Summary
In Rassner the applicant had been permanently disbarred, and other disciplinary proceedings against him were dropped in light of the disbarment.
Summary of this case from In re Application of KligerOpinion
No. 42151.
July 26, 1972.
Joseph A. Gassen of Jepeway, Gassen Jepeway, Miami, for petitioner.
Norman A. Faulkner, Tallahassee, for The Florida Bar, respondent.
Petitioner Monte K. Rassner, a former member of The Florida Bar, petitions this Court for reinstatement. He was a member of The Florida Bar from March, 1952 until March 17, 1965, when he was permanently disbarred by this Court for commingling funds. The Florida Bar v. Rassner, Fla. 1965, 172 So.2d 818. At that time other disciplinary proceedings were pending against him; however, they were not prosecuted by The Bar because of the judgment of permanent disbarment.
Previously, Rassner had been suspended for six months and thereafter "until he has satisfactorily demonstrated that he is entitled to reinstatement." The Florida Bar v. Rassner, Fla. 1964, 161 So.2d 1. At that time, too, he had been found guilty of improper handling of trust funds.
Since the time of his disbarment Petitioner has been employed by the Dade County Board of Public Instruction as a teacher. He has a large number of debts, all of which are set forth in the Petition, which he incurred prior to disbarment. He states that he is attempting to repay them rather than resorting to bankruptcy. According to his Petition, he "has properly oriented himself and matured into a responsible and well-rounded person." He apparently is now doing a great deal of youth work.
He states in his Petition for Reinstatement that he
"has kept himself intellectually prepared to practice law, has continued in-graduate and in-service studies at the University of Miami, and has a very strong desire and resolve to resume the practice of law and make a genuine contribution to the legal profession. The Petitioner is fit to resume the practice of law and his reinstatement will have no harmful or adverse effect on the administration of justice, the purities of the courts or the confidence of the public in the profession."
We deny a motion of The Florida Bar contending that because Petitioner was permanently disbarred he is forever precluded from seeking reinstatement and being reinstated. It is our view that a former attorney, whether "permanently" disbarred or permitted to resign upon condition that he will never seek reinstatement is not thereby forever precluded at some future date from seeking reinstatement. To arbitrarily and immutably cut off the opportunity to seek reinstatement to the Bar, regardless of a subsequent demonstrated record of rehabilitation, good conduct and clean living, is too harsh and unremitting. It is out of keeping with the Biblical philosophy that no one is altogether beyond redemption. It is also contrary to modern concepts concerning rehabilitation of persons convicted of crime and state parole and pardon policies.
See special comment of Mr. Justice Caldwell in The Florida Bar v. Sherr, Fla., 179 So.2d 337, at page 338.
We direct that the Petition of Monte K. Rassner for reinstatement be duly processed in the manner provided by the governing rules and that a referee be appointed to hold an evidentiary hearing and make recommendation thereon.
Our decision herein on the eligibility of Petitioner to seek reinstatement is in nowise intended to reflect any judgment on the merits, either directly or indirectly, for or against Petitioner's reinstatement.
It is so ordered.
ROBERTS, C.J., and ERVIN, CARLTON, ADKINS and McCAIN, JJ., concur.
BOYD, J., concurs in part, dissents in part with opinion.
DEKLE, J., dissents with opinion.
Article V of the Florida Constitution, F.S.A. fixes the ultimate jurisdiction and responsibility with the Supreme Court for admission, suspension and disbarment of lawyers. I agree with the majority that this Court is not permitted to close its ears and its doors to a completely rehabilitated former member of the Bar on the ground that he had been "permanently disbarred." However, the quality of character and performance of attorneys who are "permanently disbarred" is such that they are not likely to be readmitted. For that reason it is difficult for a former attorney who has been permanently disbarred to prove sufficient rehabilitation to resume the practice of law. There must be convincing evidence of improvement and change, of new attitudes of honesty and new standards of conduct. There must also be evidence that the disbarred attorney has undertaken to correct whatever wrongs he has previously committed. Finally, professional competency to resume the practice of law must be re-established.
Applying the above standards to the petitioner, we note with interest that attached to the petition for reinstatement is a check from petitioner in the amount of $909.51, dated February 16, 1972, to pay the costs of the disbarment proceedings, which petitioner was ordered to pay at the time of his disbarment on March 17, 1965. We further note that the petitioner admits outstanding indebtedness totaling in the principal amount of $208,887.77, representing fifteen creditors including liens filed by the United States Department of Internal Revenue. Petitioner's explanation for not having paid the creditors is that none of them have been pressing him for the money "and it is the opinion of the Petitioner that the non-payment of the foregoing obligations have not worked any financial hardship on any of the creditors involved, . . . ."
Despite the continued existence of long-standing and past due obligations totaling almost a quarter of a million dollars, the petition for reinstatement filed in this Court contains the following statements:
"Petitioner has resolved his past financial problems, as elsewhere set forth herein, and is a competent and responsible person in the management of his affairs. The petitioner has paid all of his obligations that occurred after disbarment at or before their due date.
* * * * * *
"The financial affairs of the Petitioner are on a currently sound basis in all respects, he being either current or ahead on schedule in all of his regular payments. He has over $1,500.00 to his credit in the Teachers Retirement Fund."
Petitioner is employed as a public school teacher earning $8,300.00 annually and also receives a disability pension of $7,968.00 per year. In addition, his wife is employed and they own two 1972 Chevrolets. Despite an income in excess of $20,000.00 per year, no payment has been made on indebtedness dating to 1962.
In the Florida Bar v. Rassner, 161 So.2d 1 (Fla. 1964) wherein this Court suspended petitioner for a period of six months for commingling funds, the late Justice Thornal, speaking for three dissenters who favored one year suspension, wrote:
"In addition to the misprisions here established, his record reveals that the respondent had numerous other brushes with the grievance committee. It is time that he learns that the law is something other than a commercial enterprise." (e.s.)
In the past, petitioner has demonstrated he is unable to withstand the urge to use the money of others for his own purposes when under economic pressure. While he continues to be so delinquent in payment of his present past due debts, it would be unfair to him and to his prospective clients to permit him to hold their escrow money.
Lawyers who are permanently disbarred may, under certain exceptional circumstances, be readmitted to the practice of law. However, in the instant case, the petion is insufficient to demonstrate rehabilitation justifying further consideration at this time. I would dismiss the petition without prejudice to file at a subsequent time, if and when the petitioner can establish: (1) complete satisfaction or partial satisfaction of creditors pursuant to a plan demonstrating a good faith intention to pay within a reasonable time; (2) competency to resume the practice of law after seven years' disbarment, to be established by submission to the Florida Bar Examination; and (3) rehabilitation of professional attitude and character.
I believe, with my brothers, that no man is "beyond redemption" if their reference be to the biblical teaching of redemption of the soul or redemption from sin into Everlasting Life. But that redemption is solely God's. I deem it fully within the mortal limitations of judicial determination entrusted to us, to conclude that an attorney's past actions, misdeeds and betrayals of trust and of his profession can in appropriate circumstances warrant his complete banishment from the law's "Garden of Eden" without absolution.
Colossians 1:14; Ephesians 1:7; Romans 2:7.
Psalms 49:7 — "None of them can by any means redeem his brother, nor give to God a ransom for him:"
There should in appropriate circumstances be a recognized "permanency" in the disbarment from his profession of an unfitted and unsuited member of The Bar who has been appropriately so adjudged on good and sufficient evidence. We have previously so held. It would still be subject to his new admission by application to the Bar Examiners. This would meet any constitutional complaint to the procedure. If a surgeon who has lost many patients on the operating table without good cause and because of his negligence and failure to meet the standards of his profession were to have his license to practice medicine permanently revoked, surely he would not be brought back into the profession simply upon a petition for reinstatement on the basis that he had "rehabilitated himself" by his employment as a teacher (petitioner's position). Neither would a defrocked minister be waved back into his pulpit upon his representation that after prayerful consideration he had relented from those things which caused the revocation of his license to preach the gospel. (It would almost be like the church that took back the minister who had absconded with $300.00 from the building fund on the condition that he first "preach out every dime of it"!) Responsibility is still the cornerstone of the position of trust occupied by persons in these professions and in the law, the indulged breach of which will topple its foundation.
The Florida Bar v. Carlson, 183 So.2d 541 (Fla. 1966).
The principle is also recognized in The Florida Bar v. Penny, 164 So.2d 5 (Fla. 1964).
Permanency has likewise been recognized upon "resignation without leave for reinstatement" in In re Joel, 160 So.2d 110 (Fla. 1964); The Florida Bar v. Ashmann, 167 So.2d 864 (Fla. 1964); In re Grant, 139 So.2d 405 (Fla. 1962); and In re Talbott, 172 So.2d 579 (Fla. 1965).
Effective 12-1-72 under New Integration Rule 11:10(4), a "disbarred" attorney must be "recycled" and meet requirements of new admissions to the Bar, including the Bar Examination. In Matter of The Florida Bar, 262 So.2d 857 (Fla. 1972).
We too easily forget circumstances which gave rise to such a defalcation. Look again briefly at only a part of the summary by the referee of the extensive and gross misuse of funds and questionable testimony by this petitioner:
"`A cursory examination of the facts in this case clearly reveals that this man was simply using any money he could get his hands on for personal and private use and yet, at the time of the hearing before the referee, this man was as devious and evasive as any witness the Referee has ever experienced. It is the undersigned's reluctant, carefully considered opinion that despite the prior suspension by the Supreme Court of Florida that before the Referee the Respondent did not reflect a sincere desire to become an ethical practitioner but, to the contrary, completely ignored the sanctity of the oath of a witness and the dignity of The Florida Bar.'
"Respondent was previously suspended for six (6) months by Order of this Court dated February 19, 1964."
The Florida Bar v. Rassner, 172 So.2d 818, 819 (Fla. 1965).
The Bar should not be forever burdened with reevaluating a clear case of disbarment and determining whether or not in another field the attorney has appeared to have redeemed himself sufficiently to come back into the law. In the present instance where the petitioner has done well in another field, which is most commendable, I think he deserves to remain there to serve in that arena and not to be brought back into the tempting surroundings in which he first found trouble and may well do so again. This is particularly true at a time when very deserving law student applicants are being rejected at the rate of 20 to 1 by the law schools of this nation because of the ever increasing high standards, due in part to an overcrowded legal profession in certain areas and limited training facilities. It does not balance the scales of justice in my judgment to grant the consideration herein extended to petitioner for a place in the sun on a crowded beach, that might otherwise be occupied by a deserving applicant striving to get where the petitioner proved inadequate. We do not strengthen our profession in this way.
Neither do I agree that there could not be a reasonable classification, just as in other areas of the law, of those attorneys disbarred in extreme circumstances. This is fully within the control of The Bar and of the courts who know best regarding such matters and can certainly make a reasonable classification well supported by facts that meet any constitutional challenge.
The Integration Rule and our lawyers' Code of Professional Ethics are not only to set a guide for lawyers' conduct; they are for the protection of the public and this Court. We should not lightly remove that protection or unreasonably expose the public or our courts to a risk of similar conduct and losses in the future.
In a given case, if suspension is what is intended for a period of time before it is lifted, then that is the punishment which should be accorded in the first place. We should not totally discard the permanent disbarment provided by the present rule in appropriate cases. The ordinary disbarment where there can be reinstatement without the provision of "permanent" is still available and can be applied if it is not to be permanent.
Integration Rule 11.11.
See Henry S. Drinker, Legal Ethics, p. 49; University of Florida Law Review, Vol. 7, p. 403 (1954).
The high standards of The Bar should not be diminished. I would not retreat one step from those virtues and firm standards maintained by the stalwarts of our profession over the years in our march toward justice. To do so is to violate the trust which they have passed on to us.
I dissent.