Supreme Court Relaxes Automatic Disbarment Rule – In re Kivler

Yesterday, in In re Kivler, the New Jersey Supreme Court ruled that an attorney with a significant disciplinary prior history who did not appear to defend himself in response to an order to show cause would be subject to a 3-year suspension of his license to practice law. This decision is significant in that it represents a major departure from a rule of disciplinary law that was announced only 4 years ago. In 2004, Justice Albin, writing for the Court, held that “[a]n attorney who declines to appear before this Court to explain his unprofessional conduct and who offers no evidence in mitigation of punishment for disciplinary infractions as serious as those in this case openly displays his unfitness to continue to practice law.” In re Kantor, 180 N.J. 226, 233 (2004). The Justices reaffirmed this rule the following year in a per curiam opinion by stating, “Moreover, inasmuch as respondent failed to cooperate, failed to respond to the request for a verified answer, and failed to offer evidence in mitigation, disbarment is the appropriate sanction.” In re Morell, 184 N.J. 299, 30 (2005).

The facts in Kivler are virtually indistinguishable to those in Kantor. The respondent in Kivler had the same type of disciplinary history as was the case in Kantor, engaged in the same type of attorney misconduct and failed to either cooperate with disciplinary authorities or show up in the Supreme Court to answer an order to show cause. Yet, despite the similarities, the Justices voted to suspend instead of following the rule in Kantor which would have resulted in disbarment.

The fact that the Justices issued a rare, signed disciplinary opinion in this matter is extremely significant and signals a modification to the harsh rule of law announced in the 2004 Kantor decision.

Download a copy of In re Kivler.

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