Application of Christianson

• Decision Date: 22 February 1977
• Docket Number: Nos. 8520,8761,s. 8520
• Court: North Dakota Supreme Court
• Parties: Application of Elmo T. CHRISTIANSON for Reinstatement in the Bar of the State of North Dakota. GRIEVANCE COMMISSION, Petitioner, v. Elmo T. CHRISTIANSON, Respondent. Civ.

Page 410

253 N.W.2d 410

Application of Elmo T. CHRISTIANSON for Reinstatement in the

Bar of the State of North Dakota.

GRIEVANCE COMMISSION, Petitioner, v. Elmo T. CHRISTIANSON, Respondent.

Civ. Nos. 8520, 8761.

Supreme Court of North Dakota.

Feb. 22, 1977.

Syllabus by the Court

1. Supreme Court has inherent power, as well as constitutional and statutory authority, to require retaking of bar examination as a condition of reinstatement of disbarred or suspended attorney. Const. of N. D., Sec. 87; Sec. 27-14-01, N.D.C.C.

2. A suspended or disbarred attorney applying for reinstatement has the burden of overcoming by satisfactory proof the adverse inference reflected upon his character by the suspension or disbarment.

3. A suspended attorney who has not complied with a condition imposed by the Supreme Court for reinstatement is not entitled to a hearing before the Grievance Commission upon his application for reinstatement.

4. Procedural due process is not violated by imposition of a condition precedent (retaking of bar examination) to reinstatement of authority of suspended attorney to practice law.

5. In considering application of suspended lawyer to be reinstated as attorney, Supreme Court should consider the length of time the suspended lawyer has been away from the practice of law, the changes in the law during that period of time, and the duty of the court to the public to make sure, to the best of its ability, that all lawyers have a minimum competence to advise and represent clients.

Gregory D. Morris, Bismarck, for Grievance Commission.

Herschel I. Lashkowitz, Fargo, for respondent.

VOGEL, Justice.

This is a motion for a hearing and oral argument by Elmo T. Christianson concerning Mr. Christianson's latest petition for reinstatement into the Bar of North Dakota. Mr. Christianson was initially admitted to practice in North Dakota in 1949. He was suspended from practice upon conviction of a felony in 1956. About one year later, he was reinstated. His second suspension from the Bar occurred on February 13, 1970. His subsequent petition for reinstatement was denied in 1972 on the ground that he had engaged in the practice of law while under suspension and on the ground of improper conduct. He reapplied in 1973, and reinstatement again was denied on the ground that he had practiced law while under suspension.

In August 1974, he reapplied. The Grievance Commission filed its findings and recommendations in March of 1975. It recommended that Christianson's suspension be continued or that he be required to retake the bar examination. In April 1975, the Supreme Court adopted the findings and one of the alternative recommendations and ordered that he not be reinstated until he had retaken and passed the State Bar examination. See Application of Christianson, 215 N.W.2d 920 (N.D.1974), which contains additional details as to the matters summarized above.

Mr. Christianson did not take the bar examination. Instead, he reapplied for reinstatement in July of 1976. In this petition, Christianson argues that he should not have to comply with the court's order to retake and pass the bar examination. The petition was referred to the Grievance Commission, which, in October of 1976, without a hearing, made findings and adverse recommendations which were filed with the court. In November of 1976, the Supreme Court denied the application for reinstatement. It is concerning this 1976 petition that Christianson moves for a hearing and oral argument.

I

The first question for decision is whether this court has the general power to require, as a condition of reinstatement of a disbarred or suspended attorney, the taking of a second bar examination by the applicant.

The power of this court to suspend and disbar attorneys, and to reinstate disbarred or suspended attorneys, is constitutional and statutory and is included within the inherent powers of the court. Constitution of N.D., Sec. 87; Sec. 27-14-01, N.D.C.C.; In re Christianson, 175 N.W.2d 8 (N.D.1970); In re Eaton, 60 N.D. 580, 235 N.W. 587 (1931). As to reinstatement, it has been the rule of this court for a very long time that a judgment of disbarment or suspension reflects adversely upon the character of the attorney, and that in order to be reinstated the attorney has the burden of proving by satisfactory proof that he has overcome the adverse inference. Application of Christianson, 215 N.W.2d 920 (N.D.1974); In re Simpson, 11 N.D. 526, 93 N.W. 918 (1903).

Apparently the taking of a second bar examination as a condition of reinstatement has not been required previously in this State. However, the inherent authority of the highest court of other States to require a reexamination on all or some of the subjects of the bar examination has been recognized frequently, ever since the Supreme Court of California, in 1925, held that it had discretionary authority to require reexamination of a disbarred attorney who applied for readmission. In re Stevens, 197 Cal. 408, 241 P. 88 (1925). That case was followed by a lower court decision which set forth guidelines for reference in making a determination as to whether to impose the requirement of a new examination. In re Cate, 77 Cal.App. 495, 247 P. 231 (1926). In Friday v. State Bar, 23 Cal.2d 501, 144 P.2d 564 (1943), the California court distinguished "suspension" (which in California allowed automatic reinstatement) from "disbarment," and said that the Board of Bar Examiners had no authority to recommend a reexamination. It went on to say that, assuming that the Supreme Court had the power to require a reexamination of a suspended or disbarred attorney, it should not exercise the power where the suspension was for only six months and was imposed on account of solicitation of business. However, in Segretti v. State Bar, 15 Cal.3d 878, 126 Cal.Rptr. 793, 544 P.2d 929 (1976), the California Supreme Court imposed a suspension and made it a condition of reinstatement that the suspended attorney take an examination called the "Professional Responsibility Examination" relating primarily to legal ethics.

In Washington the disciplinary machinery provides for two kinds of examination, one for new applicants to be licensed as attorneys, and one for those previously licensed in Washington or elsewhere. See Petition of Simmons, 81 Wash.2d 43, 499 P.2d 874 (1972), and Petition of Eddleman, 79 Wash.2d 725, 489 P.2d 174 (1971). In Florida the rules require that one who has been disbarred may be readmitted only upon full compliance with rules and regulations governing admissions to the Bar. 32 F.S.A., 1976 P.P., Rule 11.10(4). In Wisconsin, in State v. Brodson, 11 Wis.2d 124, 103 N.W.2d 912 (1960), the question of the power of the court was not disputed, but the Supreme Court suspended for two years an attorney who had not practiced for approximately twenty years, had made his living as a gambler, and had been convicted of tax evasion. In the opinion the court made this statement, which has some relevance to the case now before us:

"We are further troubled by recognition of the fact that, since 1940, Brodson has not practiced law for twenty years. Before that date his practice was so meager that, even without office expense, he was unable to support his family. In the interval statutory and case law have experienced great changes. In justice to the public, to the bar, and to Brodson himself, we should not restore to him the right to practice law unless we have reasonable assurance that he is competent to do so. We find no better assurance of that than his successful passage of the examination given by the Board of State Bar Commissioners to applicants for license to practice." 103 N.W.2d 912, at 915.

The Arkansas court, in In re Dodrill, 538 S.W.2d 549 (Ark.1976), inferentially upheld the power to require reexamination. In that case a lower court had ordered reexamination as a condition of reinstatement and the attorney had not appealed. The Supreme Court held that the trial court had authority to suspend conditionally, as a lesser penalty than disbarment.

Finally, in Ohio, where the rules permit imposition of a requirement of reexamination, and the applicant was willing to undergo reexamination, such a condition was imposed after the applicant's eight years of inactivity as a lawyer. In re Rasor, 40 Ohio St.2d 25, 317 N.E.2d 915 (1974).

We are satisfied that we have the inherent authority to require a reexamination by the State Bar Board as a condition of reinstatement of a suspended or disbarred attorney.

II

The movant contends that procedural due process has been violated because the requirement of his retaking the bar examination was made not as part of the original order of suspension, but as part of the order conditionally allowing reinstatement, and without giving him an opportunity to appear and be heard before the Grievance Commission.

While there is some plausibility in this argument, we point out several facts. First, reinstatement is not a matter of right. It has long been the law that the applicant for reinstatement has the burden of proving his fitness for reinstatement. Application of Christianson, supra ; In re Eaton,supra. Second, the recommendation of the Grievance Commission in March, 1975, after Christianson's application for reinstatement was that we either deny the application or require the retaking of the bar examination. Third, since we had the authority to deny the application completely, leaving him suspended indefinitely, we had the authority to impose a lesser penalty such as the penalty imposed (a reinstatement conditioned upon his successfully passing the bar examination). See In re Dodrill, supra.

As for the hearing, we must look at the procedural situation at the time the right to a hearing is claimed to have existed. The suspension was in effect, with termination conditioned upon movant's passing the bar examination. The movant petitioned for reinstatement without having complied with...