Also known as:explodi a cancellis curiae · expulsion from the bar · disbarment
Written by attorneys — see sources below.
A historical sanction imposed by a court that removes an attorney from the bar and bars the attorney from practicing before that court.
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How its tested
Common Examples
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Trust Fund Misuse Triggers Expulsion
Andrew Avery, a solo practitioner, transferred client settlement proceeds from a trust account into his personal account to cover office expenses. He intended to repay the funds within weeks and no client suffered a loss. The disciplinary board found knowing misappropriation and ordered Avery expelled from the bar.
Advertising Violation Prompts Removal
Audrey Ashton published newspaper advertisements that included detailed descriptions of past case results and fee arrangements. State disciplinary authorities determined the ads violated professional conduct rules. Ashton was expelled from the bar after the final hearing.
Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio471 U.S. 626 (1985)
In late 1981, Philip Q. Zauderer, an attorney practicing in Columbus, Ohio, placed a small advertisement in the Columbus Citizen Journal offering to represent defendants in drunken driving cases with a full legal fee refund if convicted of drunk driving.
Charles Kettlewell, an attorney employed by the Office of Disciplinary Counsel of the Supreme Court of Ohio, telephoned Zauderer the second day the advertisement ran and informed him that it appeared to offer representation on a contingent-fee basis in a criminal case. Zauderer immediately withdrew the advertisement and wrote Kettlewell that he would decline any employment resulting from it.
In the spring of 1982, Zauderer placed a larger advertisement in thirty-six Ohio newspapers. The advertisement featured a line drawing of the Dalkon Shield accompanied by the question "DID YOU USE THIS IUD?" It described alleged injuries including pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It also described unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries. The advertisement stated that the firm was presently representing women on such cases on a contingent fee basis of the amount recovered and that if there is no recovery, no legal fees are owed by clients. The advertisement attracted well over two hundred inquiries and led Zauderer to initiate lawsuits on behalf of one hundred six women.
On July 29, 1982, the Office of Disciplinary Counsel filed a complaint against Zauderer alleging violations of several Ohio Disciplinary Rules arising from both advertisements. With respect to the Dalkon Shield advertisement, the Office of Disciplinary Counsel stipulated that the information and advice regarding Dalkon Shield litigation was not false, fraudulent, misleading, or deceptive and that the drawing was an accurate representation of the Dalkon Shield. The complaint charged that the advertisement violated rules prohibiting illustrations, self-recommendation, accepting employment from unsolicited advice, and failing to disclose client liability for costs.
A panel of the Board of Commissioners on Grievances and Discipline heard the charges and found that Zauderer had violated multiple Disciplinary Rules. The Board of Commissioners adopted the panel's findings but recommended indefinite suspension rather than the public reprimand proposed by the panel. The Supreme Court of Ohio adopted the Board's findings that appellant's advertisements had violated the Disciplinary Rules specified by the hearing panel and concluded that appellant's conduct warranted a public reprimand.
Zauderer appealed to the United States Supreme Court. He contended that the Ohio rules violated the First Amendment as applied to the Dalkon Shield advertisement. He also claimed that the manner of discipline for the drunken driving advertisement violated due process. The Court noted probable jurisdiction in 1984.
Membership in Proscribed Group Leads to Disbarment
Aaron Adams joined an organization that advocated the violent overthrow of the government and actively recruited new members. Federal prosecutors presented evidence of his knowing and active participation. The court expelled Adams from the bar as a consequence of the proven affiliation.
Scales v. United States367 U.S. 203 (1961)
Junius Scales was indicted on November 18, 1954, in the Middle District of North Carolina for violating the membership clause of the Smith Act, 18 U.S.C. § 2385, by holding knowing membership in the Communist Party of the United States from January 1946 through the date of the indictment, with knowledge of the Party's purpose to advocate the overthrow of the United States government by force and violence and with the specific intent to accomplish that overthrow as speedily as circumstances would permit.
The indictment followed Scales' service as chairman of the Party's Carolina District, during which he recruited members, arranged attendance at Party schools, and directed instruction on Marxist-Leninist doctrine. The first trial ended in conviction in 1955; the Court of Appeals affirmed, but the Supreme Court reversed on the authority of Jencks v. United States and remanded for a new trial.
After Congress enacted the Jencks statute, 18 U.S.C. § 3500, Scales was retried in 1958, again convicted by a jury, and sentenced to six years' imprisonment. The Court of Appeals affirmed the second conviction in 260 F.2d 21.
At the second trial the government introduced testimony from former Party members and an FBI informant who had infiltrated the organization under Scales' direction. Witnesses described instruction at national and regional Party schools in 1945, 1947, 1950, 1951, and 1952 that taught the inevitability of violent proletarian revolution, the necessity of smashing the bourgeois state apparatus, the formation of coalitions between the working class and the Negro population in the South to prepare for that revolution, and techniques such as underground organization and readiness for action when objective conditions ripened.
Scales personally instructed the informant on the Party's strategy of combining the proletariat and the Negro nation to achieve forcible overthrow, arranged his attendance at the Jefferson School of Social Science, and directed him to infiltrate labor and defense-related organizations while remaining undercover. The three-year limitations period narrowed the government's proof to events between November 1951 and November 1954, although earlier events were admitted to establish the continuing character of the Party's advocacy. The Supreme Court granted certiorari to review the statutory, constitutional, evidentiary, and procedural claims.
Antonio Alvarado, an attorney charged with professional misconduct, refused to answer questions at the disciplinary hearing on self-incrimination grounds. The hearing officer drew an adverse inference from the refusal. The court expelled Alvarado from the bar based on the record developed at the proceeding.
Baxter v. Palmigiano425 U.S. 308 (1976)
These cases present questions as to procedures required at prison disciplinary hearings and as to the reach of our recent decision in Wolff v. McDonnell, 418 U. S. 539 (1974). The two cases consolidated here arose from prison disciplinary proceedings in California and Rhode Island.
In the California case, respondents were inmates at San Quentin State Prison. They filed an action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief. The suit alleged that the procedures used in disciplinary proceedings at San Quentin violated their rights to due process and equal protection under the Fourteenth Amendment.
Following an evidentiary hearing, the District Court granted substantial relief. The Court of Appeals for the Ninth Circuit affirmed the judgment with one judge dissenting. The court first ruled in 1974. It ruled again after rehearing in light of an intervening Supreme Court decision. The opinion was modified to require minimum notice and a right to respond even for temporary suspension of privileges. It also required written reasons for any denial of confrontation or cross-examination.
In the Rhode Island case, respondent Palmigiano was an inmate serving a life sentence for murder at the Adult Correctional Institution. He was charged by correctional officers with inciting a disturbance and disruption of prison operations that might have resulted in a riot. He was summoned before the prison Disciplinary Board and informed that he might be prosecuted for a violation of state law, that he should consult his attorney although the attorney was not permitted to be present during the hearing, that he had a right to remain silent during the hearing but that if he remained silent his silence would be held against him.
Palmigiano availed himself of the counsel-substitute provided by prison rules and remained silent during the hearing. The Disciplinary Board placed him in punitive segregation for thirty days and downgraded his classification status thereafter. Palmigiano filed a separate action under 42 U.S.C. § 1983 for damages and injunctive relief. The District Court held an evidentiary hearing and denied relief. The Court of Appeals for the First Circuit reversed with one judge dissenting. After the Supreme Court vacated and remanded for reconsideration in light of Wolff v. McDonnell, the Court of Appeals reaffirmed its prior decision with modifications in 1974. The Supreme Court granted certiorari in both cases and set them for argument together.
Alan Ackerman, a sitting judge running for reelection, announced his views on several contested legal issues during a public forum. The judicial conduct commission found the announcements violated the applicable canon. Ackerman was expelled from the bar following the commission's recommendation.
Republican Party of Minnesota v. White536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002)
Since Minnesota's admission to the Union in 1858, the State's Constitution has provided for the selection of all state judges by popular election. Since 1912, those elections have been nonpartisan. Since 1974, they have been subject to a legal restriction which states that a candidate for a judicial office, including an incumbent judge, shall not announce his or her views on disputed legal or political issues. The Minnesota Code of Judicial Conduct containing this announce clause is based on the American Bar Association Model Code of Judicial Conduct.
In 1996, petitioner Gregory Wersal ran for associate justice of the Minnesota Supreme Court. During his campaign, he distributed literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion. A complaint was filed against him with the Office of Lawyers Professional Responsibility challenging the propriety of this literature under the announce clause. The Lawyers Board dismissed the complaint, expressing doubt whether the clause could constitutionally be enforced, but Wersal withdrew from the election out of concern for his law practice.
In 1998, Wersal ran again for the same office. Early in that race, he sought an advisory opinion from the Lawyers Board on enforcement of the announce clause but received an equivocal response because he had not submitted specific announcements. Shortly thereafter, Wersal and other plaintiffs including the Minnesota Republican Party filed this lawsuit in the United States District Court for the District of Minnesota. They sought a declaration that the announce clause violates the First Amendment and an injunction against its enforcement.
The parties filed cross-motions for summary judgment. The District Court found in favor of respondents, holding that the announce clause did not violate the First Amendment. Over a dissent, the United States Court of Appeals for the Eighth Circuit affirmed the district court's judgment. The Supreme Court granted certiorari to review the case.
Adam Anderson, a lawfully admitted permanent resident, sought admission to the state bar after graduating from an accredited law school. State rules limited bar membership to United States citizens. The court denied admission and expelled Anderson from any limited practice rights previously granted.
In re Griffiths413 U.S. 717, 731 (1973)
Fre Le Poole Griffiths, a citizen of the Netherlands, first arrived in the United States in 1965 as a visitor. In 1967 she married a United States citizen and established residency in Connecticut. After completing law school, Griffiths applied in 1970 for permission to take the Connecticut bar examination.
The County Bar Association determined that she met all qualifications except the citizenship requirement imposed by Rule 8(1) of the Connecticut Practice Book (1963). On that basis alone, the association denied her the opportunity to sit for the examination. Griffiths then pursued judicial relief, claiming that the citizenship rule violated the Equal Protection Clause.
The Superior Court rejected her challenge. The Connecticut Supreme Court affirmed that decision. The United States Supreme Court noted probable jurisdiction and ultimately reversed the judgment of the Connecticut Supreme Court.
What conduct most commonly results in a cancellis curiae explodi?
Knowing misappropriation of client trust funds leads to expulsion regardless of repayment intent, client loss, or prior record. The sanction addresses the serious breach of public confidence that occurs when entrusted funds are misused.
Supporting sources
Does expulsion require prior notice and an opportunity to be heard?
Yes. Disbarment proceedings are quasi-criminal and must provide fair notice of charges together with an opportunity to defend. Mid-hearing amendments that deprive the attorney of a defense violate due process.
Supporting sources
Can a judge's false statement under oath lead to expulsion?
Yes. A judge who knowingly makes a material false declaration under oath may face criminal prosecution for perjury. The same conduct also violates judicial canons and can result in removal from office and expulsion from the bar.
Supporting sources
Does disbarment automatically disqualify a person from grand jury service?
No. Federal rules list specific qualifications such as citizenship, age, residency, and absence of felony convictions. Disbarment is a civil sanction outside those enumerated criteria and does not by itself render a juror legally unqualified.
Supporting sources
…comply with the applicable provisions of the Code of Judicial Conduct"). Those who violate it are subject to, inter alia ,
disbarment
, suspension, and probation. Rule 8.4(a); Minn. Rules on Lawyers Professional Responsibility 8-14, 15(a) (2002). In 1996, one of the petitioners, Gregory Wersal, ran for associate justice…