In re Reinstatement of Pacenza

Decision Date10 February 2009
Docket NumberSCBD No. 5432.
Citation2009 OK 9,204 P.3d 58
PartiesIn the Matter of REINSTATEMENT OF Franklin J. PACENZA, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
CourtOklahoma Supreme Court

¶ 0 Following a suspension of two years and one day, the petitioner, Franklin J. Pacenza (Pacenza/attorney), sought reinstatement to the respondent, Oklahoma Bar Association (Bar Association). The suspension arose from the attorney's dishonest, fraudulent, deceitful, and misleading actions in a real estate transaction resulting in significant economic harm, embarrassment to the legal profession and to this Court, and an undermining of public confidence in the Bar Association and its members. The Bar Association opposed reinstatement. Although the trial panel of the Professional Responsibility Tribunal found that Pacenza had not engaged in the unauthorized practice of law during his suspension and had offered credible evidence of his competency and learning of the law, it determined that the attorney did not present evidence sufficient to demonstrate his good moral character in that he lacked true remorse for his actions leading to suspension and did not acknowledge the adverse effect his actions had upon the public and his clients. The trial panel recommended that reinstatement be denied and that costs be assessed. Upon de novo review, we determine that reinstatement should be denied and impose $2,714.63 in costs.

PETITION FOR REINSTATEMENT IS DENIED; PETITIONER IS ORDERED TO PAY COSTS.

Franklin J. Pacenza, Cleveland, OK, Pro se.

Mark A. Davidson, Assistant General Counsel, Oklahoma City, OK, for Complainant.

PER CURIAM:

¶ 1 On June 13, 2006, we suspended the attorney for two years and one day for his dishonest, fraudulent, deceitful, and misleading actions in a real estate transaction resulting in significant economic harm, embarrassment to the legal profession and to this Court, and an undermining of public confidence in the Bar Association and its members. We deemed the extended suspension appropriate based on Pacenza's disciplinary history, discipline administered in similar cases, and the attorney's unwillingness to acknowledge his wrongdoing.1

¶ 2 Upon a de novo review,2 we determine that the attorney did not present clear and convincing evidence that, if readmitted, his conduct would conform to the high standards required of a member of the Bar Association.3 Therefore, we deny reinstatement and impose the costs of the proceeding in the amount of $2,714.63.4 Our decision is supported by the attorney's continued lack of understanding of the consequences of his actions leading to suspension and any true remorse for the results of his conduct along with testimony from former colleagues and a judicial officer questioning both his legal abilities and his integrity and by uncertainty concerning his competency to practice law raised by the lack of strict compliance with the rules governing suspension and reinstatement proceedings.

FACTS RELEVANT TO REINSTATEMENT PROCEEDINGS

¶ 3 Pacenza was admitted to the practice of law on October 7, 1976. Before the incident resulting in his suspension for two years and a day, he was disciplined on two occasions. The attorney was privately reprimanded by this Court in October of 1987 for engaging in conduct involving misrepresentations and deceit arising from his collusion in removing a client's child from the lawful custody of the minor's father and transporting the mother and child from Texas to Oklahoma. On February 24, 1989, the Professional Responsibility Commission administered a private reprimand for misrepresentations he made to a social worker at the Oklahoma Department of Human Services that he had filed suit on behalf of an individual and expected to settle the suit within six months. No lawsuit had been filed and the attorney was aware that there was no settlement forthcoming.

¶ 4 The transaction leading to his suspension occurred in 1999 when the Richards executed a contract for deed to purchase real property from the attorney. At that time, Pacenza did not disclose: the existence of $300,00.00 in IRS tax liens against the property; title problems existing as a result of an incomplete foreclosure action; or that the couple could only expect a merchantable title upon the payment of cash in hand to the attorney. For a period of approximately nine months, Pacenza represented to the Richards and to attorneys hired to assist them that he was working on clearing title to the property. During this period, the attorney did nothing to remedy the title problems.

¶ 5 Once the Richards sought independent legal advice, Pacenza attempted to force the couple into a settlement of $55,000.00. The attorney advised the couple's lawyer that if they did not take his offer, he would obtain a divorce to protect his assets. The settlement offer was refused; and Pacenza followed through with his threats, divorcing his wife in order to preserve assets of his estate.5 The Richards estimated their total out of pocket expenses at $116,265.25. By the conclusion of the bankruptcy proceedings, the couple received between $39,000.00 and $40,000.00, leaving them with a loss in excess of $75,000.00. Pacenza was able to purchase many of the items sold in the bankruptcy proceedings, including the building where his law office was located; and, he and his wife remarried.

¶ 6 On July 28, 2008, Pacenza filed for reinstatement pursuant to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. The hearing on reinstatement was held before the trial panel on October 14, 2008. The trial panel issued its report on November 12, 2008 determining that Pacenza had not met the burden of proof for reinstatement and recommending that reinstatement be denied and costs be imposed. On the same day, the Bar Association filed an application for the assessment of costs in the amount of $2,714.63. The order setting a briefing schedule issued on November 13, 2008. On December 9th and 15th, respectively, Pacenza and the Bar Association filed waivers of their rights to file briefs in the cause.

JURISDICTION, STANDARD OF REVIEW, AND BURDEN OF PROOF

¶ 7 It is this Court's nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law. The duty is vested solely in this department of government.6 Our determinations are made de novo.7 Although given great weight,8 neither the finding of facts of the trial panel nor its view of the evidence or the credibility of witnesses bind this Court. The recommendation is merely advisory.9 We are bound neither by its findings nor its assessments as to the weight or credibility of the evidence.10 A thorough and complete exploration of all relevant facts is mandatory in consideration of matters to regulate the practice of law and legal practitioners.11 Attorneys suspended for disciplinary reasons will not automatically be reinstated on a prima facie showing that the attorney has not engaged in improper conduct during the suspension period.12

¶ 8 A suspension from the practice of law for a period of two years and one day is tantamount to disbarment in that the suspended lawyer must follow the same procedures for readmittance as would a disbarred counterpart.13 Before an attorney who has been disciplined for more than two years may be readmitted to the practice of law, it must be established that the lawyer's conduct will conform to the high standards required of a member of the Oklahoma Bar. The burden is on the applicant to demonstrate by clear and convincing evidence that the prerequisites for reinstatement are satisfied.14 The applicant must present stronger proof of qualifications than one seeking first time admission.15

¶ 9 Rule 11.5, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A requires the trial panel to make specific findings regarding whether: 1) the petitioner possesses the good moral character which would entitle him to be admitted to the Bar Association; 2) the petitioner has engaged in the unauthorized practice of law during the period of suspension; and 3) the petitioner possesses the competency and learning in the law required for admission to the practice of law in the State of Oklahoma. In addition, this Court considers the following eight factors in making a reinstatement decision: 1) the applicant's present moral fitness; 2) demonstrated consciousness of the conduct's wrongfulness and the disrepute it has brought upon the legal profession; 3) the extent of rehabilitation; 4) the original misconduct's seriousness; 5) conduct after resignation; 6) time elapsed since the resignation; 7) the applicant's character, maturity, and experience when suspended; and 8) present legal competence.16 Each reinstatement decision is determined on a case-by-case basis, carefully weighing all factors.17

¶ 10 a. The attorney has not demonstrated the clear and convincing evidence necessary for his readmittance to the practice of law in Oklahoma.

¶ 11 Pacenza did not submit a brief arguing his position, but we assume that the attorney would assert that he has met all requirements for reinstatement; or, he would not have sought such by the filing of a petition and participation in reinstatement proceedings. The trial panel found that Pacenza had not submitted credible evidence of his good moral character or that, if readmitted, he would conform his conduct to the high standards expected of members of the legal profession in Oklahoma. Specifically, it determined that the attorney was not truly remorseful for his actions and did not understand their gravity nor did he acknowledge the effect of his actions on the public and his clients. Nevertheless, the trial panel did believe that Pacenza had met the burden of proof on the issue of his learning and competence in the law. Both the trial panel and the Bar...

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13 cases
  • In Matter of Application for Reinstatement of Stewart, 2009 OK 29 (Okla. 5/12/2009), SCBD-5444.
    • United States
    • Supreme Court of Oklahoma
    • 12 Mayo 2009
    ......In addition, the applicant shall pay the cost of the original and one copy of the transcript of any hearings held in connection with the application. . . ." .          State ex rel. Oklahoma Bar Ass'n v. Pacenza ( Pacenza I ), 2006 OK 23, ¶ 2, 136 P.3d 616. . 6. Rule 7.3, Rules Governing Disciplinary Proceedings, 5 O.S. Supp. 2007, Ch. 1, App. 1-A. . 7. The attorney actually failed to file income tax returns for multiple years. Transcript of Reinstatement Hearing, December 5, 2008, Jami Lynn Stewart ......
  • In re Blake
    • United States
    • Supreme Court of Oklahoma
    • 22 Marzo 2016
    ...and 3) the petitioner possesses the competency and learning required for admission to the practice of law. In re Reinstatement of Pacenza, 2009 OK 9, ¶ 9, 204 P.3d 58, 62. Failure to establish any of these essential 371 P.3d 469 prerequisites necessitates denial of reinstatement. Any recomm......
  • In the Matter of Reinstatement of Munson, 2010 OK 27 (Okla. 3/16/2010), SCBD-5540.
    • United States
    • Supreme Court of Oklahoma
    • 16 Marzo 2010
    ......In addition, the applicant shall pay the cost of the original and one copy of the transcript of any hearings held in connection with the application. . . ." . .          State ex rel. Oklahoma Bar Ass'n v. Pacenza ( Pacenza I ), 2006 OK 23, ¶ 2, 136 P.3d 616. . 8. The period of suspension in Munson I began on December 12, 1988 and ran through January 4, 1991. See ¶ 21, infra. . 9. Title 5 O.S. 2001 §13; State ex rel. Oklahoma Bar Ass'n v. Farrant , 1994 OK 13, ¶ 13, 867 P.2d 1279; ......
  • Matter of the Application for REINSTATEMENT OF Jami Lynn STEWART a/k/a Jami Watts, SCBD No. 5444.
    • United States
    • Supreme Court of Oklahoma
    • 14 Septiembre 2010
    ......1, App. 1-A; In re Reinstatement of Fraley, 2005 OK 39, ¶ 37, 115 P.3d 842.          3 Rule 11, 1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, Oklahoma Bar Ass'n v. Pacenza (Pacenza I), 2006 OK 23, ¶ 2, 136 P.3d 616.          4 The Bar Association's exhibit 3, filed on August 6, 2002, in the Chief Justice's Office contains the probationary terms imposed upon Stewart. It provides in pertinent part:         “.. The defendant shall cooperate and ......
  • Request a trial to view additional results
1 books & journal articles
  • To Err is Human, to Apologize is Hard: the Role of Apologies in Lawyer Discipline
    • United States
    • Georgetown Journal of Legal Ethics No. 34-3, July 2021
    • 1 Julio 2021
    ...Grievance Comm. v. Ganim, 87 A.3d 1078 (Conn. 2014). 89. In re Wiederholt, 24 P.3d 1219, 1230 (Alaska 2001). 90. See, e.g., In re Pacenza, 204 P.3d 58, 63–64 (Okla. 2009) (questioning candor of the respondent’s apolo-gies to former clients). 91. See In re Daniel, 135 A.3d 796, 798 (D.C. Ct.......

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