Gordon, Matter of

• Citation: 429 N.E.2d 1150,385 Mass. 48
• Parties: In the Matter of Richard K. GORDON.
• Decision Date: 13 January 1982
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1150

429 N.E.2d 1150

385 Mass. 48

In the Matter of Richard K. GORDON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 6, 1981.

Decided Jan. 13, 1982.

Jerry Cohen, Waltham (Mary Haskell, Boston, with him) for petitioner.

Barry Brown, Sp. Asst. Bar Counsel, Boston, for Bd. of Bar Overseers.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The petitioner (Gordon), who was disbarred in 1965, seeks reinstatement to the Bar of the Commonwealth. The Board of Bar Overseers (Board) recommends his reinstatement. Bar Counsel opposes it. We conclude that Gordon should not be reinstated.

This is Gordon's second petition for reinstatement. He was disbarred on March 25, 1965, as a result of his convictions on charges of larceny and conspiracy to commit larceny, in connection with the prosecution of crimes arising out of the construction of the Boston Common underground garage. That case, which resulted in the conviction of Gordon and others, concerned highly publicized larcenies and corruption relating to public funds. See Commonwealth v. Kiernan, 348 Mass. 29, 201 N.E.2d 504 (1964), cert. denied sub nom. Gordon v. Massachusetts, 380 U.S. 913, 85 S.Ct. 901, 13 L.Ed.2d 800 (1965). Gordon filed his first petition for reinstatement on September 13, 1976. After that petition for reinstatement was referred to the Board, the Board held three days of hearings and heard extensive testimony. In February, 1978, it issued its findings and its recommendation that the petition be denied.

The Board's recommendation as to the first petition was based on its conclusion that Gordon had failed to show that his resumption of the practice of law at that time would not undermine public confidence in the administration of justice or bring disrepute to the bar. The Board believed that because Gordon was a judge at the time he committed the crimes for which he was convicted, he must satisfy a higher standard than other disbarred lawyers who seek reinstatement. Thus, although it found that Gordon had the moral qualifications necessary for the practice of law, the Board feared, in light of his former judgeship, the seriousness of the crimes for which he was convicted, and the considerable publicity that the conspiracy in which he played a part had generated, that his reinstatement would diminish public confidence in the courts and the bar.

The Board's findings and recommendations were referred to a single justice of the Supreme Judicial Court. After hearing and arguments, the single justice denied the first petition on July 19, 1978, without prejudice to a future application. The single justice accepted the Board's conclusion that Gordon had not sustained his burden of proof with respect to the effect of his reinstatement upon the bar and the public interest. In his memorandum the single justice noted the unfavorable recommendations submitted on behalf of the Massachusetts Bar Association and the Attorney General.

On November 29, 1978, Gordon filed the present petition in this court. By letter dated December 19, 1978, the court referred the petition to the Board to conduct an investigation and submit its recommendation to the court. The Board referred the petition, whose allowance was opposed by Bar Counsel, to a panel of three members of the Board. A hearing on the petition was held on February 28, 1980, at which time the panel received letters from various persons interested in Gordon's reinstatement, a petition containing names of approximately 700 individuals, testimony from several individuals and certain other articles, documents and letters. Both Gordon and Bar Counsel thereafter submitted briefs.

The panel concluded that Gordon has met his burden of demonstrating that he has the moral qualifications, competency and learning in the law required for admission to practice law in the Commonwealth and that his resumption of the practice of law would not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest. The panel recommended that Gordon be reinstated to the Bar of the Commonwealth. Its report to the Board consisted of sixteen typewritten pages of findings of facts and its reasoning supportive of its recommendation. The Board entered an order accepting the report and adopting the recommendation for reinstatement. The matter was then referred back to this court. A single justice reserved and reported it without decision to the full court.

Gordon was convicted of larceny, a felony, and conspiracy to commit larceny, a misdemeanor, and was sentenced on the felony to the Massachusetts Correctional Institution at Walpole for a term of not more than three years or less than two and one-half years, and on the misdemeanor to a term of two and one-half years at the House of Correction at Deer Island for the county of Suffolk, to be served from and after the sentence imposed on the felony. He actually served a total of twenty months of incarceration. Gordon is now fifty-nine years old. He studied law at Suffolk University and received his LL.B. in 1947. He was admitted to practice before the Supreme Judicial Court of the Commonwealth in April, 1948, and admitted to practice before the United States Tax Court in 1954. He practiced law in the area of Lawrence and North Andover, and in 1956 he was appointed special justice of the Third District Court at Ipswich. He was serving as a judge of that court and in various other courts at the time of the incidents which resulted in his conviction and disbarment. He has now been disbarred for approximately sixteen years.

From 1966 to 1970, he was employed as controller and bookkeeper of a small electronics corporation, American Power Devices, Inc., in Andover. He resigned when the company was advised that his presence as an officer and employee might present problems in connection with a planned public offering of the company's securities.

From 1970 to the present he has been self-employed as a tax consultant and works from an office in his home. He functions primarily as a tax consultant and does not hold himself out as practicing law but does practice before the United States Tax Court, from which he was not disbarred.

The Several Applicable Factors.

Several factors must be weighed in a proceeding of this kind. Supreme Judicial Court Rule 4:01, § 18(4), 365 Mass. 696 (1974), requires that a petitioner seeking reinstatement have the burden of demonstrating that he has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth, and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest. See Matter of Hiss, 368 Mass. 447, 467-468, 333 N.E.2d 429 (1975).

The Board in this case rightly considered the rule as containing two distinct requirements. The first requirement is addressed to the personal qualifications of the petitioner. In addition to showing that his absence from the practice of law has not deprived him of the competence and learning in law required for admission to practice, he must show that he has the moral qualifications required of those who have the privilege of becoming members of the bar. The second requirement concerns the effect of the petitioner's resumption of practice on the bar, the administration of justice and the public interest. The nub of the question is whether his resumption of practice will have an actual effect upon the integrity of the bar and thereby on the administration of justice and the public interest. In this inquiry we are concerned not only with the actuality of the petitioner's morality and competence, but also on the reaction to his reinstatement by the bar and public.

The Petitioner's Competence and Learning in the Law.

No serious issue is raised as to the petitioner's competence and learning in the law. Bar Counsel, although opposed to Gordon's reinstatement, does not dispute the Board's conclusion that Gordon qualifies in this aspect, particularly since the Board recommends that reinstatement here should be subject to appropriate requirements of continuing legal education. We also observe that, in the event we should decide to reinstate Gordon, our order could even be conditioned upon his once more passing the bar examination. The Petitioner's Moral Fitness.

As to the issue of the petitioner's moral fitness, it is clear from our examination of the Board's report that it considered in substance all of the major factors emphasized by this court in similar cases and stressed by the Bar Counsel here. Drawing principally on this court's language in Matter of Hiss, supra, the Board demonstrates in its report its view that Gordon's disbarment is conclusive evidence of his lack of moral character at the time of his removal from office, and that he must adduce substantial proof that he has such an appreciation of the distinctions between right and wrong as will make him a fit and safe person to engage in the practice of law. The Board correctly identified and applied (from the Hiss opinion at 368 Mass. at 460, 333 N.E.2d 429) five relevant factors in appraising a petitioner's moral fitness to serve as an attorney, as follows: "(1) the nature of the original offense for which the petitioner was disbarred, (2) the petitioner's character, maturity, and experience at the time of his disbarment, (3) the petitioner's occupations and conduct in the time since his disbarment, (4) the time elapsed since the disbarment, and (5) the petitioner's present competence in legal skills."

In its findings the Board expressly treated the considerations which most concern the Bar Counsel. It considered the fact that Gordon has led a "useful and honest life" in the years since his disbarment, but at the same time did not "discount the seriousness of his crimes" and "the...