In re King

• Citation: 136 P.3d 878,212 Ariz. 559
• Decision Date: 28 June 2006
• Docket Number: No. SB-03-0152-PR.,SB-03-0152-PR.
• Parties: In the Matter of the Application of Lee Keller KING, Applicant.
• Court: Supreme Court of Arizona

136 P.3d 878

In the Matter of the Application of Lee Keller KING, Applicant.

No. SB-03-0152-PR.

Supreme Court of Arizona, En Banc.

June 28, 2006.

Osborn Maledon P.A. by Mark I. Harrison, Daniel L. Kaplan, Phoenix, Attorneys for Lee Keller King.

State Bar of Arizona by Robert B. Van Wyck, Chief Bar Counsel, Patricia A. Sallen Senior Bar Counsel, Phoenix, Attorneys for Amicus Curiae State Bar of Arizona.

OPINION

TIMMER, Judge.^*

¶ 1 This court recently denied the application to practice law submitted by an individual previously convicted of first-degree murder. In re Hamm, 211 Ariz. 458, 123 P.3d 652 (2005). In the wake of Hamm, we review the recommendation of this court's Committee on Character and Fitness to admit Lee Keller King, who was previously convicted of attempted murder. Because King has failed to satisfy his burden to demonstrate his character and fitness to practice law in Arizona, we reject the Committee's recommendation and deny King's application.

BACKGROUND

¶ 2 In 1977, twenty-four-year-old Lee Keller King was a certified peace officer, employed as a reserve deputy constable in Harris County, Texas. In that capacity, King served civil court papers, performed patrol duties with full-time officers, and attended numerous hours of basic training. King was authorized to carry a handgun while in uniform and, when dressed in civilian clothes, was permitted to keep the weapon in the glove compartment of his car.

¶ 3 On December 30, 1977, King was upset because he had been "passed over" for a full-time deputy constable position. While off duty¹ and out of uniform, King went to a neighborhood bar, became highly intoxicated, and argued with two male acquaintances who King knew to be convicted felons. Although reports about what occurred next conflict somewhat,² it is undisputed that King left the bar in the early morning hours of December 31, and the two men soon followed. King then used his semi-automatic service weapon to shoot each man several times at close range, emptying his fully loaded weapon and firing some bullets through the bar door. Neither King nor any other witness reported that King warned the victims to stay back before shooting them. One man was shot in the upper thigh and back, with an exit wound through the neck, leaving him in a critical condition that required surgery. The other man was shot in the abdomen and upper leg, splintering the bones and causing serious damage. Both victims were unarmed. Despite sustaining serious wounds, both victims survived.

¶ 4 After the State of Texas indicted King on two counts of attempted murder, King entered a guilty plea to one count of attempted murder pursuant to a plea agreement. In September 1978, King was sentenced to a seven-year prison term. After an unsuccessful appeal on bases King cannot recall, he began serving his sentence in June 1979 before the court suspended his sentence and placed him on probation four months later.³ During his term of probation, King underwent mental health counseling and group therapy. In February 1985, a court set aside King's conviction.

¶ 5 After King left the criminal justice system, his life took an admirable turn. He graduated from college and law school and passed the Texas bar examination. The Texas Board of Law Examiners concluded that King possessed the requisite good moral character to practice law in Texas, and he was admitted to practice in 1994. Thereafter, King practiced law in Texas without incurring any disciplinary charges, he married, adopted his wife's child, and the couple had two additional children.

¶ 6 In 2003, King moved to Arizona to work in his law firm's Phoenix-area office. He passed the Arizona bar examination and submitted his Character and Fitness Report to the Committee on Character and Fitness⁴ as required by Arizona Supreme Court Rule 34(a), 17A Ariz.Rev.Stat.⁵ After conducting an evidentiary hearing on October 14, 2003, the Committee recommended that this court deny King's application for admission, finding that he had failed to prove his good character and fitness to practice law in Arizona. The Committee concluded that although King had presented strong evidence of rehabilitation and positive social contributions since the shootings, the Committee was unable to overlook the seriousness of his crime. This court declined King's subsequently filed petition for review on April 19, 2004, effectively denying King's application.

¶ 7 King re-applied for admission six months later and another hearing was held on April 21, 2005. The landscape of this hearing differed from that of the prior hearing. Specifically, membership in the Committee had changed, King had secured legal representation, and King presented more extensive evidence concerning his character and fitness to practice law. By a vote of eight to three, the Committee recommended King's admission to the bar and notified the court of its decision by letter four days later. The Committee offered no explanation for its decision.⁶

¶ 8 Pursuant to Rule 33(a), this court, on its own motion, continued consideration of King's application and has since considered the record of all Committee proceedings as well as the written and oral arguments presented in this court by King and the State Bar of Arizona, which appeared as amicus curiae in opposition to the application. Although we seriously consider the Committee's recommendation, we independently decide whether King possesses the requisite character and fitness to gain admission to practice law in Arizona. Hamm, 211 Ariz. at 462, ¶ 15, 123 P.3d at 656.

ANALYSIS

I.

¶ 9 King bears the burden of proving by a preponderance of the evidence that he possesses the requisite character and fitness qualifying him for admission to the Arizona bar. Rule 36(a)(3), (f)(5).⁷ To satisfy this burden, King must prove, among other things, that he presently possesses good moral character. Rule 34(c)(1)(B); Hamm, 211 Ariz. at 462, 463, ¶¶ 12, 17, 123 P.3d at 656, 657. As we explained in Hamm, although an applicant's conviction for a serious crime does not constitute a per se disqualification to practice law,⁸ it adds weight to the applicant's burden of proving present good moral character. 211 Ariz. at 462, 463-64, ¶¶ 16, 21, 123 P.3d at 656, 657-58. Specifically, because past serious misconduct may indicate flaws in an applicant's present moral character, the applicant must initially demonstrate complete rehabilitation before we consider other evidence of present good moral character. Id. at 463-64, ¶¶ 17, 21, 123 P.3d at 657-58 (citations omitted).

¶ 10 In summary, when an applicant convicted of a serious crime applies to practice law in Arizona, we conduct a conditional, two-part inquiry. We first consider whether the applicant has satisfied the burden of proving complete rehabilitation from the character deficits that led to the commission of the crime. If not, our inquiry ends and we will deny the application. If the applicant proves complete rehabilitation, we then decide whether the applicant has otherwise demonstrated present good moral character. With these principles in mind, we turn to King's application.

II.

¶ 11 The weight of the added burden of demonstrating complete rehabilitation is determined by the gravity of the past criminal conduct. Id. at 464, ¶ 22, 123 P.3d at 658. The more serious the unlawful act, the greater the burden. Id. "[I]n the case of extremely damning past misconduct," such as first-degree murder or, in the circumstances here, attempted murder, "a showing of rehabilitation may be virtually impossible to make." Id. (quoting In re Matthews, 94 N.J. 59, 462 A.2d 165, 176 (1983)). Undoubtedly, King's act in shooting two unarmed men at close range multiple times without apparent verbal warning constitutes the type of "extremely damning" misconduct that mandates an extraordinary showing of rehabilitation. Although neither victim died, King inflicted serious injuries upon them while holding a position of public trust as a peace officer.⁹ See Barlow v. Blackburn, 165 Ariz. 351, 357, 798 P.2d 1360, 1366 (App.1990) (recognizing society demands much from law enforcement officers as state "entrusts them with power to enforce the laws upon which society depends"); Seide v. Comm. of Bar Exam'rs of the State Bar of Cal., 49 Cal.3d 933, 264 Cal.Rptr. 361, 782 P.2d 602, 604 (1989) (finding applicant's criminal history "all the more reprehensible [because] committed by a former law enforcement officer and law school graduate").

¶ 12 The extraordinary showing required of King affects the quantum of evidence required to satisfy the preponderance-of-the-evidence standard rather than the burden itself. Phrased differently, King's misconduct tips the scales against admission at the outset, thereby requiring him to produce an extraordinary amount or quality of evidence to meet his burden of proof.

¶ 13 To prove complete rehabilitation, King must establish that he has both (1) accepted responsibility for his past criminal conduct, Hamm, 211 Ariz. at 464, ¶ 23, 123 P.3d at 658, and (2) identified and overcome the weakness that led to the unlawful conduct, In re Arrotta, 208 Ariz. 509, 513, ¶ 17, 96 P.3d 213, 217 (2004). We "weigh those factors tending to show rehabilitation against those tending to show a lack thereof" to decide whether King has met his burden. Hamm, 211 Ariz. at 465, ¶ 25, 123 P.3d at 659.

A.

¶ 14 Evidence in the record both supports and negates King's contention that he has accepted responsibility for the 1977 shootings.¹⁰ King demonstrated his acceptance by informing judges, lawyers, law professors, former employers, and a host of friends, acquaintances, and colleagues of his crime over an extended period of time, impressing upon many of them heartfelt feelings of remorse.¹¹ And in both hearings before the Committee, King admitted shooting the victims and expressed remorse, calling the shootings "a mistake I made that I will carry with me for the rest...