In the Matter of the Reinstatement of JON E. WIEDERHOLT, Petitioner.
Supreme Court No. S-9171, No. 5421
SUPREME COURT OF ALASKA
2001 Alas. LEXIS 71
June 15, 2001, Decided
NOTICE:
[*1] THIS OPINION IS SUBJECT TO CORRECTION BEFORE PUBLICATION IN THE PACIFIC
REPORTER. READERS ARE REQUESTED TO BRING ERRORS TO THE ATTENTION OF THE CLERK
OF THE APPELLATE COURTS.
PRIOR HISTORY: Appeal from the Alaska Bar Association Disciplinary Board. Alaska Bar
Association File No. 1999R001.
This Opinion Substituted on Denial of Rehearing for Withdrawn Opinion of April
27, 2001, Previously Reported at:
2001 Alas. LEXIS 51.
DISPOSITION: AFFIRMED.
COUNSEL: John R. Strachan, Anchorage, for Petitioner.
Mark Woelber and Stephen J. Van Goor, Alaska Bar Association, Anchorage.
JUDGES: Before: Fabe, Chief Justice, Matthews, Eastaugh, and Carpeneti, Justices.
Bryner, Justice, not participating.
OPINIONBY: CARPENETI
OPINION: CARPENETI, Justice.
I. INTRODUCTION
Disbarred
attorney Jon E. Wiederholt seeks review of the Alaska Bar Association
Disciplinary Board's denial of his petition for
reinstatement to the
practice of law. Because the board took all of the relevant factors into account and because
the weight of the evidence supports the board's findings, we affirm the
decision not to
reinstate Wiederholt.
II. FACTS AND PROCEEDINGS
On July 8, 1994 this court
disbarred
[*2] Jon E. Wiederholt from the
practice of law for (1) filing a pleading and affidavit stating that his client's judgment had
not been satisfied when he knew that it had; and (2) forging his client's
signature to endorse a check. n1
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n1 See
In re Wiederholt, 877 P.2d 765, 768-69 (Alaska 1994). This court also weighed Wiederholt's acts of kicking
opposing counsel and engaging in abusive discovery tactics in its decision. See id. This
court found these four incidents sufficient grounds for
disbarment and did not consider the other grievances that were brought against
Wiederholt, which included improper sexual advances to a client, using
threatening language towards
opposing counsel, direct contact with an opposing party who was represented by counsel, and
writing a threatening letter to an unrepresented claimant on behalf of a
client. See id.
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After
disbarment, Wiederholt worked in the construction field for approximately one year. More
recently he was employed as a paralegal and
[*3] contract legal research analyst by six Anchorage-area
attorneys.
On June 22, 1999 Wiederholt filed a petition for
reinstatement pursuant to
Alaska Bar Rule 29, claiming that he had met the terms and conditions of this court's order
imposing
disbarment and requesting
reinstatement to the
practice of law. n2 Wiederholt's
petition was heard before the Alaska Bar Association's Area Hearing Committee
in September and October 1999. n3 In February 2000 the Hearing Committee recommended that Wiederholt's petition
be denied because he did not meet his Rule 29
burden of proving (1) that he was
morally fit and (2) that his
reinstatement would not be
detrimental to the integrity and standing of the Bar, the administration of justice, and
the
public interest. In March 2000 the Alaska Bar Association
Disciplinary Board n4 unanimously adopted the findings, conclusions, and
recommendation of the Hearing Committee that Wiederholt not be reinstated.
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n2 Pursuant to
Alaska Bar Rule 29, a
disbarred
attorney is eligible for
reinstatement to the
practice of law after a five-year period. See Alaska Bar R. 29(b)(5). This rule further
provides that a petitioner seeking
reinstatement must demonstrate
"that she has the moral
qualifications,
competency, and knowledge of law required for admission to the
practice of law in this State and that his or her resumption of the
practice of law in . . . the State will not be
detrimental to the integrity and standing of the Bar, or to the administration of justice,
or
subversive of the
public interest[.]" See Alaska Bar R. 29(c)(1).
[*4]
n3 According to Bar Rule 29, a preliminary hearing on all petitions for
reinstatement is held before an Area Hearing Committee in the jurisdiction where the
petitioner had maintained an office. See Alaska Bar R. 29(c)(1). After the
Hearing Committee issues a
recommendation, the Alaska Bar Association's
Disciplinary Board reviews the Hearing Committee's findings and makes a
recommendation to this court. See Alaska Bar R. 29(c)(2).
n4 This opinion will refer to the Alaska Bar Association, in its capacity as a
party, as
"the bar association." It
will refer to the Alaska Bar Association
Disciplinary Board as
"the
Disciplinary Board" or
"the board."
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Wiederholt appeals.
III. STANDARD OF REVIEW
This is a matter of first impression; no
disbarred
attorney has ever petitioned this court for
reinstatement. Consequently, we have never specified what standard of review governs
reinstatement.
To the extent that this case requires the interpretation of the requirements of
the Alaska Bar Rules, it is a question of law that we review under the
independent judgment standard.
[*5]
n5
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n5 See
Wiederholt, 877 P.2d at 767.
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With regard to the review of the
Disciplinary Board's findings of fact, we view
reinstatement as part of
attorney
discipline. We therefore employ the same standard used in reviewing
attorney
discipline proceedings:
Though this court has the authority, if not the obligation, to independently
review the entire record in
disciplinary proceedings, findings of fact made by the Board are nonetheless
entitled to great weight. The deference owed to such findings derives from the
responsibility to conduct
disciplinary proceedings which this court has delegated to the Bar Association. Where
findings of fact entered by the Board are challenged on appeal to this court, .
. . the respondent
attorney bears the burden of proof in demonstrating that such findings are erroneous. .
. . As a general rule, moreover, we ordinarily will not disturb findings of
fact made upon conflicting evidence. . . . n6
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n6
In re Triem, 929 P.2d 634, 640 (Alaska 1996) (quoting
In re West, 805 P.2d 351, 353 n.3 (Alaska 1991)).
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[*6]
When deciding appropriate punishment, we need not accept the
Disciplinary Board's
recommendation but may exercise independent judgment. n7 In exercising our independent judgment as to the appropriate sanction, we are
guided by the American Bar Association's
Standards for Imposing Lawyer Sanctions (ABA Standards); n8 however, we are not constrained by them. n9
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n7 Id.
n8 Id. (citing
In re Buckalew, 731 P.2d 48, 51-52 (Alaska 1986)).
n9 Id. (citing
In re Frost, 863 P.2d 843, 854 (Alaska 1993)). Most courts reviewing a bar association
disciplinary board's
recommendation on
reinstatement exercise original jurisdiction and review the matter under a de novo or
independent judgment standard. See
In re Fogel, 679 A.2d 1052, 1054 (D.C. App. 1996);
Montgomery v. Disciplinary Bd. of the Supreme Court (In re Montgomery), 1997 ND 148, 566 N.W.2d 426, 428 (N.D. 1997);
In re Katz, 907 P.2d 1029, 1030 (Okla. 1995);
In re Griffith, 323 Ore. 99, 913 P.2d 695, 699 (Or. 1996). At the same time, these jurisdictions give deference to the
disciplinary board's findings of fact, conclusions, and
recommendations. See
Fogel, 679 A.2d at 1054;
Montgomery, 566 N.W.2d at 428.
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[*7]
IV. DISCUSSION
A. Requirements for
Reinstatement of a
Disbarred
Attorney
1.
Reinstatement in general
a. The presumption against
reinstatement
The bar association argues that this court should recognize a presumption
against
reinstatement after
disbarment.
According to the American Bar Association (ABA), because the purpose of lawyer
discipline is not punishment,
disbarred
attorneys may be readmitted n10 to practice. Nevertheless, the ABA believes that the presumption should be
against
readmission. n11
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n10
See ABA Standards, Standard 2.10 (Readmission and
Reinstatement). The ABA uses the term
"readmission" to refer to the return of a
disbarred
attorney to the
practice of law and uses the term
"reinstatement" to refer to the return to practice of a suspended lawyer. See id. The Alaska
Bar Rules use the word
"reinstatement" to cover both of these situations. See Alaska Bar R. 29(a). This opinion uses
"reinstatement" except when referring to the American Bar Association's position.
n11
See ABA Standards, Standard 2.10 (Readmission and
Reinstatement). Because we are guided by the American Bar Association's Standards for
Imposing Lawyer Sanctions when exercising independent judgment on lawyer
discipline matters,
Triem, 929 P.2d at 640, the ABA Standards regarding the presumption against
readmission provide strong support for the Alaska Bar Association's statement that there
is a general presumption against
readmission of
disbarred
attorneys.
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[*8]
Other
jurisdictions considering
reinstatement matters have followed the ABA, explicitly recognizing the existence of a
presumption against
readmission. n12 The Pennsylvania Supreme Court has even gone so far as to say that
disbarred
attorneys have
"no basis for an expectation . . . of the right to resume practice at some
future point in time." n13
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n12 See, e.g.,
In re Butcher, 322 Ark. 24, 907 S.W.2d 715, 717 (Ark. 1995);
Florida Bar v. Clement, 662 So. 2d 690, 699 (Fla. 1995).
n13
In re Costigan, 541 Pa. 459, 664 A.2d 518, 520 (Pa. 1995) (quoting
Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872, 875 (Pa. 1986)).
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The purpose behind the presumption is protection of the public. This reflects
the purpose of the
disciplinary process: to protect the public, not to punish the lawyer. n14 According to the South Dakota Supreme Court, a court must
"endeavor to make certain that it does not
[*9] again put into the hands of an unworthy petitioner that almost unlimited
opportunity to inflict wrongs upon society possessed by a practicing lawyer." n15 Similarly, the Oregon Supreme Court has stated that
"any significant doubt about whether an applicant for
reinstatement has sustained [his] burden must be resolved in favor of protecting the
public interest by denying
reinstatement." n16 Courts have long held that
"[a] court should be slow to
disbar, but it should be even slower to
reinstate." n17 We agree with and adopt this approach.
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n14 See
In re Pier, 1997 SD 23, 561 N.W.2d 297, 299 (S.D. 1997).
n15
561 N.W.2d at 300 (quoting
In re Morrison, 45 S.D. 123, 186 N.W. 556, 557 (S.D. 1922)).
n16
In re Griffith, 323 Ore. 99, 913 P.2d 695, 699 (Or. 1996).
n17
Morrison, 186 N.W. at 557.
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Given that both the ABA and a large number of jurisdictions have acknowledged
the existence of a presumption
[*10] against
reinstatement, it was proper for the board to assume such a presumption existed. Accordingly,
we recognize the presumption against
reinstatement of a
disbarred
attorney and take this into account in evaluating Wiederholt's case.
b. The standard for
reinstatement
The bar association argues on appeal that in order to prove that a petitioner
has the proper
qualifications to be reinstated to the
practice of law, he or she must present
"'overwhelming' proof of reform coupled with 'exemplary' conduct."
The ABA states that
"in no event should a lawyer even be considered
for
readmission until at least five years after the effective date of
disbarment." n18 After that time, the ABA recommends that a lawyer seeking
readmission
"show by
clear and convincing evidence" the following:
"rehabilitation, compliance with all applicable
discipline or disability orders or rules, and
fitness to
practice law." n19
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n18 ABA Standards, Standard 2.10 (Readmission and
Reinstatement).
n19 Id.
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[*11]
This high level of scrutiny is not unusual; most jurisdictions impose very high
standards on those petitioning for
reinstatement. The major consideration in
reinstatement proceedings is whether the
disbarred
attorney has shown that those weaknesses that produced the earlier
misconduct have been corrected. n20 Therefore, courts often consider
remorse,
rehabilitation, and moral
fitness to
practice law to be key elements in the inquiry. n21 Because a petitioner for
reinstatement must demonstrate moral
fitness and good character sufficient to be
trusted again, the petitioner must make a showing of these characteristics that
"overcomes the court's former adverse judgment" on the petitioner's character. n22 Accordingly, other jurisdictions have stated that petitioners for
reinstatement should be held to an even higher standard of conduct than first-time
applicants because they have already demonstrated that they are at risk for
unethical conduct. n23 The majority position among courts is that the more culpable the conduct, the
greater the burden for proving one is entitled to
reinstatement. n24
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n20 See, e.g.,
Griffith, 913 P.2d at 699;
In re Stroh, 108 Wn.2d 410, 739 P.2d 690, 693 (Wash. 1987); see also
Greene v. Kentucky Bar Assoc., 904 S.W.2d 233, 236 (Ky. 1995) ("The ultimate and decisive question is whether the applicant is now of good
moral character and is a fit and proper person to be
reentrusted with the confidence and privilege of being an
attorney at law.")
[*12]
n21
See, e.g.,
In re Jahn, 559 So. 2d 1089, 1090 (Fla. 1990);
In re Reed, 258 Ga. 271, 368 S.E.2d 499, 500 (Ga. 1988).
n22
Pier, 561 N.W.2d at 300 (quoting
In re Egan, 38 S.D. 458, 161 N.W. 1003, 1006 (S.D. 1917)).
n23 See, e.g.,
In re Nevill, 39 Cal. 3d 729, 704 P.2d 1332, 1338, 217 Cal. Rptr. 841 (Cal. 1985);
Baldridge v. Kentucky Bar Assoc., 980 S.W.2d 558, 560 (Ky. 1998);
Pier, 561 N.W.2d at 300.
n24 See
Pier, 561 N.W.2d at 300.
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c. The test for
reinstatement
Most
jurisdictions, including Alaska, have standards for
reinstatement that are similar to the ABA guidelines. n25 Many jurisdictions have further developed fact-intensive, multi-part tests for
determining whether a petitioner meets these standards. n26 The factors most commonly taken into account include (1) the petitioner's
present moral
fitness; (2) the petitioner's acceptance of
wrongdoing with sincerity and honesty; (3) the extent
[*13] of the petitioner's
rehabilitation; (4) the nature and seriousness of the original
misconduct; (5) the petitioner's conduct following the
discipline; (6) the time elapsed since the original
discipline; (7) the petitioner's character, maturity, and experience at the time of
discipline and at present; (8) the petitioner's current
competency and
qualifications to
practice law; (9) restitution; and (10) the proof that the petitioner's return to the
practice of law will not be
detrimental to the integrity and standing of the bar or the administration of justice, or
subversive of the
public interest. n27
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n25
See, e.g., Alaska Bar R. 29;
Griffith, 913 P.2d at 699;
In re Verlin, 557 Pa. 47, 731 A.2d 600, 601, 602 (Pa. 1999);
Stroh, 739 P.2d at 693.
n26
See, e.g.,
In re Robbins, 172 Ariz. 255, 836 P.2d 965, 966 (Ariz. 1992);
In re Jamison, 726 A.2d 690, 690 (D.C. App. 1999);
In re Polito, 132 Ill. 2d 294, 547 N.E.2d 465, 468, 138 Ill. Dec. 298 (Ill. 1989);
In re Pool, 401 Mass. 460, 517 N.E.2d 444, 447 (Mass. 1988);
In re Bradley, 897 P.2d 243, 244 (Okla. 1993);
Stroh, 739 P.2d at 693.
[*14]
n27 See
Pier, 561 N.W.2d at 300 (listing a large number of cases from other jurisdictions and summarizing the
requirements they have set out for
reinstatement). A number of jurisdictions have adopted tests for
reinstatement that incorporate the requirements set out in Bar Rule 29 (competency, knowledge, moral
fitness) as well as one or more of the above requirements. See id.
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2. The standard for
reinstatement under the Alaska Bar Rules
a. The requirements of Rule 29
Alaska Bar Rule 29 sets out the standard a
disbarred
attorney seeking
reinstatement must satisfy:
The Petitioner will have the burden of demonstrating that (s)he has the moral
qualifications,
competency, and knowledge of law required for admission to the
practice of law in this State and that his or her resumption of the
practice of law in . . . the State will not be
detrimental to the
integrity and standing of the Bar, or to the administration of justice, or
subversive of the
public interest . . . . n28
Thus, an individual seeking
reinstatement has the burden of demonstrating two things:
[*15] (1) that he or she has the knowledge of law,
competency, and moral
qualifications requisite to the
practice of law in this state; and (2) that his or her
reinstatement will not be
detrimental to the Alaska Bar, the administration of justice, or the
public interest.
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n28 Alaska Bar R. 29(c)(1). Neither party disputes that Rule 29 is the appropriate
standard that Wiederholt must satisfy for
reinstatement.
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Alaska has no other bar rules addressing the question of
reinstatement by a
disbarred
attorney. There are also no Alaska cases that interpret this language. We conclude that
the ten factors distilled in Pier and listed previously n29 provide useful guidance in a
reinstatement inquiry.
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n29 See supra text accompanying note
27. See also
Pier, 561 N.W.2d at 300.
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2.
"Clear and convincing evidence"
[*16] is the proper standard for the Rule 29(c) criteria for
reinstatement.
In making their determinations regarding Wiederholt, the Area Hearing Committee
and the
Disciplinary Board stated that an individual seeking
reinstatement must prove that he or she meets the requirements set out in Rule 29(c)(1) by
"clear and convincing evidence." A review of the ABA standards and cases from other jurisdictions suggests that
the
"clear and convincing evidence" standard is the proper standard of proof in
reinstatement cases.
In its Standards, the ABA states that a lawyer seeking
reinstatement or
readmission must demonstrate
rehabilitation, compliance with all applicable rules and
discipline orders, and
fitness to
practice law
"by
clear and convincing evidence." n30 Other jurisdictions have concurred, establishing
"clear and convincing
evidence" as the standard of proof that petitioners seeking
reinstatement must satisfy. n31 The reasoning of the Illinois Supreme Court is persuasive:
The purposes underlying both
attorney
disciplinary and
reinstatement proceedings are to safeguard the public, maintain the integrity of the
profession, and to protect the administration of justice from
[*17] reproach. Consistent with those purposes is the principle that when a
disbarred
attorney petitions for
reinstatement that person has the burden of introducing
clear and convincing evidence of
rehabilitation. n32
We agree with this conclusion and adopt the
clear and convincing evidence standard for proving the Rule 29(c)(1) requirements.
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n30 ABA Standards, Standards 2.2 (Disbarment), 2.10 (Readmission and
Reinstatement).
n31
See, e.g.,
In re Clyman, 713 A.2d 313, 315 (D.C. App. 1998);
In re Spence, 271 Ga. 630, 523 S.E.2d 323, 324 (Ga. 1999);
In re Parker, 149 Ill. 2d 222, 595 N.E.2d 549, 554, 172 Ill. Dec. 188 (Ill. 1992);
In re Clinton, 338 Md. 481, 659 A.2d 875, 876 (Md. 1995);
In re Montgomery, 1997 ND 148, 566 N.W.2d 426, 428 (N.D. 1997);
In re Greenberg, 561 Pa. 154, 749 A.2d 434, 436 (Pa. 2000);
Pier, 561 N.W.2d at 300;
Stroh, 739 P.2d at 693;
In re Hetzel, 118 Wis. 2d 257, 346 N.W.2d 782, 787 (Wis. 1984).
In several states, the bar rule concerning
reinstatement explicitly provides for a
clear and convincing evidence standard. See
In re Feldman, 252 A.D.2d 733, 675 N.Y.S.2d 675, 675 (App. Div. 1998);
In re Katz, 907 P.2d 1029, 1031 (Okla. 1995);
In re Griffith, 323 Ore. 99, 913 P.2d 695, 699 (Or. 1996);
In re Peotrowski, 706 A.2d 1315, 1316 (R.I. 1998);
Murphy v. Board of Prof'l Responsibility, 924 S.W.2d 643, 644 (Tenn. 1996).
[*18]
n32
In re Rothenberg, 108 Ill. 2d 313, 484 N.E.2d 289, 293, 91 Ill. Dec. 730 (Ill. 1985) (citations omitted).
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3. The board did not consider impermissible factors in making its determination
in this case.
In the present case, the board considered the factors explicitly listed in Rule
29:
competency, knowledge,
moral
fitness, and whether Wiederholt's resumption of the
practice of law in the state will be
detrimental to the integrity and standing of the Bar, or to the administration of justice,
or
subversive of the
public interest.
The board determined that Wiederholt had satisfied his burden of demonstrating
that he met the
competency and knowledge elements of the Rule 29(c) inquiry. n33 However, the board ruled that Wiederholt had not met his Rule 29 burden of
demonstrating (1) that he was
morally fit and (2) that his resumption of practice would not be
detrimental to the bar, justice, or the
public interest.
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n33 Accordingly, these issues are not in dispute and will not be considered here.
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[*19]
While Rule 29 establishes moral
fitness and lack of
detrimental impact as the requirements for
reinstatement, it does not explicitly state what factors the board may take into account in
determining whether a petitioner has satisfied these requirements. In making
its determination in Wiederholt's case on both moral
fitness and the potential
detrimental impact of Wiederholt's return to practice, the board specifically considered,
among other things, Wiederholt's
past conduct, his level of
remorse and acknowledgment of past
wrongdoing, and the amount of time that has passed since his
disbarment.
Wiederholt argues that the board's consideration of these three factors fails
to show present unfitness. We disagree. Weiderholt's
past conduct, his level of
remorse and acknowledgment of past
wrongdoing, and the amount of time that has passed since his
disbarment are all highly relevant. Moreover, a survey of
reinstatement cases in other jurisdictions with
reinstatement rules similar to Rule 29 indicates that the board acted properly in its
inquiry by considering Wiederholt's
past conduct, his level of
remorse, and the length of time that has passed since his
disbarment. Each of these issues
[*20] is discussed in greater detail below.
a. Consideration of a petitioner's
past conduct is appropriate.
Wiederholt argues that a
petitioner has satisfied his Rule 29 standard of proof if he or she can
demonstrate that he or she has the moral
qualifications,
competency, and appropriate knowledge of law at the time he or she is petitioning for
reinstatement. Therefore, Wiederholt contends that it is inappropriate for the
Disciplinary Board to consider the petitioner's past moral unfitness, incompetency, or lack
of knowledge when making a
reinstatement decision. The bar association disagrees, believing that a petitioner's
past conduct has a great deal of bearing upon his or her present
fitness to
practice law. n34
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n34 In making its determination on Wiederholt's petition, the Hearing Committee
rejected Wiederholt's request to
"disregard his original
misconduct and focus on his present
qualifications to practice."
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A petitioner must demonstrate that he or she
"has" the requisite moral
qualifications,
[*21]
competency, and knowledge to
practice law in Alaska. n35 Wiederholt points to the use of the present tense of the verb and suggests
that the board should be determining whether a petitioner
"has" the
requisite
qualifications as of the present time (when the petition is being reviewed) rather than
looking back to and considering the petitioner's earlier conduct. Wiederholt's
argument is unpersuasive. It makes little sense to consider a
disbarred
attorney's petition for
reinstatement entirely in a vacuum, ignoring the conduct and attitude that led to
disbarment. Rather, the bar association's argument that
"disbarment conclusively proves lack of moral
fitness" at the time of
disbarment and
"remains as evidence of lack of moral
fitness later" is supported by the decisions of courts in other jurisdictions that have
explicitly acknowledged that the conduct that led to the petitioner's
disbarment is an important factor to consider when determining whether the petitioner
should be reinstated. n36
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n35 See Alaska Bar R. 29(c)(1).
n36
See, e.g.,
In re Gutman, 599 N.E.2d 604, 608 (Ind. 1992);
Parker, 595 N.E.2d at 554-55;
Greene v. Kentucky Bar Assoc., 904 S.W.2d 233, 235 (Ky. 1995);
In re Pool, 401 Mass. 460, 517 N.E.2d 444, 447 (Mass. 1988) (stating that
disbarment conclusively proves moral unfitness and remains as evidence of lack of moral
fitness later);
Montgomery, 566 N.W.2d at 429-30 (holding that conduct leading to
disbarment has
"great bearing" on whether petitioner has honesty and integrity necessary for
reinstatement);
Katz, 907 P.2d at 1031;
Griffith, 913 P.2d at 699.
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[*22]
Courts addressing this issue cover a broad spectrum. At one extreme, the
Supreme Court of Pennsylvania goes so far as to begin its
reinstatement inquiry by examining
past conduct and, if it is sufficiently egregious, barring
reinstatement altogether without looking at subsequent events. n37 At the other
end of the spectrum, the Supreme Court of Mississippi apparently looks only to
the petitioner's present
"firm resolve to live a correct life evidenced by outward manifestation
sufficient to convince a reasonable mind clearly that the person has reformed." n38 But most courts take an intermediate approach.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n37
In re Greenberg, 561 Pa. 154, 749 A.2d 434, 435-36 (Pa. 2000).
n38
Phillips v. Mississippi State Bar, 427 So. 2d 1380, 1382 (Miss. 1983) (quoting
Ex parte Marshall, 165 Miss. 523, 147 So. 791, 798 (Miss. 1933)).
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When most courts examine prior conduct, they tend to balance the evidence of
the petitioner's current good character
[*23] with the seriousness of the prior
misconduct, inquiring whether the former is of sufficient weight to overcome the latter. n39 For
example, the District of Columbia Court of Appeals has devised a five-part test
a petitioner must satisfy in order to be reinstated. This comprehensive test
takes into account the petitioner's past and present conduct,
qualifications, and attitude. It looks at the following factors:
(1) the nature and circumstances of the
misconduct for which the
attorney was disciplined; (2) whether the
attorney recognizes the seriousness of the
misconduct; (3) the
attorney's conduct since
discipline was imposed, including the steps taken to remedy past wrongs and prevent new
ones; (4) the
attorney's present character; and (5) the
attorney's present
qualifications and competence to
practice law. n40
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n39 See
Greene, 904 S.W.2d at 235 (stating that conduct leading to
disbarment is a factor in the
reinstatement inquiry, but not the most significant);
Montgomery, 566 N.W.2d at 429;
Katz, 907 P.2d at 1031.
n40
In re Jamison, 726 A.2d 690, 690 (D.C. App. 1999) (citing
In re Roundtree, 503 A.2d 1215, 1217 (D.C. App. 1985)).
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[*24]
We agree with the intermediate approach taken by the majority of courts, and we
conclude that a petitioner's
past conduct plays an important role in determining whether the petitioner has been
rehabilitated. We therefore hold that it is appropriate to consider a
petitioner's
past conduct in a
reinstatement proceeding.
b. Consideration of a petitioner's acknowledgment of and/or level of
remorse for prior actions is appropriate.
One of the reasons the bar association gives for the board's refusal to
reinstate Wiederholt is his
"failure to acknowledge his
wrongdoing or show
remorse." Courts in numerous jurisdictions with
reinstatement rules similar to Alaska's have found a petitioner's
remorse and consciousness of prior
wrongdoing to be persuasive factors in
determining whether a petitioner currently has the level of moral and ethical
character required for
reinstatement. n41
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n41 See, e.g.,
Florida Bd. of Bar Examiners re J.J.T., 761 So. 2d 1094, 1097 (Fla. 2000);
Parker, 595 N.E.2d at 555;
Greene, 904 S.W.2d at 235;
In re Bradley, 897 P.2d 243, 244 (Okla. 1993);
Griffith, 913 P.2d at 701;
In re Verlin, 557 Pa. 47, 731 A.2d 600, 603 (Pa. 1999);
In re Costigan, 541 Pa. 459, 664 A.2d 518, 522 (Pa. 1995);
In re Peotrowski, 706 A.2d 1315, 1317 (R.I. 1998);
In re Stroh, 108 Wn.2d 410, 739 P.2d 690, 694 (Wash. 1987).
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[*25]
As discussed above, a primary concern of the
reinstatement process is whether the petitioner has been rehabilitated and whether he has
presented sufficient evidence to demonstrate that those weaknesses that
produced the earlier
misconduct have been corrected. n42 Because the petitioner's
remorse and acknowledgment of prior
wrongdoing are vital to this determination, we hold that this factor is appropriate to
consider in a
reinstatement decision.
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n42 See supra note 20 and accompanying text.
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c. The board may take into account the amount of time that has passed since
disbarment.
In making its determination in Wiederholt's case, the board explicitly took
into account the relatively short amount of time that had passed since his
disbarment. It noted that Wiederholt had petitioned for
reinstatement
"at the earliest possible moment of eligibility" and had filed his petition for
reinstatement
"several weeks before the
mandatory term of his
disbarment expired." It was not error to consider this factor.
[*26]
Other
jurisdictions have considered the length of time an
attorney has been
disbarred in conjunction with his or her past acts when determining whether
reinstatement should occur. n43 The Rhode Island Supreme Court has stated that
"when an
attorney has engaged in repeated acts or a calculated series of acts designed to
corrupt the administration of justice, the showing of present
fitness may require a lengthier period of
rehabilitation." n44 We agree with that assessment and conclude that this factor is applicable in
this case and was properly considered.
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n43 See, e.g.,
Verlin, 731 A.2d at 602;
Stroh, 739 P.2d at 695; see also
In re Jahn, 559 So. 2d at 1089, 1090 (Fla. 1990).
n44
Peotrowski, 706 A.2d at 1316 (citing
In re Romano, 615 A.2d 476, 477 (R.I. 1992)).
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B. Wiederholt Did Not Satisfy the Requirements for
Reinstatement
Set Out in
Alaska Bar Rule 29.
The board denied Wiederholt's
[*27] petition for
reinstatement on the grounds that he failed to demonstrate by
clear and convincing evidence two essential elements of the Rule 29(c) criteria for
reinstatement: (1)
"that he currently possesses the moral
qualifications to qualify for
reinstatement" and (2)
"that his resumption of the
practice of law at this time would not be
detrimental to the integrity and standing of the Bar or the administration of justice or
subversive of the
public interest."
Wiederholt argues that the evidence in the record supports the conclusion that
he is
morally fit to
practice law. He further states that
"given the weight of favorable evidence, the absence of any opposing witness,
and the favorable
recommendation of the Bar's only witness," the Hearing Committee's report does not offer any
"rational basis" supporting its decision. We disagree.
Although the record indicates that Wiederholt has made some changes since his
disbarment, he did not satisfy his
burden of proving the above
elements of Rule 29(c) by
clear and convincing evidence. Moreover, the Hearing Committee's report cogently sets out the rationale
behind its result, and its findings and conclusions of law are amply supported
by
[*28] the record.
1. Wiederholt's testimony and evidence did not prove that he has the requisite
moral character for
reinstatement.
Wiederholt contends that he has presented the testimony of a large number of
witnesses confirming
"his worthy character or his moral
fitness," including
"distinguished members of the Bar, a former Supreme Court justice, and other lay
witnesses." Wiederholt further contends that the Hearing Committee and
Disciplinary Board disregarded this testimony and found Wiederholt to be
"morally deficient" based only upon Wiederholt's
"regard for the facts of his
disbarment almost six years ago." This characterization is inaccurate.
a. Wiederholt's
past conduct
The bar association notes that Wiederholt's
past conduct provides strong
evidence that he lacks the moral
fitness to be readmitted to the Alaska Bar. As discussed, Wiederholt's
past conduct is a permissible factor for the board to take into account because the conduct
leading up to
disbarment is relevant in assessing an applicant's moral
fitness.
The record does support the bar association's argument -- Wiederholt's
misconduct was indeed serious. As this court's opinion and the attached appendices
[*29] in his
disbarment case indicate, Wiederholt engaged in numerous and repeated instances of
misconduct over a span of four years, including committing criminal forgery, assaulting
opposing counsel, engaging in abusive discovery tactics, using threatening language towards
opposing counsel, and writing a threatening letter to an unrepresented claimant on behalf of a
client. n45 All of these, taken together, demonstrate a pattern of serious
misconduct and therefore provide some evidence that Wiederholt lacks the requisite moral
fitness to be readmitted to the
practice of law in Alaska.
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n45 See
In re Wiederholt, 877 P.2d 765, 766-77 (Alaska 1994).
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b. Wiederholt's lack of
remorse
Wiederholt's testimony and evidence presented at the hearing did not
demonstrate by
clear and convincing evidence that he recognized the seriousness of his
past conduct.
The bar association contends that Wiederholt's testimony at the hearing
provided strong evidence that his
moral character has not reformed
[*30] from his pre-disbarment days. In support of its position, the bar association
argues that Wiederholt has failed to show
remorse for his actions and has not acknowledged his previous
wrongdoing, which he attempts to pass off as a misunderstanding of definitions. Wiederholt
claims that the board's findings are
"flatly unsupported by the record" and that he has
"acknowledged his personal responsibility for the
disbarment." In support of his position he quotes extensively from the transcript; however,
Wiederholt's quotations are selective and he leaves
out considerable portions of his testimony that indicate the opposite. An
examination of the full record supports the bar association's contentions. The
transcript of Wiederholt's testimony is replete with examples demonstrating
that he has little
remorse for his previous actions and has no consciousness or understanding of the
nature or extent of his past
wrongdoing.
During his testimony, Wiederholt continued to maintain that his
past conduct did not warrant
disbarment and that the board and this court wrongly decided at least some of the charges
against him, including the Nesbett grievance, in which he was disciplined for
deceiving
[*31] the court about whether a client's judgment had been satisfied. Wiederholt
stated that he did not believe that he acted unethically and that he simply
believed the board and this court defined unethical conduct differently than he
did. Rather than stating that he has acknowledged his past mistakes and will
change in the future, he simply stated to the panel that
"I accept full responsibility for the conclusions that the committee and the
supreme court ultimately reached . . . . While I
believed that my conduct did not warrant
disbarment, it is the conclusion that the Bar rightfully or wrongfully reached." He further stated that he
"deeply regrets the findings that the court came to" -- not that he regretted his actions -- and reemphasized that he
"had a different understanding of what happened."
Even when he did acknowledge that he behaved in an unethical, unprofessional
manner, Wiederholt still attempted to defend his actions. At the hearing,
Wiederholt admitted that his act of kicking
opposing counsel Dennis Maloney was
"stupid,"
"unethical," and
"wrong." However, he then went on to minimize and justify his actions by stating that
Maloney was bigger and heavier than he was and that
[*32] Maloney had started the incident. He also insinuated that Maloney deserved
what he received.
The board found the fact that Wiederholt did not apologize to several of his
victims to be a significant indicator of his lack of
remorse for his previous actions, and consequently, a lack of understanding of his
prior
wrongdoing. The record supports this conclusion: Wiederholt did not apologize or make any
restitution to at least three of his former victims.
Also
significant to the board was Wiederholt's insulting and abusive attitude
towards others. This trait was manifested by Wiederholt, and through counsel,
in belittling a
disbarred lawyer who allegedly works as a hotel doorman, and criticizing a judge and bar
counsel for mistreating him.
c. Wiederholt's failure to take remedial measures previously recommended by the
board and this court
During Wiederholt's
disbarment proceedings in 1993, the board had recommended that Wiederholt seek
counseling from a mental health professional. Wiederholt has not done so.
Wiederholt contends that he has sought
counseling from his pastor, Reverend George Gilchrist, and that this
counseling discounts the conclusion that he did not secure help
[*33] from a mental health professional. Once again, the record does not support
Wiederholt's contention. Reverend Gilchrist's testimony at the hearing revealed
that any
counseling of Wiederholt was very informal, with the majority of the contacts taking
place in the parking lot or
while skiing and cycling, and occurring only seven to eight times per year. His
testimony also revealed that Wiederholt had sought such
counseling prior to
disbarment and that Wiederholt's frequency of encounters remained the same after his
disbarment.
The fact that Wiederholt did not take the board's
recommendation and seek professional
counseling is strong evidence of his disregard of the import of the
Disciplinary Board's suggestions, as well as his failure to recognize the nature and extent
of his
wrongdoing.
d. Wiederholt's witnesses
Wiederholt argues that the board erroneously disregarded the testimony of his
witnesses, all of whom testified favorably and put their professional
reputations behind him. The bar association concedes that much of the testimony
of Wiederholt's witnesses is favorable; however, it states that this evidence
was not strong enough to overcome the presumption against
reinstatement.
[*34]
The board concluded that the weight of the witnesses' testimony was
insufficient to satisfy Wiederholt's high burden of proof for a number of
reasons. Although his witnesses testified favorably about him in
other areas, they did not have sufficient information about his moral
qualifications. For example, while Wiederholt's employers were able to address his legal
competency and his pastor testified to his ability to handle daily problems, they had
virtually no knowledge of how he conducted himself in the
practice of law or the events that led to his
disbarment. Similarly, the testimony of his friends, though conveying favorable character
judgments, did not reveal knowledge of the events leading to his
disbarment. Consequently, the board concluded that Wiederholt's witnesses could not
adequately evaluate whether Wiederholt truly had reformed.
For these reasons the board did not err by discounting the testimony of
Wiederholt's witnesses on the subject of moral
fitness. Most jurisdictions attach considerable significance to the fact that a
petitioner's witnesses do not know about the petitioner's
wrongdoing and merely comment that the petitioner has
moral character at the present time.
[*35]
n46 For example, the Oregon Supreme Court has
emphasized that such statements are
"not determinative of the question of whether [the] applicant is likely to
repeat his
misconduct." n47 Courts have also suggested that witnesses should relate specific facts or
instances that form the basis of their opinions. n48 We agree.
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n46
See, e.g.,
J.J.T., 761 So. 2d at 1097;
Griffith, 913 P.2d at 700 (suggesting that it is insufficient for witnesses to say that a petitioner
simply
"has"
moral character because such statements do not provide evidence of reformation);
Lawyer Disciplinary Bd. v. Sayre, 207 W. Va. 654, 535 S.E.2d 719, 721 (W. Va. 2000).
n47
Griffith, 913 P.2d at 700.
n48 See, e.g.,
Murphy v. Board of Prof'l Responsibility, 924 S.W.2d 643, 647 (Tenn. 1996);
Sayre, 535 S.E.2d at 721.
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While the psychiatrists testifying at the hearing both stated that
[*36] Wiederholt has
made significant strides in his emotional development, the board found that
this improvement did not necessarily indicate that Wiederholt was
morally fit to
practice law or that he could handle the stresses of being a lawyer if permitted to resume
that position. While we recognize that Wiederholt has made some improvement
emotionally, we agree with the board's conclusion regarding the impact of the
stresses of the
practice of law.
First, because the doctors had evaluated Wiederholt in his present work
situation, where he is supervised by other lawyers and shielded from the
pressures of law practice, their testimony provided no indication that
Wiederholt could withstand the pressures of being a lawyer, especially a solo
practitioner. Second, at the time of
disbarment, psychiatrist Dr. Aaron Wolf testified that Wiederholt's dishonest acts could
not be completely explained by psychological insights, and the Hearing
Committee concluded that Wiederholt's actions
"seemed unrelated to his personality disorder." Therefore, an improvement in Wiederholt's psychiatric situation,
without more, does not indicate that the circumstances that led to his
disbarment would not happen
[*37] again. Finally, Wiederholt did not seek
counseling from a mental health professional and instead opted to continue to receive
informal emotional
counseling from his pastor. As discussed above, given the nature of these
counseling sessions, the board did not err in concluding that they had little effect in
reforming Wiederholt's
moral character.
Wiederholt contends that the board erred in ruling against him on the moral
fitness issue because the bar association did not present one witness to support its
contention that he lacked the moral
qualifications to
practice law. But the bar association is not required to present witnesses to make out its
case. n49 The
burden of proving by
clear and convincing evidence that the standards of Rule 29 are met falls on the petitioner.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n49 See, e.g.,
In re Greenberg, 561 Pa. 154, 749 A.2d 434, 436 (Pa. 2000).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
e. Conclusion
The record supports the board's conclusion that Wiederholt has not proven his
moral
fitness by
clear and convincing
[*38] evidence. Wiederholt's testimony, in which he blames this court and the Alaska Bar
Association for his problems and attempts to justify and minimize his actions,
shows that he fails to understand the extent and significance of his previous
misconduct. His refusal to seek psychiatric assistance as suggested by the board in the
1993 proceeding demonstrates his reluctance to comply with the demands of the
Disciplinary Board. Finally, the testimony of his witnesses, though favorable in some
respects, is insufficient to satisfy his
burden of proving by
clear and convincing evidence that he is
morally fit to
practice law.
2. Wiederholt did not prove by
clear and convincing evidence that his
reinstatement will not be
detrimental to the integrity and standing of the bar, the administration of justice, or
subversive to the
public interest.
The
board also concluded that Wiederholt did not meet his
burden of proving by
clear and convincing evidence that his
reinstatement will not be
detrimental to the integrity and standing of the bar or the administration of justice, or
subversive to the
public interest.
As discussed, the board correctly found that Wiederholt did not meet his
burden of
[*39] proving by
clear and convincing evidence that he is
morally fit to
practice law. Many of those same issues and concerns are pertinent to the issue of the
integrity of the profession and public protection. And the board's conclusions
are again amply supported by the record.
First, the board found that serious questions existed concerning Wiederholt's
possibility of causing harm in the future despite his showing that he
"is more mature and mentally stable today than a few years ago." The board noted that Wiederholt's most serious instances of
misconduct did not arise from inexperience, ignorance, or psychiatric problems and were
instead
"knowing and intentional acts of
misconduct" performed with
"the
conscious purpose of achieving wrongful objectives."
Second, the board found that Wiederholt's lack of
remorse, lack of consciousness concerning his past
wrongdoing, failure to accept responsibility for his actions, and his tendency to justify
and minimize his past behavior provide strong evidence that he could again
engage in similar behavior in the future.
Third, the presentation of Wiederholt's case at the hearing, which included
belittling another
disbarred lawyer, and accusing bar
[*40] counsel of soliciting grievances against him, also indicated that Wiederholt
had not abandoned the lack of respect for the system and abusive litigation
tactics that had led in part to his
disbarment.
Fourth, the board further found that Wiederholt has made no showing that he
will be able to function unsupervised in the stress-filled
practice of law since the testimony of the psychiatrists at the hearing was based on
observations of him in the highly supervised, lower stress employment he had as
a paralegal.
Finally, the board
found that Wiederholt's witnesses' lack of knowledge about the events that led
to his
disbarment suggested that his witnesses could not provide informed insight into whether
Wiederholt truly had reformed.
Again, Wiederholt's argument that the board did not present any evidence or
witnesses to back up its position is inapposite; the
burden of proving that his
reinstatement will not be
detrimental falls on Wiederholt, not the board. n50
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n50 See id.
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Because the record supports
[*41] the board's conclusion that Wiederholt did not prove by
clear and convincing evidence that his
reinstatement will not be
detrimental to the integrity of the bar or the public at large, we uphold its decision on
this issue.
C. The
Disciplinary Board's Time Requirements under
Alaska Bar Rule 29 Are
Directory, Not
Mandatory.
Wiederholt contends that despite his timely compliance with the requirements of
Rule 29, the Hearing Committee and the
Disciplinary Board did not abide by the time limits imposed
by the rule. Wiederholt is partially correct; the Hearing Committee did not
meet its time requirements. However, because we conclude that these time limits
are
directory, as discussed in greater detail below, Wiederholt is not entitled to any relief
for the Hearing Committee's noncompliance.
Alaska Bar Rule 29 states that upon the receipt of a
reinstatement petition, the Hearing Committee
"will promptly schedule a hearing to take place within 30 days of the filing of
the petition." n51 After the conclusion of the hearing, the Hearing Committee has thirty days
within which it
"will issue a report setting forth its findings of fact, conclusions of law, and
recommendation." n52
[*42] Finally,
"within 45 days of its receipt of the Hearing Committee's report, the [Disciplinary] Board will review the report and the record; the Board will file its findings
of fact, conclusions of law, and
recommendation with the Court, together with the record and the Hearing Committee
report." n53 Rule 29 does not specify any remedy for noncompliance with the timing
provisions.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n51 Alaska Bar R. 29(c)(1).
n52 Id.
n53 Alaska Bar R. 29(c)(2).
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The Hearing Committee met neither of its thirty-day deadlines. First, it did
not schedule a hearing to take place within thirty days of the filing of
Wiederholt's petition. Wiederholt filed his petition for
reinstatement on June 23, 1999. The hearing on his petition was initially scheduled for
August 31, 1999; he was notified of this fact on August 2. Second, the Hearing
Committee did not meet the requirement of providing its rulings and findings
within thirty days of the hearing. Wiederholt's hearing was held on September
10, 1999. Both
[*43] parties submitted additional briefing and closing arguments by October 8. The
Hearing
Committee did not file its findings of fact and rulings of law until February
3, 2000.
On the other hand, the
Disciplinary Board did act within the forty-five day period provided in Rule 29(c). The
Board received the Hearing Committee report on February 3 and filed its report
on March 10.
Whether the Hearing Committee's failure to adhere to the time limits specified
in Rule 29 entitles Wiederholt to any relief turns on whether the timing
provisions are
mandatory or merely
directory. We have previously stated that if a rule or regulation
"is
mandatory, strict compliance is required." n54 However,
"if it is
directory, substantial compliance is sufficient absent significant prejudice to the other
party." n55 A rule is
directory rather than
mandatory if (1) its wording is affirmative rather than prohibitive; (2) the legislative
intent was to create
"guidelines for the orderly conduct of public business"; and (3) serious, practical consequences would
follow from a finding that it is
mandatory. n56 In a recent case, we held that the statutory requirement that an order on a
hearing
"shall"
[*44] be made within thirty days was
directory: n57
"Shall" is a word of command; however, in the absence of injury to the defendant and
in the absence of a penalty for failure to comply with the statute,
"shall" denotes simple futurity rather than a command. n58
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n54
Copper River Sch. Dist. v. State, 702 P.2d 625, 627 (Alaska 1985).
n55 Id.
n56
City of Yakutat v. Ryman, 654 P.2d 785, 789-91 (Alaska 1982).
n57 See
State, Dep't of Commerce and Econ. Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 357 (Alaska 2000).
n58 Id. (quoting
Commissioner of Ins. v. Stryker, 218 Ga. App. 716, 463 S.E.2d 163, 166 (Ga. App. 1995)).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
We conclude that the time provisions of Rule 29 are
directory. First, the wording of Rule 29's time limits is affirmative. The rule states
that the Hearing Committee
"will" act within the specified time period; it does not prohibit it from doing
otherwise. Second, it
[*45] appears that the primary purpose of the time limits is merely to provide a
broad set of guidelines for how the Hearing Committee and
Disciplinary Board should proceed. Third, a finding that this rule is
mandatory would lead to serious, practical consequences. Imposing a strict thirty- or
forty-five- day time limit on the actions of the Hearing Committee and
Disciplinary Board would fail to take into account the many common exigencies and
contingencies of litigation. For example, in the present case, Wiederholt's
hearing was
delayed by the scheduling of a pre-hearing conference, Wiederholt's motion to
strike the bar association's designation of record, and the bar association's
request for extra time so that the parties would have adequate time to evaluate
the report of psychiatric expert Dr. Aaron Wolf. All of these events are
commonplace in litigation. Imposing a strict time limit would clearly inhibit
the discretion of the Hearing Committee to make adjustments for these or other
similar events. In addition, it is ultimately beneficial to petitioners to have
a scheme where the Hearing Committee or
Disciplinary Board is not bound by strict time constraints because the Committee and
[*46] Board have greater latitude to approve continuances if the petitioner needs
more time for any reason.
Furthermore, this court and others have suggested that
"time limits for the issuance of findings of fact are
directory and not
mandatory, and that the mere lapse of time is not enough to require reversal." n59 Because we
conclude that the time limits imposed by Rule 29 are
directory, the Hearing Committee's failure to abide by them does not entitle Wiederholt
to any relief unless he was substantially prejudiced by the delay. n60 The record indicates that he was not. The delay did not impinge on any of
Wiederholt's rights -- he was already
disbarred and unable to practice law -- and did not affect the resolution of the case.
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n59
Oaksmith v. Brusich, 774 P.2d 191, 201-02 (Alaska 1989); see
Hughes v. Nashua Mfg. Co., 257 Cal. App. 2d 778, 65 Cal. Rptr. 380, 385 (Cal. App. 1968);
Hoppin v. Lang, 74 Mont. 558, 241 P. 636, 644 (Mont. 1925).
n60 See
Schnell, 8 P.3d at 357;
Copper River Sch. Dist. v. State, 702 P.2d 625, 627 (Alaska 1985).
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[*47]
In addition, the Hearing Committee did not act unreasonably. First, the Hearing
Committee acted promptly once it was assigned Wiederholt's petition on June 30,
1999. Once the Hearing Committee had notice of the case, it did notify
Wiederholt on July 20 that it had scheduled a pre-hearing conference for his
case on July 28. Both of these dates do fall within a reasonable period after
Wiederholt filed his petition. The result of the pre-hearing conference was a
scheduling order, issued on August 2, that specified all of the deadlines for
filing motions and witness lists in the case and set a hearing date of August
31. A notice of formal hearing was sent to Wiederholt on August 9. Second,
Wiederholt himself slowed down the process by filing a motion to strike the bar
association's
designation of record for his
reinstatement hearing on August 16. n61 Third, although the bar association did in fact file a request for a second
pre-hearing conference to determine a new hearing date on August 19, the
purpose of this request was to aid both itself and Wiederholt in better
preparing their cases. This request sought to delay the hearing so that the
parties would have adequate time to review
[*48] the written psychiatric evaluation of Wiederholt prepared by Dr. Aaron Wolf.
Because Dr. Wolf was meeting with Wiederholt on August 24 (a date agreed upon
by Wiederholt) and could not complete his written report until August 31, the
date of the hearing, the bar association argued that all of the parties needed
extra time to address any questions raised by the report and to determine
whether Dr. Wolf would be called as a witness.
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n61 The bar association
filed an opposition to his motion that same day. Wiederholt then filed a reply
on August 18. This motion was denied on August 24.
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We do note, however, that there was an unexplained delay in the issuance of the
Hearing Committee's rulings and findings. Wiederholt's
reinstatement proceedings concluded on October 8, 1999, yet the Hearing Committee did not
issue its report until February 2000. There is no information in the record to
explain why the Hearing Committee took this long. And the
Disciplinary Board requested, from this court, extra time to file its
[*49] report because the Hearing Committee had not timely submitted its report. But
we conclude that this delay did not prejudice Wiederholt.
The record does support Wiederholt's contention that the Hearing Committee did
not abide by the time limits set out in Rule 29. But this provision is
directory and Wiederholt was not substantially prejudiced by the delay. Accordingly,
Wiederholt is entitled to no
relief on this basis.
D. This Is Not the Forum to Create Bar Rules on
Disbarment.
1.
Disbarment in Alaska is not permanent.
The bar association asks this court to determine whether
"some
disbarment
misconduct is so serious" that the individual can be permanently barred from
reinstatement. It further contends that if this court determines that such conduct exists, it
should determine whether Wiederholt's actions meet this standard. By asking
this court to create a rule by which certain individuals can be forever barred
from
reinstatement, the bar association is suggesting a rule that states that permanent
disbarment can exist in Alaska, at least under certain limited circumstances.
Disbarment in Alaska is not permanent.
Alaska Bar Rule 29(b)(5) allows a lawyer who has been
disbarred
[*50] to apply for
reinstatement five years from the effective date of the
disbarment. n62 It is not appropriate for this court to make an ad hoc
decision on this issue in the context of this case. Any rule amendment should
take place pursuant to the standard practices for amending the rules. n63
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n62
See Alaska Bar R. 29(b)(5);
Buckalew, 731 P.2d at 51 n.8.
n63 See Alaska Bar R. 62.
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2. The Rules Do Not Specify a
Waiting Period Before Wiederholt Can Reapply.
The bar association contends that if this court denies Wiederholt's petition,
"no rule prevents him from submitting a new application the next day." Consequently, the bar association asks for the designation of a
waiting period before he can reapply for
reinstatement in the event we decide that Weiderholt should not be reinstated.
The Alaska Bar Rules do not place any restrictions on an individual's ability
to file a subsequent petition for
reinstatement. The bar association may be correct in its assertion
[*51] that
"the imposition of a
waiting period will prevent other applicants from 'practicing'
reinstatement till they can say the right things." However, Wiederholt's appeal is not the proper forum to set a procedural rule
that binds him and all other future petitioners seeking
reinstatement under Rule 29.
The designation of a
waiting period prior to reapplication for
reinstatement is a matter that should be governed by rule. Therefore, if the bar association
seeks to amend Rule 29 to include a
waiting period, it has the power to commence the process by presenting this court with a
suitable proposal. n64 It has not done so. We decline to act in these circumstances.
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n64 See
Alaska Bar Rule 62.
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V. CONCLUSION
Because the
Disciplinary Board took all of the relevant factors into account and because the weight of
the evidence supports the board's
denial of Wiederholt's petition for
reinstatement to the
practice of law, we AFFIRM the decision not to
reinstate Wiederholt.
