In re Bettis, 93-BG-736.

• Decision Date: 25 July 1994
• Docket Number: No. 93-BG-736.,93-BG-736.
• Citation: 644 A.2d 1023
• Parties: In re Bernard BETTIS, Petitioner.
• Court: D.C. Court of Appeals

644 A.2d 1023

In re Bernard BETTIS, Petitioner.

No. 93-BG-736.

District of Columbia Court of Appeals.

Argued April 6, 1994.

Decided July 25, 1994.

As revised July 25, 1994.

Steven C. Tabackman, Washington, DC, for petitioner.

Elizabeth A. Herman, Asst. Bar Counsel, with whom Leonard H. Becker, Bar Counsel, Washington, DC, was on the brief, for the Office of Bar Counsel.

Before WAGNER, Chief Judge,^* and SULLIVAN, Associate Judge, and MACK, Senior Judge.

WAGNER, Chief Judge:

Petitioner, Bernard Bettis, seeks to be reinstated as a member of the Bar of the District of Columbia, having consented to disbarment in 1984. The hearing committee which held hearings on the petition for reinstatement, the Board on Professional Responsibility (the Board), and Bar Counsel all oppose reinstatement. The Board concluded that petitioner failed to show by clear and convincing evidence that he meets the requirements for reinstatement. Two members of the Board concurred in the Board's result, concluding that while petitioner had met his burden of proof of fitness for reinstatement, he is currently ineligible for reinstatement because he failed to file an affidavit of compliance with the disbarment order pursuant to D.C.Bar R. XI, § 14(f). The issues before this court are whether petitioner has shown by clear and convincing evidence that he is fit to resume the practice of law, and whether his failure to file an affidavit and registration statement currently render him ineligible for reinstatement. We hold that petitioner has demonstrated that he is a fit person to resume the practice of law and that the rules governing the circumstances of this case do not render petitioner ineligible for consideration for reinstatement at this time.

I.

Two separate matters gave rise to the disciplinary charges pending against petitioner when he consented to disbarment in 1984. The charges for one matter arose out of petitioner's unauthorized use of funds which he held as successor guardian of the estate of five minor children. Petitioner was removed as guardian on January 11, 1979, and the court referred the matter to the Auditor-Master. The Auditor-Master found that petitioner had used estate assets for his own purposes and that petitioner was accountable to the estate in the amount of $1,531.91. The court ratified the Auditor-Master's report, entered a judgment against petitioner in the amount of $1,531.91, a sum which was reduced subsequently, and referred the matter to the Board. Bar Counsel charged petitioner with four separate violations related to this guardianship estate: illegal conduct involving moral turpitude (DR 1-102(A)(3)); dishonesty (DR 1-102(A)(4)); commingling (DR 9-103(A)); failure to maintain records (DR 9-103(B)(3)); and neglect (DR 6-101(A)(3)).¹

The second case involved petitioner's representation of a client in an appeal from an adjudication of paternity and the entry of a support order. The client had appeared pro se at the trial level, and he retained petitioner to represent him on appeal. Petitioner filed a Notice of Appeal on October 2, 1981, and he instructed the client to stop making support payments. The Maryland Court of Special Appeals dismissed the appeal because it had not been perfected. Although petitioner received notice of the dismissal, he failed to notify his client of the disposition or to instruct him to resume support payments. In June 1982, the client was arrested for nonpayment of support and held in the Prince George's County Jail pending payment of the arrears. In connection with this matter, Bar Counsel charged petitioner with violations of DR 6-101(A)(3) (neglecting a legal matter entrusted to him) and DR 7-101(A)(2) (failure to carry out a contract of employment entered with a client).²

On March 15, 1984, in the face of these pending charges, petitioner signed an Affidavit of Consent to Disbarment. On July 24, 1984, this court entered an order disbarring petitioner, effective August 3, 1984. The Maryland Court of Appeals entered an order on March 5, 1986, disbarring petitioner. Attorney Grievance Comm'n v. Bettis, 305 Md. 452, 505 A.2d 492 (1986). On July 22, 1991, petitioner filed a petition for reinstatement. In this petition, petitioner asserted that he had executed the consent for disbarment under the mistaken impression that it was in the nature of a request for a continuance in the disciplinary proceedings. He did not address the misconduct for which he was charged. Bar Counsel moved to dismiss the petition, and petitioner filed an amended petition on September 1, 1991. The matter proceeded to an evidentiary hearing on the amended petition before Hearing Committee No. 4.

On June 25, 1992, the Hearing Committee issued its report recommending that the petitioner's Amended Motion for Reinstatement be denied. The Hearing Committee determined that although petitioner acknowledged the "terrible" things he had done and their "gravity," "his testimony was not sufficient, in the view of the Hearing Committee, to persuade the Committee that he truly appreciated the seriousness of his conduct." The Hearing Committee also found that petitioner had not met his burden of establishing his present qualifications and competency to practice law and his present fitness of character. The majority of the Board members declined to disturb the Hearing Committee's finding on the question of petitioner's lack of recognition of the seriousness of his misconduct and his failure to demonstrate conduct since discipline which would remedy past wrongs or prevent future ones and show present fitness of character. Therefore, the Board recommended that the Petition for Reinstatement be denied. However, the Board disagreed with the Hearing Committee's conclusion that the attorney had not demonstrated his present qualifications and competence to practice law.

II.

We address preliminarily an issue raised in the concurring opinion filed by two of the Board members³ which resulted in their conclusion that the petition must be denied. These members concurred in the result reached because petitioner had failed to file an affidavit required by D.C.Bar R. XI, § 14(f). In this affidavit, the disbarred attorney must set forth that the attorney has complied with all aspects of the rule including, inter alia, that the attorney has notified all clients of the disbarment and advised them to seek advice elsewhere. D.C.Bar R. XI, § 14(a), (b), and (f).⁴ D.C.Bar R. XI, § 16(c) currently provides in pertinent part, as follows:

A disbarred attorney shall not be eligible for reinstatement until five years shall have elapsed following the attorney's compliance with section 14....

Since petitioner did not submit an affidavit until August 23, 1993, if the rule applies, petitioner would not be eligible for reinstatement until August 1998. See id.; see also In re Mulkeen, 606 A.2d 136, 137 (D.C.1992) (if the suspended attorney complies with Rule XI, § 14 within the required ten-day period, for purposes of reinstatement, the suspension relates back to the suspension date).

When petitioner consented to disbarment in this case, the rules did not provide for the commencement of the period of disbarment to be deferred until the lawyer files the required affidavit. As the majority pointed out in its report, prior to the adoption of D.C.Bar R. XI, § 16(c), an attorney's failure to comply with the requirements of Rule XI, § 14 was used as a factor for evaluating a reinstatement petition rather than as a disqualifying factor.⁵ Cf. In re Goldberg, 460 A.2d 982, 985 (D.C.1983).⁶ While petitioner must bear the consequences of his failure to file the affidavit, those consequences must be consistent with those applied in other cases, and they should be in keeping with the rules as they existed at the pertinent time. See Luck v. District of Columbia, 617 A.2d 509, 514 (D.C.1992).⁷ Accordingly, the petition for reinstatement is not premature. Therefore, we turn to consideration of the merits of the petition.

III.

a. Standard of Review

In a disciplinary case, the ultimate determination of whether an attorney will be reinstated rests with the court. In re Harrison, 511 A.2d 16, 18 (D.C.1986); In re Roundtree, 503 A.2d 1215, 1217 (D.C.1985). Although the recommendations of the Board and the Hearing Committee are entitled to great weight, this court must determine independently whether an attorney meets the criteria for reinstatement. Harrison, 511 A.2d at 18; Roundtree, 503 A.2d at 1217. Petitioner bears the burden of proving by clear and convincing evidence that he "has the moral qualifications, competency, and learning in law required for readmission." D.C.Bar R. XI, § 16(d), i.e., that he is "`rehabilitated and a fit person to resume the practice of law.'" In re Brown, 617 A.2d 194, 197 (D.C.1992) (quoting Roundtree, 503 A.2d at 1218); see also In re Stanton, 532 A.2d 95, 96 (D.C.1987); Harrison, 511 A.2d at 18. In order for petitioner to be reinstated, he must convince the Board, and ultimately the court

that his ... resumption of the practice of law will not be detrimental to the integrity and standing of the Bar, or to the administration of justice, or subversive to the public interest.

Roundtree, 503 A.2d at 1217 (citation and internal quotation marks omitted).

In interpreting the criteria for reinstatement set forth in D.C.Bar R. XI, § 21(5),⁸ this court has identified five factors for consideration:

(1) the nature and circumstances of the misconduct for which the attorney was disciplined; (2) whether the attorney recognizes the seriousness of the misconduct; (3) the attorney's conduct since discipline was imposed, including the steps taken to remedy past wrongs and prevent future ones; (4) the attorney's present character; and (5) the attorney's present qualifications and competence to practice law.

Roundtree, supra, 503 A.2d at 1217 (citations omitted); accord, Brown, supra, 617 A.2d at 196; Stanton, supra, 532 A.2d at 96-97; Harri...