Freedman, Matter of

• Decision Date: 01 May 1979
• Docket Number: No. 15,Docket No. 60866,15
• Citation: 277 N.W.2d 635,406 Mich. 256
• Parties: In the Matter of the Petition of Burton R. FREEDMAN for Reinstatement as a Member of the State Bar of Michigan, Burton R. Freedman, Appellant. Calendar406 Mich. 256, 277 N.W.2d 635
• Court: Michigan Supreme Court

Page 635

277 N.W.2d 635

In the Matter of the Petition of Burton R. FREEDMAN for

Reinstatement as a Member of the State Bar of

Michigan, Burton R. Freedman,

Appellant.

Docket No. 60866

Calendar No. 15.

406 Mich. 256, 277 N.W.2d 635

Supreme Court of Michigan.

Argued Oct. 4, 1978.

Decided May 1, 1979.

Lawrence S. Cohen, Southfield, for appellant.

Louis Rosenzweig, Detroit, Counsel to State Bar Grievance administrator.

MOODY, Justice.

This appeal follows an order of the State Bar Grievance Board issued December 15, 1977, which affirmed the decision of Oakland County Hearing Panel No. 4 denying petitioner Freedman's reinstatement as a member of the State Bar.

The facts of this case are not in dispute. Petitioner Freedman was suspended from the practice of law commencing August 2, 1974 for a period of two years or until further order of the board. The suspension was ordered pursuant to a stipulation agreed upon by petitioner and the State Bar Grievance Administrator regarding a conviction in federal court for housing fraud. The petitioner was charged with making a false statement in connection with an application for mortgage insurance sought for a client in his real estate business. Petitioner pled nolo contendere to the charge and was convicted on May 29, 1974. He was sentenced to imprisonment for a period of two years and to pay a "committed" fine in the amount of $5,000. According to his testimony before the panel, he served eight months in the federal penitentiary at Terre Haute, Indiana. Petitioner was released April 28, 1975 on parole which expired May 28, 1976 without the fine having been paid.

On March 28, 1977, the present petition for reinstatement was filed with the State Bar. Petitioner by his own admission has never been an actively practicing member of the bar. Rather, his activities have centered on the real estate business. Prior to petitioner's conviction in 1974, the record indicates that he bought and sold homes under the corporate name of Bal Investment Company. At that time, he was listed in the telephone directory and the Lawyers Handy Book as an attorney. According to petitioner, he used his legal skills primarily in relation to his real estate transactions. Since his release from federal prison, petitioner has been employed repairing houses for other real estate investors.

The findings of the hearing penal were in relevant part as follows:

"3. The petitioner filed a statement with the State Bar Grievance Board incidental to this petition for reinstatement which is false and misleading with respect to his qualifications to practice. His statement dated May 3, 1977, asserts, 'I passed the State Bar in 1960 and practiced law in Detroit until I was suspended from the practice of law on August 2, 1974, by the Michigan State Bar.' At the hearing, the petitioner was asked, 'Do I understand that you never formerly practiced law as an attorney and maintained a law office and practiced?' He answered, 'I did not, sir.' * * * The Panel is satisfied that the oral testimony was correct and that petitioner has not ever engaged in active law practice and that his written statement to the contrary in support of his present petition was false and reflects adversely upon petitioner's integrity.

"4. Petitioner has not practiced law since suspension; however, he has been representing himself as an attorney in that he has permitted himself to be listed as an attorney in the telephone directory and in the Lawyers Handy Book published by National Bank of Detroit and has advertised himself as an attorney in the telephone directory yellow pages continuously during the period of suspension.

"5. Petitioner's personal and business conduct since his suspension has not demonstrated genuine remorse, exemplary conduct, and an appropriate attitude toward the standards imposed upon members of the bar, in the following particulars:

"A. Petitioner was suspended because of his conviction of criminal activity in housing frauds, in which he would purchase HUD housing units, make minor repairs and restoration, resell them to unsophisticated members of the public, and pursue fraudulent and criminal schemes to arrange FHA financing for the purchasers for his own benefit and gain.

"B. After his release from prison, petitioner returned to the same business office where he was previously engaged in his criminal activities, and engaged in business activities related to the same business, providing repairs for homes purchased by speculative investors, obtaining city building and occupancy permits, and generally engaging in private business in the same field as led to his conviction and suspension from the Bar.

"C. Until the date of hearing he had made no effort to pay the $5,000.00 fine which was imposed as a part of his sentence or to make payment on an $8,000.00 civil judgment which had been rendered against him in 1976 in Wayne County Circuit Court. He had, however, arranged for a mortgage lien in favor of his mother to be placed upon his home, sheltering his equity from the claims of other creditors, and to have the new Cadillac Seville automobile which he drives provided to him by a business client. Subsequent to the hearing, at which this issue was raised, the Panel was informed that he had paid the civil judgment and arranged for payment of the fine."

In affirming the hearing panel's denial of reinstatement, the Grievance Board simply adopted the panel's findings.

When a petition for reinstatement is brought before the State Bar, the person so petitioning assumes the burden of establishing his eligibility by "clear and convincing evidence". State Bar Rule 15, § 7. ¹ See also In the Matter of Trombly, 398 Mich. 377, 381, 247 N.W.2d 873 (1976). Pursuant to this strict burden, the petitioner was required to demonstrate the following:

"(a) He desires in good faith to be restored to the privilege to practice law in this State;

"(b) The term of suspension prescribed in the order of suspension has elapsed or 5 years have elapsed since revocation of the license;

"(c) He has not practiced law contrary to the requirement of his suspension or revocation and has not attempted to do so since he was disciplined;

"(d) He has complied fully with the terms of the order for discipline;

"(e) His attitude towards the misconduct for which he was disciplined is one of genuine remorse;

"(f) His conduct since the discipline has been exemplary and above reproach;

"(g) He has a proper understanding of and attitude towards the standards that are imposed upon members of the bar and that he will conduct himself in conformity with such standards;

"(h) He can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise to 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 courts." State Bar Rule 15, § 7.

A finding against petitioner by the panel or board must be sustained by "a preponderance of the evidence". State Bar Grievance Administrator v. Crane, 400 Mich. 484, 493, 255 N.W.2d 624 (1977). Our function in bar grievance matters is to determine whether the State Bar Grievance Board's findings "have proper evidentiary support on the whole record". State Bar Grievance Administrator v. Estes, 390 Mich. 585, 593, 212 N.W.2d 903, 905 (1973). See also State Bar Grievance Administrator v. Posler, 393 Mich. 38, 39, 222 N.W.2d 511 (1974). Our concern is the protection of the public, not the punishment of the attorney under investigation. See In the Matter of Trombly, supra, 398 Mich. 382, 247 N.W.2d 873, citing In re Echeles, 374 F.2d 780, 782 (CA 7, 1967). See also, Steere v. State Bar of Texas, 512 S.W.2d 362 (Tex.Civ.App.1974); In re Barton, 273 Md. 377, 381, 329 A.2d 102, 104-105 (1974).

A review of the full record in the instant case indicates proper evidentiary support for the denial of reinstatement.

One significant point weighing against petitioner in this proceeding was his failure to attempt repayment of the $5,000 fine incident to his conviction in federal court. The fine was a "committed" fine, one which required payment prior to release from prison. However, payment was not made because petitioner executed a pauper's oath based on an affidavit of indigency in November, 1974. He was thus released from prison without having paid the $5,000.

From that point on, petitioner's conduct has been less than exemplary in this matter. Rather than squarely face the responsibility which was directly connected to his suspension, petitioner openly admitted avoiding the issue altogether until the day of the hearing:

"Q. (Mr. Reizen): And you indicated and admitted part of your sentence was a five thousand dollar fine and that was imposed upon you in May of 1974, is that correct?

"A. (Petitioner): That's correct.

"Q. Then up until today, have you made any payments with respect to that fund (Sic, fine)?

"A. I have not.

"Q. Have you even talked to anybody prior to today about paying that fund (Sic, fine)?

"A. Nobody has contacted me regarding payment. I did not have the means of paying so I did not contact them.

"Q. I see. So when you attorney says you have made arrangements with Mr. Kalil seated here, isn't it true that those arrangements were made this morning about 5 minutes before the hearing started?

"A. I stated that counsel, and I stated that I did talk to Mr. Kalil today and I do have arrangements to call him this week and meet with him, possibly Thursday."

In fact, the record reflects that before the hearing Assistant United States Attorney Charles Kalil had sent unanswered demand notices to petitioner. These letters were dated May 23, 1977 and June 10, 1977.

By petitioner's own admission, his gross income from repair work in 1976 was "(a)bout twenty-three-twenty-four thousand". Yet, some two years elapsed between petitioner's release from federal prison and...