IN THE MATTER OF THE REINSTATEMENT OF A MEMBER OF THE STATE BAR OF ARIZONA,
MERRILL W. ROBBINS, Applicant.
Supreme Court No. SB-91-0038-R
SUPREME COURT OF ARIZONA
172 Ariz. 255;
836 P.2d 965;
1992 Ariz. LEXIS 56;
119 Ariz. Adv. Rep. 12
August 18, 1992, Filed
PRIOR HISTORY:
[***1]
Disciplinary Commission No. 89-0983
DISPOSITION: Applicant Reinstated
COUNSEL: Harrison, Harper, Christian
& Dichter, P.C., Phoenix, By: Mark I. Harrison and Stephen Montoya, Attorneys
for Applicant.
State Bar of Arizona, Phoenix, By: Harriett L. Turney, Chief Bar Counsel.
JUDGES: En Banc. ZLAKET, FELDMAN, CORCORAN, SHELLEY, LANKFORD
OPINIONBY: THOMAS A. ZLAKET
OPINION:
[**965]
[*255] OPINION
ORIGINAL PROCEEDING FOR
REINSTATEMENT
ZLAKET, Justice
Applicant, Merrill W. Robbins, petitioned for
reinstatement to active bar membership pursuant to Rule 72, Sup. Ct. R., 17A A.R.S. By order
dated April 9, 1992, we granted his request, subject to the conditions set
forth herein, and indicated that this opinion would follow.
FACTUAL BACKGROUND
Applicant was admitted to the State Bar of Arizona in 1964. He practiced law in
Arizona until August 1, 1975, when he
resigned in lieu of
disbarment. It serves little purpose to recite the details of his professional demise.
Suffice it to say that Applicant apparently suffered a severe episode of
depression beginning in 1973, during which he committed serious breaches of the
Code of Professional Responsibility then in effect. His offenses included the
misappropriation of client funds. His problems were neither alcohol-
[***2] nor drug-related.
Applicant's
conduct during this time resulted not only in the loss of his right to practice
law, but also in the end of his marriage, excommunication from his church, and
serious erosion of his relationships with family and friends. This
self-destructive period culminated with a federal prison term, of which
Applicant served one year in 1979, for forging a client's name to a government
check.
Applicant's slide from respected member of the community to convicted felon is
thankfully not the end of his story. According to substantial evidence taken by
the hearing committee, he worked hard to reform himself, and has now been a
good citizen for more than a decade. Applicant demonstrates clear remorse for
his misdeeds, and by all accounts has straightened out his life. He also has
endeavored, where possible, to make
restitution for losses he caused.
DISCUSSION
In considering an application for
reinstatement, this court is concerned
first and foremost with protecting the public.
[**966]
[*256]
Disbarment, or
resignation in lieu of
disbarment, is not necessarily a permanent status, nor should it be considered punishment.
Its purpose is to protect the public, the profession and the
[***3] justice system.
In re MacAskill, 163 Ariz. 354, 361, 788 P.2d 87, 94 (1990). Hence, neither the fact that Applicant has been sufficiently sanctioned, nor
the mere
passage of time, is enough to warrant
reinstatement. Applicant's burden is to show, by clear and convincing evidence, that he has
been
rehabilitated, that he is competent, and that he poses no further threat to members of the
public. Rule 72(e), Sup. Ct. R., 17A A.R.S. See American Bar Association
Standards for Imposing Lawyer Sanctions, comment to
§ 2.10,
"Readmission and
Reinstatement." It is irrelevant whether an applicant was
disbarred, or
resigned in lieu of
disbarment. The effect is the same, as is the burden associated with
reinstatement.
In re Kamins, 752 P.2d 1125, 1129 (Okla. 1988). The more egregious the
misconduct, the heavier an applicant's burden to prove his or her present fitness to
practice law. Clearly, the
misappropriation of client funds is a serious offense.
None of us has a crystal ball, so there can be no guarantees for the future. We
must do our best, however, to ensure that Applicant is able to shoulder the
serious duties and obligations
[***4] of an attorney without breaching the trust and professional responsibility
imposed on him by law.
In
Application of Spriggs, 90 Ariz. 387, 388 n. 1, 368 P.2d 456, 457 n. 1 (1962), we noted four major factors to be considered in passing upon an application
for
reinstatement:
"the applicant's character and standing prior to the
disbarment, the nature and character of the charge for which he was
disbarred, his conduct subsequent to the
disbarment, and the time that has elapsed between the
disbarment and the application for
reinstatement." Other jurisdictions
add to this list. Maryland, for example, also considers an applicant's current
qualifications, character and
competence to return to the practice of law. See, e.g.,
In re Barton, 273 Md. 377, , 329 A.2d 102, 104 (1974). Washington takes into account, as well, an applicant's standing, reputation
and ethics prior to the
disbarment, the sufficiency of punishment, if any, efforts at
restitution, and the sincerity and truthfulness of an applicant in presenting and
discussing the factors relating to
disbarment and
reinstatement.
In re Rosselini, 108 Wash. 2d 350, , 739 P.2d 658, 660-61 (1987).
[***5] Oklahoma additionally looks at
"the petitioner's demonstrated consciousness of the wrongful conduct and
disrepute which the conduct has brought the legal profession."
In re Reinstatement of Crabtree, 793 P.2d 296, 297 (Okla. 1990).
We will heed each of these factors, but the bottom line must always be whether
the applicant has
"affirmatively
shown that he has overcome those weaknesses that produced his earlier
misconduct,"
In re Krogh, 93 Wash. 2d 504, , 610 P.2d 1319, 1321 (1980), i.e., whether he has been
rehabilitated. Because the inquiry is fact intensive, each case must be determined on its own
merits. We therefore have examined the record carefully in reaching our
decision. It is significant, but not dispositive, that the State Bar does not
oppose
reinstatement here. It also is important that Applicant has made substantial
restitution to those injured by his conduct, and has agreed to continue such efforts.
Evidence at the hearing included testimony from reputable witnesses who have
known and observed Applicant for a number of years. They verified his
turnaround and his awareness of the wrong he has done. They testified
[***6] that he has become a solid citizen.
The Disciplinary Commission found in Applicant's favor and recommended
reinstatement, even though the hearing committee had previously voted otherwise. The
committee's reluctance was primarily due to Applicant's failure to have filed
income tax returns for several years in the mid-1980's, and his misstatement in
a subsequent bankruptcy petition. The uncontroverted testimony, however, and
the findings of the Commission, indicated that these omissions innocently
resulted from a misunderstanding of the tax laws governing the relationship
between income and
[**967]
[*257] losses carried over from prior years. Applicant's expert witness, an attorney
formerly with the Office of Chief Counsel, United States Department of the
Treasury, testified that Applicant's mistake was commonly made, even by
professionals, and caused harm to no one. Further, the witness indicated that
the Internal Revenue Service, which she had regularly advised and represented,
would have no interest in pursuing Applicant under these circumstances. No tax
was ever due or payable, and all returns have now been filed. While we give
deference to the committee and its findings, our independent review
[***7] of the evidence leads us to agree with the Disciplinary Commission.
DISPOSITION
Based on the foregoing, we have reinstated
Applicant on the following terms and conditions:
1) Applicant shall pay dues as required by the State Bar.
2) Applicant shall be on probation for two years, on such terms and conditions
as the State Bar may reasonably require, including but not limited to the
following:
A. Applicant shall comply with the Rules of Professional Conduct;
B. A practice
monitor,
appointed and approved by the State Bar, will review Applicant's cases and submit
monthly reports to the Bar regarding Applicant's caseload, the extent to which
he is rendering timely, competent legal services, and any apparent breach of
the
terms of probation;
C. A financial
monitor,
appointed and approved by the State Bar, will oversee Applicant's
financial affairs, including his trust and operating accounts, and will submit
quarterly reports to the Bar regarding the manner in which Applicant is handling his
financial affairs, and any apparent
breach of the
terms of probation;
D. The State Bar shall perform random audits of Applicant's trust and operating
accounts on no less than a
quarterly basis;
[***8]
E. Applicant shall authorize his bank or banks to notify the State Bar of any
overdrafts in his trust account;
F. Applicant shall submit copies of his state and federal tax returns to the
State Bar for the period of probation.
3) Applicant shall pay all costs of disciplinary proceedings, including but not
limited to auditing and monitoring expenses incurred as a result of the order
of
reinstatement, in amounts to be determined by the State Bar.
4) Applicant shall be required to make
restitution to the Client Security Fund of the State Bar, and all former clients having
unsatisfied claims against him, to the fullest extent reasonably possible. In
this regard, the State Bar has been ordered to fairly determine the amount of
restitution
due and owing, and the identity of the parties to whom it is owed, recognizing
the difficulty in ascertainment and computation resulting from the long
passage of time since Applicant's
resignation, and the less than perfect records of the Fund and the Bar. Applicant and the
State Bar have reached satisfactory agreement, approved by the court, in
connection with this obligation.
5) Applicant shall make the payments required in paragraphs 3 and 4 above
[***9] on reasonable terms and conditions established by the State Bar. Such payments
shall be completed no later than the expiration of the
probationary period referred to in paragraph 2 above. Should Applicant fail to do so, this court
will entertain an immediate motion to revoke his
reinstatement. If necessary, the
probationary period may be extended on stipulation and/or on petition to this court.
6) Applicant has been required to submit proof of
competence, including certification by the bar examiners of the successful completion of
an examination for admission to practice administered
prior to his
reinstatement.
THOMAS A. ZLAKET, Justice
CONCURRING:
STANLEY G. FELDMAN, Chief Justice
ROBERT J. CORCORAN, Justice
MELVYN T. SHELLEY, Judge (Retired)
JEFFERSON L. LANKFORD, Judge
Vice Chief Justice James Moeller and Justice James Duke Cameron (now
retired) did not participate in this
[**968]
[*258] decision. Pursuant to Article 6, Section 3 of the Arizona Constitution, Judge
Melvyn T. Shelley and Judge Jefferson L. Lankford of the Arizona Court of
Appeals, Division One, were designated to sit in their stead.
