RICHARD E. KWASNIK, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent
No. S010199
Supreme Court of California
50 Cal. 3d 1061;
791 P.2d 319;
1990 Cal. LEXIS 2117;
269 Cal. Rptr. 749
May 31, 1990
DISPOSITION:
[***1]
In sum, petitioner has presented a strong prima facie case that he is of
sufficiently good moral character to be admitted to the practice of law in
California. The State Bar, on the other hand, fails to rebut either
petitioner's showing of rehabilitation or his prima facie case. Accordingly,
we order petitioner admitted to the California Bar. This holding is consistent
with our charge to protect the public and its confidence in the legal
profession rather than to impose punishment. (Gary v. State Bar (1988) 44 Cal.3d 820, 827 [244 Cal.Rptr. 482, 749 P.2d 1336].) The State Bar has presented no evidence that petitioner is now a danger to the
public in the practice of law or that he does not merit public confidence.
It is ordered that the Committee of Bar Examiners certify petitioner Richard E.
Kwasnik to this court as a person qualified to be admitted to practice law.
This
order is effective upon finality of this decision in this court. (See Cal.
Rules of Court, rule 24(a).)
COUNSEL: Richard E. Kwasnik, in pro. per., for Petitioner.
Diane C. Yu, Truitt A. Richey, Jr., and Richard J. Zanassi for Respondent.
JUDGES: Separate concurring opinions by Kennard and Arabian, JJ. Separate dissenting
[***2] opinion by Lucas, C.J.
OPINIONBY: THE COURT
OPINION:
[*1064]
[**320]
Petitioner Richard E. Kwasnik seeks review of the refusal of the State Bar to
certify him to this court for admission to the bar on the ground that he lacks the
requisite
good moral character. (Bus.
& Prof. Code,
§ 6066; Cal. Rules of Court, rule 952(c); Rules Regulating Admission to
Practice Law, rule I,
§ 11.) n1 For the reasons set forth below, we conclude petitioner should be
admitted to the bar.
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n1 Unless otherwise noted, all references to rules are to the Rules Regulating
Admission to
Practice Law in California.
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Facts
Petitioner graduated from Brooklyn Law School in June 1966. He was admitted to
the
practice of law in New York in 1967.
In November 1970 petitioner was involved in an automobile accident that
resulted in the death of Steven Smilanich, a husband and father of three
children. Although a grand jury investigated the accident, no criminal charges
were filed. Petitioner pleaded guilty to
"driving while impaired," a traffic infraction, and was fined $ 50.
[***3]
The decedent's widow (hereafter Smilanich) and decedent's three minor children
filed a
wrongful death action against petitioner in a New York court, which resulted in a judgment
against him in the amount of $ 232,234.16 in July 1974. Petitioner's
automobile insurance carrier paid the policy limit of $ 10,000 to Smilanich.
In 1975 Smilanich filed attachment proceedings against petitioner to enforce
the judgment by garnishing his wages; he previously had made no payments on the
judgment. Once he received a notice of levy, petitioner began making payments
of approximately $ 42 every two weeks. Between 1975 and January 1980,
petitioner paid $
4,685. He has paid nothing since January 1980.
In November 1980, after Smilanich's attorney rejected a settlement offer of $
15,000,
[**321]
petitioner filed a petition for bankruptcy in the United States Bankruptcy
Court for the Southern District of Florida. (See
Florida Board of Bar Examiners Re:
Kwasnik (Fla. 1987) 508 So.2d 338, 339 (hereafter
Kwasnik).) The only debt scheduled for discharge in the bankruptcy petition was the
Smilanich judgment; petitioner listed none of his other then-existing debts.
The Smilanich judgment was
discharged
[***4] by the bankruptcy court in March 1981.
[*1065] A.
Florida Bar Proceedings
In response to petitioner's 1979 application to the Florida State Bar, the
Florida Bar Examiners (Florida Bar) found that he failed to meet the standards
of conduct and fitness and concluded that he should be
denied admission. In a
1980 hearing regarding petitioner's admission to the Florida State Bar, he was
charged with three instances of wrongful conduct that he does not dispute.
First, in a deposition taken during the
wrongful death suit,
petitioner testified falsely that he had no joint interest in any checking account or other item of
personal property. In fact, he was a signatory on a joint account with his
wife at the time. Second, in his Florida State Bar application petitioner
stated that following the
wrongful death judgment $ 10,000 was paid to Smilanich,
"which represented all the assets available," and that he paid approximately $ 1,200 per year toward the judgment. He
concluded,
"I fully intend to continue all payments in the future." Actually, petitioner paid as much as $ 1,200 only in 1979, and completely
stopped payment in January 1980, five months after filing the application.
[***5] In addition, the
record suggests that other assets were available to petitioner. Third, after
petitioner moved to Florida in February 1980 he earned $ 27,000 per year, yet
refused to make any further payments under the judgment after January 1980.
The record suggests that petitioner discontinued the payments because of a
Florida statute that exempts salaries from garnishment. Petitioner was
denied admission to the Florida Bar in 1980. In February 1981 the Florida Supreme Court denied
his petition for review.
In March 1983, petitioner applied for reevaluation. Because he did not pay the
required deposit until April 1986, it was not until January 1987 that the
Florida Bar again found that petitioner failed to meet the
moral character requirements. In June 1987, however, the Florida Supreme Court rejected the
Florida Bar's recommendation, holding that petitioner met the
moral character requirements and
ordering that he be admitted on passing the Florida Bar Examination. The court
noted that he had already been
denied admission because of the aforementioned three instances of
misconduct. (Kwasnik, supra, 508 So.2d at p. 339.) Accordingly, it focused on whether the Florida
[***6] Bar could deny petitioner admission for failing to make any effort after
bankruptcy to provide assistance to the Smilanich family, although he had no
legal obligation to do so. (Ibid.) It held that because the bankruptcy laws were designed to provide a fresh
start for those who are overburdened with debt, it could not allow any
continuing
moral obligation to the Smilanich family to be considered in his petition for admission to the
Florida State Bar. (Ibid.) The court further noted that petitioner had performed as a
"competent" lawyer working at modest pay for the New York Legal Aid Society and otherwise
had led an
"exemplary life" since his first application in Florida. Accordingly, the court held he had
demonstrated
[*1066]
sufficient
rehabilitation to qualify for admission. (Id. at p. 340.) In May 1988 petitioner was admitted to the
practice of law in Florida.
B.
California Bar Proceedings
In July 1987 petitioner passed the Attorney's Examination of the California Bar
Examination. His certification to practice was delayed, however, pending a
moral character investigation. In June 1988 a formal hearing was held before a three-member
hearing panel of the
[***7] State Bar Court. Prior to the hearing petitioner entered a stipulation of
facts with the State Bar. The
hearing panel found that he had sustained his burden of proof that he is of
[**322]
good moral character and recommended that he be admitted to the California Bar.
Pursuant to a request for reconsideration, the
hearing panel again recommended that he be admitted to the
practice of law and issued a finding of facts that closely tracked the stipulation between the
parties. First, it concluded that
petitioner's description on his California Bar application of the disposition
of the Smilanich suit as a
"verdict for defendant" was not an intentional misstatement made to deceive. Second, it found that he
accepted full responsibility for the three acts considered by the Florida Bar.
Third, it concluded that the discharge of the Smilanich judgment in bankruptcy
discharged both the legal and moral obligations of petitioner. Finally, it noted that
except for the Smilanich matter petitioner's record is unblemished; that his
conduct, as evidenced by the testimonial letters he submitted, established he
is of a
good moral character; and that he has an excellent reputation in the community for honesty,
[***8] reliability, fairness and integrity. The
hearing panel concluded that if he were admitted to the
practice of law petitioner would be able to meet the professional and fiduciary duties of his
practice.
The
Review Department of the State Bar Court (hereafter the
review department), however, made its own findings and disagreed with the hearing panel's
conclusions. First, the
review department detailed certain circumstances attendant on petitioner's bankruptcy: (1)
between 1975 and 1979, when Kwasnik made payments only pursuant to garnishment
proceedings, he earned an annual salary of between $ 15,000 and $ 32,000,
totaling at least $ 100,000, while living rent-free at his mother's home and
putting his wife through five years of college; and (2) petitioner misled
Smilanich's attorney in 1980 by expressing an intention to take a one-year
leave of absence when he had already accepted a new job in Florida.
Second, the
review department cited a report issued by the Florida Bar after a formal
rehabilitation hearing held in November 1986 on petitioner's
[*1067] application for reevaluation. The Florida Bar found that petitioner had taken
no steps to fulfill his
moral obligation to Smilanich
[***9] since 1980. It noted that he had
neither contacted the survivors nor made any further payment to them, despite
the fact that he and his wife earned a combined income of $ 90,000 and owned $
225,000 of equity in a home valued at $ 250,000. In addition, the
review department noted that the Florida Bar found petitioner to be less than candid at the
rehabilitation hearing, especially when asked why his New York home was in his wife's name.
Finally, the
review department concluded that petitioner had demonstrated a lack of
good moral character by failing to accept
"any responsibility whatsoever for the Smilanich family which was victimized by
his drunken driving." It found he ignored the rights of the Smilanich family under the
wrongful death judgment until after garnishment proceedings were instituted, and then paid
only the minimum in order to avoid the wage garnishment. Accordingly, in March
1989 the
review department, by a vote of 11 to 4, found that
petitioner did not possess the requisite
good moral character and recommended that he not be admitted to the
practice of law in California. The four members voting for petitioner's admission noted that
the finding of lack of
good moral
[***10] character was based entirely on his failure to honor a
moral obligation to pay a
wrongful death judgment
discharged in bankruptcy. They concluded petitioner should be admitted because he had
successfully established his
good moral character by his
practice of law in sister jurisdictions and the attestations of judges and lawyers.
Discussion
This court may
admit to the
practice of law any applicant whose qualifications have been certified to it by the Committee
of Bar Examiners (hereafter the Committee). (Bus.
& Prof. Code,
§ 6064.) To qualify, an applicant must, among other things, be of
"good moral character." (Id.,
§ 6060, subd. (b).)
"Good
moral character" has traditionally been defined in California as the
" absence of
proven conduct or acts which have been historically considered as
manifestations of
[**323]
"
moral turpitude."'" (Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 452 [55 Cal.Rptr. 228, 421 P.2d 76] (hereafter
Hallinan).) Good
moral character also is defined statutorily to include
"qualities of honesty, fairness,
candor, trustworthiness, observance of fiduciary responsibility, [observance] of the
laws of the state and the nation and respect
[***11] for the rights of others and for the judicial process." (Rule X,
§ 101(a);
Pacheco v. State Bar (1987) 43 Cal.3d 1041, 1046 [239 Cal.Rptr. 897, 741 P.2d 1138] (hereafter
Pacheco).)
[*1068] Because the commission of an act constituting
"moral turpitude" is a statutory ground for disbarment (Bus.
& Prof. Code,
§ 6106) and is perhaps the most frequent subject of inquiry in
disciplinary proceedings,
"insofar as the scope of inquiry is concerned, the distinction between admission
and disciplinary proceedings is today more apparent than real." (Hallinan, supra, 65 Cal.2d at p. 452.) The common issue is whether the applicant for admission or the attorney sought
to be disciplined
"is a fit and proper person to be permitted to
practice law, and that usually turns upon whether he has committed or is likely to continue
to commit acts of
moral turpitude." (Id. at p. 453; cf.
Seide v. Committee of Bar Examiners (1989) 49 Cal.3d 933, 938 [264 Cal.Rptr. 361, 782 P.2d 602].)
The burden is on the applicant to prove
good moral character. (Hallinan, supra, 65 Cal.2d at p. 451.) If he is successful, the Committee must
rebut that showing with evidence of bad character.
[***12] (Hightower v. State Bar (1983) 34 Cal.3d 150, 155 [193 Cal.Rptr. 153, 666 P.2d 10] (hereafter
Hightower).) Any applicant who is denied certification may seek review of the
Committee's action in this court. (Bus.
& Prof. Code,
§ 6066; Cal. Rules of Court, rule 952(c); Rules Regulating Admission to
Practice Law, rule I,
§ 11;
Pacheco, supra, 43 Cal.3d at p. 1047.) In that review we give great weight to the Committee's findings, but they are
not conclusive. We examine the evidence and make our own determination as to
its sufficiency (Hightower, supra, 34 Cal.3d at pp. 155-156), resolving reasonable doubt in favor of the applicant. (Hallinan, supra, 65 Cal.2d at pp. 450-451.)
Petitioner contends he has established his
rehabilitation and
good moral character. We agree. Petitioner introduced fifteen letters attesting to his character:
seven from judges before whom he had appeared, seven from attorneys with whom
he had practiced, and one from a pastor with whom he had worked on an
interfaith council. The letters praise petitioner's personal and professional
integrity and his reputation both as a competent trial attorney and as a member
of the community.
Traditionally
[***13] we have accorded significant weight to testimonials submitted by attorneys and
judges regarding an applicant's moral fitness, on the assumption that such
persons possess a keen sense of responsibility for the integrity of the
legal profession. (Pacheco, supra, 43 Cal.3d at p. 1053.) This is especially true when, as here, the references are aware of the
circumstances that prompted the inquiry into the applicant's
moral character. (Ibid.; cf. Rules Proc. of State Bar, div. V, Stds. for Atty. Sanctions for Prof.
Misconduct, std. 1.2(3)(vi).) Petitioner testified that eight of the letters he submitted
with his California application were written on his behalf in 1983 for his
second application to the Florida Bar and that he was required by the Florida
State Bar to inform the references of his bankruptcy
[*1069] and
misconduct before the letters would be accepted. In fact,
petitioner testified that all but three of the references knew of the allegations in this case when
they wrote their letters.
In addition, the
hearing panel and the
review department both recognized that except for the events surrounding the
wrongful death action, petitioner has an
"unblemished record";
[***14] this is true not only of certain litigation in which petitioner was a
[**324]
party, in which his conduct did
"not reflect badly on his
moral character," but also of a 20-year period as a practicing member of the New York Bar,
during which time he was never the subject of a disciplinary proceeding.
Whether or not all petitioner's activities for which his superiors at the New
York Legal Aid Society lauded him were simply part of his responsibilities,
e.g., training and advising younger attorneys, there is extensive
evidence that he acted diligently in that capacity. In addition, petitioner
served competently in a fiduciary role as trustee of a $ 400,000 trust
established by the City of New York for petitioner's parapalegic cousin; the
Associate General Counsel of New York City who was in charge of that trust also
submitted a letter on petitioner's behalf. Finally, as noted above, the
Florida Supreme Court determined on the same evidence that petitioner was of
good moral character and admitted him to the Florida Bar.
Business and Professions Code
section 6106 states that an act of
moral turpitude,
dishonesty, or corruption constitutes a cause for disbarment or suspension of an attorney,
[***15] regardless of whether the act is committed in his capacity as an attorney.
Because the
misconduct in this case is not in any way related to petitioner's
practice of law, however, we should accord it less weight than we would
professional misconduct in evaluating his moral fitness
for admission to the bar. (See
In re Kreamer (1975) 14 Cal.3d 524, 531 [121 Cal.Rptr. 600, 535 P.2d 728].)
It follows that petitioner presented a
prima facie case that he is presently of
good moral character. (See, e.g.,
Greene v. Committee of Bar Examiners (1971) 4 Cal.3d 189, 192 [93 Cal.Rptr. 24, 480 P.2d 976] [prima facie case of applicant's
moral character established by evidence of his admission to practice in two other states and
by a number of favorable letters of recommendation].)
Petitioner also contends the State Bar improperly denied him certification
because he has made no effort to fulfill an asserted
moral obligation to the Smilanich family, even though his legal obligation was
discharged by his voluntary bankruptcy. Petitioner is correct in
reasoning that the State Bar would violate the
Bankruptcy Act if its sole reason for denying certification were such a
moral obligation
[***16] to the Smilanich family. (See
11
[*1070] U.S.C. § 525(a) (hereafter section 525(a)) [governmental unit may not deny a license to a person
"solely because" he has not paid a debt that was
discharged under the
Bankruptcy Act];
Parker v. Contractors State License Board (1986) 187 Cal.App.3d 205, 208-209 [231 Cal.Rptr. 577] [primary purpose of section 525(a) is to prevent the government from
conditioning a grant of privilege on the bankrupt's affirmation of certain
debts].) In addition, it would be a violation of the supremacy clause of the
federal Constitution (U.S. Const., art. VI, cl. 2) to act so as to interfere
with or frustrate the purposes of Congress in enacting the
Bankruptcy Act (Perez v. Campbell (1971) 402 U.S. 637, 648 [29 L.Ed.2d 233, 241, 91 S.Ct. 1704] (hereafter
Perez);
Grimes v. Hoschler (1974) 12 Cal.3d 305, 310 [115 Cal.Rptr. 625, 525 P.2d 65]), n2 i.e., to give debtors a
"new opportunity" and a
"clear field for future effort" by eliminating preexisting debts (Perez, supra, 402 U.S. at p. 649 [29 L.Ed.2d at p. 242]).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Section 525(a)
"is additional debtor protection. It codifies the result of Perez . . . which
held that a state would frustrate the Congressional policy of a fresh start for
a debtor if it were permitted to refuse to renew a drivers license because a
tort judgment resulting from an automobile accident had been
unpaid as a result of a
discharge in bankruptcy . . . . It does not prohibit consideration of other factors, such as future
financial responsibility . . . . if applied nondiscriminatorily . . . . The
effect of the section, and of further interpretations of the Perez rule, is to
strengthen the anti-reaffirmation policy found in section 524(b).
Discrimination based solely on nonpayment could encourage reaffirmations,
contrary to the expressed policy." (Notes of Com. on the Judiciary, Sen. Rep. No. 95-989, 2d Sess., p. 81 (1978).)
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***17]
The State Bar maintains the
review department did not rely solely on petitioner's discharge of the judgment in bankruptcy to
deny petitioner admission to the bar, but also considered the circumstances
surrounding the bankruptcy proceedings. As
[**325]
shown below, however, the evidence unrelated to the discharge on which the
State Bar relies does not reflect on petitioner's current
fitness to practice law in California. By refusing to
certify petitioner on the
evidence presented, therefore, the
review department not only frustrates congressional intent but it violates section 525(a). In
so concluding, we in no way condone any intent to evade a
wrongful death judgment imposed by a court of equal jurisdiction. Rather, based on the
evidence presented of his
fitness to practice law and the dictates of the
Bankruptcy Act, we only hold that petitioner must be certified for admission to the California
Bar.
The evidentiary significance of an applicant's
misconduct is greatly diminished by the passage of time and by the absence of similar,
more recent
misconduct. (Pacheco, supra, 43 Cal.3d at p. 1051; see also
Martin B. v. Committee of Bar Examiners (1983) 33 Cal.3d 717, 726 [190
[***18] Cal.Rptr. 610, 661 P.2d 160] [passage of nine years with an exemplary record is sufficient to
show
rehabilitation and to justify admission of an applicant charged with two rapes while serving
in the Marine Corps];
Hall v. Committee of Bar
[*1071] Examiners (1979) 25 Cal.3d 730, 742 [159 Cal.Rptr. 848, 602 P.2d 768] ["We are also impressed by the fact that six years have elapsed since the last of
the four incidents took place, during which time no complaints of any kind have
been lodged" against applicant];
Hallinan, supra, 65 Cal.2d 447, 464 [applicant involved in nine fistfights, six of which were
"inexcusable" but occurred at least six years prior to application for admission, held not
to bar admission].)
The automobile accident at issue here occurred 20 years ago, in 1970; the
wrongful death judgment was entered in 1974; and the judgment was
discharged by the bankruptcy court in
1981. All other instances of
misconduct listed by the
review department took place before the 1980 Florida State Bar proceedings, except for
petitioner's purported lack of
candor at the November 1986
rehabilitation hearing. In this regard, the record demonstrates petitioner's
rehabilitation:
[***19] there is no suggestion by either the
hearing panel or the
review department, nor do we find any indication on independent review, that petitioner was
anything but candid in the California proceedings. In addition, except for the
limited nature of this
misconduct, petitioner's record is unblemished. He has never been the subject of a
disciplinary proceeding in over 20 years as a practicing attorney. Indeed, on
the same evidence the Florida Supreme Court held that petitioner should be
admitted to the
practice of law in Florida. Petitioner's continued failure to satisfy his
"moral obligation" is the
only allegation of recent
misconduct.
Moreover, petitioner addressed many of the
review department's concerns at the June 1988 hearing. First, he explained why
he listed only the Smilanich judgment in his bankruptcy schedule:
"The interest was increasing greater than any payments I made. I had no money
at that time. I lost a job at that time [because of the refusal of the Florida
Bar to
admit him]. I had to relocate at that time. I had an infant child and a
five-year-old child . . . . I felt at that time . . . there would not be any
attempt on the part of the plaintiff to ever
[***20] settle this matter with me." Second, he did not attempt to justify any of his misstatements. Addressing
his denial of a joint account with his wife, he said,
"There was never any money in the account. I was never hiding any assets. I
just was not dealing rationally with [the financial scrutiny] any longer . . .
. I was wrong." In addition, while not explaining his lack of
candor in responding to questions by the Florida Bar about the title to his house, he
did state that the
house had been bought with funds inherited by his wife. Addressing his
rehabilitation, petitioner relied on his activities while at the New York Legal Aid Society --
both teaching younger attorneys and representing career criminals when a
"higher prevailing wage" was available for experienced attorneys. In addition, the record indicates
petitioner now carries over $ 1 million in automobile insurance, demonstrating
increased financial responsibility.
[*1072]
[**326]
That the
review department considered the circumstances surrounding the bankruptcy proceedings as well as
petitioner's discharge of the judgment, therefore, does not mean it can refuse
to
certify him for admission without violating section 525(a).
[***21] The circumstances surrounding the 1981 bankruptcy proceedings are so remote in
time that they cannot reasonably be said to reflect on petitioner's moral
fitness to practice law. The evidence relied on by the State Bar
rebuts neither petitioner's
prima facie case of
good
moral character nor his showing of
rehabilitation. As a result, the State Bar cannot refuse to
certify petitioner for admission without relying solely on the
discharged judgment and, thus, violating section 525(a).
Our recent decisions in
Brookman v. State Bar (1988) 46 Cal.3d 1004 [251 Cal.Rptr. 495, 760 P.2d 1023] (hereafter
Brookman), and
Hippard v. State Bar (1989) 49 Cal.3d 1084 [264 Cal.Rptr. 684, 782 P.2d 1140] (hereafter
Hippard), are distinguishable. In those cases we were confronted by the
discharge in bankruptcy of obligations incurred as the result of attorney
misconduct. We held section 525(a) did not forbid consideration of
restitution efforts, reasoning that
restitution was not imposed
"solely because" the attorney failed to pay a debt
discharged in bankruptcy but to
protect the public from specified
professional misconduct and to rehabilitate the attorney. (Brookman, supra
[***22] , 46 Cal.3d at p. 1008;
Hippard, supra, 49 Cal.3d a p. 1093.) Such a claim cannot be made in this case.
In
Brookman, an attorney who improperly borrowed $ 50,000 from a client
discharged the debt in bankruptcy. After the client received
restitution from the State Bar Client Security Fund, the State Bar ordered the attorney to
reimburse the fund. We held that nothing in the
Bankruptcy Act or in the cases interpreting that act prevents imposition of
restitution as a condition of probation in an attorney disciplinary matter, even if the
underlying subject of the
restitution has previously been
discharged in bankruptcy, and thus cannot be collected as a debt as such. (Brookman, supra, 46 Cal.3d at p. 1009.)
"[The] purpose of attorney discipline is
not to penalize petitioner merely
for having obtained a discharge of his debt in bankruptcy. Instead, it is to
protect the public from
specified
professional misconduct . . . , and at the same time to rehabilitate the errant attorney. (Id. at p. 1008.)
In so holding, we relied on the United States Supreme Court decision in
Kelly v. Robinson (1986) 479 U.S. 36 [93 L.Ed.2d 216, 107 S.Ct. 353] (hereafter
Kelly
[***23] ). In
Kelly, the Supreme Court held that
11 United States Code section 523(a)(7) (hereafter section 523(a)(7)) n3 preserves from
[*1073] discharge
restitution obligations imposed as a condition of probation in state criminal proceedings.
Restitution as a condition of probation was held not to violate section 523(a)(7) because
it focuses on the state's interests in
rehabilitation and punishment rather than the victim's desire for
compensation. (Kelly, supra, 479 U.S. at p. 53 [93 L.Ed.2d at p. 230].) The decision to impose
restitution generally
"does not turn on the victim's injury, but on the penal goals of the State and
the situation of the defendant." (Id. at p. 52 [93 L.Ed.2d at p. 230].)
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Section 523 provides:
"Exception to discharge:
"(a) A discharge under . . . this title does not discharge an individual debtor
from any debt -- . . .
"(7) to the extent such debt is for a fine, penalty, or forfeiture payable to
and for the benefit of a
governmental unit, and is not compensation of actual pecuniary loss . . . ."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***24]
Following
Kelly, supra, 479 U.S. 36, we held in
Brookman that especially when it is made payable to the State Bar Client Security Fund,
restitution
"is clearly for the benefit of the public at large, not the underlying victim .
. . . Because such
restitution fundamentally serves the goal of
rehabilitation, it is not merely compensation to the government for actual pecuniary loss.'" (Brookman, supra, 46 Cal.3d at p. 1009.)
[**327]
Subsequently, in
Hippard, supra, 49 Cal.3d 1084, we held that an attorney's
discharge in bankruptcy of indebtedness to clients and to the Client Security Fund arising from
professional misconduct did not preclude the State Bar from considering, as an
indicator of
rehabilitation, the attorney's subsequent efforts to make
restitution to his clients. There the attorney had misappropriated $ 3,967.66 from one
client and additional amounts from two others, borrowed more than $ 22,000 from
seven clients, and written checks on accounts that were closed or lacked
sufficient funds. Two of the clients subsequently obtained
restitution from the Client Security Fund.
Citing
Brookman, supra, 46 Cal.3d 1004, we noted that the purpose of attorney discipline
[***25] is to protect the public from specified
professional misconduct and at the same
time to rehabilitate the attorney. (Hippard, supra, 49 Cal.3d at p. 1093.) Because
restitution would serve the state interest in
" rehabilitating culpable attorneys (and protecting the public) by forcing the
attorney to
"confront in concrete terms, the harm his actions have caused"'" (ibid.), we concluded that when the attorney's
misconduct results in appreciable pecuniary loss to his clients, the State Bar may
properly consider the absence of any effort to make
restitution as an
indicator of his lack of
rehabilitation. (Id. at pp. 1093-1094.) This is the real significance of
restitution, we held, not repayment of the underlying indebtedness.
The case at bar, therefore, can be distinguished from
Brookman and
Hippard in several ways. First, the debt that petitioner
discharged in bankruptcy was a
wrongful death judgment unrelated to his
practice of law, not
[*1074] a debt owed as the result of
professional misconduct. Our concern in reviewing a denial of an application for
admission to
practice law or a recommendation of professional discipline is unquestionably greater when
the
[***26] debt
discharged in bankruptcy was incurred as the result of
professional misconduct. Moreover, petitioner has successfully made a
prima facie case of
good moral character that is otherwise unrebutted by the State Bar; this clearly distinguishes the
case at bar from
Brookman, supra, 46 Cal.3d at page 1010, and
Hippard, supra, 49 Cal.3d at page 1097. When, as here, the State Bar can advance no evidence sufficient to
rebut a
prima facie case of
good moral character other than continued failure to satisfy a
discharged obligation, denial of an application to the bar violates section 525(a).
Second, the
discharged obligation in this case was intended to compensate Smilanich, as the ultimate
victim of petitioner's tortious conduct, for her private pecuniary loss; no
governmental unit would
benefit from revival of the
discharged judgment. This is in contrast to
Brookman, in which the Client Security Fund, and thus the
"public at large," stood to benefit from the attorney's
restitution. In the present case, the subject debt is neither related to petitioner's
practice nor owed to one of his clients, thus also distinguishing it from
Hippard.
Finally, consideration of petitioner's
[***27] failure to compensate Smilanich despite the discharge of the judgment in
bankruptcy does not further the State Bar's interest in protecting the public
from
professional misconduct and rehabilitating errant attorneys. In
Kelly, the United States Supreme Court found that
restitution is an effective rehabilitative penalty
"because it forces the defendant to confront, in concrete terms, the harm his
actions have caused." (Kelly, supra, 479 U.S. at p. 49, fn. 10 [93 L.Ed.2d at p. 228].) Unlike
Brookman and
Hippard, in which the
restitution was related to underlying
professional misconduct, the debt in this
case is the result of an isolated 20-year-old
drunk driving incident. While the
Bankruptcy Act clearly permits the State Bar to consider petitioner's remaining
"moral obligation" in evaluating his application to the bar, such consideration fails to serve
any rehabilitative purpose as contemplated in
Kelly and, as indicated above, the discharge must not be the sole reason for denying
petitioner admission.
[**328]
In sum, petitioner has presented a strong
prima facie case that he is of sufficiently
good moral character to be admitted to the
practice of law in California.
[***28] The State Bar, on the other hand, fails to
rebut either petitioner's showing of
rehabilitation or his
prima facie case. Accordingly, we order
[*1075] petitioner admitted to the California Bar. This holding is consistent with
our charge to protect the public and its confidence in the
legal profession rather than to impose punishment. (Gary v. State Bar (1988) 44 Cal.3d 820, 827 [244 Cal.Rptr. 482, 749 P.2d 1336].) The State Bar has presented no evidence that petitioner is now a danger to the
public in the
practice of law or that he does not merit public confidence.
It is ordered that the Committee of Bar Examiners
certify petitioner Richard E. Kwasnik to this court as a person qualified to be
admitted to practice law.
This order is effective upon finality of this decision in this court. (See
Cal. Rules of Court, rule 24(a).)
CONCURBY: KENNARD; ARABIAN
CONCUR: KENNARD, J.
I concur in the decision to
admit petitioner Richard E. Kwasnik to the
practice of law in California. In determining whether an applicant has the
good moral character required of attorneys in this state, we are constrained by past decisions of
this court, as the majority correctly notes, to focus primarily on the
applicant's
[***29] conduct during the recent past. By submitting evidence of his admission to
practice in New York and Florida and several letters from lawyers and judges
attesting to his moral fitness, petitioner has made a
prima facie case that he possesses
good moral character (see
Greene v. Committee of Bar Examiners (1971) 4 Cal.3d 189, 192 [93 Cal.Rptr. 24, 480 P.2d 976]), and his behavior during the past five to eight years, as disclosed by the
record before us, does not sufficiently establish a
present lack of
good moral character.
Nonetheless, it bears emphasis that petitioner's conduct during an earlier
period of his life displayed a marked lack of those qualities of fairness,
candor, and trustworthiness required of members of the
legal profession. I write separately to emphasize this fact, lest our decision be misinterpreted
as condoning petitioner's earlier behavior or as abdicating our responsibility
to ensure that only those attorneys possessed of sound
moral character be permitted to
practice law in this state.
To qualify for admission to the
practice of law in California, an attorney admitted to practice in another state must be
"of
good moral character." (Bus.
& Prof. Code,
[***30]
§ 6062, subd. (b).) This requirement applies also to nonlawyer applicants. (Id.,
§ 6060, subd. (b).) In admission proceedings, the fundamental question is
generally considered to be whether the applicant
"has committed or is likely to continue to commit acts of
moral turpitude." (Hightower v. State Bar (1983) 34 Cal.3d 150, 157 [193 Cal.Rptr. 153, 666 P.2d 10]; see also, Bus.
& Prof. Code,
§ 481;
Konigsberg v. State Bar (1957) 353 U.S. 252, 263 [1 L.Ed.2d 810, 819-820, 77 S.Ct. 722].) This statement
[*1076] aptly describes the practical limits of our inquiry, but unfortunately it
conveys a mistaken impression of the
moral character requirement.
The term
"good moral character" embraces much more than the absence of demonstrated wrongful acts. n1 The
State Bar's Rules Regulating Admission to
Practice Law provide this definition:
"The term
good moral character' includes qualities of honesty, fairness,
candor, trustworthiness,
[**329]
observance of fiduciary responsibility, knowledge of the laws of the state and
the nation and respect for the rights of
others and for the judicial process." (Rules Regulating Admission to
Practice Law, rule X,
§ 101(a).) More than 30 years
[***31] ago, United States Supreme Court Justice Felix Frankfurter gave this eloquent
description of
moral character and its specific importance to the
legal profession:
"[All] the interests of man that are comprised under the constitutional
guarantees given to life, liberty and property' are in the professional keeping
of lawyers. It is a fair characterization of the lawyer's responsibility in
our society that he stands as a shield,' to quote Devlin, J., in defense of
right and to ward off wrong. From a profession charged with such
responsibilities 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 (1957) 353 U.S. 232, 247 [1 L.Ed.2d 796, 806, 77 S.Ct. 752, 64 A.L.R.2d 288] (conc. opn. of Frankfurter, J.).)
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 As one commentator has written:
"To many lawyers, ethical rules are like road signs: not models of good behavior
to emulate, but signposts of how much misbehavior is tolerable. The purpose of
drawing a line in the sand has been to see how close one can come without
stepping over it. This stepping over the line' mentality continues to color
character and ethical assessments. Prospective lawyers learn where the line is
and how close to come to it. Character determinations now assess more social
conformity than moral integrity. The end result is the inculcation of the
widespread minimum morality of how much can I get away with.' In lieu of this
morality of minimal duty, the
legal profession needs more uplifting standards of character to inculcate soul' rather than
merely toeing the mark." (Gerber, Lawyers, Courts, and Professionalism: The Agenda for Reform (1989) p.
69.)
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***32]
This is the standard against which petitioner's conduct is to be measured. The
record discloses the following facts bearing upon the issue under consideration.
Driving while intoxicated, petitioner was involved in an automobile accident in
which Steven Smilanich was killed. The accident occurred in New York State,
where petitioner resided and practiced law; it occurred in 1970, some three
years after petitioner had begun his legal career. Smilanich's widow and three
children brought a
wrongful death action in which it was determined that petitioner's negligence had caused
Smilanich's death. Judgment in the amount of $ 232,234 was entered against
petitioner in July 1974.
[*1077] Petitioner's insurer paid the
policy limit of $ 10,000, leaving an unpaid balance of over $ 220,000.
Petitioner paid nothing on the judgment until the following year when he was
served with a notice of levy. Petitioner then made biweekly payments of $ 42,
the minimum required under New York law to avoid wage garnishment. At a
postjudgment debtor examination in 1979,
petitioner testified falsely that he did not have a joint interest in any checking accounts.
Although he earned at least $ 100,000
[***33] between 1975 and January 1980 and lived rent-free in a home owned by his
mother, petitioner paid only $ 4,685 toward the judgment during this time.
In June 1979, petitioner applied for admission to the Florida bar. In response
to an inquiry by the Florida Board of Bar Examiners, petitioner falsely
represented that he had paid $ 1,200 per year toward the $ 232,234
wrongful death judgment. On January 31, 1980, petitioner sent a letter to the attorney
representing Smilanich's widow and children. In the letter petitioner said he
was taking a leave of absence from his New York employment, would contact the
attorney upon his return, and would notify the attorney if he were to relocate
elsewhere. In fact, petitioner had already accepted employment in Florida and
moved there the following month. Petitioner made no effort to give his Florida
address to the attorney representing the widow and children. By moving to
Florida, petitioner avoided the threat of wage garnishment, which is not
permitted under Florida law. With his wages safe from garnishment, petitioner
made no further payments on the
wrongful death judgment. In late 1980, petitioner was
denied admission to practice in Florida,
[***34] based on the finding by the Florida Board of Bar Examiners that petitioner had
engaged in a
"pattern of
conduct and practice, consisting of both outright misrepresentations of fact
and shaded representations, calculated to avoid payment of any substantial sum
on the judgment against him."
I interrupt the narrative here to express my agreement with the decision
initially denying petitioner admission to the Florida bar. Petitioner's
conduct demonstrated indifference to the moral and legal responsibilities he
owed to the widow and children of the man killed by his negligence. Had
petitioner applied for admission to practice in this state, the record as it
existed at that time would have amply supported the conclusion that he lacked
the requisite
good
[**330]
moral character. (See generally, Annot., Failure to Pay Creditors as Affecting Applicant's
Moral Character for Purposes of Admission to the Bar (1981)
4 A.L.R.4th 436.)
Petitioner offered $ 15,000 to settle the
wrongful death judgment, which then had an outstanding balance in excess of $ 220,000. In
November 1980, following the rejection of this offer, petitioner filed
for bankruptcy. The
wrongful death judgment was
discharged in the
[***35] bankruptcy proceeding in
[*1078] March 1981. Petitioner then sought reevaluation of the decision denying him
admission to the Florida Bar. When this petition reached the Florida Supreme
Court in 1987, the court concluded that the only relevant consideration was
whether petitioner could be
denied admission based on his
failure to pay the
wrongful death judgment, or the underlying
moral obligation it embodied, after the debt was
discharged in bankruptcy. The court held that petitioner still owed a
moral obligation to Smilanich's family, n2 but that consideration of this
moral obligation after discharge of the legal debt in bankruptcy
"would require the making of such subtle distinctions that no satisfactory rule
could be devised." (Florida Bd. of Bar Examiners Re:
Kwasnik (Fla. 1987) 508 So.2d 338, 339.) Accordingly, the court held that petitioner could not be
denied admission to practice.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Petitioner testified in the Florida proceedings in 1986 that he recognized a
continuing
moral obligation despite discharge of the legal obligation in bankruptcy. In the proceedings
in this state, however, petitioner stated he has no
moral obligation to pay anything on the
wrongful death judgment. In his words,
"[there] is no difference between the law and morals."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***36]
The effect of the bankruptcy on the determination of
moral character requires some explanation, but I do not propose a detailed treatment of the
topic in this concurring opinion. Briefly stated, once a debt has been
discharged, neither the debtor's action in seeking and obtaining the discharge nor the
failure to subsequently pay the debt may be used to deny admission to
practice law (see
11 U.S.C. § 525(a)); however, the discharge does not insulate from scrutiny the debtor's
conduct before the commencement of the bankruptcy proceeding (see
Application of Taylor (1982) 293 Ore. 285 [647 P.2d 462, 465-467];
Application of Gahan (Minn. 1979) 279 N.W.2d 826, 829-832 [4 A.L.R.4th 426]). Thus, the debtor's failure to make good faith efforts to pay the debt over a
period of years, accompanied by a pattern of conduct apparently designed to
mislead the creditor and make enforcement more difficult, would support a
conclusion that the debtor lacks
good moral character.
In the present proceeding, the
Review Department of the State Bar properly considered petitioner's predischarge conduct and
correctly concluded that it demonstrated lack of
good moral character. But nine years have
[***37] passed since the bankruptcy discharge, and the question that must now be
considered is whether petitioner's subsequent conduct sufficiently shows
rehabilitation. (See
Pacheco v. State Bar (1987) 43 Cal.3d 1041, 1051, 1057 [239 Cal.Rptr. 897, 741 P.2d 1138].) To encourage moral reformation, bar applicants whose recent conduct is free of
reproach are ordinarily rewarded with the opportunity to serve in the
legal profession. (Hightower v. State Bar, supra, 34 Cal.3d 150, 157.)
[*1079] Although there is some evidence that petitioner continues to be deficient in
the frankness and
candor required of an attorney, n3 this evidence is insufficient to overcome
petitioner's
prima facie case. We have accorded great weight to the opinions of attorneys and judges
regarding an applicant's moral
fitness to practice law. (Pacheco v. State Bar, supra, 43 Cal.3d at p. 1053.) Here petitioner produced an abundance of such evidence, which we are not at
liberty to disregard. Also, petitioner has practiced law in New York and
Florida for over 20 years without
being the subject of disciplinary
[**331]
proceedings. While the issue of petitioner's present
moral character is not entirely
[***38] free from doubt, all reasonable doubts in admission proceedings are to be
resolved in the applicant's favor. (Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 451 [55 Cal.Rptr. 228, 421 P.2d 76].)
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 On his application for admission to practice in California, petitioner
represented that he had left two jobs for
"other employment" when in fact his employment had been terminated. When asked about this during
the hearing,
petitioner testified that he had used the misleading language because
"[it] looks better."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
For these reasons, I concur in the decision to
admit petitioner to the
practice of law in California.
ARABIAN, J.
I concur in the order to
certify petitioner's admission to the
practice of law in California, and
in the views expressed in the opinion of Justice Kennard. I write separately,
however, to emphasize the limited basis upon which that concurrence takes
place, and to express my disagreement with certain aspects of the court's
opinion.
In my view, the review department's recommendation
[***39] denying certification was not, as suggested in the court's opinion, based
"solely" on the
discharged judgment. Rather, it appears the recommendation was based on the review
department's assessment of petitioner's sustained pattern of
misconduct, involving multiple acts of
dishonesty and evasion. However, in view of the relative remoteness of petitioner's past
acts of
moral turpitude and giving the benefit of the doubt to petitioner (Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 451 [55 Cal.Rptr. 228, 421 P.2d 76]), I agree the State Bar's presentation was insufficient to
rebut petitioner's evidence of his present good
character and
rehabilitation.
Facts
A brief recitation of the facts is sufficient to demonstrate the pattern of
petitioner's conduct.
The record indicates: (1) Petitioner unjustifiably caused the death of another
in 1970 by his drunken driving, for which a judgment against him
[*1080] was rendered, in 1974, for over $ 232,000. Petitioner tendered his policy
limits of $ 10,000 on that judgment. (2) Petitioner made no payments on the
balance of the judgment until 1975 when, under threat of wage garnishment, he
began making the minimum payments
[***40] required to avoid garnishment, approximately $ 42 every two weeks. (3) From
1975 to 1980, he paid only $ 4,685 on this obligation. During the same period
of time, petitioner earned between $ 15,000 and $ 32,000 annually, totalling at
least $ 100,000, n1 while living rent-free and putting his wife through five
years of college. (4) When petitioner was deposed
in postjudgment debtor proceedings in 1979, he testified falsely that he did
not have any joint bank accounts with his wife. (5) In 1980, petitioner
misrepresented to the victims' attorney that he was taking a leave of absence
from his job and would contact the attorney on his return, or notify him if he
settled permanently elsewhere, and attempt to settle the case. In fact,
petitioner had already accepted a job in another state, with the intent of
making his permanent home there, and never made any attempt to contact the
victims' attorney or inform the attorney of his whereabouts. (6) In 1979,
petitioner applied for admission to the Florida State Bar. He represented on
his application that the $ 10,000 automobile insurance policy was the only
asset he had available to pay the judgment. The record indicates that in fact
[***41] other assets were available. (7) Petitioner represented in an amended
application to the Florida State Bar in February 1980 that he had paid
approximately $
1,200 per year on the judgment. Petitioner actually paid as much as $ 1,200
only in 1979 and paid significantly less in other years. (8) Petitioner
represented in the amended application in February 1980 that he fully intended
to continue all payments on the judgment in the future. Yet, on May 9, 1980,
petitioner testified that he had stopped payment upon moving to Florida
[**332]
three and one half months earlier, that is, in approximately February 1980.
In addition,
petitioner testified he stopped paying, not because of any inability to pay, but because his wages
were not subject to garnishment under Florida law. He was at that time earning
approximately $ 27,000 per year. (9) At a 1986
rehabilitation hearing before the Florida State Bar, petitioner was found to be less than
candid, and could not satisfactorily explain why title to his New York home was
held in his wife's
name only.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Overall, petitioner paid about 4.6 percent of his income on the obligation
during these five years. Petitioner failed to make even the $ 42 minimum
payments on the obligation in at least three of the five years, and never
increased his payments although he received raises in income during that time.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***42]
DISCUSSION
The enumerated matters are serious, involving
moral turpitude, and if committed by a member of the State Bar would constitute a statutory
ground for disbarment. (Bus.
& Prof. Code,
§ 6106.) Moreover, contrary to
[*1081] the intimation of the court's opinion (maj. opn.,
ante, pp. 1069-1070, 1072-1074), none of these considerations impinges improperly
on the prophylactic purposes of the
Bankruptcy Act. All relate to petitioner's conduct connected to the debt while it was valid
and legal, before it was
discharged in bankruptcy, or to ancillary matters in which he
showed a pattern of deception, evasion and falsehood.
Nor do I necessarily agree that the
misconduct is unrelated to petitioner's
practice of law. n2 (See maj. opn.,
ante, pp. 1069, 1073.) Petitioner's
misconduct involved a personal lawsuit, in which he testified falsely, made
misrepresentations to opposing counsel, and failed to comply with the lawful
judgment of the court. The
misconduct also occurred in connection with petitioner's application for admission as an
attorney in another jurisdiction, in which he made a number of
misrepresentations and displayed a lack of
candor at his
"rehabilitation"
[***43] hearing.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Most candidates for admission to the State Bar have not previously practiced
law. In my view, we do not regard
misconduct evidencing
moral turpitude as any less important because it did not occur in the candidate's
practice of law.
In re Kreamer (1975) 14 Cal.3d 524, 531 [121 Cal.Rptr. 600, 535 P.2d 728], does not establish such a lesser value for evidence of
moral turpitude not actually committed in the
practice of law. Rather, we were there evaluating the mitigating circumstances in disciplining
an attorney who was already a member of the State Bar.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Nevertheless, as the court's opinion points out, most of these matters occurred
in 1980 or earlier. Petitioner has established a
prima facie case of his present
good moral character. He introduced 15 character letters and testified that all but 3 of the
references knew of his
wrongful death judgment, subsequent bankruptcy, and Florida State Bar proceedings. n3 He has
never been the subject of a disciplinary proceeding in New York in 20 years of
practice.
[***44] Much of that practice was devoted to representation of indigent criminal
defendants. He practiced competently in that
capacity and gained a reputation among his colleagues and among the judges in
whose courts he appeared for diligence, honesty and integrity. He volunteered
to serve in a unit handling the most difficult cases, and he spent time
training and advising younger attorneys. n4 In addition, petitioner
successfully fulfilled his duties as trustee of a $ 400,000 trust for his
paraplegic cousin. He has also demonstrated a greater financial responsibility
for the future by obtaining adequate liability insurance.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 None of the letters, however, makes specific reference to knowledge of these
facts.
n4 It was brought out, however, at the 1986 Florida State Bar
rehabilitation hearing that there were four attorneys of petitioner's level of experience in
petitioner's department, and all four attorneys undertook, even though not
expressly required by their job description, to train and counsel less
experienced attorneys.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***45]
Petitioner has not maintained an entirely unblemished record since the
discharge in bankruptcy. He was specifically found to be evasive and to lack
[*1082]
candor in regard to certain responses at his 1986 Florida State Bar
rehabilitation hearing. This factor, however, while disturbing in light of his past
misconduct, is not of itself sufficiently egregious to
rebut his showing of present
good moral character and his honesty and integrity in the 20 years that he practiced
[**333]
law in New York. n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 I take issue with the court's statement (maj. opn.,
ante, p. 1071) that independent review of the record does not indicate that
petitioner was anything but candid in the California admission proceedings. My
independent review of the record reveals, although the matter was not made the
subject of findings, that petitioner represented on his application for
admission that he left two jobs for the reason of
"other
employment" when in fact he had been terminated from those jobs and had not yet secured
new employment. Petitioner testified at his 1988
review department hearing that he chose to use the language
"other employment" as the reason for leaving those jobs because
"It looks better."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***46]
As the record demonstrates, the State Bar here did
not rely solely on petitioner's
discharge in bankruptcy of the
wrongful death judgment in recommending that petitioner not be admitted to the bar. However,
I agree with the court's opinion that the evidentiary significance of
petitioner's
misconduct may have been attenuated by the passage of time. (See
Pacheco v. State Bar (1987) 43 Cal.3d 1041, 1051 [239 Cal.Rptr. 897, 741 P.2d 1138].)
Accordingly, I would hold that the State Bar's evidence in rebuttal is not
sufficient to demonstrate petitioner's present lack of
good moral character, and I concur
in the order for petitioner's admission to
practice law in California.
DISSENTBY: LUCAS
DISSENT: LUCAS, C.J.
I dissent. Petitioner's conduct in relation to the
wrongful death judgment against him, during proceedings before the Florida bar, and in the
course of these proceedings indicates fundamental defects in
moral character that warrant refusal to
admit him to the
practice of law in California. By focusing on each incident of petitioner's
misconduct in isolation, the majority misses the larger picture. In the process, it
misinterprets federal bankruptcy law and reaches a result contrary
[***47] to our precedents.
It is useful to note at the outset what this case is
not about. It is not about whether petitioner should be held to blame for the
consequences of his
drunk driving in 1970. It is not about his moral or legal right to avail himself of the
bankruptcy laws. Finally, it is not about whether we
"condone" his
misconduct. Except insofar as petitioner's
fitness
to practice law is concerned, none of these questions is ours to answer. By losing sight of
this
fact, the majority fails to focus properly on the
misconduct that
is relevant to petitioner's fitness to practice: a continuing pattern of
dishonesty, lack of
candor, and evasion of legal and moral duties.
[*1083] Rather than reiterate the facts, which I leave to the concurring opinions of
Justices Arabian (see Arabian, J.,
ante, conc. opn. at p. 1082, fn. 5) and Kennard (see Kennard, J.,
ante, conc. opn. at p. 1079, fn. 3), I will focus on two shortcomings that pervade
the majority opinion. First, I submit that its resolution of the legal issues
raised by petitioner's
discharge in bankruptcy is incorrect and inconsistent with our precedents. It should by now be beyond
question that, in considering
[***48] a person's moral
fitness to practice law, we may take into account the implications of the discharge of a debt,
particularly when accompanied by
misconduct suggesting that the debtor lacks awareness of the
moral implications of his wrongs. Second, I do not agree that petitioner's
conduct over the past decade either indicates
good moral character on its face or is so probative of
rehabilitation from prior
misconduct that his admission to the
practice of law is warranted at this time.
A.
Federal Law Does Not Prohibit Consideration of Petitioner's Bankruptcy and
Accompanying
Misconduct
As the majority notes, a
governmental unit may not deny a license to a person
"solely because" he
"has not paid a debt that . . . was
discharged under the
Bankruptcy Act."
(11 U.S.C. § 525(a) (hereafter section 525(a).) For two reasons, I disagree with the majority's
conclusion that refusing to
certify petitioner on the evidence presented would violate this principle. (See maj.
opn.,
ante, p. 1070.)
[**334]
First, as Justice Arabian points out, petitioner has committed numerous acts
indicating fundamental disregard for the
suffering of others and basic
dishonesty in dealing with the consequences of
[***49] his actions. (See Arabian, J.,
ante, conc. opn. at p. 1080.) These acts involve
"moral turpitude,
dishonesty, or corruption" that would justify discipline if petitioner were already a member of the bar
(Bus.
& Prof. Code,
§ 6106), irrespective of and in addition to the discharge itself and the unlawful act
giving rise to the debt. Denying him admission to the
practice of law would be justified by this overarching pattern of abuse, not his
failure to pay a
discharged debt. Certainly it would not be
"solely because" of the discharge. Thus, contrary to the majority's holding, the
antidiscrimination rationale of section 525(a) is not implicated in this case,
and no supremacy clause issue is presented.
Second, even if the sole issue in this case were petitioner's
failure to pay a debt
discharged in bankruptcy, our decisions make clear that section 525(a) does
not foreclose consideration of the continuing indebtedness as an
indicator of lack of
rehabilitation from prior defects in moral judgment. This is the central teaching of
Brookman v. State Bar (1988) 46 Cal.3d 1004 [251 Cal.Rptr. 495, 760 P.2d 1023], and
Hippard v. State Bar (1989) 49 Cal.3d 1084
[*1084]
[***50] [264 Cal.Rptr. 684, 782 P.2d 1140]. The majority attempts to distinguish these cases. I submit neither is
distinguishable in any principled manner.
In
Brookman, we held that section 525(a) does not prohibit the state from requiring an
attorney to make
restitution of a
discharged debt as a condition of disciplinary probation. (Brookman, supra, 46 Cal.3d at p. 1009.) It is true, as the majority here points out, that
Brookman, unlike this case, involved a debt owed
"as the result of
professional
misconduct" to a
governmental unit rather than the victim of such
misconduct. (See maj. opn.,
ante, pp. 1073-1074.) Neither the source of the debt nor the identity of the
creditor, however, is material to the primary reason why we there upheld the
restitution condition:
"Such
restitution is not imposed solely because' the attorney has failed to pay a debt
discharged in bankruptcy; instead, it is imposed to protect the public and to help
rehabilitate the State Bar member." (Brookman, supra, 46 Cal.3d at p. 1008.) Whether or not the debt stems directly from
professional misconduct or is owed to a
governmental unit,
Brookman holds that we may consider its payment as
[***51] an
indicator of remorse and
rehabilitation. n1 Because petitioner's
rehabilitation from a course of dishonest and evasive behavior is certainly at issue in this
case, we would not violate section 525(a) by considering petitioner's
failure to pay his debt.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Indeed, to hold that section 525(a) forecloses consideration of nonpayment of a
discharged debt unless the debt is owed as a result of
professional misconduct would make little sense. The pertinent inquiry in these proceedings is simply
whether the debt (or its discharge) flows from or is evidence of some conduct
indicating
moral turpitude. Even in disciplinary cases (as opposed to ones involving admission to the
bar), we have never suggested that acts involving
moral turpitude are insulated from scrutiny by the bar if they were not committed in the
course of professional conduct. Indeed, a California statute expressly states
that acts involving
"moral turpitude,
dishonesty, or corruption, whether . . . committed in the course of his relations as an
attorney or otherwise," constitute grounds for an attorney's disbarment or suspension. (See Bus.
& Prof. Code,
§ 6106.) I doubt the majority intends to suggest that a person can circumvent
professional discipline or inquiry into his
good moral character
by filing for discharge of a debt resulting from acts of
moral turpitude in a nonlegal capacity. Unfortunately, its reasoning effectively achieves
this result.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***52]
If the majority acknowledged this fact, it would also recognize that
petitioner's discharge of and subsequent
failure to pay his debt is highly relevant as an
indicator of his lack of integrity in matters bearing intimately on his legal dealings.
While testifying during these proceedings, petitioner contended that the
discharge eliminated not only his legal obligation to repay his victims, but
also his
moral obligation to do so. His utter lack of remorse, combined with
[**335]
his continuing pattern of evasion and
dishonesty over a 10-year period, warrants our refusal to
admit him to
practice law.
In
Hippard, supra, 49 Cal.3d 1084, we held that discharge of a debt may be considered as an
indicator of
rehabilitation in a reinstatement proceeding
[*1085] even though the petitioner acknowledged the
discharge did not remove his
moral obligation to repay his victims. (Hippard, supra, 49 Cal.3d at pp. 1090, 1095.) As
Hippard instructs,
"Restitution is to be considered as a factor in the overall factual showing made by the
individual seeking reinstatement. The weight that should be attached to
whether
restitution has been undertaken in whole or in part is dependent upon the applicant's
[***53] ability to restore the misappropriated funds as well as the attitude expressed
regarding the matter . . . . In this context, the significance of
restitution is its probative value as an
indicator of
rehabilitation, not the repayment of the underlying indebtedness." (Id. at p. 1093; see also
Brookman, supra, 46 Cal.3d at p. 1009.)
When viewed in this context, petitioner's
failure to pay his debt or acknowledge any continuing
moral obligation is highly probative. As the evidence indicates, not only does petitioner
possess the means to pay at least part of his debt, his attitude regarding the
matter as
a whole is hardly exemplary. His testimony that he no longer has any
moral obligation to the victims of his
drunk driving is but the latest
indicator of his failure to
"confront, in concrete terms, the harms his actions have caused." (Kelly v. Robinson (1986) 479 U.S. 36, 49, fn. 10 [93 L.Ed.2d 216, 228, 107 S.Ct. 353].) This failure, along with his recurrent
dishonesty, warrants our refusal to
admit petitioner to the
practice of law.
The majority also errs in attempting to distinguish this case from
Brookman and
Hippard on the ground that here petitioner's debt
[***54] is
"the result of an isolated 20-year-old
drunk driving incident" rather than
professional misconduct, and therefore is irrelevant to the State Bar's interest in protecting the
public from further
misconduct. (See maj. opn.,
ante, p. 1074.) The origin of the debt should not be our focus here. Certainly it
was not in either
Brookman or
Hippard. As these cases
implicitly recognize, such a focus would convert the protection of section
525(a) into something much broader than was undoubtedly intended by Congress.
(See
ante, p. 1084, fn. 1.) The question is simply whether petitioner's course of
conduct in the years
following his
drunk driving -- not the
drunk driving itself, or the judgment resulting therefrom -- indicates lack of
good moral character. Section 525(a) is irrelevant to this inquiry.
The majority here does not suggest that
Brookman and
Hippard were wrongly decided. By limiting them to their facts, however, it
necessarily and without reason undermines their holdings. Instead, we should
reaffirm that nothing in section 525(a) limits consideration of petitioner's
failure to pay his
discharged debt as one
indicator -- among many -- of his poor
[***55]
moral character. Following our precedents, we should refuse to
admit petitioner to the bar.
[*1086] B.
The Evidence, Viewed as a Whole, Indicates Lack of Both Present
Good
Moral Character and
Rehabilitation From Past Wrongs
The majority concludes that petitioner has shown a
prima facie case of present
good moral character (and necessarily of
rehabilitation from prior acts indicating
moral turpitude) (see maj. opn.,
ante, p. 1068), and that the State Bar fails to show otherwise. I disagree with
both conclusions.
The majority's finding that petitioner has fulfilled his burden of showing
rehabilitation rests on four factors. First, petitioner has introduced 15 letters from
lawyers, judges, and a pastor attesting to his character. Second, he has
practiced law in New York for over 20 years without any disciplinary record.
Third, he has acted diligently in his capacities as an attorney and trustee
[**336]
of a trust established for his paraplegic cousin. Fourth, the Florida Supreme
Court admitted him to the
practice of law in 1987. (See maj. opn.,
ante, pp.
1068-1069.) Although at least the first three of these factors carry some
weight in evidence of petitioner's
good moral
[***56] character, I do not believe they are as persuasive as the majority indicates. Similar,
if not stronger, evidence of
rehabilitation was presented in
Hippard, supra, 49 Cal.3d at page 1090, in which we refused to reinstate the petitioner to the
practice of law despite, inter alia, 27 letters on his behalf and the lapse of 10 years
following his
misconduct. In my view, petitioner's evidence similarly does not prove
good moral character in this case.
The amount of evidence of
rehabilitation required to justify admission varies according to the seriousness of the
misconduct at issue. In this respect, the majority gives insufficient consideration to
the severity and recurrent nature of petitioner's
misconduct, which extended into these very proceedings. In part, this shortcoming results
from its preliminary observation that because petitioner's
misconduct is
"not in any way
related to [the]
practice of law," we should accord it
"less weight than we would
professional misconduct in evaluating his moral fitness for admission to the bar." (See maj. opn.,
ante, p. 1069.) As Justice Arabian points out, this assumption is unwarranted and
illogical. (See Arabian, J.,
ante, conc.
[***57] opn. at p. 1081, fn. 2.)
We have never suggested that the probative value of
misconduct involving
moral turpitude or
dishonesty varies according to whether it occurs in the
practice of law. Indeed, as noted above (see
ante, p. 1084, fn. 1), California law provides exactly the contrary. (See Bus.
& Prof. Code,
§ 6106.) Thus, if petitioner has engaged in acts involving
dishonesty (as the majority at least tacitly recognizes by focusing its discussion on
petitioner's
"rehabilitation"), it should make little difference whether or not those acts involved the
practice of law. This should be particularly true in admission
proceedings,
[*1087] in which most persons in petitioner's position have no legal experience to be
assessed.
Moreover, the majority's assumption that petitioner's
misconduct is in fact not
"related to the
practice of law" is far from warranted. It is undeniably true that
drunk driving, or filing for discharge of a debt, is not necessarily related to the
practice of law. Petitioner's
drunk driving and ensuing bankruptcy, however, are not the
misconduct alleged in this case. Rather, the true issue is petitioner's
dishonesty and disrespect for the legal process.
[***58] His repeated intentional misrepresentations -- false testimony in a 1972
deposition, false statements in a 1980 application for admission in Florida,
false statements to an opposing attorney in 1980, misleading descriptions in
his 1985 California bar application, and lack of
candor in a 1986 Florida
rehabilitation hearing -- are unquestionably
"related to the
practice of
law." By suggesting otherwise, the majority mischaracterizes their relevance to
these proceedings and colors its discussion of their severity.
It is true, as Justice Arabian notes, that most of petitioner's
misconduct occurred relatively long ago. Although for this reason the case is a close
one, in my view the
misconduct is not remote enough to warrant a conclusion that he should be admitted to
practice.
The ultimate issue in these proceedings is whether we have faith, based on the
evidence before us, that petitioner will uphold the duties of attorney -- that
he will conduct his professional affairs with integrity and in an honest manner
that will inspire public confidence in the profession. I cannot conclude he
will. Within the past five years, petitioner has repeatedly made
misrepresentations indicating failure
[***59] to come to grips with his past. These misrepresentations concern not only the
wrongful death judgment against him, but also matters such as his past employment and the
reasons for termination thereof.
In addition, petitioner has at no time during these proceedings indicated the
sort of remorse for his past
misconduct that inspires the
[**337]
confidence in his moral fitness we should here require. For these reasons, I
would deny petitioner admission to
practice law in California.
