Reinstatement of McWhorter, In re

• Decision Date: 05 July 1995
• Docket Number: Docket No. 99848,No. 14,14
• Citation: 534 N.W.2d 480,449 Mich. 130
• Parties: In re Petition for REINSTATEMENT OF Robert A. McWHORTER. Robert A. McWHORTER, Petitioner-Appellee, v. GRIEVANCE ADMINISTRATOR, Appellant. Calendar
• Court: Michigan Supreme Court

Page 480

534 N.W.2d 480

449 Mich. 130

In re Petition for REINSTATEMENT OF Robert A. McWHORTER.

Robert A. McWHORTER, Petitioner-Appellee, v. GRIEVANCE ADMINISTRATOR, Appellant.

Docket No. 99848.

Calendar No. 14.

Supreme Court of Michigan.

Argued March 8, 1995.

Decided July 5, 1995.

Robert A. McWhorter, Kalamazoo, MI, in pro. per.

Colista, Adams & Palmer, P.C. by F. Philip Colista, of counsel, Royal Oak, MI, for petitioner.

Philip J. Thomas, Jane Shallal, and Susan E. Gillooly, Detroit, MI, for Atty. Grievance Com'n.

Opinion

BRICKLEY, Chief Justice.

In this case we decide whether the decisions of the tri-county hearing panel and the Attorney Discipline Board to reinstate petitioner's license to practice law are supported by proper evidence on the whole record. We believe that a review of the entire record does not support the decision of the hearing panel or the Attorney Discipline Board to reinstate petitioner Robert McWhorter to the practice of law in this state at this time. We conclude that petitioner has not spent adequate time outside the supervision of parole authorities sufficient to demonstrate that he has a proper understanding of and attitude toward the standards imposed on members of the bar or that he will conduct himself in conformity with those standards. We therefore would reverse the decision of the Attorney Discipline Board and deny Mr. McWhorter's petition for reinstatement, and would hold that petitioner may not reapply for reinstatement until June 28, 1997, five years from the date of his release from federal parole.

I

In December 1978, Robert McWhorter was found guilty in federal court of a ten-count indictment for the offense of aiding and abetting the manufacture of methamphetamine. 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2(a), and 21 U.S.C. § 841(b)(1)(B). He was sentenced to five years imprisonment with a special parole term of two years. As a result of this conviction, the Attorney Grievance Commission filed a formal complaint against petitioner in January, 1979. ¹ Petitioner was disbarred by order filed June 8, 1979. However, the order of disbarment was later vacated by notice dated September 15, 1980, because the United States Court of Appeals for the Sixth Circuit vacated the decision and remanded the case for trial. ²

Meanwhile, petitioner was convicted in Kalamazoo Circuit Court on May 29, 1980, for an unrelated incident of kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, and conspiracy to kidnap, M.C.L. § 750.157a; M.S.A. § 28.354(1). As a result, a second formal complaint was filed on June 20, 1980, charging petitioner with violation of GCR 1963, 953(2) to (5), and Canon 1 of the Code of Professional Responsibility, DR 1-102(A)(3) and (4). The convictions arose out of the abduction of David Nixon from McWhorter's law office. The kidnapping was arranged by petitioner in order to extort money for the payment of McWhorter's legal services. Petitioner's license to practice law was ultimately revoked, effective February 24, 1981, as a result of these convictions.

After remand on the federal charges, on October 3, 1980, petitioner was convicted of drug-related offenses in the United States District Court for the Western District of Michigan, Southern Division. A jury found petitioner guilty of conspiracy to import cocaine into the United States, aiding and abetting the manufacture of methamphetamine, and using a communication facility, i.e., a telephone, to facilitate the manufacture of methamphetamine. The jury also convicted McWhorter of conspiracy to manufacture, possess with intent to distribute, and distribute methamphetamine. 21 U.S.C. § 841(a)(1). Petitioner was sentenced to ten years imprisonment with a two-year special parole term. ³

The federal convictions arose out of petitioner's attempt to finance a drug-smuggling trip to South America to purchase cocaine and marijuana. McWhorter and an undercover Drug Enforcement Administration agent met and discussed McWhorter's drug-smuggling scheme and his contacts with various drug sources. The DEA agent told McWhorter that he was interested in chemical drugs, and McWhorter responded that he knew a chemist who would manufacture drugs. Additionally, McWhorter offered to render legal services to the undercover agent, proposing to set up a strawman chemical company in order to make detection of the drug scheme more difficult. On appeal, McWhorter contended that he was involved in only one drug conspiracy, i.e., the manufacturing of methamphetamine in order to finance the South American drug-smuggling scheme. The United States Court of Appeals for the Sixth Circuit rejected his argument and affirmed the convictions. ⁴

Petitioner served prison terms for both his federal and state convictions. He was released on parole in 1985 and sent to a halfway house in Grand Rapids for the following two months. On June 28, 1992, he was released from federal parole. Approximately three months before being released from federal parole, petitioner filed a petition for reinstatement of his license to practice law in Michigan.

A hearing was held by the tri-county hearing panel and it was determined that petitioner had established the requirements for reinstatement pursuant to MCR 9.123(B) by clear and convincing evidence. Petitioner was therefore reinstated with conditions, including payment of expenses, continuance of weekly therapy sessions, maintenance of church activities, and monitoring by a licensed attorney every two months for one year.

The Attorney Grievance Commission filed a petition for review of the hearing panel's decision with the Attorney Discipline Board. Petitioner filed a cross petition for review, requesting that the conditions imposed by the hearing panel be removed. The Attorney Discipline Board remanded the case to the hearing panel, stating that there was not "sufficient evidence in the record upon which to evaluate the nature and scope of the 'supervision of federal authorities'...." In May, 1994, the Attorney Discipline Board concluded that the monitoring of petitioner by parole authorities was minimal and issued an order modifying the hearing panel's order of reinstatement. The Attorney Discipline Board reinstated petitioner and removed the conditions imposed by the hearing panel. The Attorney Grievance Commission filed an application for leave to appeal, requesting review of the Attorney Discipline Board's decision. We granted leave to appeal ⁵ and now reverse.

II

We review the decision of the hearing panel and the Attorney Discipline Board "for proper evidentiary support on the whole record." ⁶ Grievance Administrator v. August, 438 Mich. 296, 304, 475 N.W.2d 256 (1991). ⁷ We simultaneously recognize that "[t]he power to regulate and discipline members of the bar rests ultimately with this Court pursuant to constitutional mandate." Id. at 304, 475 N.W.2d 256. ⁸ A license to practice law is "a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and counselor and as an officer of the court." MCR 9.103(A). Cognizant of this responsibility, we review the decisions of the hearing panel and the Attorney Discipline Board to reinstate petitioner to determine if they are supported by the record as a whole.

A

In order to be reinstated, petitioner must establish that he is eligible for reinstatement by clear and convincing evidence, by proof that he has satisfied the criteria set forth in MCR 9.123(B)(1) to (7): ⁹

(1) he or she desires in good faith to be restored to the privilege of practicing law in Michigan;

(2) the term of the suspension ordered has elapsed or 5 years have elapsed since revocation of the license;

(3) he or she has not practiced or attempted to practice law contrary to the requirement of his or her suspension or revocation;

(4) he or she has complied fully with the order of discipline;

(5) his or her conduct since the order of discipline has been exemplary and above reproach;

(6) he or she has a proper understanding of and attitude toward the standards that are imposed on members of the bar and will conduct himself or herself in conformity with those standards;

(7) taking into account the nature of the misconduct which led to the revocation or suspension, he or she nevertheless can safely be recommended to the public, the courts, and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court....

The record appears to support both the hearing panel's and the Attorney Discipline Board's determination that petitioner has complied with subrules 1 to 5. We are therefore concerned only with whether the record as a whole supports the conclusion that petitioner has established the requirements set forth under subrules 6 and 7. ¹⁰

We initially note that the decision whether to reinstate a disbarred attorney is a balancing process. Moreover, we conclude that a proper analysis of subrules 6 and 7 requires the balancing of several factors. ¹¹ In reviewing the various factors, we recognize that no one factor is conclusive, but, rather, each must be evaluated in light of the others. Specifically, we must consider whether petitioner has spent sufficient time outside the supervision of parole authorities to clearly and convincingly establish that he has satisfied the requirements of subrules 6 and 7.

B

The passage of time, by itself, is not sufficient to support reinstatement. ¹² The relevant inquiry is whether petitioner has spent an appreciable time outside the supervision of parole authorities in order for the hearing panel to fully evaluate the disbarred attorney's present ability to comport with the fitness requirements. See In re Reinstatement of Callanan, 440 Mich. 1207, 487 N.W.2d...