|
|
|
|
|
Character, Fitness & Redemption: Measuring Fitness
to Practice Over 20 years have passed,
but the colloquy and issues remain clear. “Your honor, the [d]irector
concedes that people, generally, are capable of transformation. Mr.
Thompson is, however, a special case. He was disbarred [20] years
ago, after conviction for hiring the murder of his wife. He plotted
the murder for years. Upon release, he misappropriated a widow’s assets.
Mr. Thompson’s only character witness acknowledged that truth-telling
was not among his virtues. Even if Mr. Thompson might some day replace
corruption with virtue, the Court could never confidently certify
to the public his fitness to handle their most intimate and important
affairs.” Thompson was not reinstated,
but neither was his disbarment made permanent. In the years after
Thompson, a remarkable chapter has been
written in Minnesota jurisprudence, both in reinstatement and bar
admission cases. The chapter is nearly scriptural in its subject and
its vocabulary. The Court and its boards have made numerous and difficult
judgments about whether lawyers’ souls have been lost and restored. “Redeemable” and “cruel hoax”
are typical of the resonant, even religious, language that the Court
has used in reinstatement cases. Words like “contrition,” “atonement,”
“remorse,” and “repentance” are common in these cases. A Lawyers Board
hearing panel recently agreed with a character witness that a petitioner
had “restored her soul.” After Thompson, the Court has reinstated four disbarred lawyers.2 Echoing
Justice Kelley, the Court has said, “If human beings, generally, are
redeemable, and this is the premise of reinstatement, … then, it seems
to us, this petitioner has made the necessary showing to be allowed
the opportunity to again practice law in this state.”3 The Court has
repeatedly said that it would be a “cruel hoax” to deny reinstatement
of a worthy petitioner.4 Disbarment offenses are inherently
serious, but none are too serious to preclude proof of redemption
altogether. “We have reinstated attorneys to the practice of law who
have been disbarred for misappropriating client funds, stealing, or
dishonesty in general.”5 The Court has repeatedly rejected arguments
that “reinstatement can be denied based solely on the seriousness
of the misconduct,” even where petitioner’s “misconduct struck at
the heart of the administration of justice” or where the attorney
had involved clients in a marijuana-smuggling scheme.6 Only once has
the seriousness of an offense by itself precluded reinstatement, and
it is doubtful that on similar facts the judgment would be repeated.7
Daunting Tasks
The Court’s reinstatement and
admission requirements begin with philosophical concepts, but they
extend to specific and comprehensive criteria. For reinstatement:
“In addition to proof of moral change, we consider five factors: (1)
the attorney’s recognition that her conduct was wrong; (2) the length
of time since the misconduct and disbarment; (3) the seriousness of
the original misconduct; (4) the attorney’s physical or mental illness
or pressures that are susceptible to correction; and (5) the attorney’s
intellectual competency to practice law.”10 For bar admission: “We
hold that good moral character, for the purposes of bar admission,
shall be determined from the applicant’s pattern of conduct or behavioral
record. To overcome a finding of lack of good moral character by the
Board, an applicant may submit any evidence reasonably tending to
explain or show reform and rehabilitation from the acts or conduct
upon which the negative moral character determination was based.”11
Bar Admission
The Court’s reviews of admissions
cases have adopted as a fundamental criterion proof of “present moral
character.”13 When will serious misconduct be eclipsed
by good behavior? Five years is a bare minimum after disbarment, with
at least eight years being common for successful petitioners. A criminal
probation after a felony should have ended several years before application.
Unfortunately, many applicants convert past misconduct into present
questions about fitness by incompletely or inaccurately describing
the misconduct on their bar applications. The Board will frequently
regard such failings, at least presumptively, as false statements
reflecting adversely on present moral character. The Court’s direct holdings
on bar admissions criteria ended in 1993, when the Court ceased writing
opinions when ruling on appeals from adverse determinations of the
Board of Law Examiners.14 The Court now issues orders without opinion
when an applicant appeals the Board’s denial of admission. One Moral Universe Although the Court no longer
issues bar admissions opinions, its discipline and reinstatement opinions
provide indirect sources for bar admissions jurisprudence. Reinstatement
and bar admission character and fitness cases apply nearly identical
standards, but at a higher level for reinstatement. “The petitioning
attorney is required to provide stronger proof of good character and
trustworthiness than is required in the original application for admission
to practice.”15 A bar applicant can argue that reinstatements show
that conduct similar to the applicant’s, or even more serious, does
not preclude readmission and, a fortiori, cannot absolutely preclude initial admission. Attorney disciplinary precedents
can also influence bar admissions proceedings. For example, a bar
applicant who was convicted of securities fraud many years before
bar application successfully argued that his conviction should not
bar his admission, because a lawyer convicted of securities fraud
was readmitted after five years’ suspension.16 Because admissions,
suspensions, disbarments, and reinstatements are all determined by
the Supreme Court and its boards, there is one universe of moral standards,
applied at somewhat different levels. Recognition of Wrongdoing Recognition of wrongful conduct
is a general requirement for reinstatement, but it is not absolute.
In re Alger Hiss, 368 Mass. 447, 333 N.E.2d
429 (1975) ordered reinstatement notwithstanding Hiss’s claim of innocence
of the perjury for which he was famously convicted. The court explained,
“Simple fairness and fundamental justice demand that the person who
believes he is innocent though convicted should not be required to
confess guilt to a criminal act he honestly believes he did not commit.”17
The Minnesota Supreme Court followed Hiss
in rejecting the contention that rehabilitation could not be demonstrated
by a convicted felon who refused to acknowledge his guilt. The Court
explained further that, although it necessarily deemed the facts to
be those found by the court that convicted Hiss, “We also take cognizance
of Hiss’s argument that miscarriages of justice are possible.”18 The Minnesota Supreme Court
held that maintaining innocence creates no negative character inference
whatsoever: “Thus, while the failure to repent may be an aggravating
circumstance in some cases, we do not consider it so here since Hedlund
merely maintains that he did not commit the acts for which he was
convicted.”19 Of course, if a bar applicant or a lawyer pleads guilty,
or testifies to the facts constituting the crime, but later claims
innocence, the claim may become a factor counting against the person.20
A Minnesota bar applicant who,
after jury trial, was convicted of securities fraud was recently admitted
to practice, notwithstanding his protestation of innocence. The Board
was required to regard him as guilty, but apparently regarded his
claim of innocence as sincere and, therefore, as not counting against
his admission. The applicant presented limited evidence of the circumstances
of his conviction, not to relitigate the criminal trial, but to show
that his claim of innocence was not bizarre or contradicted by his
own actions in the criminal trial. Redemption and Imperfections
The Court has reinstated disbarred
lawyers whose conduct after disbarment has been less than perfect.
“Furthermore, we have previously reinstated attorneys whose conduct
since disbarment was not without blemish and/or who continued to struggle
with undesirable character traits.” One reinstated lawyer did not
“show any symptoms of major psychopathology or psychopathy” but would
nonetheless “benefit from continued psychological counseling.” Another’s
unauthorized practice of law since his disbarment did not preclude
reinstatement, and a third was reinstated notwithstanding “less-than-accurate
statements in an employment application.”21 Demonstrating fundamental
moral change does not require demonstrating perfection. The Court recently distinguished
between tolerable blemishes and disqualifying misconduct. The petitioner
issued numerous NSF checks, a few of which bounced and most of which
resulted in overdraft fees. In denying reinstatement, the Court emphasized
that the pattern of NSF checks was both similar in general (short
term use of others’ money) to that which caused suspension and was
committed after a reinstatement petition was filed.22 Fitness Issues “Fitness” refers to freedom
from, or control over, factors that would disable someone from the
practice of law, such as active abuse of chemicals or disabling mental
illness. The three reinstatements from disbarment preceding Ramirez
in 2006 all involved lawyers with chemical dependency problems, or
psychological problems, or both. At oral argument in Ramirez, the Court questioned whether Ramirez’s lack of certification
of fitness from a treatment professional was problematic for her reinstatement.
Counsel responded that, while Ramirez and the prior petitioners all
had to prove moral change, the prior petitioners had an additional
burden—proving that they were in recovery from dependency or were
no longer disabled. Put differently, the fact that a person has a
disability does not mean that he or she does not also have a character
deficiency. The disbarment orders for the
prior petitioners did not find that their misconduct was caused by
their dependency. If there had been such findings, they would not
have been disbarred. In one case the Court specifically found that
the misconduct was so artful that it was not caused by dependency.
In another case, the petitioner gave arguably inconsistent testimony
about whether his trafficking in drugs was caused by love of cocaine
or love of money. Investigations and Hearings Before a petition or application
can be filed, a substantial fee must be paid and several preconditions
established by rule must be satisfied.23 Petitions and applications
are investigated by Board staff. Although staff members thoroughly
review both details and the overall picture, applicants’ counsel must
carefully review investigation findings. Finding mistakes and misconceptions
is useful not only for correcting the record, but for pointing out
that even those with the best intentions may err—whether they are
applicants or those investigating applicants. The Board of Law Examiners
staff regularly presents proposed findings that are intended to support
denial of admission. Presenting alternative findings to the Board
is essential. Although the Lawyers Board director has traditionally
presented findings objectively, in at least one recent case the director
took a more partisan tack: “The Director’s Office is the devil’s advocate.
It must be the devil’s advocate in disbarment cases, because we are
the ones who must raise all of the questions and all of the doubts
and all of the information that may weigh against reinstatement.”24
Hearings are conducted by three-member
panels of the Lawyers Board and by the full Board of Law Examiners.
Both boards comprise volunteers, including lawyers and public members,
appointed by the Minnesota Supreme Court. All relevant documents are
marked, exchanged, and filed before hearing. Anyone who has represented
petitioners and applicants would vouch for the essential fairness
of reinstatement and admission hearings, whether before the boards
or the Court. An applicant may be skeptical that the same board that
has initially denied admission will act fairly in hearing an appeal
of its denial, but experience proves otherwise. Experience also proves,
however, that there are sometimes procedural anomalies in these hearings,
e.g., a Lawyers Board panel
recently made findings based on statements of persons quoted in the
director’s investigative report, even though those persons were never
sworn, never testified, and were never cross-examined.25 Discipline and reinstatement
are open processes, with publicly filed findings and opinions. Bar
admissions are closed processes that have become still more closed
with the Court’s decision to cease issuing opinions when ruling on
appeals from denials of admission. Advocacy Issues The obstacles to a law license
are formidable for those who have committed serious misconduct. Although
procedural hoops must be taken seriously, applicants must take to
heart that the process fundamentally is not a matter of jumping through
hoops. Before a moral change can be proven to fact-finders by clear
and convincing evidence, it must actually have taken place. A convicted
felon may well be incarcerated and later put on probation, for protection
of the public. Some years later the same person is asking for a certification
of trustworthiness to handle clients’ intimate and important affairs.
The proof of moral change required is a heavy burden indeed. Character witnesses are extraordinarily
important in character and fitness proceedings. They should be prepared
by receiving from the applicant, well in advance of the hearing, the
documents that officially describe the original misconduct. The character
witness who does not know the essence and at least some of the particulars
of the misconduct cannot testify effectively to moral change. Character
witnesses should personally and carefully prepare to answer a question
concluding their testimony, “What do you have to say to this hearing
panel as to why the applicant should be a Minnesota lawyer?” Most
memorably and effectively, a witness who testified that the applicant
had “restored her soul” had himself searched his soul in preparing
his testimony. On the other hand, a witness who minimizes the issues,
or is combative toward the hearing panel, can do more harm than good. Applicants who have a difficult
past should not represent themselves. People generally tend to be
too hard on themselves on some matters and too easy on others. Several
essential tasks are difficult for the pro
se petitioner: giving close and objective scrutiny to one’s past;
distinguishing between procedural rights that should be protected
and perceived delays or injustices; and eliciting and giving testimony
about one’s own character. On the other hand, it is easy to describe
the past inaccurately or to suppose that the lengthy and demanding
process is punitive or biased. Summing Up Petitioners need patience and
attentiveness to meet procedural requirements. Most importantly, they
must come to terms with their serious misconduct and character defects
and demonstrate genuine moral change. The Court, its boards, and their
staffs have employed both carefully wrought legal concepts and deep
moral philosophy in determining when a person who has morally failed
can be certified as trustworthy. The Court has set a tone that
is both hopeful and demanding. The recidivism rate of those who have
been reinstated by the Court after investigation and hearing before
a Lawyers Board Panel is remarkably low. Twenty-five years of representing
both sides in character and fitness proceedings leads me close to
agreement with Justice Kelley and the Court. Although human beings,
generally, are redeemable, few have the desire, resolve, and actual
transformation needed to obtain certification of redemption. The Court
and its boards, with care, can and do judge the deep things in people
well enough to certify redemptions to the public. Notes 2 In re Wegner,
417 N.W.2d 97 (Minn. 1987); In
re Trygstad, 472 N.W.2d 137 (Minn. 1991); In
re Anderley, 696 N.W.2d 380 (Minn. 2005); In re Ramirez, 719 N.W.2d 920 (Minn. 2006). These cases are distinguishable
from older cases in which disbarment was not always regarded as presumptively
permanent. See Betty M.
Shaw, “Disbarment—Not Necessarily Forever in Minnesota,” Minnesota Lawyer (08/01/05). 3 In Re Trygstad,
472 N.W.2d 137, 140 (Minn. 1991). 4 In re Kadrie,
602 N.W.2d at 877, citing In
re Swanson, 343 N.W.2d 662, 664 (Minn. 1984). See
also In re Wegner, 417 N.W.2d at 99. 5 In re Anderley,
696 N.W.2d 380, 385, n. 6 (Minn. 2005). 6 In re Wegner,
417 N.W.2d at 100. In re Kadrie,
602 N.W.2d 868, 871 (Minn. 1999). 7 “Indecent assault upon a boy 15 years of age” precluded
reinstatement of a disbarred attorney. Application of Van Wyck, 29 N.W.2d 654, 654-55 (1947), 290 N.W. 227
(Minn. 1940). In more recent years, criminal sexual contact with minors
has been found to warrant approximately two years’ suspension. In re Kimmel, 322 N.W.2d 224 (Minn. 1982), 347 N.W.2d 52 (Minn. 1984);
In re Vie, 428 N.W.2d 565
(Minn. 1988). 8 In re Singer,
735 N.W.2d 698 (Minn. 2007). Singer was suspended for a minimum of
three years for misconduct including felony theft of client funds
and failure to file tax returns for three years. 9 In re Swanson,
405 N.W.2d 892 (Minn. 1987); In
re Hanson, 454 N.W.2d 924 (Minn. 1990); In
re Peterson, 274 N.W.2d 922 (Minn. 1979). Denials of reinstatement
for disbarred lawyers include In
re Swanson, 343 N.W.2d 662 (Minn. 1984); In
re Johnson, 322 N.W.2d 616 (Minn. 1982); In
re Herman, 293 Minn. 472, 197 N.W.2d 241 (Minn. 1972); In re Strand, 259 Minn. 379, 107 N.W.2d 518 (Minn. 1961). 10 In re Ramirez,
719 N.W. 2d 920, 925 (Minn. 2006). 11 In re Haukebo,
352 N.W.2d at 752. 12 Rule 2.A.(6), Rules for Admission to the Bar. 13 In re Haukebo,
352 N.W.2d 752 (Minn. 1984). 14 In re Cunningham,
502 N.W.2d 53 (Minn. 1993), appears to be the last published bar admission
opinion. 15 In re Ramirez,
719 N.W. 2d 920, 925 (Minn. 2006). See also In re Anderley, 696 N.W.2d 380, 385 (Minn. 2005); In re Porter, 472 N.W.2d 654, 655-6 (Minn.
1991); In re Swanson, 343
N.W.2d 662, 664 (Minn.1984). 16 Matter of
Scallen, 269 N.W.2d 834 (Minn. 1978), 337 N.W.2d 694 (Minn. 1983). 17 In
re Alger Hiss, 368 Mass. 447, 458 (1975). 18 In re Hedlund,
293 N.W.2d 63, 65-6 (Minn. 1980). 19 Id. at
65-6. “Merely” was the Court’s word for how little maintaining innocence
notwithstanding a conviction reflects on suitability for reinstatement
or admission. The Court has repeated the point. “A disbarred attorney
is not required to admit his past misdeeds nor make a rote confession
of remorse and repentance as a precondition for reinstatement.” In re Swanson, 405 N.W.2d 892 (Minn. 1987). 20 In re Swanson,
405 N.W.2d 892 (Minn. 1987). See
also In re Brown, 467 N.W.2d 622 (Minn. 1991). 21 In re Anderley,
696 N.W.2d at 383; In re Trygstad,
472 N.W.2d at 139; In re Ramirez,
719 N.W.2d at 927. 22 In re Singer,
735 N.W.2d 698 (2007). 23 Reinstatement procedures are prescribed by Rule
18, Rules on Lawyers Professional Responsibility. Bar admissions proceedings
are governed by Rules 5 and 15-17, Rules for Admission to the Bar. 24 In re Ramirez,
Panel hearing transcript, at 176-77. 25 In re Singer, 735 N.W.2d 698, fn. 1 (2007). |
