Florida Board of Bar Examiners Re: Richard Elliot Kwasnik
No. 63,323
Supreme Court of Florida
508 So. 2d 338;
1987 Fla. LEXIS 1944;
12 Fla. Law W. 295
June 11, 1987
COUNSEL:
[**1]
Richard Elliot Kwasnik, in proper person, for Petitioner.
Eli H. Subin, Chairman, John H. Moore, Executive Director and Thomas A.
Pobjecky, General Counsel, for Florida Board of Bar Examiners, Respondent.
JUDGES: Grimes, J. McDonald, C.J., and Overton, Ehrlich, Shaw, Barkett and Kogan,
JJ., concur.
OPINIONBY: GRIMES
OPINION:
[*338] Richard Elliott Kwasnik applied for admission to The Florida Bar on June 7,
1979. Following a
formal hearing, the Board of Bar Examiners issued findings of fact and conclusions of law
which stated that Kwasnik
failed to meet the standards of conduct and
fitness required for admission to the Bar. Kwasnik's petition for review of the
findings and conclusions of the Board was denied by this Court on February 19,
1981. Kwasnik filed a petition seeking reevaluation on March 1, 1983, but
failed to pay the court-ordered $ 1,000 cost deposit until April 22, 1986.
Thereafter, a formal
rehabilitation hearing was held on November 14, 1986. Following this hearing, a report was
issued on January 21, 1987, in which the Board once again
recommended that Kwasnik not be admitted to The Florida Bar. Kwasnik has now filed a
petition
for review of that report.
Kwasnik's problems
[**2] originated when he caused the death of another in an automobile accident while
driving in an intoxicated condition. As a result of the accident, a
civil judgment of $ 200,000 was entered against him in 1974. His liability insurance was
sufficient to pay only $ 10,000 of the judgment. He declared bankruptcy in 1980
and was legally exonerated of his judgment obligations. The bases for the
Board's original recommendation against him were threefold:
(1) In a deposition taken in aid of execution of the judgment, Kwasnik
testified falsely that he did not have a joint interest with his wife in any
checking account.
[*339] (2) He filed a misleading amendment to his application which stated that he
had paid approximately $ 1,200 per year towards the judgment when in fact his
payments during the preceding six years, all of which were the result of
garnishment, totalled only $ 4,685.
(3) Even though he was earning
a
salary of $ 27,000 per year, he had made no effort to make any voluntary payments
toward the judgment.
According to article III, section 4(e), of the Supreme Court Rules Relating to
Admissions to the Bar, an applicant who asserts
rehabilitation from prior conduct is required
[**3] to produce clear and convincing evidence of such
rehabilitation, including, but not limited to, certain
enumerated elements. In its recent report, the Board concluded that Kwasnik had
failed to meet two of the
enumerated requirements. The first of these was:
5. Personal assurances, supported by corroborating evidence, of a desire and
intention to conduct one's self in an
exemplary fashion in the future.
The Board concluded that even though Kwasnik and his wife had a combined annual
income of $ 90,000 and own a home with an equity of $ 225,000, he had failed to
accept responsibility for his continuing
moral obligation to the
decedent's family. Recognizing that Kwasnik
no longer had any legal obligation to pay the judgment, the Board nevertheless
observed that he had not taken any steps to fulfill his
moral obligation since the
formal hearing in 1980. The report stated:
Based upon the testimony of the applicant as quoted above, the Board finds that
the applicant will continue to refuse to accept responsibility for his
continuing
moral obligation unless motivated by a third party. The Board does not take the position that
the
civil judgment, or even the original
[**4]
settlement offer of 15,000, * needs to be fully satisfied before the applicant should be
recommended for admission, but rather finds that the applicant's attention to this matter
has been -- and apparently will continue to be -- nonexistent. Willful and
continuing disregard of a serious
moral obligation is simply not
exemplary conduct.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
* Kwasnik had made a pre-bankruptcy
settlement offer of $ 15,000 which was rejected by the attorney for the
decedent's
estate.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The effect of a voluntary bankruptcy upon an applicant's
fitness for admission to practice law has been a vexing problem. In
Florida Board of Bar Examiners Re:
G.W.L., 364 So.2d 454 (Fla. 1978), and
Florida Board of Bar Examiners Re:
Groot, 365 So.2d 164 (Fla. 1978), the Court stated that the act of filing for bankruptcy, standing by itself,
did not constitute sufficient cause to deny admission to The Florida Bar. The
Court reasoned, however, that the
circumstances surrounding the decision to file for bankruptcy may demonstrate a lack
[**5] of good moral character sufficient to deny admission.
The foregoing cases do not control the issue before us because they dealt with
the
circumstances surrounding the declaring of bankruptcy, and Kwasnik has already been denied admission in
part for just such circumstances. The question here is whether following
bankruptcy he should be refused admission
for not having made any effort to provide assistance to the family of the
decedent, even though he was not legally obligated to do so. Given the fact that our
bankruptcy laws are designed to provide a fresh start for those who are
overburdened with debt, we cannot say that the subsequent failure to make
payments on the discharged debts may be considered as a basis to deny admission
to the practice of law. We recognize that Kwasnik may have continuing moral
obligations to the family of the man he negligently killed, but to permit such
considerations in a petition for admission to the Bar would require the making
of such subtle distinctions that no satisfactory rule could be devised.
While it is evident that the Board's major concern focused upon his response to
the $ 200,000 judgment, the Board also found
[*340] Kwasnik wanting
[**6] with respect to a second
enumerated requirement:
7. Positive action showing
rehabilitation by such things as a person's occupation, religion, community or civic
service. Merely showing that an individual is now living as and doing those
things he or she should have done throughout life, although necessary to prove
rehabilitation, does not prove that the individual has undertaken a useful and constructive
place in society. The requirement of positive action is appropriate for
applicants for admission to the bar because service to one's community is an
implied obligation of members of the bar.
Kwasnik has been working for the New York Legal Aid Society ever since his
original application was denied. While he is paid an annual
salary of $ 53,000 for his services, the record reflects that he is a competent
lawyer who is working in a community whose major law firms offer new associates
annual
salaries of $ 65,000. Kwasnik is one of four staff attorneys who have volunteered to
work in a unit to handle the legal aid society's most serious criminal cases.
The attorney in charge reported that
Kwasnik had done an exceptional job and that his
"action in volunteering for this
[**7] assignment is far beyond the job description for an attorney in this office." He also spends much of his free time in the training of less experienced
attorneys. During a strike in 1982, Kwasnik declined to leave his job because
of a sense of obligation not to abandon his clients. The Board itself
recognized that since the date of his previous hearing, Kwasnik has otherwise
led an
exemplary life. Under the circumstances, we conclude that Kwasnik has demonstrated
sufficient
rehabilitation as to qualify for admission.
While we now hold that Kwasnik meets the character requirements for admission
to the Bar, it has been more than eight years since his successful completion
of the Bar examination. In the meantime he has been living in New York, and
there is no indication that he has kept abreast of Florida law. Therefore,
before Kwasnik can be admitted to practice law in
Florida, he must once again successfully pass the Florida Bar examination.
It is so ordered.
McDONALD, C.J., and OVERTON, EHRLICH, SHAW, BARKETT and KOGAN, JJ., concur.
