Bar, A.C. No. 5161, August 25, 2015

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..
If the applicant proves he or she is rehabilitated, the
court must then evaluate his or her present moral
character because showing rehabilitation from criminal
conduct does not, in itself, establish good moral
character. In doing so, the court considers past
misconduct to determine what past bad acts reveal
about an applicants current character.- In re King: Is
rehabilitation from serious crimes possible? Suzanne Diaz,
ARIZONA LAW REVIEW [VOL. 48:669] 2006

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..
Rehabilitation is demonstrated by a course of conduct that
enables the court to conclude there is little likelihood that
after such rehabilitation is completed and the applicant is
readmitted to the practice of law he will engage in
unprofessional conduct. - In Re Arrotta, 96 P.3d 213 (Ariz. 2004)

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Not enough to establish

rehabilitation
While Petitioner was "vouched for" by several long standing
members of the Bar, and a former Supreme Court Justice, even
impressive character testimonials, by themselves, are not enough
to establish a disbarred lawyer's rehabilitation.
In re Menna, [47 Cal.Rptr.2d at 9,] 905 P.2d at 951. Indeed, of more
significance to this matter is the fact that all of Petitioner's
witnesses knew little or nothing about how he used to practice
law or why he was disbarred, which suggests Petitioner lacks
insight into the significance to others of his misconduct. In re:
Wiederholt, 89 P.3d 771 (2004)

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..
"Merely showing that [an individual] is now living and
doing those things he ... should have done throughout
life, although necessary to prove rehabilitation," is not
sufficient to meet the applicant's burden. In re J.J.T.,761
So.2d 1094, 1096 (Fla.2000) (citation omitted).
In addition, he must bring forth clear and convincing
evidence showing the positive actions he has taken to
overcome the weaknesses that led to his disbarment.

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Positive actions to be taken to

overcome the weaknesses
he secured employment;
to personal obligations since his disbarment, including making
restitution;
participated in community activities; and
became involved in his church.
sought professional psychiatric help to overcome the
weaknesses that led to his disbarment and, at the time of his
reapplication, was continuing to receive therapy;
by participation in community or charitable organizations,
specialized instruction or education, counseling, or other similar
evidence.

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"Pier factors"
(1) the petitioner's present moral fitness;
(2) the petitioner's acceptance of wrongdoing with sincerity and honesty;

(3) the extent of the petitioner's rehabilitation;

(4) the nature and seriousness of the original misconduct;
(5) the petitioner's conduct following discipline;
(6) the time elapsed since the original discipline;
(7) the petitioner's character, maturity, and experience at the time of
discipline and at present;
(8) the petitioner's current competency and qualifications to practice law;
(9) restitution; and
(10) the proof that the petitioner's return to the practice of law will not
be detrimental to the integrity and standing of the bar or the
administration of justice, or subversive of the public interest. - In re
Pier, 561 N.W.2d 297, 300 (S.D.1997)

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2 concepts of moral character

A person's moral character can be judged at both the
level of an individual and in the context of group
membership. - Scott DeVito, Justice and the
Felonious Attorney, 48 Santa Clara L. Rev. 155 (2008).

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Reinstatements to the legal profession

were allowed under the following criteria
1. the person appreciates the significance of his dereliction and he has

assured the Court that he now possesses the requisite probity and
integrity necessary to guarantee that he is worthy to be restored to
the practice of law

2. the time that has elapsed between disbarment and the application for
reinstatement,
3. his good conduct and honorable dealing subsequent to his
disbarment,

4. his active involvement in civic, educational, and religious organizations

5. the favorable indorsement of the Integrated Bar of the Philippines, as
well as the local government officials and citizens of his community.
6. the pleas of his mother and wife for the sake and the future of his
family. Tan v. Sabandal, B.M. No. 44 February 10, 1989

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Cont
Evidence of reformation is required before applicant is entitled
to reinstatement, notwithstanding the attorney has received a
pardon following his conviction, and the requirements of
reinstatement had been held to be the same as for original
admission to the bar, except that the court may require a
greater degree of proof than in an original evidence.
The decisive question on an application for reinstatement is
whether applicant is 'of good moral character. In re:

Vailoces, A.M. No. 439 September 30, 1982

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Court lays down the following guidelines

in resolving requests for judicial clemency
1. There must be proof of remorse and reformation. These shall
include but should not be limited to certifications or testimonials
of the officer(s) or chapter(s) of the Integrated Bar of the
Philippines, judges or judges associations and prominent
members of the community with proven integrity and probity. A
subsequent finding of guilt in an administrative case for the same
or similar misconduct will give rise to a strong presumption of
non-reformation.
2. Sufficient time must have lapsed from the imposition of the
penalty1 to ensure a period of reformation.

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Cont
3. The age of the person asking for clemency must show that he
still has productive years ahead of him that can be put to
good use by giving him a chance to redeem himself.
4. There must be a showing of promise (such as intellectual
aptitude, learning or legal acumen or contribution to legal
scholarship and the development of the legal system or
administrative and other relevant skills), as well as potential
for public service.
5. There must be other relevant factors and circumstances that
may justify clemency. Re: Letter of Judge Diaz, A.M. No.

07-7-17-SC September 19, 2007

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Absolute and unconditional pardon

Thereafter, complainant in the criminal case, instituted before
this Court disbarment proceedings against petitioner. The same
culminated in his disbarment on April 12, 1961.
On December 27, 1967, the President of the Philippines granted
petitioner "absolute and unconditional pardon" and restored
him "to full civil and political rights.
True it is that the plenary pardon extended to him by the
President does not of itself warrant his reinstatement.- In re:

Vailoces, A.M. No. 439 September 30, 1982

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Effects of pardon
"When proceedings to strike on attorneys name from the rolls
are founded on, and depend alone, on a statute making the
fact of a conviction for a felony ground for disbarment, it has
been held that a pardon operates to wipe out the conviction
and is a bar to any proceeding for the disbarment of the
attorney after the pardon has been granted. In re:

Disbarment proceedings against Atty. Gutierrez, A.C. No. L363. July 31, 1962
A pardon reaches both the punishment prescribed for the

offense and the guilt of the offender; and when the pardon is
full, it releases the punishment and blots out of existence the
guilt, so that in the eyes of the law the offender is as innocent
as if he had never committed the offense.

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Effect of conditional pardon

The fact that the respondent was extended conditional pardon
by the Chief Executive is of no moment. Such conditional
pardon merely partially relieved him of the penal
consequences of his act, but did not operate as a bar to his
disbarment, especially so when he is being disbarred on the
ground of professional misconduct for which he had been
convicted by final judgment. In re: Atty. Jose Avancea, A.C.

No. 407 August 15, 1967

Conditional pardon merely remitted the unexecuted portion of

his term. It does not reach the offense itself. - In re:

Disbarment proceedings against Atty. Gutierrez, A.C. No. L363. July 31, 1962

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Pardon granted before conviction

A pardon reaches both the punishment prescribed for the
offense and the guilt of the offender; and when the pardon is
full, it releases the punishment and blots out of existence the
guilt, so that in the eyes of the law the offender is as innocent
as if he had never committed the offense.
If granted before conviction, it prevents any of the penalties
and disabilities, consequent upon conviction, from attaching;
If granted after conviction, it removes the penalties and
disabilities, and restores him to all his civil rights; it makes him,
as it were, a new man, and gives him a new credit and
capacity.- In re: Disbarment proceedings against Atty.

Gutierrez, A.C. No. L-363. July 31, 1962

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Thank you for your attention!!

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