In re Reinstatement of Hird

• Decision Date: 25 March 2008
• Docket Number: SCBD No. 5288.
• Citation: 184 P.3d 535,2008 OK 25
• Parties: In the Matter of the REINSTATEMENT OF Kenneth L. HIRD to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
• Court: Oklahoma Supreme Court

184 P.3d 535

2008 OK 25

In the Matter of the REINSTATEMENT OF Kenneth L. HIRD to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.

SCBD No. 5288.

Supreme Court of Oklahoma.

March 25, 2008.

¶ 0 Kenneth L. Hird filed a petition for reinstatement of his membership in the Oklahoma Bar Association. A Professional Responsibility Tribunal's trial panel recommends that reinstatement be denied. Upon de novo review we agree with the panel's findings.

PETITION FOR REINSTATEMENT IS DENIED AND PETITIONER IS ORDERED TO PAY COSTS

Richard D. White, Jr., Tulsa, OK, for Petitioner.

Loraine D. Farabow, Assistant General Counsel, Oklahoma Bar Association, for Respondent.

OPALA, J.

¶ 1 Kenneth L. Hird (Hird or petitioner) seeks reinstatement of his membership in the Oklahoma Bar Association (OBA) and of his status upon the Roll of Attorneys. In 1998 he submitted his first petition for reinstatement which was denied.¹ This is his second petition for reinstatement to the Bar.

Background

¶ 2 Hird was admitted to the OBA in 1980. From January 1988 through April 1989 he was employed by Caprock Savings and Loan Association (Caprock) in the metropolitan area of Dallas, Texas. He simultaneously held the positions of executive vice-president, chief lending officer and general counsel. During this period Hird (and his co-defendants in a federal criminal case) engaged in a fraudulent scheme that made Caprock's financial position appear to be better capitalized than it was.² Caprock lost tens of millions of dollars, perhaps a hundred million, as a result of this scheme.³ In 1992 Hird pled guilty to one count of bank fraud and of money laundering.⁴ The same year he tendered his resignation from the OBA. Because he cooperated with federal authorities, he received a lighter sentence (45 months of incarceration), ultimately serving only 24 and one-half months and no fine stood imposed against him.⁵

Standard of Review and Rules Governing Reinstatement Proceedings

¶ 3 In matters dealing with licensing and disciplining of lawyers this court is not confined to considering only the trial panel's recommendation. Rather, it exercises independently its original jurisdiction and applies a de novo standard of review.⁶ Although the panel's findings and recommendations will receive great weight, they are merely advisory in nature.⁷ An applicant for reinstatement bears the heavy burden of showing, by clear and convincing evidence, that reinstatement is indeed warranted⁸ and is required to present stronger proof of qualifications than one who seeks initial admission to practice.⁹

¶ 4 Reinstatement proceedings are governed by Rule 11, Rules Governing Disciplinary Proceedings, (RGDP), 5 O.S.2001, Ch. 1, App. 1-A. Rule 11.5¹⁰ requires the trial panel to make certain findings concerning an applicant's (1) moral character (2) competency in the law and (3) participation in any unauthorized practice of law during the period of suspension, disbarment or resignation. In addition to the reinstatement standards found in Rule 11.4, the court also considers: (1) petitioner's present moral fitness; (2) the demonstrated consciousness of past wrongful conduct and the disrepute it has brought upon the legal profession; (3) the extent of petitioner's rehabilitation; (4) the seriousness of the original misconduct; (5) conduct subsequent to the imposition of discipline; (6) the time which has elapsed since the original discipline; (7) petitioner's character, maturity and experience at the time of discipline or resignation; and (8) petitioner's present competence in legal skills.¹¹

PRT Report

¶ 5 Following a hearing the PRT panel issued its report on 13 August 2007. Through the Office of General Counsel, the OBA made no recommendation to the panel concerning Hird's reinstatement. The PRT recommends that petitioner's reinstatement be denied. Petitioner and the OBA's General Counsel's Office have since filed separate briefs in this court.¹²

¶ 6 The trial panel reported that (1) a significant amount of time has elapsed since petitioner's conviction (2) witnesses on Hird's behalf gave compelling testimony concerning his present good character and ethics¹³ and (3) petitioner has not engaged in the unauthorized practice of law. In support of its recommendation that Hird's petition for reinstatement be denied, the PRT panel identified the following factors: (1) the seriousness of the Hird's offense (2) petitioner demonstrated consciousness of the wrongful conduct in which he engaged but did not offer any direct evidence to show his realization of the disrepute which his criminal conduct followed by conviction has brought upon the legal profession (3) Hird has made no attempt or even gesture at restitution (noting no restitution was ordered as part of his sentence) and (4) the evidence presented was insufficient to show petitioner possesses the competency and learning in the law required for admission to practice.

Analysis

¶ 7 Before turning to a review of the evidence presented at the PRT hearing, we first address the following sentence contained in the PRT report: "[t]he Trial Panel considers the millions of dollars of taxpayers' money lost as a result of Hird's criminal conduct to be virtually insurmountable. . . ." To the extent that the panel's statement may suggest that the nature and circumstances of an offense may pose an axiomatic barrier to a lawyer's reinstatement quest, we urge a cautionary reminder. The court has categorically rejected the notion that the commission of a felony forever bars an applicant from reinstatement.¹⁴ A lawyer's commission of a felony or other grave misconduct is not an insurmountable barrier to reinstatement. The decision whether to reinstate one to the Bar is made on a case-by-case basis.¹⁵ Each case must be reviewed on its own merits and demerits, and the decision to be made is to be bottomed on the evidence presented and the circumstances peculiar to that case.¹⁶

¶ 8 The court has denied reinstatement based on the seriousness of the offense and the disrepute a lawyer's conduct has cast on the legal profession.¹⁷ The offense committed by Hird-that of bank fraud and money laundering — was not only a serious crime but also one of significant consequence. The PRT panel reported it could find no lawyer disciplinary or reinstatement case that dealt with an amount of money as sizeable as that here. The loss to Caprock depositors and the general public whose taxes subsidized the government-insured losses to the savings and loan institution amounted to perhaps a hundred million dollars¹⁸ Petitioner's acts directly and indirectly caused financial harm to many individuals. Moreover, in his position as general counsel for Caprock, Hird failed to uphold the ethical duties the Bar imposes on its members. His misconduct hence reflects directly and adversely upon the legal profession. While Hird's testimony and that of the witnesses given on his behalf reveal that petitioner recognizes the wrongfulness of his conduct, the PRT believes that there was a lack of proof concerning the impact his misconduct brought upon the legal profession.

¶ 19 Here the seriousness of the offense and the disrepute it brings upon the legal system continue to be a critical obstacle to petitioner's reinstatement. Mere lapse of time does not ameliorate the seriousness of past wrongdoing.¹⁹ Neither is petitioner's conduct over the last fourteen years sufficient to overcome the grave nature of the offense.²⁰ A petitioner's rehabilitation is not the sole consideration in reinstatement proceedings. It is the duty of the court to safeguard the interests of the public, the courts and the legal profession.²¹ The court must also determine that reinstatement would not adversely affect the Bar.²² Here petitioner's acts were not only unlawful, but because he served as general counsel to Caprock they were a violation of his ethical duties to the institution and its depositors. This brings disrepute to the Bar and undermines the public's confidence in the integrity of its members. The court has recognized that the more severe was the past misconduct the heavier is the burden cast on an applicant to gain reinstatement.²³ Petitioner's burden here is indeed heavy. In light of the seriousness of the misconduct and its impact on the Bar, we cannot say that he has met his burden.

¶ 10 Reinstatements have been denied where a petitioner has failed adequately to show current competency and learning in the law required for admission to the Bar.²⁴ Since his release from prison Hird has worked as a paralegal, a human resource director, and most recently as a landman. Because these positions deal with some aspect of the law, he urges that his work, reading of the Bar journal and completion of some continuing legal education hours should serve to demonstrate his current legal competency sufficient for admission to the Bar. A review of the hearing's transcript reveals Hird's work as a paralegal occurred shortly after his release from prison in 1994. According to the exhibits submitted at the hearing, he has taken only three hours of continuing legal education since his first petition for reinstatement was denied in 2001. Although Hird's work as a human resource director and landman relate to various aspects of the law, given the length of time that has elapsed since petitioner has conducted legal research or attended more than three hours of legal education, we do not believe that he has shown by clear and convincing evidence that he possesses the current competency and learning for admission to the Bar.²⁵

¶ 11 Witnesses called by Hird attested to his current good character, dedication to his family and values, and excellent job performance since his release from prison. The journey petitioner has traveled since his conviction is a difficult one, and he is to be commended for the changes in his attitude and conduct. Although we have sympathy for his present...