Petition of Olkon

• Decision Date: 27 March 1985
• Docket Number: Misc. No. 4-80-7.
• Parties: In the Matter of the Petition of Ellis OLKON for Readmission to Practice.
• Court: U.S. District Court — District of Minnesota

605 F. Supp. 784

In the Matter of the Petition of Ellis OLKON for Readmission to Practice.

Misc. No. 4-80-7.

United States District Court, D. Minnesota, Fourth Division.

March 27, 1985.

Theodore J. Collins, St. Paul, Minn., Nancy K. Olkon, Minneapolis, Minn., for petitioner. Jon M. Hopeman, Asst. U.S. Atty., Minneapolis, Minn., for U.S.

Before RENNER and MAGNUSON, District Judges.

MEMORANDUM AND ORDER

MAGNUSON, District Judge.

Before the court is the application of Ellis Olkon for readmission to the federal bar pursuant to District of Minnesota Rule of Practice 1.G. A hearing on the matter was held on December 12, 1984 before Judges Robert G. Renner and Paul A. Magnuson, and the matter was taken under advisement. Theodore J. Collins, Esq. and Nancy K. Olkon, Esq. appeared for Petitioner. Jon M. Hopeman, Esq. appeared for the United States.

FACTS

On September 20, 1979, the Hennepin County District Court convicted Petitioner Ellis Olkon of two counts of the felony attempted theft by swindle. Olkon had attempted to defraud two insurance companies by presenting the personal injury claims of a client whom Olkon knew was not injured. State v. Olkon, 299 N.W.2d 89 (Minn.1980), cert. denied, 449 U.S. 1132, 101 S.Ct. 954, 67 L.Ed.2d 119 (1981). Judge Amdahl, then of the Hennepin County District Court, sentenced Olkon to five years probation and fined him ten thousand dollars. As a result of his felony conviction, Petitioner was temporarily suspended from the Minnesota state bar on March 30, 1980 for the duration of his criminal probation, or for two years, whichever was longer. In re Petition for Disciplinary Action Against Ellis Olkon, 324 N.W.2d 192 (Minn.1982). A divided court of five to three held that Olkon would be automatically reinstated upon completing the terms of his suspension. Id. at 196 (Justice Amdahl did not participate in the decision). As noted by the dissent, the automatic reinstatement precluded a review of Olkon's fitness to practice once his suspension had expired. Id. at 197 (Todd, J., dissenting).

On May 12, 1980, Olkon was indefinitely suspended from practice in federal court pursuant to District of Minnesota Rule of Practice 1.F(a). In re Suspension of Ellis Olkon, Misc. 4-80-7 (D.Minn. May 12, 1980). Rule 1.F(a), governing disbarment and discipline, provides: "Any member of this court who has been suspended or disbarred from the bar of the State of Minnesota or who has been convicted of any criminal offense in any United States District Court shall ... be suspended from practice before this court." Unlike the state suspension Order, the federal Order declined to set a specific suspension period. It also declined to waive the investigation and hearing process.

On March 6, 1984, Olkon was readmitted to the Minnesota bar. In re Petition for Disciplinary Action Against Ellis Olkon, 345 N.W.2d 247 (Minn.1984). Justice Yetka for the court, deemed that compliance with Rule 18 of the Minnesota Rules on Lawyers Professional Responsibility was inapplicable. Id. Rule 18 requires an investigation and report by the Director of the Lawyer's Professional Responsibility Board into a petitioner's suitability to practice law before readmission. The rule also gives the court discretion to conduct a hearing on the petition for reinstatement. Minnesota Rule on Lawyer Professional Responsibility 18(b), (d).

On March 8, 1984, Olkon filed a petition for readmission to the federal bar. Pursuant to District of Minnesota Rule 1.G(a), governing reinstatement of disbarred and suspended attorneys, the United States Attorney's Office conducted an independent investigation of Olkon's character and fitness for readmission and submitted the U.S. Attorney's Report of Investigation (Report). The Report recommended denial of Olkon's petition for reinstatement. This recommendation was based on evidence of unethical conduct by Olkon which was unassociated with his prior conviction. The evidence consisted of affidavits, F.B.I. reports, transcripts of phone and body taps, Grand Jury transcripts, and personal interviews. The Report alleged a number of ethical violations: that Olkon knowingly advised his clients on how to avoid arrests for prostitution; that he knowingly referred women clients who could not pay his fee to another client who conducted a prostitution business; that he used information obtained from clients who were prostitutes with intent to extort government officials, including judges; that he bribed judges; that he used police and court documents to further his client's prostitution business; that he encouraged illegal campaign contributions; that he practiced law after suspension; and that he improperly importuned a witness and interfered with a juror.

In rebuttal, Olkon submitted the Petitioner's Response to U.S. Attorney's Report of Investigation (Petitioner's Response).¹ Proceeding on the assumption that the United States Attorney had secured attorney client waivers from Olkon's former clients, Olkon addressed each allegation in the Report. The Court is satisfied that Olkon successfully rebutted a number of the allegations, for example: that he used information obtained from his clients who were prostitutes to extort government officials, including judges; that he bribed judges; that he used police and court documents to further his client's prostitution business; that he encouraged illegal campaign contributions; and that he importuned a witness and interfered with a juror.

A hearing was held on December 12, 1984 before Judges Robert G. Renner and Paul A. Magnuson to consider Olkon's petition. Olkon took the stand and testified that he was of good moral character and that he had committed no crimes.² Olkon did not present any other witnesses on his behalf. The Petitioner refused the Court's offer of a continuance permitting him to present witnesses to rebut the allegations in the Report. Although Olkon has succeeded in rebutting some of the allegations of unethical conduct, we find that he is insufficiently rehabilitated to be readmitted to the federal bar.

STANDARD FOR REINSTATEMENT

In a reinstatement proceeding, the applicant bears the burden of establishing "by clear and satisfactory evidence ... that he has undergone such a moral change as to now render him a fit person to enjoy the public confidence and trust once forfeited." Peterson v. Sheran, 474 F.Supp. 1215 (D.Minn.1979) (citing In re Smith, 220 Minn. 197, 200, 19 N.W.2d 324, 326 (1945)), aff'd in part, vacated in part on other grounds, 635 F.2d 1335 (8th Cir. 1980). The petitioner bears this heavy burden because it is essential that members of the bar be trustworthy and of good moral character.

It is a fair characterization of the lawyer's responsibility in our society that he stands `as a shield' ... in defense of right and to ward off wrong. From a profession charged with such responsibility there must be exacted those qualities of truth speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as `moral character.'

Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 77 S.Ct. 752, 760, 1 L.Ed.2d 796 (1957) (Frankfurter, J., concurring). Once an attorney engages in conduct indicating insensitivity to ethical demands, the bond between bench, bar, and public is severed and must be reconciled by the attorney before readmission is granted. "There is no vested right in an individual to practice law. Rather there is a right in the Court to protect itself, and hence society, as an instrument of justice." In re Isserman, 345 U.S. 286, 289, 73 S.Ct. 676, 677, 97 L.Ed. 1013 (1953), judgment set aside on other grounds, 348 U.S. 1, 75 S.Ct. 6, 99 L.Ed. 3 (1954); see also Ex parte Wall, 17 Otto 265, 107 U.S. 265, 27 L.Ed. 552 (1882).

Consequently, Petitioner must bear the difficult burden of persuading this court to grant readmission by demonstrating that he is adequately rehabilitated. See In re Braverman, 549 F.2d 913, 919 (4th Cir.1976). An adequate showing of rehabilitation and fitness to practice requires a demonstration of strict adherence to the ethical rules. The reinstatement must be warranted by stronger proof of good moral character and trustworthiness than that required in an original admission to the bar. See Peterson, 474 F.Supp. at 1224. In order to transcend the attorney's former unethical actions, an attorney seeking readmission "has the duty to be truthful in proceedings seeking reinstatement.... Failure to be truthful would support a conclusion that the applicant has not been sufficiently rehabilitated to deserve reinstatement as a member of the bar." Braverman, 549 F.2d at 916. Due to the vital social interests at stake, any doubts as to a petitioner's fitness to practice in federal court should be resolved in favor of the public and court. See Isserman, 345 U.S. at 289, 73 S.Ct. at 677; In re G.L.S., 586 F.Supp. 375, 379 (D.Md.), aff'd, 745 F.2d 856 (4th Cir.1984).

ANALYSIS

Under District of Minnesota Rule 1.G(a), when an attorney applies for readmission, the "United States Attorney shall investigate the facts alleged in the petition for reinstatement and shall present to the court, in affidavit form or otherwise, any facts in support of or against the granting of said petition." The Report on Ellis Olkon alleged, inter alia, that Petitioner knowingly advised his clients on how to avoid arrests for prostitution; that he knowingly referred his women clients who could not pay his legal fee to another client who conducted a prostitution out-call service; and that he practiced law after his suspension.

Many of the allegations in the Report were based on the testimony of one Daniel Bahler, Olkon's client who managed and owned a prostitution business. Bahler was arrested in 1982 and at that time he began to cooperate actively with the F.B.I. As discussed at length in Petitioner's Response, and as...