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In August, the Court expressly rejected the notion that an attorney is entitled to reinstatement if the factors set forth in Mich. Ct. R. 9.123(B)(1)-(6) are satisfied and five years have passed since the disbarment.
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Docket No. 88132.
Argued April 2, 1991 (Calendar No. 6).
Decided August 29, 1991.
Philip J. Thomas, Grievance Administrator (by Murray J. Muscat), for the respondent.
Colista, Adams Palmer, P.C. (by F. Philip Colista), for the petitioner.
Amicus Curiae:
Michael Franck, Counsel of Record, and Marcia L. Proctor for the State Bar of Michigan.
We are asked to review the Attorney Discipline Board's order reinstating the license of Irving August to practice law in the State of Michigan. We vacate the Attorney Discipline Board's order of reinstatement, and remand to the board for reconsideration in light of this opinion.
FACTS
On June 28, 1983, petitioner was convicted of conspiring to defraud the United States of the due administration of justice in violation of 18 U.S.C. § 371, impeding the due administration of justice in violation of 18 U.S.C. § 1503, and attempting to influence a court clerk in the discharge of her official duties in violation of 18 U.S.C. § 1503. These convictions stemmed from Mr. August's collaboration with a clerk of the court to manipulate the blind-draw system for assigning judges in the United States Bankruptcy Court for the Eastern District of Michigan. The object was to avoid assignment of cases to Judge George Brody, who, of the three judges sitting on the bankruptcy court, was known to scrutinize and reduce attorney fees. In affirming August's conviction, the United States Court of Appeals for the Sixth Circuit detailed the facts and circumstances surrounding the convictions:
The relevant period of time is that covered by the counts of the indictment related to this appeal — from October 3, 1979 to October 30, 1980. During this period, three bankruptcy judges sat in the Eastern District of Michigan, Southern Division: Judge Hackett, Judge Brody, and Judge Patton. Judge Patton took all of the Chapter 13 cases. A blind draw system was designed to assign to him approximately 30% of the Chapter 7 and Chapter 11 cases. The system was operated by using decks of 100 3" X 5" index cards, each typically containing 30 marked for Judge Patton and 35 marked for each of Judges Brody and Hackett. The cards were shuffled, numbered, and sealed on three sides so that the judge's name was not visible. In eighteen of the seventy-two packs used while Bogoff was an intake clerk, the order of the cards was adjusted so that no two cards bearing the same judge's name were next to each other; in other cases, the cards were randomly mixed. When a bankruptcy petition was filed, the intake clerk removed the top card from a judge assignment deck, turned it over to reveal the name of the judge to whom the case was assigned, and stamped that judge's name on the petition.
August's law firm filed about one-half of the Chapter 11 cases in the Eastern District of Michigan during the period here involved. August had a romantic relationship during this period with intake clerk Bogoff.[2] Although she was not the only clerk in the office and filed only about half of all bankruptcy petitions, she arranged matters so that she handled almost all of the judge assignments in cases involving August's firm. She allowed members of that firm to come behind the counter to drop off filings without waiting in line. She permitted August to leave on her desk his briefcase containing filings.
The government's theory was that Bogoff would take several petitions to the counter, draw a card and look at the judge's name. If Judge Patton's or Judge Hackett's name appeared, she would file the Chapter 11 petition presented by the August firm.[3] Sixty-eight Chapter 11 cases were filed by August's firm during this period, of which 92% were handled by Bogoff and only nine initially were assigned to Judge Brody. If multiple petitions were filed involving the same parties, the cases were eventually consolidated and assigned to the judge to whom the first of the petitions had been assigned. After consolidations, only four Chapter 11 cases filed by the August firm remained assigned to Judge Brody.[4]
At trial, the government adduced circumstantial evidence that it was possible to manipulate the blind draw system; that Bogoff had filed almost all of August's cases; and that a disproportionately low percentage of August's cases were assigned to Judge Brody. Professor David Doane, an expert statistician, testified that there was a 99.97% chance that more August cases would have been assigned to Judge Brody if the blind draw system were truly random.
[2] August contributed significantly to Bogoff's support. In 1980, he deposited directly into her personal bank account checks from his law firm clients totalling more than $11,000.
[3] Defendants' theory was that members of August's firm would wait outside the intake window until Judge Brody was assigned to another case, then step up to the window, assuming that no judge's name appeared on two consecutive cards. But only eighteen of the seventy-two decks used while Bogoff was an intake clerk were arranged so that no judge's name appeared twice in sequence. This theory was refuted conclusively at trial on a number of grounds, including the fact that the mathematical odds against Judge Brody's assignment to so few August cases were 99 to 1 even if members of the firm behaved in the manner appellants suggest.
[4] August considered Judge Brody a difficult judge before whom to practice. Specifically, August thought that Judge Brody awarded smaller attorney fees. In 1978, August told Judge Brody in chambers that he could not afford to handle such cases if Judge Brody continued to reduce his fee awards so much. He asked Judge Brody to transfer all of the August firm cases to which Judge Brody had been assigned to Judge Hackett (a personal friend of August). Judge Brody refused to do so.
[ United States v August, 745 F.2d 400, 402-403 (CA 6, 1984).]
On the same day that the judgments of conviction were entered, petitioner was automatically suspended from the practice of law pursuant to GCR 1963, 969.1(b). On July 20, 1984, following public hearings, a Wayne County hearing panel ordered the license of Irving August revoked.
GCR 1963, 969.1(b) provided for the automatic suspension of an attorney convicted of a felony until the effective date of an order filed by a hearing panel. GCR 1963, 969.1(b) was replaced by MCR 9.120(A)(1).
Meanwhile, in November, 1984, following the affirmance of his convictions, petitioner began serving his concurrent two-year sentences at the federal prison in Marion, Illinois. In the fall of 1985, he was transferred to a half way house in the City of Detroit. He remained there until November 19, 1985, when district court Judge Ralph Freeman reduced the sentence to time already served. Thus, August served approximately one year of incarceration.
745 F.2d 400 (CA 6, 1984).
The petition for reinstatement of his license to practice law was filed October 28, 1988. Hearings were held for four days, and on August 17, 1989, the Wayne County hearing panel issued its report and order denying reinstatement. The three-member panel was split, with Chairman Harry A. Carson favoring reinstatement. The two-member majority adopted Chairman Carson's findings of fact, which summarized the testimony. The majority also accepted the dissenter's conclusion that petitioner had shown by clear and convincing evidence that he had fulfilled the requirements for reinstatement set forth in MCR 9.123(B), with one crucial exception: The majority found that the petitioner had not established by clear and convincing evidence that he could be safely recommended to the public, the courts, and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and, in general, to aid in the administration of justice as a member of the bar and as an officer of the court as required by MCR 9.123(B)(7). The majority stated that "[t]he nature and seriousness of [petitioner's] acts must be considered in assessing the ability to safely recommend the petitioner to the public, the courts and the legal profession." Ultimately, the reinstatement panel was not convinced "that petitioner's subsequent conduct, no matter how exemplary, has sufficiently ameliorated the taint placed upon the legal profession, by his commission of the crimes in question, to the extent that he could now be safely recommended as a person of trust."
On review, the Attorney Discipline Board posed its inquiry as "whether there is proper evidentiary support in the record for the conclusion of the hearing panel majority that the nature of [petitioner's] criminal conduct constitutes a bar to his reinstatement, regardless of his subsequent exemplary behavior." In the view of the discipline board, affirmance of the panel's denial of reinstatement would require a ruling that certain types of professional misconduct are so egregious that reinstatement should never be granted. Noting that the Michigan Supreme Court had never so ruled, the discipline board found that petitioner had established his eligibility for reinstatement in accordance with the present rules. On December 22, 1989, the Attorney Discipline Board entered an order reversing the hearing panel's denial of reinstatement, and granted the petition for reinstatement.
This Court granted the grievance administrator's application for leave to appeal on December 6, 1990. 437 Mich. 1202.
STANDARD OF REVIEW
It has been stated many times that the findings of the hearing panel and the Attorney Discipline Board are to be reviewed for proper evidentiary support on the whole record. In re Freedman, 406 Mich. 256; 277 N.W.2d 635 (1979); In re Grimes, 414 Mich. 483; 326 N.W.2d 380 (1982). In this case, there is no challenge to the factual findings of the hearing panel, but rather to the panel's ultimate determination that petitioner should not now be reinstated. While the board reviews that judgment for adequate evidentiary support, the board at the same time possesses a measure of discretion with regard to its ultimate decision. MCR 9.118(D), In re Daggs, 411 Mich. 304, 318-319; 307 N.W.2d 66 (1981). The power to regulate and discipline members of the bar rests ultimately with this Court pursuant to constitutional mandate. Const 1963, art 6, § 5; In re Schlossberg v State Bar Grievance Bd, 388 Mich. 389; 200 N.W.2d 219 (1972).
Primary fact-finding responsibility is entrusted to the hearing panel, which is required by MCR 9.111(B)(2) to "[r]eceive evidence and make written findings of fact." The board does not itself possess fact-finding powers; however, it may on review of a panel decision order testimony taken, which will be done by a panel or master who is then required to make a supplemental report. MCR 9.118(C)(2).
Because the board applied an erroneous interpretation of the standards for reinstatement, we vacate its order, and remand to the board for further consideration in light of this opinion.
ANALYSIS
An attorney whose licence has been revoked bears the burden of showing by clear and convincing evidence that the conditions of eligibility for reinstatement have been met. Those conditions are set forth in MCR 9.123(B)(1)-(7), as follows:
(1) he or she desires in good faith to be restored to the privilege of practicing law in Michigan;
(2) the term of the suspension ordered has elapsed or 5 years have elapsed since revocation of the license;
(3) he or she has not practiced or attempted to practice law contrary to the requirement of his or her suspension or revocation;
(4) he or she has complied fully with the order of discipline;
(5) his or her conduct since the order of discipline has been exemplary and above reproach;
(6) he or she has a proper understanding of and attitude toward the standards that are imposed on members of the bar and will conduct himself or herself in conformity with those standards;
(7) he or she can safely be recommended to the public, the courts, and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court. . . .
(Subrules 8 and 9 are not relevant to this case.)
The focus in this case has narrowed to the criterion set forth in subrule 7: Can petitioner "safely be recommended to the public, the courts, and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court"?
Petitioner concedes, but we find it appropriate to emphasize, that the nature of the misconduct for which an attorney was disbarred must be considered in the proceedings for reinstatement. In In re Brown, 166 W. Va. 226, 234; 273 S.E.2d 567 (1980), the court observed:
It is generally agreed that in assessing an application for reinstatement consideration must be given to the nature of the original offense for which the applicant was disbarred. Obviously, the more serious the nature of the underlying offense, the more difficult the task becomes to show a basis for reinstatement. [Emphasis added.]
In In re Keenan, 313 Mass. 186, 218; 47 N.E.2d 12 (1943), the court sought evidence sufficient to outweigh the adjudicated fact of the petitioner's guilt of corruptly influencing jurors, an offense "of the gravest character." The court in In re Gordon, 385 Mass. 48, 54; 429 N.E.2d 1150 (1982), recognized the need to "look behind subjective testimonials as to the present good character of the petitioner, and the most relevant objective fact is the public record of the conduct which caused the disbarment in the first place." See also In re Cantrell, 785 P.2d 312 (Okla, 1989) (the worse the offense, the heavier the burden to obtain reinstatement).
It is also generally recognized that the passage of time is relevant to the question of rehabilitation. A long time period in which the petitioner's conduct has been exemplary will reinforce a claim of rehabilitation. In re Hiss, 368 Mass. 447; 333 N.E.2d 429 (1975). The court in In re Ansley, 241 Ga. 394; 245 S.E.2d 657 (1978), similarly held that the petitioner had not proved that the seriousness of his offense (bribery) had been offset by a sufficiently long period of rehabilitation.
We agree with the frequently stated principle that the essence of the decision to reinstate is a balancing process. The essential considerations were well articulated in the Maryland case, In re Raimondi, 285 Md. 607, 618; 403 A.2d 1234 (1979), cert den 444 U.S. 1033 (1980):
On one side of the scale is placed the seriousness of the misconduct which produced disbarment and the court's duty to society at large to see that only those persons who are worthy of the faith and confidence of the general public are permitted to handle the affairs of others. . . . On the other side are placed the subsequent conduct and reformation of such individual, his present character, his present qualifications and competence to practice law, and the fact that the very nature of law practice places an attorney in a position where an unprincipled individual may do tremendous harm to his client.
The hearing panel expressly recognized the relevance of the nature of the offense as well as the time elapsed when it stated: "We, as members of the reinstatement panel are . . . very concerned about the nature of the crimes committed by the petitioner. We are not convinced that petitioner's subsequent conduct, no matter how exemplary, has sufficiently ameliorated the taint placed upon the legal profession, by his commission of the crimes in question, to the extent that he could now be safely recommended as a person of trust." (Emphasis added.)
On review of the panel's decision, the board looked for evidentiary support in the record for what it characterized as the panel's conclusion that the nature of petitioner's criminal conduct constituted a bar to his reinstatement. The board viewed the panel's decision as a permanent disbarment. In the board's view, "[a]ffirmation of the denial of reinstatement in this case demands a ruling that there are certain types of professional misconduct which are so egregious that reinstatement should never be granted." The board found a fundamental incongruity between the panel's conclusion that petitioner had established by clear and convincing evidence that he had fulfilled the terms of subrule 6, but that petitioner nevertheless could not safely be recommended to the public, the courts, and the profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and, in general, to aid in the administration of justice as a member of the bar and as an officer of the court, as required by subrule 7.
[H]e or she has a proper understanding of and attitude toward the standards that are imposed on members of the bar and will conduct himself or herself in conformity with those standards. [MCR 9.123(B)(6).]
We discern in the board's reasoning a suggestion that reinstatement is automatic upon satisfaction of the criteria set forth in MCR 9.123(B)(1)-(6), that the passage of time is not a relevant consideration beyond the terms of subrule 2, and that denial of reinstatement now is tantamount to permanent disbarment. These implications flow from the board's statement that "the Court Rules have extended to Mr. August the promise that he could file a petition for reinstatement after five years." The board approved similar reasoning from the dissenting opinion of hearing panel Chairman Carson:
[T]he term of the suspension ordered has elapsed or 5 years have elapsed since revocation of the license. [MCR 9.123(B)(2).]
As serious as August's crimes were, the Court rules, have at all times since his disbarment, led the petitioner to believe that he could file a petition for reinstatement after five years. Nowhere is it stated in the rules that a person convicted of a heinous crime, or manipulating the justice system, or committing homicide, or some other crime, shall be permanently disbarred. Had the Supreme Court wished to preclude certain offenders from ever applying for reinstatement, it would have said so pursuant to its rule making powers.
The rules do indeed promise that a disbarred attorney may apply for reinstatement after five years. However, we perceive this temporal milepost as fixing the minimum time after which a disbarred attorney may be declared rehabilitated. We reject the implication that if five years have elapsed, the passage of time is otherwise irrelevant to the determination of present fitness for reinstatement. The determination whether the disbarred attorney may be safely recommended to the position of public trust held by members of the state bar necessarily requires consideration of the time elapsed since disbarment and since the commission of the acts resulting in disbarment. This is only consonant with the established principle that each attorney misconduct case is to be considered on its own facts. Grimes, 414 Mich. 490; State Bar Grievance Administrator v Del Rio, 407 Mich. 336, 350; 285 N.W.2d 277 (1979). Obviously, the question whether an attorney may be safely recommended to the public is a different inquiry in the case of an attorney disbarred for corrupting the administration of law than in the case of an attorney whose disbarment resulted from conduct unrelated to the practice of law. It is also obvious that a showing of present fitness may require a lengthier period of rehabilitation where an attorney has engaged in a repeated or calculated series of acts designed to corrupt the administration of justice than in the case of an attorney whose disbarment resulted from a single instance of similar conduct. Thus, the five-year period described in MCR 9.123(B)(2) should be interpreted as a minimum period in which rehabilitation may occur following revocation of the license to practice law; the passage of five years in no way guarantees eligibility for reinstatement.
In California it is held that although an attorney may seek reinstatement after five years, reinstatement is not automatic. In re Nevill, 39 Cal.3d 729; 217 Cal.Rptr. 841; 704 P.2d 1232 (1985).
Next we turn to the board's suggestion that if the hearing panel found that subrule 6 was met, it could not consistently find that subrule 7 was not satisfied. This reasoning would render MCR 9.123(B)(7) wholly superfluous. The criteria set forth in subrules 1-9 are designed to achieve an appropriate balance between the duty of this Court to protect the public and the profession, and the interests of the attorney in a fair evaluation of his petition to regain his livelihood. The petitioner must satisfy each requirement, and while the factors are interrelated, each has independent significance. We find that subrule 6 is primarily directed to the question of the applicant's ability, willingness and commitment to conform to the standards required of members of the Michigan State Bar. Subrule 7 shifts the focus to the public trust which this Court has the duty to guard. The purpose of this Court's disciplinary power is to protect the public, the courts, and the legal profession. MCR 9.102(A). The license to practice law is "a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and counselor and as an officer of the court." MCR 9.103(A). Subrule 7, with its reference to whether the applicant may be safely recommended to this position of trust, necessarily involves the discretionary question whether this Court is willing to present that person to the public as a counselor, member of the state bar, and officer of the court bearing the stamp of approval from this Court.
We recognize that the foregoing discussion implies an element of subjective judgment in the application of MCR 9.123(B). We find this appropriate for two reasons.
First, several of the requirements for reinstatement eligibility set forth in MCR 9.123(B) are of an inherently subjective nature. Determining whether the applicant desires in good faith to be restored to the privilege of practicing law, MCR 9.123(B)(1) requires subjective judgment, as does the determination whether the applicant has a proper understanding of and attitude toward the standards imposed on members of the bar and will act in conformity with those standards, MCR 9.123(B)(6), and whether the applicant can safely be recommended to the public and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and, in general, to aid in the administration of justice as a member of the bar and as an officer of the court, MCR 9.123(B)(7).
Obviously, some of the eligibility requirements may be verified objectively, for example, whether the term of suspension has elapsed or five years have elapsed since revocation of the license, MCR 9.123(B)(2). The requirements set forth in subrules 3 (the applicant has not practiced or attempted to practice law during period of suspension or revocation), 4 (the applicant has complied fully with the order of discipline), and 5 (the applicant's conduct since the order of discipline has been exemplary and above reproach) may be verified objectively as well, but may in some instances require judgments on the basis of the evidence.
Second, the reinstatement process offers the sole opportunity for distinguishing between dissimilar acts of misconduct which may have resulted in a suspension of more than 119 days or the revocation of the license to practice law. While there are a number of disciplinary measures less than license revocation, there are none more severe. The most severe sanction which may be imposed for a single violation of a serious nature is the same sanction available for multiple instances of the same misconduct. The most severe sanction for misconduct corrupting the administration of justice is the same sanction for severe misconduct unrelated to the practice of law. Without considering the nature of the misconduct, the panel or board has no basis to determine whether an attorney whose license was revoked has become fit to hold the public trust by practicing law.
See MCR 9.123(B).
Justice LEVIN in In re Albert, 403 Mich. 346; 269 N.W.2d 173 (1978), criticized MCR 9.123 (then State Bar Rule 15) for failing to separate the substantive criteria for reinstatement in cases of disbarment and suspension. Justice LEVIN opined that the structure of the rule "causes doubt about the character and quantum of proof appropriate in each case, leading to uneven application of the rule." Id. at 355. Despite Justice LEVIN'S criticism in Albert, we have retained the rule essentially unchanged over the intervening thirteen years. This is consonant with our holding today that the rule envisions the use of discretion in the application of its standards to varying factual situations. While the quantum of proof remains in each case the same — clear and convincing evidence — the factual showing required to carry that burden necessarily and appropriately depends on the facts of the particular case.
See MCR 9.106(2)-(6).
Finally, we do not agree with the board's assessment that the reinstatement criteria allow only two possibilities: that petitioner be now readmitted or forever barred from the practice of law in this state. A third alternative is illustrated in this case, where the hearing panel determined that petitioner "could not now be safely recommended as a person of trust." (Emphasis added.) A determination that sufficient time has not passed to allow the panel or board to declare petitioner rehabilitated and confidently hold him out as a person of trust is not a declaration that petitioner will never be rehabilitated and can never regain the privilege of practicing law in this state. A number of jurisdictions hold that there is conduct so egregious that it should preclude reinstatement to the practice of law. See In re Russo, 244 Kan. 3; 765 P.2d 166 (1988). We need not rule on that question because we are not prepared to say that this is such a case. While we can hypothesize a situation in which repeated denials of reinstatement might amount to permanent disbarment, this clearly is not that case. We remand to the Attorney Discipline Board to reexamine whether, in light of the seriousness of petitioner's crimes and the time elapsed, petitioner can now be confidently recommended to the position of trust that is held by members of the state bar. On remand, the board either may affirm the order of the hearing panel or take such other action as it deems appropriate, including the taking of further testimony. MCR 9.118(C)(2), (D).
See also In re Kerr, 424 A.2d 94 (DC App, 1980) (the statute requiring an attorney convicted of an offense involving moral turpitude to be stricken from the roll of the members of the bar required permanent disbarment); People v Buckles, 167 Colo. 64; 453 P.2d 404 (1969) (the statute providing that one shall be disqualified from practicing law if convicted of a felony requires permanent disbarment); Office of Disciplinary Counsel v Klunk, 17 Ohio St.3d 43; 476 N.E.2d 1051 (1985).
CONCLUSION
We hold today that the nature of the offense and the time elapsed since its commission and since disbarment are relevant and important considerations in determining whether a disbarred attorney should be recommended to the position of public trust that is held by members of the Michigan State Bar. Moreover, an attorney may be denied readmission on the grounds that sufficient time has not passed to determine the present fitness of the applicant for readmission. Such a denial should not be deemed a permanent disbarment. The order of the Attorney Discipline Board is vacated and the matter remanded to the Attorney Discipline Board for consideration in light of this opinion.
BRICKLEY, RILEY, GRIFFIN, and MALLETT, JJ., concurred with BOYLE, J.
I concur with Justice BOYLE'S analysis in this case. She has correctly stated the factors which should and do govern the determination whether a disbarred attorney should be readmitted to the profession in light of past misconduct and present rehabilitation, and she has persuasively analyzed how those factors should and do interact in the general sense.
With regard to the standard of review, I would add only that this Court's precedents have been somewhat vague about the degree of deference that should be accorded, and to which body it should be accorded, when the Attorney Discipline Board happens to reverse a finding or conclusion of a hearing panel. We cannot apply the deferential "proper evidentiary support on the whole record" standard to the decisions of both bodies in that event, because it may well be that both decisions (even though contradictory) are reasonable and supported by the evidence. I think our only recourse where the board and the panel disagree is to exercise somewhat greater scrutiny of the board's decision, in order to ascertain whether the board itself properly accorded the panel all due deference.
I do not believe the board did so in this case. While the board purported to follow the correct standard of review, it appears to me that the board, in fact, simply substituted its judgment de novo for that of the panel. I do not see how it can be said that the panel's denial of August's petition lacks proper evidentiary support on the whole record. In light of the factors set forth by Justice BOYLE, there is plainly ample evidence on this record from which the panel majority could reasonably conclude, as it did, that August does not, at this time, qualify for reinstatement under MCR 9.123(B)(7).
While Justice BOYLE would take the entirely reasonable course of remanding this case to the board for reconsideration in light of her analysis, I believe the result of that analysis on the facts of this case is sufficiently clear that I would prefer to simply reverse the board's decision and reinstate the hearing panel's denial of August's petition for reinstatement. Given the gravity of August's prior criminal misconduct striking at the heart of the fair administration of justice, as weighed against his subsequent rehabilitation, I do not believe he can safely be recommended at this time to the people of Michigan as a person fit to reassume the singular trust and privilege of practicing law.
Given that a majority of this Court is not disposed to do more than remand this case to the board for reconsideration, however, I concur with Justice BOYLE'S analysis as the appropriate standard to guide the board's reconsideration.
I would affirm the order of the Attorney Discipline Board reinstating Irving A. August to the practice of law.
I
The Michigan Court Rules provide that a lawyer who has been suspended for more than 119 days or who has been disbarred may be reinstated by the Attorney Discipline Board if, among other criteria, the board concludes that
MCR 9.123 provides:
(A) Suspension, 119 Days or Less. An attorney whose license has been suspended for 119 days or less is automatically reinstated by filing with the Supreme Court clerk and the administrator an affidavit showing that the attorney has fully complied with the terms and conditions of the suspension order. A false statement contained in the affidavit is ground for disbarment.
(B) Revocation or Suspension More Than 119 Days. An attorney whose license to practice law has been revoked or suspended for more than 119 days is not eligible for reinstatement until the attorney has petitioned for reinstatement under MCR 9.124 and has established by clear and convincing evidence that:
(1) he or she desires in good faith to be restored to the privilege of practicing law in Michigan;
(2) the term of the suspension ordered has elapsed or 5 years have elapsed since revocation of the license;
(3) he or she has not practiced or attempted to practice law contrary to the requirement of his or her suspension or revocation;
(4) he or she has complied fully with the order of discipline;
(5) his or her conduct since the order of discipline has been exemplary and above reproach;
(6) he or she has a proper understanding of and attitude toward the standards that are imposed on members of the bar and will conduct himself or herself in conformity with those standards;
(7) he or she can safely be recommended to the public, the courts, and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court;
(8) he or she is in compliance with the requirements of subrule (C), if applicable; and
(9) he or she has reimbursed the client security fund of the State Bar of Michigan or has agreed to an arrangement satisfactory to the fund to reimburse the fund for any money paid from the fund as a result of his or her conduct. Failure to fully reimburse as agreed is ground for revocation of a reinstatement.
(C) Reinstatement After Three Years. An attorney who, as a result of disciplinary proceedings, resigns, is disbarred, or is suspended for any period of time, and who does not practice law for 3 years or more, whether as the result of the period of discipline or voluntarily, must be recertified by the Board of Law Examiners before the attorney may be reinstated to the practice of law.
— the lawyer's conduct, since the order of discipline was entered, "has been exemplary and above reproach" (MCR 9.123[B][5]), and
— the lawyer has a "proper understanding of and attitude toward" the "standards" imposed on members of the bar (MCR 9.123[B][6]), and
— the lawyer can "safely be recommended" to the public, the courts and the legal profession "as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court." MCR 9.123(B)(7).
The hearing panel declined to reinstate August. The chairman of the hearing panel dissented and filed findings that were adopted by the other two members of the hearing panel with the exception of the findings relating to the criterion set forth in clause 7.
All three members of the hearing panel, by adopting the dissenting panel member's findings of fact, agreed, however, that August met the clauses 5 and 6 criteria:
— August's conduct since the order of discipline was entered had "been exemplary and above reproach" and
— August had a proper understanding of and attitude toward and would conduct himself in conformity with the standards imposed on members of the profession if he were to be reinstated.
On appeal, the Attorney Discipline Board ordered reinstatement. The sole dissenter at the Attorney Discipline Board did not contend that August did not meet the clause 5 or 6 criteria.
The majority of the hearing panel and the dissenter at the Attorney Discipline Board nevertheless concluded that August could not be safely recommended to the public, the courts, and the legal profession because, having in mind the seriousness of the offense committed by August, they were not, as stated by the hearing panel majority, convinced that his "subsequent conduct, no matter how exemplary, has sufficiently ameliorated the taint placed upon the legal profession, by his commission of the crimes in question, to the extent that he could now be safely recommended as a person of trust. To do so, would only further erode an already diminishing public confidence in the legal system."
The dissenter in the Attorney Discipline Board, noting that her colleagues on the Attorney Discipline Board "acknowledge that the petitioner's conduct which led to his conviction was particularly reprehensible," expressed her agreement with the majority of the hearing panel "that reinstatement in this case will inevitably erode public confidence in the legal system and that that consideration was relevant to the finding that the petitioner cannot be safely recommended to the public as a person fit to act in matters of trust and confidence."
The question posed by the court rule is whether August will, if reinstated, conduct himself in accordance with the standards imposed on the profession (clause 6) and can safely be recommended to the public, the courts and the legal profession (clause 7). If the Attorney Discipline Board concludes, as it has, on the basis of adequate evidence, which there is, that he will so conduct himself, and that he can be so safely recommended, it is quite beside the point that his misconduct was an embarrassment to the profession or, even, that his reinstatement would be an embarrassment to the profession because of adverse reaction by persons who do not wish to see him reinstated, who might raise a clamor resulting in public dissatisfaction with his reinstatement.
Since 1985, only former Judge James Del Rio has been denied reinstatement. Seventy lawyers have been reinstated, including lawyers who have embezzled and misappropriated their clients' money, and who have lied and cheated.
II
This Court entered an order allowing the State Bar of Michigan to file a brief amicus curiae. In its moving papers, the State Bar said that it has not taken a position on the applicability of the standards to August's specific case and does not propose to do so. It seeks rather a declaration that the nature of the underlying misconduct is properly considered in the course of a reinstatement proceeding, and to have this matter remanded to the Attorney Discipline Board for further consideration in light of such a declaration by this Court.
437 Mich. 1202 (1990).
I agree with the State Bar when it asserts:
— The requisite showing of rehabilitation can by definition only be measured in relation to the nature and seriousness of the original misconduct. Hearing panels of the Attorney Discipline Board cannot determine how far along the road to rehabilitation the petitioner has come without reference to a starting point.
— MCR 9.123 must be interpreted in the context of other court rules relating to license removal and reinstatement. Those rules provide further evidence that the original misconduct must be considered in a reinstatement proceeding.
— MCR 9.123 must be understood to encompass consideration of the original misconduct when a disbarred lawyer seeks reinstatement.
— A petitioner's fitness to be reinstated to practice cannot be determined without consideration of the nature and circumstances of the misconduct resulting in the discipline.
— When considering reinstatement of a lawyer who converted and misappropriated client funds, the evidence of present character must be considered in light of the moral shortcomings that resulted in the discipline, Tardiff v State Bar [ 27 Cal.3d 395; 165 Cal.Rptr. 829; 612 P.2d 919 (1980)].
— Like fitness, rehabilitation must be viewed from a reference point, i.e., rehabilitation from what, of what type, nature and extent.
— Without considering the nature of the misconduct, the Attorney Discipline Board has no reference point from which to relate "fitness" and "rehabilitation" to the standards of trustworthiness and confidence required by MCR 9.123.
I disagree with the following statement by the State Bar:
An evaluation of Petitioner/Appellee's fitness and rehabilitation must take into account the impact the nature of his misconduct will have on the administration of justice, e.g. whether judges, counsel, and court employees, knowing of the conduct which led to disbarment, will treat Petitioner/Appellee so differently to avoid any suspicion that Petitioner/Appellee's clients and their interests may be disadvantaged.
The question, under the court rule, is whether August will conduct himself properly, and whether he can safely be recommended to the public, the courts, and the legal profession. If he can be safely recommended, the Attorney Discipline Board is authorized to reinstate him, and judges, lawyers, and court employees will and should accept that determination.
I also disagree with the following statement of the State Bar:
Similarly, the protection of the public and the courts cannot be assured without review of the nature and seriousness of the misconduct giving rise to the discipline, and whether in light of the gravity of those acts the integrity of any judicial proceeding in which the petitioner if reinstated might participate is likely to be brought into question.
The record establishes clearly and convincingly that August's conduct since he was disbarred has been exemplary and above reproach, and that he will bend over backwards to avoid even the appearance of impropriety were he to be reinstated. August states that he has no intention of practicing in the courts for the present. His reinstatement could, for an appropriate period of time, be so conditioned.
MCR 9.106(2) permits suspension of a license for a specified term "with such additional conditions relevant to the established misconduct as a hearing panel, the board, or the Supreme Court may impose. . . ."
MCR 9.121(C)(3) permits entry of a probation order under circumstances requiring the respondent to practice law only under the direct supervision of other attorneys.
The Grievance Administrator did not claim, or seek to establish before the hearing panel, that judges, counsel, and court employees would treat August differently, or that the integrity of judicial proceedings in which he was involved is "likely" to be brought into question. No witness was offered by the Grievance Administrator to support such a claim, and thus there is nothing in the record that would justify denying reinstatement on this basis.
The Attorney Discipline Board considered the seriousness of August's prior misconduct when it adopted by reference, with one exception, the findings of the hearing panel dissenter. Those findings reflect that the seriousness of August's prior misconduct was considered in determining whether he could be safely recommended. The findings state that "the panel is well aware of the seriousness of the acts which led" to August's conviction and revocation of his license to practice law. The majority in the Attorney Discipline Board acknowledged that August's conduct was particularly "reprehensible."
III
The Attorney Discipline Board's conclusion that the seriousness of the misconduct did not justify denial of reinstatement has proper evidentiary support on the whole record. This Court has ruled that the standard of review to be applied by this Court when reviewing disciplinary decisions is "whether, upon the whole record, there is proper evidentiary support for the findings of the State Bar Grievance Board."
State Bar Grievance Administrator v Del Rio, 407 Mich. 336, 349; 285 N.W.2d 277 (1979).
See also State Bar Grievance Administrator v Kopp, 402 Mich. 74; 259 N.W.2d 559 (1977), a per curiam opinion in which this Court stated the same standard of review; and State Bar Grievance Administrator v Estes, 390 Mich. 585; 212 N.W.2d 903 (1973), where this Court opted to retain this standard of review, adopted by case law before the adoption of the present disciplinary rules.
I agree with the majority that this Court reviews the decision of the Attorney Discipline Board, not the decision of a hearing panel. While there are decisions of this Court that refer to the adequacy of the evidentiary support for findings of a hearing panel, no decision of this Court indicates, let alone holds, that this Court reviews the hearing panel's decision. As set forth in Del Rio, this Court reviews the "findings of the State Bar Grievance Board," now the Attorney Discipline Board. To be sure, frequently those findings are the findings of the hearing panel which the Attorney Discipline Board has adopted as its own.
The court rules provide that the Attorney Discipline Board may, on review of the hearing panel's decision, "affirm, amend, reverse, or nullify the order of the hearing panel in whole or in part or order other discipline."
MCR 9.118(D).
It is noteworthy that if the Attorney Discipline Board believes "additional testimony should be taken, it may refer the case to a hearing panel or a master." MCR 9.118(C)(2). The Attorney Discipline Board may thus bypass the first hearing panel, and refer the case to another panel or a master when it believes that additional testimony should be taken.
In In re Daggs, 411 Mich. 304, 318; 307 N.W.2d 666 (1981), this Court affirmed the decision of the Attorney Discipline Board that modified the discipline imposed by a hearing panel. The administrator argued in this Court "that the board's action is so contrary to the evidence and findings it amounts to an abuse of discretion." The administrator contended "that abuse of discretion should be the appropriate standard and that the consequence of the existing standard is exemplified by the instant case where the board substituted its judgment for that of the panel." Id. at 319. This Court responded:
[A]n abuse of discretion standard would operate to prevent the board from effectively carrying out its overview function of continuity and consistency in discipline imposed. [Citation omitted.] Hearing panels meet infrequently and are exposed to a relatively small number of discipline situations. [ Id. at 319-320.]
In State Bar Grievance Administrator v Williams, 394 Mich. 5, 15; 228 N.W.2d 222 (1975), aff'd after remand 396 Mich. 166; 240 N.W.2d 246 (1976), this Court affirmed the board's modification of panel orders of discipline from reprimand and three years suspension to disbarment, after the board provided a statement of reasons therefor. This Court explained that "[t]he Board may also use its review power to adjust disparities arising out of the discipline imposed by individual hearing panels."
In reviewing the panel findings, the board also reversed some of the findings of fact and affirmed others. This action was affirmed by this Court.
IV
The Grievance Administrator relies on cases from other jurisdictions, including jurisdictions where disbarment may be permanent. It appears that six states provide for some form of permanent disbarment:
In North Dakota ( In re Kraemer, 411 N.W.2d 71, 73 [ND, 1987]), and Louisiana ( Louisiana State Bar Ass'n v Krasnoff, 488 So.2d 1002 [La, 1986], 502 So.2d 1018 [La, 1987], and 515 So 2d 780 [La, 1987]), the grievance authorities may bring a second or third disbarment petition on the basis of conduct not charged the first time. Thus, while they do not have permanent disbarment they may save a count or two for a later proceeding.
(7) Manner of Discipline. Any Justice, judge or attorney found guilty of misconduct shall be disciplined as follows: (a) a permanent disbarment from the practice of law, or, (b) suspension for an indefinite period from the practice of law subject only to reinstatement as hereinafter provided, or, (c) suspension for a period of six (6) months to two (2) years from the practice of law. . . .
(8) Effect of Discipline; Enhancement. (A) A person disbarred or a person who has voluntarily surrendered his license to practice shall never thereafter be readmitted to the practice of law in this State. [Emphasis added. Governing Rule V of the Supreme Court Rules for the Government of the Bar of Ohio.]
See Akron Bar Ass'n v Thorpe, 23 Ohio St.3d 210; 492 N.E.2d 162 (1986), Office of Disciplinary Counsel v Hughes, 17 Ohio St.3d 210; 478 N.E.2d 796 (1985), and Office of Disciplinary Counsel v Klunk, 17 Ohio St.3d 43; 476 N.E.2d 1051 (1985).
— District of Columbia: by statute and judicial interpretation that disbarment means the lawyer cannot be reinstated.
By court rule, the District of Columbia provides for reinstatement after five years in an ordinary disbarment. DC Bar Rules, R XI, § 16(a). By statute, the District of Columbia provides for disbarment following a conviction of crime involving moral turpitude. DC Code, § 11-2503(a).
The statute has been construed to mandate permanent disbarment without the possibility of reinstatement. In re Colson, 412 A.2d 1160 (DC App, 1979); In re Kerr, 424 A.2d 94 (DC App, 1980).
— Florida: by court rule a disbarment is for five years or longer as the court determines; in at least one case the court made the disbarment permanent.
Florida Rules Regulating the Florida Bar discipline provide for disbarment for five years or such longer period as the Court shall determine. Florida also provides for permanent disbarment by consent. Rule 3-7.12. See Florida Bar v Winter, 549 So.2d 188 (Fla, 1989).
— Kansas: by judicial decision, and now by court rule, a disbarment may be made permanent.
Supreme Court Rule 219 permits a disbarred attorney to petition for reinstatement after five years. The five-year disbarment period may, however, be extended at the discretion of the Supreme Court.
See In re Russo, 244 Kan. 3; 765 P.2d 166 (1988); State v Russo, 230 Kan. 5; 630 P.2d 711 (1981).
See also In re Brown, 166 W. Va. 226; 273 S.E.2d 567 (1980).
— New Jersey: essentially by custom, disbarment always has meant permanent disbarment, there being only three instances, according to the New Jersey Supreme Court, of reinstatement of a disbarred lawyer in the last one hundred years.
New Jersey Court Rules provide for disbarment by consent which is also permanent. NJ Ct Rule 1:20-8(a).
Although the New Jersey Supreme Court Rules do not provide for any disciplinary sanctions other than disbarment by consent, the Supreme Court has the authority to discipline attorneys as needed. NJ Const, art 6, § 3. And when disbarment is the imposed sanction, it is almost always permanent. In re Wilson, 81 N.J. 451; 409 A.2d 1153 (1979). See also In re Tumini, 95 N.J. 18; 468 A.2d 707 (1983).
— North Carolina: by court rule with the consent of the lawyer involved; this apparently is done in cases where the lawyer can thereby avoid criminal prosecution.
Rules of the North Carolina State Bar, "Surrender of License While Proceeding Pending," art IX, § 17(2)(b). See Vann, III v North Carolina State Bar, 339 S.E.2d 95 (NC App, 1986).
In contrast with Ohio, the Michigan rule does not provide for permanent disbarment; it provides for reinstatement of a disbarred lawyer after five years.
In contrast with the District of Columbia, the Michigan rule has not been judicially construed to mean that the disbarred lawyer cannot be reinstated — countless disbarred lawyers have been reinstated in Michigan.
In contrast with Florida, neither the Attorney Discipline Board nor this Court made August's disbarment permanent.
In contrast with Kansas, the only state that by judicial decision, apart from a court rule, decides to make disbarment permanent, Michigan has provided the criteria for reinstatement — Kansas had not.
In contrast with New Jersey, the custom or practice in Michigan has not been to make disbarment permanent.
It does not appear that any court has ruled that a lawyer may not be reinstated in a state where, as in Michigan, criteria for reinstatement have been enumerated by the court, and the lawyer has been found to have complied with those criteria.
V
It is noteworthy that the ABA reinstatement criterion, 25E(4), providing that the lawyer should recognize the wrongfulness and seriousness of the misconduct for which the lawyer was suspended or disbarred, does not require that the lawyer acknowledge his guilt, but only that he recognize the wrongfulness and seriousness of the misconduct for which he was suspended or disbarred.
See n 18.
The 1986 ABA Standards for Imposing Lawyer Sanctions in effect recognize that disbarment is not permanent unless so provided in the jurisdiction.
2.2 Disbarment
Disbarment terminates the individual's status as a lawyer. Where disbarment is not permanent, procedures should be established for a lawyer who has been disbarred to apply for readmission, provided that:
(1) no application should be considered for five years from the effective date of disbarment; and
(2) the petitioner must show by clear and convincing evidence:
(a) successful completion of the bar examination,
(b) compliance with all applicable discipline or disability orders or rules; and
(c) rehabilitation and fitness to practice law.
The 1989 ABA Model Rules for Lawyer Disciplinary Enforcement do not provide for permanent disbarment. The 1989 Model Rules provide for reinstatement of a disbarred lawyer after five years. The criteria for reinstatement are set forth in Rule 25E. The Model Rules contemplate that reinstatement may be on conditions.
RULE 10. SANCTIONS.
A. Types of Sanctions. Misconduct shall be grounds for one or more of the following sanctions:
(1) Disbarment by the court.
(2) Suspension by the court for an appropriate fixed period of time not in excess of three years.
(3) Probation. . . .
(4) Reprimand by the court or the board. . . .
(5) Admonition by disciplinary counsel. . . .
RULE 25. REINSTATEMENT AFTER SUSPENSION FOR MORE THAN SIX MONTHS AND READMISSION.
A. Generally. A lawyer suspended for more than six months or a disbarred lawyer shall be reinstated or readmitted only upon order of the court. No lawyer may petition for reinstatement until [six months before] the period of suspension has expired. No lawyer may petition for readmission until [five] years after the effective date of disbarment. . . .
Rule 25. E. Criteria for Reinstatement and Readmission. A lawyer may be reinstated or readmitted only if the lawyer meets each of the following criteria, or, if not, presents good and sufficient reason why the lawyer should nevertheless be reinstated or readmitted:
(1) The lawyer has fully complied with the terms and conditions of all prior disciplinary orders except to the extent that they are abated under Rule 26.
(2) The lawyer has not engaged nor attempted to engage in the unauthorized practice of law during the period of suspension or disbarment.
(3) If the lawyer was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the lawyer's misconduct, the lawyer shall not be reinstated or readmitted unless:
(a) the lawyer has pursued appropriate rehabilitative treatment;
(b) the lawyer has abstained from the use of alcohol or other drugs for at least [one year]; and
(c) the lawyer is likely to continue to abstain from alcohol or other drugs.
(4) The lawyer recognizes the wrongfulness and seriousness of the misconduct for which the lawyer was suspended or disbarred.
(5) The lawyer has not engaged in any other professional misconduct since suspension or disbarment.
(6) Notwithstanding the conduct for which the lawyer was disciplined, the lawyer has the requisite honesty and integrity to practice law.
(7) The lawyer has kept informed about recent developments in the law and is competent to practice.
Rule 25. I. Conditions of Reinstatement or Readmission. The court may impose conditions on a lawyer's reinstatement or readmission. The conditions shall be imposed in cases where the lawyer has met the burden of proof justifying reinstatement or readmission, but the court reasonably believes that further precautions should be taken to insure that the public will be protected upon the lawyer's return to practice.
The court may impose any conditions that are reasonably related to the grounds for the lawyer's original suspension or disbarment, or to evidence presented at the hearing regarding the lawyer's failure to meet the criteria for reinstatement or readmission. The conditions may include any of the following: passing the bar examination as a condition to readmission following disbarment; limitation upon practice (to one area of law or through association with an experienced supervising lawyer); participation in continuing legal education courses; monitoring of the lawyer's practice (for compliance with trust account rules, accounting procedures, or office management procedures); abstention from the use of drugs or alcohol; active participation in Alcoholics Anonymous or other alcohol or drug rehabilitation program; monitoring of the lawyer's compliance with any other orders (such as abstinence from alcohol or drugs, or participation in alcohol or drug rehabilitation programs). If the monitoring lawyer determines that the reinstated or readmitted lawyer's compliance with any condition of reinstatement or readmission is unsatisfactory and that there exists a potential for harm to the public, the monitoring lawyer shall notify the court and, where necessary to protect the public, the lawyer may be suspended from practice under Rule 20(B).