IN RE: PETITION OF KURT BUTCHER FOR REINSTATEMENT TO THE BAR OF ARKANSAS
No. 95-749
SUPREME COURT OF ARKANSAS
322 Ark. 24;
907 S.W.2d 715;
1995 Ark. LEXIS 563
October 9, 1995, Opinion Delivered
October 9, 1995, filed
SUBSEQUENT HISTORY:
[***1] As Amended.
DISPOSITION: PETITION DENIED.
HEADNOTES: 1. ATTORNEY
& CLIENT -- REGULATION OF THE
PRACTICE OF LAW -- SUPREME COURT HAS THE RESPONSIBILITY TO REGULATE. -- The separation of
powers provisions of the Constitution of the State of Arkansas inherently
places the responsibility of regulating the
practice of law in the supreme court; in addition, Amendment 28 expressly places the
responsibility in the court.
2. ATTORNEY
& CLIENT --
READMISSION TO THE BAR -- STANDARDS GOVERNING
READMISSION -- PRESUMPTION EXISTS AGAINST
READMISSION. -- The standards governing
readmission are settled; a
practice of law is a privilege and not a right; the lawyer who has lost his or her
license has the
burden of proof at the
readmission hearing; once a lawyer has lost his
license to practice law, either through
surrender or disbarment, there is a presumption against
readmission; the protection of the public and the honor and integrity of the
legal profession are the
"overriding" considerations in
readmission cases;
rehabilitation of the disbarred lawyer is given only
"due" consideration; a
position of
trust, and sometimes an actual
fiduciary relationship, exists in an attorney-client relationship; for our
legal system to function properly, a client must be able to have trust in his or her
counsel, and it is the responsibility of the court to see that the public can
have that trust.
3. ATTORNEY
& CLIENT -- PROOF OF
REHABILITATION OF PHYSICAL
DISORDER NOT NECESSARILY PROOF OF
RESTORED MORAL FITNESS -- PETITIONER'S PROOF DID NOT OVERCOME THE PRESUMPTION AGAINST
READMISSION. -- Even though the petitioner made good progress in the
rehabilitation of his
disorder, there was no
direct proof that his
bipolar
disorder caused him to act in deceptive or dishonest manner; the proof showed that
petitioner's mental stability is
restored while he is on
medication, but there was no proof that he is
morally fit to
practice law; petitioner's proof before the Board fell short of overcoming the presumption
against
readmission.
4. ATTORNEY
& CLIENT -- EVEN IF PROOF OF
RESTORED MORAL
FITNESS ASSUMED --
PUBLIC TRUST WOULD NOT BE SATISFIED BY PETITIONER'S
READMISSION. -- Even if petitioner's proof could be said to constitute some proof of
restored moral fitness, it would be given only due consideration; the
public trust and integrity of the Bar would be given
overriding consideration, and the court was not satisfied that the
public trust would be satisfied by the
readmission of petitioner.
5. ATTORNEY
& CLIENT -- OVERCOMING PRESUMPTION AGAINST
READMISSION AND SHOWING MORAL
REHABILITATION STILL WOULD NOT MAKE PETITIONER COMPETENT TO
PRACTICE LAW. -- Even if petitioner had overcome the presumption against
readmission and had made a strong showing of moral
rehabilitation, it would not mean that he was competent to
practice law, or that we would necessarily approve immediate
reinstatement; the Board can recommend conditions upon which an attorney might be
reinstated; when a
former attorney has been out of the
law practice for a considerable
amount of time it is not likely that immediate
reinstatement to the Bar would ever be ordered;
rather, it is more likely that he or she would only be deemed
morally fit to take the
bar examination once again and, if he or she passed the exam, then the
license could be
reinstated.
JUDGES: ROBERT H. DUDLEY, Associate Justice
OPINIONBY: ROBERT H.
DUDLEY
OPINION:
[*25]
[**716] ROBERT H. DUDLEY, Associate Justice
Kurt Butcher was admitted to the Bar of Arkansas in 1974. Ten years later, in
August 1985, because of complaints of former clients filed against him with the
Committee on Professional Conduct, he asked us to accept the
surrender of his
license. We accepted the
surrender of his
license by per curiam order on September 30, 1985. Nine years later, in January 1994,
he petitioned the Board of Law Examiners for
reinstatement to the Bar. The Board conducted a hearing to determine whether petitioner was
"of good moral character and mentally and emotionally stable." See
Rules Governing Admission to the Bar XIII. The Board, by a six-to-five vote, recommended to this court
that it reinstate petitioner. We deny the petition for
reinstatement.
I.
At the time petitioner surrendered his
license he admitted in a verified pleading to this court:
1. That he had represented Donald and Lela
Faye DeShields and told them he was waiting for a trial date. In truth, their
case had been dismissed.
[*26] 2. That Franklin G. and Geraldine Roth employed him to dissolve a corporation.
[***2] He accepted service of process for a suit filed against his clients and did
not tell them they had been sued.
3. That Aaron Don Gaylor employed him in two separate legal matters and paid
fees for both. Petitioner apparently did nothing.
4. That Joseph C. Fisher employed him in a contested case. He failed to notify
Fisher that he was to give a deposition.
[**717] The trial court imposed sanctions against Fisher, and it was necessary for
Fisher to employ other counsel.
5. That Clarence A. and Betty I. Leis employed him for some corporate law work,
but he did not timely complete the work. The Leises alleged that consequently
they were forced to file a Chapter
11 petition in bankruptcy court. Petitioner's actions were such that the
bankruptcy court entered a $ 10,000 nondischargable judgment against petitioner.
6. That five counts of
felony
theft of property by
deception were filed against petitioner by former clients in the Circuit Court of Yell
County.
7. That two counts of
felony
theft by
deception were filed against petitioner in the Circuit Court of Washington County.
In addition to the foregoing violations of the Rules of Professional Conduct, a
civil judgment
[***3] in the amount of $ 5,000 was outstanding against appellant. However, that
judgment, unlike the nondischargable bankruptcy judgment, implies no breach of
responsibility to a client.
The two counts of
felony
theft by
deception filed against petitioner in Washington County were subsequently dismissed upon
a request by the prosecuting attorney. The prosecutor's request was based on
the
opinion of Dr. Roy Ragsdill of the Arkansas State Hospital that petitioner
lacked capacity to appreciate the criminality of his conduct.
Petitioner pleaded nolo contendere to the five counts of
[*27]
felony
theft in Yell County and was given a suspended imposition of sentence and one year's
probation.
Both civil judgments against petitioner remain unsatisfied. Upon learning that
petitioner had applied for
reinstatement, Clarence Leis, one of petitioner's former clients, wrote the Board, in part,
as follows:
What makes me think that he has not learned his lesson or is sorry for what he
has done is that he has asked someone else to call me to drop charges on him.
If he had any compassion or was sorry, he would have called me or other members
of my family and talked to us about it himself.
II.
As
[***4] early as 1977, petitioner was diagnosed as having a
bipolar
disorder, formerly known as a manic-depressive
disorder, and essential hypertension. He took lithium and thorazine to control the
disorder, but in 1983, upon advice of a physician who was not his treating physician, he
discontinued the
medication. He lapsed into a manic depressive psychosis by early 1984. Petitioner
testified to the Board that he has been generally stable since 1985, and that
he has strictly followed the treatment prescribed by his treating physiatrist.
He states that he now has a full awareness of his affliction and its possible
effect upon potential clients should he be allowed to return to the
practice of law.
Dr. Edwin C. Jones, petitioner's treating physiatrist, states that petitioner
is presently competent to
practice law from the perspective of treatment of the
bipolar disease. Petitioner states that he desires to remain free of the adverse
effects of his
disorder and that he will follow the prescribed plan of
medication. He has submitted a substantial number of letters supporting his
reinstatement. The letters are from judges, business people, and friends.
III.
[1]The separation of powers provisions
[***5] of the Constitution of the State of Arkansas
inherently places the responsibility of regulating the
practice of law in this court.
Hurst v. Bar Rules Comm., 202 Ark. 1101, 1108, 155 S.W.2d 697, 701 (1941).
[*28] In addition, Amendment 28 expressly places the responsibility in this court.
Ark. Const. amend. 28.
[2]The standards governing
readmission are settled. A
practice of law is a privilege and not a right.
In re Petition for Reinstatement of Lee, 305 Ark. 196, 806 S.W.2d 382 (1991). The lawyer who has lost his or her
license has the
burden of proof at the
readmission hearing.
Rules Governing Admission to the Bar XIII. Once a lawyer has lost his
license to practice law, either through
surrender or disbarment, there is a presumption against
readmission.
In re Admission of Anderson, 312 Ark. 447, 851
[**718] S.W.2d 408 (1993). The protection of the public and the honor and integrity of the
legal profession are the
"overriding" considerations in
readmission cases.
Rehabilitation of the disbarred lawyer is given only
"due" consideration.
Hurst, 202 Ark. at 1109, 155 S.W.2d at 701. A
position of trust, and sometimes an actual
fiduciary relationship, exists in an attorney-client relationship.
[***6] For our
legal system to function properly, a client must be able to have trust in his or her
counsel, and it is the responsibility of this court to see that the public can
have that trust.
Anderson, 312 Ark. at 453, 851 S.W.2d at 411.
[3]Petitioner has made good progress in the
rehabilitation of his
disorder, and we commend him in those efforts. His medical testimony shows that, from
the perspective of his
bipolar
disorder, he is now competent to
practice law. However, there was no
direct proof that a
bipolar
disorder causes one to act in a deceptive or dishonest
manner. The proof showed that petitioner's mental stability is
restored while he is on
medication, but there was no proof that he is
morally fit to
practice law. Petitioner's proof before the Board fell short of overcoming the presumption
against
readmission.
[4]Even if petitioner's proof can be said to constitute some proof of
restored moral fitness, it would be given only due consideration. The
public trust and integrity of the Bar would be given
overriding consideration, and we are not convinced that the
public trust would be satisfied by the
readmission of petitioner.
[5]Finally, for the guidance of the Board and the Bar we
[***7] note that even if petitioner had overcome the presumption against
readmission and had made a strong showing of moral
rehabilitation, it would not mean that he was competent to
practice
[*29] law, or that we would necessarily approve immediate
reinstatement. The Board can recommend conditions upon which an attorney might be
reinstated.
Rules Governing Admission to the Bar XIII. The Board might make a
recommendation such as
reinstatement upon receiving favorable continuing medical reports, or some other appropriate
condition. However, when a
former attorney has been out of the
law practice for a considerable
amount of time, ten years in this case, it is not likely that we would order immediate
reinstatement to the Bar. Rather, it is more likely that he or she would only be deemed
morally fit to take the
bar examination once again and, if he or she passed the exam, then the
license could be
reinstated.
Petition denied.
