Brown, In re

Decision Date19 December 1980
Docket NumberNo. 13338,13338
CourtWest Virginia Supreme Court
PartiesIn re Bonn BROWN.

Syllabus by the Court

1. The general rule for reinstatement is that a disbarred attorney in order to regain admission to the practice of law bears the burden of showing that he presently possesses the integrity, moral character and legal competence to resume the practice of law. To overcome the adverse effect of the previous disbarment he must demonstrate a record of rehabilitation. In addition, the court must conclude that such reinstatement will not have a justifiable and substantial adverse effect on the public confidence in the administration of justice and in this regard the seriousness of the conduct leading to disbarment is an important consideration.

2. Rehabilitation is demonstrated by a course of conduct that enables the court to conclude there is little likelihood that after such rehabilitation is completed and the applicant is readmitted to the practice of law he will engage in unprofessional conduct.

3. Absent a showing of some mistake of law or arbitrary assessment of the facts, recommendations made by the State Bar Ethics Committee in regard to reinstatement of an attorney are to be given substantial consideration.

George R. Triplett, Elkins, Fowler & Paterno and John R. Fowler, Charleston, for Brown.

John O. Kizer and Robert H. Davis, Jr., Charleston, for Legal Ethics Committee.

DiTrapano, Jackson & Buffa and Rudolph L. DiTrapano, Charleston, amicus curiae.

MILLER, Justice:

The applicant in this case, Bonn Brown, seeks to be readmitted to the practice of law. On February 2, 1973, the applicant was adjudged guilty on three counts of conspiracy to commit bribery and the bribery of a juror, a Ralph Buchalew. This conviction in federal district court formed the basis for this Court's suspension of his license to practice law. In re Brown, 157 W.Va. 1, 197 S.E.2d 814 (1973). Upon the affirmance of his criminal conviction after an appeal, his license was annulled by this Court by order entered December 21, 1973.

Subsequently, under Article VI, Section 35 of the By-Laws of the West Virginia State Bar (Bar By-Laws), he applied for reinstatement of his license to practice law. We determined that the procedure for handling a petition for reinstatement required a factual development by way of an evidentiary hearing before the Committee on Legal Ethics of the West Virginia Bar (Ethics Committee). In re Brown, W.Va., 262 S.E.2d 444 (1980). A full evidentiary hearing has now been held before the Ethics Committee and it has filed a written report opposing the reinstatement of his license to practice law.

After our latest opinion involving Mr. Brown, we issued In re Smith, W.Va., 270 S.E.2d 768 (1980) which discussed standards for the reinstatement of a lawyer whose license had been annulled. The Ethics Committee initially contends that there are some portions of In re Smith that are confusing for instance, Syllabus Point 2 suggests that after the five-year waiting period, the disbarred attorney may apply for readmission and unless the original offense which lead to disbarment "is so serious that the court cannot be satisfied that the public will be adequately protected," an attorney's license to practice will be reinstated. 1

However, Syllabus Point 3 indicates that a disbarred attorney does initially have a burden to meet before he will be reinstated: "Where the petitioner shows a record of honorable behavior since disbarment, the petitioner's burden has been met...." 2 Moreover, the majority opinion in Smith does refer to "the five objective criteria set forth in Hiss and Brown, supra, for determining whether a disbarred attorney should be reinstated." 270 S.E.2d at 773. This was a specific reference to the criteria that are found in In re Brown, W.Va., 262 S.E.2d 444, 446 (1980):

"The ultimate question is whether he possesses the integrity, high moral character and legal competence to justify the reinstatement of his license. Most courts have considered a number of factual inquiries in answering this question, as illustrated by In re Hiss (368 Mass. 447, 333 N.E.2d 429 (1975)), supra:

'In judging whether a petitioner satisfies these standards and has demonstrated the requisite rehabilitation since disbarment, it is necessary to look to (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. See Application of Spriggs, 90 Ariz. 387, 388, n. 1, 368 P.2d 456 (1962); In re Barton, 273 Md. 377, 379, 329 A.2d 102 (1974); In re Application of Strand, 259 Minn. 379, 381, 107 N.W.2d 518 (1961); In the Matter of the Petition of Seijas, 63 Wash.2d 865, 868-869, 389 P.2d 652 (1964). Cf. In re Petition of Dawson, 131 So.2d 472, 474 (Fla.1961).' (368 Mass. 447 at 460, 333 N.E.2d 429 at 437-38)" 3

A fair reading of the entire Smith opinion leads to the conclusion that a disbarred attorney does have a burden of proof initially to show "a record of good behavior." There can be little doubt from our prior case law that we have always required applicants for reinstatement to carry the burden of establishing their fitness to resume the practice of law. This is the universal rule from other jurisdictions with only differences as to how clear the proof must be. E. g. In re Reed, 341 So.2d 774 (Fla.1977); Lester v. Kentucky Bar Association, 532 S.W.2d 435 (Ky.1976); In re Braverman, 271 Md. 196, 316 A.2d 246 (1974); In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975) (heavy burden); In re Peterson, 274 N.W.2d 922 (Minn.1979) (clear and satisfactory evidence); Petition of Simmons, 71 Wash.2d 316, 428 P.2d 582 (1967) (affirmative showing); 7 Am.Jur.2d Attorney at Law § 72 (1963); Annot. 70 A.L.R.2d 268, 297 (1960).

One of our earliest reinstatement case is In re Daugherty, 103 W.Va. 7, 136 S.E. 402 (1927), where the application for reinstatement was made in the circuit court where the attorney had been disbarred. The circuit court had declined to grant reinstatement and upon appeal we affirmed. This case was decided before the creation of the West Virginia State Bar under W.Va.Code, 51-1-4a, and as a consequence there were no Bar By-Law provisions covering reinstatement. 4 The Court in Daugherty analogized the right of reinstatement to the initial admission to the bar in that a disbarred attorney must "satisfy the court to whom the application is presented that he is a fit person to be intrusted with the office of attorney." Syllabus Point 1, in part, In re Daugherty, supra.

A similar situation existed in In re Eary, 134 W.Va. 204, 58 S.E.2d 647 (1950), involving an attorney disbarred by the circuit court who sought to regain admission to the bar by an application to this Court. We treated his application as an original application to practice law under W.Va.Code, 30-2-1, and determined that he did not prove he was of good moral character. 5

Both Daugherty and Eary established a rather general standard for reinstatement, that the applicant must be "a fit person to be intrusted with the office of attorney" or that he possess "good moral character." Both cases are significant in their recognition that the courts do possess inherent power to formulate standards for reinstatement as a part of their larger power to regulate the practice of law.

Our next reinstatement case was In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970), where Bar By-Laws did exist but contained no provision for reinstatement after disbarment. The issue was whether in the absence of a specific provision in the Bar By-Laws permitting reinstatement, a disbarred attorney could be reinstated. The Court concluded that it had inherent power to permit a reinstatement and relied on Daugherty and Eary as well as general law from other jurisdictions. The Court in Daniel did not discuss in any detail standards for reinstatement, but did state this general proposition in Syllabus Point 3:

"A final judgment annulling an attorney's license to practice law does not preclude him subsequently from applying for a new license to practice law which may be granted if he meets requirements thereof and if he can satisfy the court that during the interval between licenses he has been rehabilitated and is now trustworthy."

Thus, Daniel implicitly recognized that a disbarred attorney must meet the following initial requirements to be readmitted to the practice of law: good moral character, professional competence, and in addition he must "satisfy the court ... he has been rehabilitated and is now trustworthy."

In Committee on Legal Ethics v. Mullins, W.Va., 226 S.E.2d 427 (1976), the Court indefinitely suspended an attorney who had been guilty of one charge of malpractice in failing to file his client's tort action before the statute of limitations expired. The Court held out the right to reinstatement "upon a satisfactory showing that his personal or emotional problems have been so satisfactorily resolved as to make it probable that he once again merits the confidence of the public and has a capacity to conform his professional conduct to the high standards expected of members of this privileged profession." 226 S.E.2d at 431-32. 6

Woven throughout our disciplinary cases involving attorneys is the thought that they occupy a special position because they are actively involved in administering the legal system whose ultimate goal is the evenhanded administration of justice. 7 Integrity and honor are critical components of a lawyer's character as are a sense of duty and fairness. Because the legal system embraces the whole of society, the public has a vital expectation that it will be properly administered. From this expectancy arises the...

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