RICHARD M. HIPPARD, Petitioner, v. THE STATE
BAR OF CALIFORNIA, Respondent
No. S008378
Supreme Court of California
49 Cal. 3d 1084;
782 P.2d 1140;
1989 Cal. LEXIS 2095;
264 Cal. Rptr. 684
December 11, 1989
SUBSEQUENT HISTORY:
[***1]
Petitioner's application for a rehearing was denied March 1, 1990. Broussard,
J., and Panelli, J., were of the opinion that the petition should be granted.
DISPOSITION: The petition for reinstatement is denied. This is effective upon finality of
this decision in this court. (See Cal. Rules of Court, rule 24(a).)
COUNSEL: Larson
& Weinberg, Joel C. Johnson and Doron Weinberg for Petitioner.
Diane C. Yu, Truitt A. Richey, Jr., and Richard J. Zanassi for Respondent.
JUDGES: Separate dissenting opinion by Panelli, J., with Mosk and Broussard, JJ.,
concurring.
OPINIONBY: THE COURT
OPINION:
[*1088]
[**1141]
This is a proceeding to review the State
Bar's denial of Richard Hippard's petition for
reinstatement to the practice of law. We hold that petitioner's discharge in bankruptcy of
indebtedness to clients arising from
misconduct did not preclude the State
Bar from considering, as an indicator of
rehabilitation, petitioner's efforts, if any, to make
restitution; that petitioner did not meet his burden of demonstrating
rehabilitation because he failed to prove either an inability to make
restitution in whole or in part or an objectively verifiable effort to make
restitution reasonably related to his ability to pay; and that the appropriate
[***2] showing regarding
restitution must be made before the granting of
reinstatement, and not thereafter as a condition of
reinstatement. We conclude petitioner should not be
reinstated at this time.
[**1142] Facts
Petitioner was admitted to the practice of law in 1966. The State
Bar initiated three separate
disciplinary proceedings against petitioner based on
misconduct that occurred between 1971 and 1975. In
one of the proceedings, the Local Administrative Committee of the State
Bar
recommended in June 1976 that petitioner be disbarred. The
recommendation was based on the finding that petitioner had
misappropriated $ 3,967.66 from a client, Maxine Peairs. It was made after the entry of a
judgment in favor of the client based, in part, on judicial findings that
petitioner had converted funds and had wilfully and knowingly engaged in
conduct which created an undue hardship on his client in breach of his
fiduciary duties.
Thereafter, in August 1976, petitioner submitted his
resignation to the State
Bar. The Board of Governors adopted a resolution recommending acceptance by this
court of petitioner's
resignation subject to the completion of proceedings to perpetuate the evidence in the
remaining
[***3] two pending
disciplinary matters. Petitioner and the State
Bar then entered into
"Stipulations and Admissions" in both of the remaining proceedings. Those stipulations and admissions,
signed by petitioner on January 18,
1977, address a total of five counts and numerous instances of
misconduct for the period 1972 to 1975.
Petitioner admitted the commission of the following acts of
misconduct: (1) seven instances of borrowing money from clients either for himself or, in
one instance, for a friend, totaling more than $ 22,000, without providing
security or disclosing his poor financial condition and his probable inability
to
repay; (2) one instance of advising a client to loan funds at a usurious rate; (3)
three separate instances of abandoning clients; (4) four instances of
[*1089] knowingly issuing checks drawn on either a closed account or on accounts with
insufficient funds; (5) two instances of misappropriating funds from clients;
(6) one instance of fraudulently representing to his client and to the United
States Bankruptcy Court in the client's bankruptcy case that funds he had
misappropriated had been
disbursed to creditors; and (7) one instance of falsely representing to
[***4] the State
Bar that he had sent a check to one of his creditors. n1
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n1 Two of petitioner's clients subsequently obtained
repayment for some of their losses from the State
Bar Client Security Fund (hereafter Client Security Fund).
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In February 1977, we accepted petitioner's voluntary
resignation without prejudice to further
disciplinary proceedings in the event he should thereafter seek
reinstatement. We also ordered petitioner to comply with rule 955, California Rules of Court
(hereafter rule 955), subdivisions (a) and (c) within 60 and 70 days,
respectively. n2 Petitioner failed to do so.
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n2 The relevant portions of rule 955(a) require an attorney to: (1) notify
clients and any co-counsel of his or her
resignation, (2) make arrangements to deliver and deliver to clients and cocounsel any
papers and property to which the client is
entitled, (3) refund unearned fees, and (4) notify opposing counsel in pending
litigation of his or her
resignation and file a copy of the notice with the court or other tribunal before which
the litigation is pending. Subdivision (c) requires the attorney to serve on
the State
Bar and file with this court an affidavit of compliance with the provisions of
rule 955. The affidavit must set forth an address where communications may be
directed to the attorney.
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[***5]
Between 1976 and December 1979, petitioner worked as a sales agent for a real
estate company. During that period, his earnings increased from approximately
$ 15,000 to $ 27,500 a year. From 1977 to 1981, petitioner underwent
professional counseling for what his therapist described as a
"me-first" attitude that resulted in a
"charming pattern of pushiness and aggressive extraction of supplies from the
environment, feeling he has the right to whatever he needs." Petitioner apparently has not
sought or received counseling since 1981.
In April 1980, petitioner filed for bankruptcy, listing $ 88,762 as debts
(including 24 judgments against him in the sum of approximately $ 58,000) and $
3,520 as the value of his property. A number of petitioner's debts, including
obligations to a
[**1143] number of his clients and to the Client Security Fund, were
discharged by the bankruptcy court. Not
discharged were petitioner's outstanding tax obligations and a judgment against him based
on fraud (the misappropriation of funds from client Maxine Peairs). Petitioner
has never repaid Maxine Peairs.
Between 1980 and 1984, petitioner worked for six different firms selling real
estate, and for a brief period
[***6] he was employed at an executive placement firm. He earned $ 10,000 in 1980; $
33,900 in 1981; $ 9,500 in 1982;
[*1090] $ 19,545 in 1983; and $ 39,400 in 1984. In
January 1984, petitioner became a self-employed legal assistant for John Trump,
a San Francisco solo practitioner. He has worked full-time for Mr. Trump since
that time, earning $ 36,000 a year.
Petitioner's marriage ended in an uncontested divorce in 1975. He has three
children. Since his divorce, petitioner has paid child support and contributed
to the costs of his children's education. In January 1987, when the petition
for
reinstatement was filed, petitioner's 3 children were 23, 21, and 16 years old. Petitioner
testified that he has always believed he was morally, if not legally, obligated
to
repay his debts to his former clients. However, between 1980 and now, petitioner
has not repaid his former clients any of the sums he had improperly obtained or
converted. Although petitioner has stated he believes he may have made partial
payments to some of his former clients before 1980, the
record is inadequate to permit evaluation of such payments.
State
Bar Court Proceedings
The petition for
reinstatement sets
[***7] forth petitioner's divorce in 1975, his family background, his
resignation, a brief summary of the
disciplinary proceedings that
recommended
disbarment, his occupational history since 1976, his earnings and expenses, and a brief
discussion of 15 lawsuits pending against petitioner at the time of his
resignation and their outcome. The petition cites as justification for
readmission the passage of 10 years since petitioner's voluntary
resignation; his assertion that he has stabilized his life and begun to control his
finances; the success of his therapy; and a number of
testimonial letters from members of the legal profession and from friends, associates, and
former clients. The
testimonials include a letter from Attorney John Trump (petitioner's employer), stating,
among other things, that petitioner has learned from his past
misconduct; paid his debt to society; and, if readmitted, would be
"a welcome addition to our
legal staff." n3
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n3 Although the record contains several references to petitioner's being
assured of a job with Mr. Trump if petitioner is successful in getting
reinstated, it appears from the record that the references may well be to petitioner's
being
associated with Mr. Trump in the sense of sharing expenses and overhead and not as an
associate in an employer-employee relationship. Petitioner is presently an independent
contractor. Mr. Trump testified at the hearing that his practice is
"a sole proprietorship but associated with four other attorneys for purposes of
sharing overhead and expenses." The distinction is also suggested by the following colloquy between the
principal
referee and Mr. Trump at the hearing:
"Mr. Carson [principal
referee]: You have indicated to us that you would offer an associate position to
petitioner, is that correct? [para.] The Witness [Mr. Trump]: That's correct.
[para.] Mr. Carson: In that context, would you require him to be bonded and
insured? [para.] The
Witness: No, and if I did, I wouldn't offer him that position. [para.] Mr.
Carson: Would your office provide insurance coverage for him as an associate?
[para.] The Witness: No, sir." Despite the ambiguity of the record on this point, it is nevertheless clear
from Mr. Trump's supporting letter and testimony that in his view petitioner
should be
reinstated.
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[***8]
[*1091] Following an
evidentiary hearing at which petitioner testified, a three-member
hearing panel of the State
Bar unanimously
recommended that the petition be denied. The
hearing panel made these findings: (1) petitioner had
misappropriated $ 3,967.66 from client Maxine Peairs, (2)
disciplinary proceedings were pending against petitioner when he resigned from the State
Bar, (3) he continued to borrow money from clients without
repayment schedules, (4) he made false statements to the State
Bar relating to a check for an overdraft being in the mail, (5) petitioner
encouraged a
client to give false testimony in a bankruptcy proceeding, (6) he named clients
from whom he
[**1144] had borrowed money as creditors in his petition in bankruptcy, (7) he has made
no effort to
repay in whole or in part any of the funds he obtained from clients despite his
having been gainfully employed in recent years, and (8) he has established the
requisite knowledge of the law to be qualified to practice. The
hearing panel concluded that the evidence
"clearly and convincingly supports the conclusion that Petitioner is not
rehabilitated. . . ." In support of its conclusion, the
hearing panel specifically cited
[***9] petitioner's continued borrowing of money from friends, paying some and not
others, and indulging his own interests rather than repaying clients or the
Client Security Fund. The panel determined
"[t]he overwhelming evidence clearly supports the conclusion that the Petitioner
has done little to rehabilitate himself. . . ."
By a vote of nine to two, the
Review Department of the State
Bar
adopted the findings and conclusions of the
hearing panel. In addition, it found that petitioner wilfully failed to comply with rule 955,
as ordered by this court,
"until after he had applied for
reinstatement in 1987." It cited petitioner's insufficient efforts to
repay his clients or the Client Security Fund and his
noncompliance with rule 955 as clearly and convincingly supporting the conclusion that he
did not sustain his burden of showing exemplary conduct over an extended period
of time. It then denied, again by a vote of nine to two, the petition for
reinstatement. One of the
referees who had voted to deny the petition noted that the issue of petitioner's
rehabilitation presented a close question. The same
referee, joined by another, also expressed the view it was unfortunate that
reinstatement
[***10] could not be accepted with conditions.
Discussion
1.
Burden of Proof
In seeking
reinstatement, petitioner bears a heavy burden of proving
rehabilitation. (Calaway v. State Bar (1986) 41 Cal.3d 743, 745 [225
[*1092] Cal.Rptr. 267, 716 P.2d 371];
Tardiff v. State Bar (1980) 27 Cal.3d 395, 403 [165 Cal.Rptr. 829, 612 P.2d 919].) He must show by the most clear and convincing evidence that efforts made
towards
rehabilitation have been successful. (Feinstein v. State Bar (1952) 39 Cal.2d 541, 546-547 [248 P.2d 3].) The evidence presented is to be considered in light of the
moral short-comings that previously resulted in
discipline. (Tardiff, supra, 27 Cal.3d at p. 403;
Roth v. State Bar (1953) 40 Cal.2d 307, 313 [253 P.2d 969].)
This court does possess the plenary power to
reinstate an
individual to the practice of law notwithstanding the findings and
recommendations of the State
Bar to the contrary. The existence of this authority, however, does not nullify
the rule
[***11] that the State
Bar's findings and decision are entitled to great weight. (Tardiff, supra, 27 Cal.3d at p. 404.) As we observed in
Feinstein, supra, 39 Cal.2d at pages 547-548:
"Although this court has plenary power to
reinstate an applicant previously disbarred, it has always accorded the greater
deference to the
recommendation of The State
Bar and its administrative committee. [Citation.] Only where the record clearly
and convincingly demonstrates that the applicant possesses an acceptable
appreciation of the duties and responsibilities of an attorney at law in
relation to his clients and the courts may a decision overruling the
unfavorable action of the Board of Governors be justified. [Citation.]" n4
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n4 Generally, the issue of the propriety of
reinstatement arises after
disbarment. (E.g.,
Calaway, supra, 41 Cal.3d at p. 745;
Tardiff, supra, 27 Cal.3d at p. 398.) Here, petitioner resigned with
disciplinary proceedings pending against him. The distinction does not significantly
affect this case. As noted earlier, petitioner tendered his
resignation after the Local Administrative Committee of the State
Bar
recommended
disbarment, and during the pendency of two other
disciplinary proceedings encompassing numerous additional acts of
misconduct.
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[***12]
In this case, following an
evidentiary hearing at which eight witnesses, including petitioner, testified, the
hearing panel unanimously
recommended against
reinstatement. The
review department
[**1145] adopted the hearing panel's
recommendation. (See
In re Jones (1971) 5 Cal.3d 390, 399 [96 Cal.Rptr. 448, 487 P.2d 1016];
Feinstein v. State Bar, supra, 39 Cal.2d at p. 547; cf.
Resner v. State Bar (1967) 67 Cal.2d 799, 801, 807 [63 Cal.Rptr. 740, 433 P.2d 748].)
2.
Restitution and Bankruptcy
Petitioner contends that he satisfied his burden of proving
rehabilitation, and that the State
Bar erred in concluding he has made insufficient efforts to
repay clients or the Client Security Fund. He maintains that the denial of
reinstatement based on his failure to
repay debts
discharged in bankruptcy in the absence of a clear showing of financial ability to do so
[*1093] contravenes due process and undermines the purpose of the bankruptcy laws.
We recently addressed the propriety of imposing
restitution as a condition of probation following a discharge of the underlying
[***13] debt in bankruptcy. In
Brookman v. State Bar (1988) 46 Cal.3d 1004, 1008 [251 Cal.Rptr. 495, 760 P.2d 1023], we reiterated that the purpose of attorney
discipline is to protect the public from
specified professional
misconduct and at the same time rehabilitate the attorney. Because
restitution is not imposed
solely because the attorney has failed to pay a debt
discharged in bankruptcy, we held that such a requirement does not violate the bankruptcy
laws. n5 (Brookman, supra, at pp. 1008-1009.) We further observed in
Brookman that
restitution
"serves the state interest of rehabilitating culpable attorneys (and protecting
the public) by forcing the attorney to 'confront in concrete terms, the harm
his actions have caused.'" (Id. at p. 1009, quoting
Kelly v. Robinson (1986) 479 U.S. 36, 49, fn. 10 [93 L.Ed.2d 216, 228, 107 S.Ct. 353].) For the same reasons, the State
Bar may in its evaluation of a petition for
reinstatement consider the efforts, if any, made towards
restitution as an indicator
[***14] of
rehabilitation.
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n5
Title 11, section
525(a) of the United States Code provides in relevant part:
"[A] governmental unit may not deny, revoke, suspend or refuse to renew a
license . . . of . . . a bankrupt or a debtor under the
Bankruptcy Act . . .
solely because such bankrupt or debtor . . . has not paid a debt that . . . was
discharged under the
Bankruptcy Act." (Italics added.)
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Petitioner correctly argues that
restitution in and of itself is not necessarily determinative of whether
rehabilitation has been proven. (Resner, supra, 67 Cal.2d at p. 810.)
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
ability to restore the
misappropriated funds as well as the attitude expressed regarding the matter. (In re Gaffney (1946) 28 Cal.2d 761, 764 [171 P.2d 873].)
[***15] If the overall factual matrix presented in the specific case so warrants,
restitution need not be of the full amount
misappropriated. (Ibid.) The ability to make
restitution in relation to the overall amounts involved may be such that a requirement of
full
restitution would be the practical equivalent of a permanent preclusion of
reinstatement, either because it would simply be beyond the applicant's financial capability
or because the burden over a period of time would be sufficiently onerous as to
be economically destructive. (See
Resner, supra, 67 Cal.2d at pp. 810-811;
In re Gaffney, supra, 28 Cal.2d at pp. 764-765.) In this context, the significance of
restitution is its probative value as an indicator of
rehabilitation, not the
repayment of the underlying indebtedness.
[*1094] However, an applicant's inability to make full
restitution does not preclude the State
Bar, in
evaluating
rehabilitation, from considering whether the applicant has made any efforts at all at
restitution. n6
[**1146]
Restitution is fundamental to the goal of
rehabilitation. Where, as here, the
misconduct has resulted in appreciable
[***16] pecuniary loss to the applicant's clients, the State
Bar may properly consider the absence of an applicant's efforts to make any
restitution as an indicator of
rehabilitation. (See
Brookman, supra, 46 Cal.3d at p. 1009.)
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n6 If we allowed an attorney's inability to make
full
restitution to excuse the obligation to make
any
restitution, we would tend to relieve those attorneys whose
misconduct resulted in significant financial losses to their clients from an obligation
imposed on those attorneys whose
misconduct was less economically damaging and, perhaps, much less serious. This would be
contrary to the purposes of attorney
discipline.
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Petitioner maintains that the absence of any
repayments since 1980 does not support the State
Bar's
recommendation against
reinstatement, because the State
Bar denied his petition for
reinstatement without regard to his
ability to pay and despite his uncontradicted evidence of
inability to pay.
A review of the record in this case, including
[***17] the transcripts of the
evidentiary hearing, does not compel the conclusion that petitioner met his burden of establishing
inability to make any
restitution. The record indicates the existence of a large number of judgments against, and
other financial obligations of, petitioner. It describes what has occurred
with respect to some of the judgments and obligations and contains statements
that petitioner made some unspecified
repayments to clients prior to his bankruptcy and that he made largely unspecified
payments on numerous other obligations.
Petitioner has made an insufficient showing of an inability to make even
partial
restitution or an objectively verifiable effort to make
restitution reasonably related to his ability to pay. The record lacks specificity
regarding the numerous obligations and payments asserted by petitioner. The
evidence submitted by petitioner as to his income and expenses does not
demonstrate a complete
inability to pay. n7 The
burden was on petitioner to
[*1095] establish
inability to pay. Because petitioner has not shown an
inability to pay, his assertion that the State
Bar violated due process by penalizing him for his impecunious position is not
[***18] supported by the record.
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n7 The petition for
reinstatement sets forth petitioner's income since 1976 and his expenses as of the date of
filing. His income tax returns for the years 1983, 1984, and 1985 were
submitted as exhibits. A review of this information for the year 1985
discloses a monthly income of $ 3,000, monthly expenses of $ 1,015, and monthly
income tax liabilities of $ 175. The difference of $ 1,810 a month between
income and expenses plus taxes does not demonstrate a complete
inability to pay. While there may be other expenses or considerations that affect this analysis,
it is not incumbent upon either the State
Bar or this court to attempt to ascertain such financial
considerations.
The record also contains a passing reference to petitioner's having
"voluntarily undertaken a program of
repayment in monthly installments of $ 100 pending his
readmission." Unfortunately, petitioner again fails to provide any specifics or to relate
the amount to ability to pay. In this context, the setting aside of $ 100 a
month hardly constitutes a
repayment
"program." The fact that the setting aside of the funds did not begin until after the
petition for
reinstatement was filed and was not referred to until the
evidentiary hearing negates its probative value in establishing
rehabilitation.
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[***19]
3.
Other Evidence of
Rehabilitation
Petitioner contends that, apart from the issue of
restitution, he presented overwhelming evidence of
rehabilitation. Because, as explained earlier, the absence of
restitution or a thorough showing of an inability to make any
restitution is a significant factor in evaluating
rehabilitation, petitioner's remaining evidence must be quite convincing to satisfy his
burden of establishing
rehabilitation.
Although petitioner's other evidence of
rehabilitation is appreciable, it is not of sufficient strength for us to reject the State
Bar's
recommendation. Petitioner has submitted twenty-seven letters of support: fifteen from members
of the
bar; one from a superior court judge; nine from friends, employers and coworkers;
and one from his former therapist. Of those letters, nine are from individuals
who have known petitioner since before his
resignation. These
testimonials, particularly those submitted by members of the bench and
bar and those from persons who have known petitioner for a number of years, are
entitled to great weight. But they do not constitute conclusive evidence and
are not necessarily determinative. (Pacheco v.
[**1147] State Bar (1987) 43 Cal.3d 1041, 1053 [239 Cal.Rptr. 897, 741 P.2d 1138].)
[***20] In addition to the letters, eight individuals, including petitioner, testified
at the
evidentiary hearing in
favor of the petition for
reinstatement.
Petitioner's evidence does indicate substantial progress towards
rehabilitation. It discloses, for example, that petitioner has always been a good father to
his children and has, since approximately 1982, regularly met his child support
obligations. It also indicates that following his
resignation petitioner did not conceal and, when appropriate, fully disclosed his former
problems to his employers and others. He did seek, and benefit from, therapy
in the late 1970's and early 1980's. His evidence further supports the
conclusion that he has diligently performed his tasks and earned the respect of
his coworkers and employers since his undertaking of legal assistance services
for Attorney Trump. The passage of an appreciable period of time is also an
appropriate consideration.
However, the evidence is not unequivocal. Several of the witnesses testified
that they would feel a
moral obligation to
repay the funds improperly
[*1096] obtained from clients if they had the financial ability to do so. Several of
the
testimonial letters
[***21] were of the same view, and suggested the taking and
passing of an ethics test. Petitioner's former therapist has suggested
intermittent therapeutic follow-up if petitioner is
reinstated as an attorney.
4.
Rule 955
On February 23, 1977, we filed an order accepting petitioner's
resignation and directing him to comply with rule 955(a) and (c), within 60 and 70 days,
respectively. On October 21, 1977, the State
Bar filed a letter regarding petitioner's
failure to comply with our rule 955 order. On November 19, 1987, 11 months after petitioning
for
reinstatement, petitioner filed an affidavit of compliance. Petitioner testified at the
evidentiary hearing that, while he was not entirely sure, he did not believe he had
"any binding matters" involving clients when he resigned from the State
Bar.
Petitioner asserts the State
Bar improperly considered his
"technical"
noncompliance with rule 955 as a factor in denying
reinstatement after 10 years.
We have refused to
distinguish between
"substantial" and
"insubstantial," that is,
"technical," violations of rule 955. (Lydon v. State Bar (1988) 45 Cal.3d 1181, 1187 [248 Cal.Rptr. 830, 756 P.2d 217].)
[***22] Compliance with rule 955 is an important consideration in every case. The
rule
"performs the critical prophylactic function of ensuring that all concerned
parties -- including clients, cocounsel, opposing counsel or adverse parties,
and any tribunal in which litigation is pending -- learn about an attorney's
discipline. [Citations.] It also keeps this court apprised of the location of attorneys
who are subject to our
disciplinary authority. Thus, a wilful violation of this rule is, by definition, deserving
of strong
disciplinary measures." (Ibid.) Violation of the rule may, among other things, warrant denial of
reinstatement or
readmission. (rule 955(e).) Compliance with the rule as ordered by this court is required
"even though there were no clients or
counsel to notify pursuant to subdivision (a). . . ." (Powers v. State Bar (1988) 44 Cal.3d 337, 341 [243 Cal.Rptr. 386, 748 P.2d 324].) Recently, the Legislature made a violation of rule 955 a criminal offense.
(Bus.
& Prof. Code,
§ 6126, subd. (c).) Accordingly, a wilful violation of the rule is always an
appropriate and significant consideration in
bar
disciplinary cases
[***23] and related matters.
Although we cannot condone petitioner's
failure to comply with rule 955, as ordered by this court, we do agree that his
noncompliance in and of itself would not, on the facts presented, support a denial of
reinstatement. A contrary conclusion would effectively foreclose petitioner from ever being
[*1097] readmitted regardless of the showing of
rehabilitation otherwise made. The violation occurred more than 10 years ago, and does not
appear to have caused any injury to
clients or to have significantly impaired the State
Bar's
disciplinary proceedings
[**1148] against petitioner. If
noncompliance with the rule, as ordered, were all that was presented, then this would be an
appropriate case for us to elect not to exercise our
disciplinary authority. (Durbin v. State Bar (1979) 23 Cal.3d 461, 469 [152 Cal.Rptr. 749, 590 P.2d 876].)
However, petitioner's
failure to comply with this court's order is not all that is presented by this case. As noted
earlier, petitioner has not met his heavy burden of showing
rehabilitation. Both his decision to voluntarily undertake a
"program" of
repayment in monthly installments of $ 100
[***24] and his decision to comply with rule 955 occurred after he had filed his
petition for
reinstatement. Where, as here, there is a significant infirmity in the showing of
rehabilitation, the
failure to comply with rule 955 is a proper consideration.
5.
Conditional Reinstatement
Petitioner contends the State
Bar erred in
concluding as a matter of law that he could not be conditionally
reinstated. He suggests it would be appropriate to
reinstate him on the condition that he
repay the Client Security Fund within a two-year period.
We note that the State
Bar did not as a matter of law conclude
conditional reinstatement was legally impermissible. Only four of the eleven
review department
referees referred to
conditional reinstatement. Two of the nine
review department
referees voting in favor of denying the petition for
reinstatement expressed regret that applications for
reinstatement could not be accepted subject to conditions. The two dissenting members
recommended
reinstatement with conditions.
The two members who indicated they believed
conditional reinstatement was legally impermissible cited our decision in
Tardiff, supra, 27 Cal.3d 395
[***25] as authority for their position. As petitioner argues, the two
referees improperly relied on
Tardiff. Although the
hearing panel in
Tardiff
recommended
readmission with conditions, our decision denying the petition was based on the failure of
the petitioner in that case to meet his burden of establishing
rehabilitation. (Id. at pp. 404-405.) We neither accepted nor rejected the concept of conditional
readmission in
Tardiff.
We have not previously determined the propriety of conditional
readmission following
disbarment or
resignation with charges pending. There appears to be no legal barrier to our imposing
conditions in connection with
[*1098] the granting of a petition for
readmission if we determine it appropriate to do so. The State
Bar, however, argues that
conditional reinstatement implicitly assumes that the applicant has not been completely
rehabilitated, and thus would be inconsistent with the requirement of California Rules of
Court, rule 952(d) that an applicant seeking
reinstatement establish
rehabilitation and present
moral qualifications.
While we need not and do not decide in this case that
reinstatement
[***26] may never be granted subject to appropriate conditions (see
Tardiff, supra, 27 Cal.3d 395), we do conclude that the condition suggested by petitioner is inconsistent with
the basic purpose underlying
reinstatement. An applicant seeking
reinstatement must show
rehabilitation. (Cal. Rules of Court, rule 952(d).) As noted earlier, the burden on the
applicant is heavy. Where, as here, evidence of the efforts, if any, to make
restitution to those seriously harmed by the applicant's previous
misconduct is a central consideration, allowing
restitution as a subsequent condition would negate the requisite showing and effectively
undermine the well-established burden of proof. The applicant must establish
his or her case before, not after,
reinstatement. To hold otherwise would in fact significantly modify the rules governing
reinstatement and appreciably compromise the salutory principles towards which they are
directed. Accordingly, we conclude that in this case it would be improper to
grant
reinstatement subject to petitioner thereafter making the requisite showing of
restitution.
[**1149] Conclusion
Petitioner has established his present learning
[***27] and ability in the general
law. However, he has not met his burden of demonstrating
rehabilitation. Specifically, he has neither shown a meaningful attempt to make
restitution in whole or in part nor an inability to do so. He may reapply for
reinstatement after the formulation of a plan of
restitution and adherence to the plan for a meaningful period of time, or upon a specific
showing of inability to make
restitution in whole or in part. (Rules Proc. of State
Bar, rule 662.)
The petition for
reinstatement is denied. This is effective upon finality of this decision in this court.
(See Cal. Rules of Court, rule 24(a).)
DISSENTBY: PANELLI
DISSENT:
PANELLI, J.
I respectfully dissent. The majority relies upon petitioner's failure to have
made
restitution for debts
discharged in bankruptcy in finding him insufficiently
rehabilitated to warrant
reinstatement. I believe that our refusal to
reinstate petitioner because he has not made
restitution of those debts unconstitutionally contravenes federal bankruptcy law.
While giving weight both to
disciplinary
recommendations of the
Review Department of the State
Bar (review department) and factual findings of the
[*1099]
hearing panel in this case,
[***28] when reviewing a petition for
reinstatement, as in all State
Bar proceedings, we undertake an independent examination of the record. (Tardiff v. State Bar (1980) 27 Cal.3d 395, 404 [165 Cal.Rptr. 829, 612 P.2d 919].) Final determination of petitioner's request rests with this court, and we are
free to disregard an unfavorable
recommendation of the State
Bar. (Resner v. State Bar (1967) 67 Cal.2d 799, 805 [63 Cal.Rptr. 740, 433 P.2d 748].)
The
review department found that petitioner had the requisite learning in general law to be
reinstated, but denied his petition, focusing, as does the majority, on the facts that
petitioner (1) failed to fully
repay his clients or the State
Bar Client Security Fund (Client Security Fund) for moneys he earlier obtained
from his clients, and (2) failed to comply as ordered with California Rules of
Court, rule 955 (hereafter rule 955) until after he had applied for
reinstatement in 1987.
1.
Petitioner's
Rehabilitation.
Rule 952(d) of the California Rules of Court requires applicants for
readmission to
"establish their
rehabilitation and present
moral
[***29] qualifications . . . ." (See also rule X,
§ 101(a), Rules Regulating Admission to Practice Law ["Every
applicant shall be of good
moral character."].)
In my view, the evidence amply demonstrates that petitioner is now morally
rehabilitated though still financially incapable of making full
restitution to his former clients. He presented 27 letters in support of his petition for
reinstatement, 15 of which were written by members of the
bar and 1 by a superior court judge. Attorney John Trump, petitioner's current
employer, indicated that he would associate petitioner with his law firm if
petitioner is
reinstated. We have traditionally accorded great weight to attorneys' and judges'
assessment of an applicant's
moral fitness because current members of the
bar are likely to appreciate the stringent
moral standards of the legal profession. (Pacheco v. State Bar (1987) 43 Cal.3d 1041, 1053 [239 Cal.Rptr. 897, 741 P.2d 1138];
Tardiff, supra, 27 Cal.3d at p. 403; see also Rules Proc. of State
Bar, div. V, Stds. for Atty. Sanctions for Prof.
Misconduct, std. 1.2(e)(vi).) In addition, seven witnesses,
[***30] including his ex-wife, appeared on petitioner's behalf at the State
Bar hearing and testified to his remorse for his past mistakes and success in overcoming his personal and professional
problems. His supporters all testified to his intelligence, honesty and
trustworthiness and
recommended his
reinstatement; those who have known petitioner since the early 1970's stated that they have
witnessed a marked improvement in his personality since that time.
The State
Bar challenged several of these
testimonials on the ground that the authors did not have personal knowledge of petitioner's
prior
[*1100]
misconduct. Several of petitioner's supporters, however, were in
[**1150] fact his colleagues or friends in the early 1970's. Most of those who did not
meet petitioner until after he resigned from the
bar indicated that petitioner had informed them of his
prior wrongdoings. In short, the majority of petitioner's supporters,
especially those who are members of the
bar, based their assessment of his
moral fitness on an awareness that he had previously violated standards of attorney
conduct. These
testimonials to petitioner's
rehabilitation provide a clearer picture of his present
moral character
[***31] than do offenses from a period in his distant past and adequately demonstrate
his
rehabilitation. (Pacheco, supra, 43 Cal.3d at p. 1054;
Resner, supra, 67 Cal.2d at p. 805.)
In rejecting petitioner's request for
reinstatement, the majority relies almost exclusively on his failure to make
restitution to his former clients and the Client Security Fund. n1 But
restitution is simply one factor of
moral fitness and is not the litmus test for
rehabilitation. (Resner, supra, 67 Cal.2d at p. 810.)
"The importance of making
restitution, and a conclusion respecting the weight which should be attached thereto,
should be determined
largely by the financial or other ability of the attorney to restore that which
he has
misappropriated, as well as by his attitude of mind regarding the matter." (In re Gaffney (1946) 28 Cal.2d 761, 764 [171 P.2d 873].)
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 The majority acknowledges that petitioner has made
"substantial progress towards
rehabilitation." (Ante, maj. opn. at p. 1095.) Furthermore, the majority concedes that petitioner's
noncompliance with rule 955 would not support a refusal to
reinstate him in the absence of concerns about his
rehabilitation. (Ante, maj. opn. at p. 1096.) When reviewing
"other evidence" which it finds to indicate a lack of
rehabilitation (ante, maj. opn. at p. 1095), however, the majority points only to witness testimony
and
testimonial letters which assertedly support the view that petitioner should have made
restitution.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***32]
Petitioner has stated that he has always felt morally obligated to
repay his former
clients, even though he is not legally required to pay any debts
discharged in bankruptcy. Over the past 12 years, he has attempted at different times to
partially
repay some of his former clients, has completely paid off Mr. Christian, Ms.
Schilder and the Allen Corporation, as well as several other court judgments
entered against him, and has kept current on payments for child support and
back taxes. n2 Pending his
readmission, petitioner voluntarily began placing money in an account toward
repayment of his former clients and the Client Security Fund, and has indicated an
intent to begin a comprehensive payment schedule as soon as his earnings permit.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 The record does not reveal the exact amount of personal debt outstanding or
the exact number of remaining creditors.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Record evidence establishes that petitioner's income and circumstances have not
provided him with the ability to make
restitution. From
1984
[*1101] through 1987,
[***33] he grossed approximately $ 3,000 per month; n3 he now earns approximately $
3,500 per month. As an independent contractor, however, he must both withhold
taxes and pay office expenses out of his salary. In addition, he pays $ 225 in
monthly child support, $ 200 per month towards back taxes, and almost $ 600
monthly to various personal creditors. His take-home pay usually ranges
between $ 1,000 and $ 1,200; in any event it has never exceeded $ 1,500.
It is not difficult to understand that petitioner has found that providing for
his own material support depletes these remaining funds.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 For three consecutive months in 1986 and 1987, the Internal Revenue Service
withheld $ 2,000 from petitioner's salary to satisfy a lien for back taxes.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In sum, I believe that
petitioner has established his burden of proving
rehabilitation. (Calaway v. State Bar (1986) 41 Cal.3d 743 [225 Cal.Rptr. 267, 716 P.2d 371] [petitioner
reinstated nine years after
disbarment for involvement in
[***34] illegal gambling];
Resner, supra, 67 Cal.2d 799 [petitioner
reinstated seven years after
disbarment for misappropriation];
In re Gaffney, supra, 28 Cal.2d 761
[**1151] [petitioner
reinstated four years after
disbarment for misappropriation].) In the early 1970's, petitioner's attempt to support a
lifestyle beyond his means, coupled with the pressure from the breakup of his
marriage, caused him to violate his professional duties by borrowing from
clients and dipping into client trust funds. Without excusing his past
misconduct, we should find that petitioner has adequately demonstrated he will not repeat
his
transgressions. His wrongdoings occurred more than 15 years ago. n4 Since
then, he has stabilized his life and controlled his finances. He has held a
steady job in a law firm for more than five years, earning the respect of his
colleagues and supervisors. He has paid off several old debts and has made a
good faith effort at beginning a comprehensive
repayment schedule. In addition, he has not practiced law for more than 12 years. Dr.
Fraser, petitioner's psychotherapist, feels that petitioner has overcome
[***35] his selfish tendencies and is now able to maturely handle his personal and
professional finances. Dr. Fraser stated that he believes petitioner
"would now responsibly handle the finances in a law practice without
overextending himself, because of the progress he made in his therapy."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 The majority's suggestion (ante, maj. opn. at p. 1096) that they are
"denying
reinstatement
after 10 years" is misleading so far as it leaves its reference point unstated. Petitioner's
misconduct occurred between 1971 and 1975. (Ante, maj. opn. at p. 1088.)
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
I believe petitioner has provided clear and convincing evidence of his
moral and professional reform, satisfying the requirements for
reinstatement.
Moreover, the majority's action today, refusing to
reinstate petitioner because he has not made
restitution for debts
discharged in bankruptcy,
[*1102] contravenes federal bankruptcy law and thus the supremacy clause of the
federal Constitution.
The United States Bankruptcy Code provides in relevant part that a
"governmental
[***36] unit may not deny, revoke, suspend or refuse to renew a license . . . of . . .
a bankrupt or debtor under the
Bankruptcy Act . . . solely because such debtor is or has been a debtor under the
Bankruptcy Act . . . or has not paid a debt that was
discharged under the
Bankruptcy Act."
(11 U.S.C. § 525(a).)
By refusing to
reinstate petitioner almost exclusively because of his failure to make
restitution, the majority seeks, in essence, to penalize him for availing himself of the
bankruptcy laws.
In
Perez v. Campbell (1971) 402 U.S. 637, 648 [29 L.Ed.2d 233, 241, 91 S.Ct. 1704], the Supreme Court stated that the federal bankruptcy laws are designed to give
debtors a new opportunity in life, unhampered by the pressure of existing debt.
A state statute that coerces a debtor to reaffirm a
discharged debt contravenes the purpose of the federal bankruptcy laws, thus violating
the supremacy clause of the United States Constitution. (Id. at p. 656 [29 L.Ed.2d at p. 246] [state may not deny driving privileges to applicant who
discharged
in bankruptcy a judgment arising out of an earlier automobile accident].)
[***37] Other states, relying on
Perez, have declined to refuse
reinstatement of an attorney for a failure to to make
restitution. (Application of Gahan (Minn. 1979) 279 N.W.2d 826, 829 [4 A.L.R.4th 426] [state
bar may not consider applicant's willingness or ability to
repay debts
discharged in bankruptcy when judging
moral character; it
may inquire into conduct leading up to a bankruptcy];
Florida Bd. of Bar Examiners (Fla. 1978) 364 So.2d 454, 460 [state
bar may not deny admission based on applicant's filing for bankruptcy].) The majority thus improperly relies on petitioner's
failure to make
restitution either to his former clients or to the Client Security Fund for debts he
discharged in bankruptcy as a basis for
rejecting his petition for
reinstatement. n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 The majority refuses petitioner's request that he be
reinstated with the condition he make
restitution of his debts. Neither the Business and Professions Code, Rules of Court nor
the Rules of Procedure of the State
Bar expressly provide for
conditional reinstatement. On the other hand, none of these statutes enjoins the practice. In addition,
rule 667 of the State
Bar Rules of Procedure
does authorize this court to readmit an applicant subject to other conditions, such
as passage of the Professional Responsibility Examination or other tests
related to learning in the general law. At least nine other states have
employed some form of
conditional reinstatement. (Disciplinary Proceedings Against Wright (Wis. 1988) 145 Wis.2d 644 [428 N.W.2d 549] [court had earlier
conditioned
reinstatement on continuing education, one year of professional supervision, medical
treatment and
restitution to former clients;
court
suspended attorney for not complying with these conditions];
Louisiana State Bar Ass'n. v. Ranel (La. 1988) 534 So.2d 951 [court
suspended attorney and
conditioned
reinstatement on
restitution to former clients];
Gohner v. Zundel (N.D. 1987) 411 N.W.2d 71, 75 [court
conditioned
reinstatement on proof of competency to practice];
Atty. Grievance Comm'n. v. Willemain (1986) 305 Md. 665 [506 A.2d 245, 253] [court
suspended attorney and
conditioned
reinstatement on participation in Alcoholics Anonymous program];
Matter of Ortega (1984) 101 N.M. 719 [688 P.2d 329, 333] (court
conditioned
reinstatement on
restitution to former clients];
Matter of Batali (1983) 98 Wn.2d 610 [657 P.2d 775, 39 A.L.R.4th 577] [court
conditioned
reinstatement on payment of debts previously
discharged in bankruptcy but voluntarily reaffirmed; court refused to compel attorney to
reaffirm other debts];
In re Neff (Ill. 1980) 413 N.E.2d 1282, 1284 [court
suspended attorney after she failed to pay costs of
disciplinary proceedings in another state and
conditioned
reinstatement on
repayment of those costs];
Matter of Hickey (N.J. 1976) 350 A.2d 483 [court
conditioned
reinstatement on complete
restitution];
Comm. on Professional Ethics v. Wright (Iowa 1970) 178 N.W.2d 749, 752 [court
conditioned
reinstatement on
"good faith effort" at
restitution to former clients].)
Contrary to the majority's assertion, a condition of
rehabilitation would not be logically inconsistent with a determination that petitioner is
rehabilitated. Petitioner's
reinstatement on the condition that he make
restitution would not imply any negative judgment about his
present
moral fitness, but might be adopted for any number of legitimate state purposes, for
example, as a means of enhancing public confidence in the legal profession, or
simply as an accommodation of petitioner's request that we provide him with an
additional incentive to meet what he has said he regards as his
moral obligation to make
repayment. Compliance could be monitored by the State
Bar using mechanisms already in place for use when such a condition accompanies
disciplinary probation. Of course, this would be an appropriate case for
conditional reinstatement only if, as the majority contends, the federal bankruptcy laws are no
bar to the particular conditions imposed. (See
Brookman v. State Bar (1988) 46 Cal.3d 1004 [251 Cal.Rptr. 495, 760 P.2d 1023].)
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***38]
[*1103]
[**1152] In refusing to
reinstate petitioner, the majority relies upon our recent pronouncement in
Brookman v. State Bar, supra, 46 Cal.3d 1004, that the
Bankruptcy Act permits imposition of
restitution to the Client Security Fund as a condition of probation in attorney
discipline cases.
Two important considerations distinguish
Brookman from this case.
First, as discussed below,
Brookman's holding applies only to
restitution of government funds, not moneys owed private creditors, and only when the
restitution of those funds is not meant as compensation for actual pecuniary loss.
Brookman relied on
Kelly v. Robinson (1986) 479 U.S. 36 [93 L.Ed.2d 216, 228, 107 S.Ct. 353], which held that
restitution of wrongfully received welfare benefits could be made a condition of probation
following a subsequent larceny conviction, because such
restitution came within a class of payments described in section 523(a)(7) of the
Bankruptcy Act. Section 523(a)(7) lists certain
"nondischargeable debts," among them a
"fine, penalty, or forfeiture . . . payable to and for the benefit of a
governmental
[***39] unit, and . . . not compensation for actual pecuniary loss." Following
Kelly, we found the
restitution ordered in
Brookman constitutionally permissible expressly because it would involve no payments to
the petitioner's underlying creditors, but only to the Client Security Fund. (Brookman, supra, 46 Cal.3d at p. 1009.) The majority here refuses petitioner his license to practice because he failed
to make
restitution to certain of his former clients, as well as to the Client Security Fund. (Maj. opn.,
ante, at pp. 1091, 1092,
[*1104] 1094.) This refusal is not supported by
Kelly or
Brookman. On the contrary, it impermissibly frustrates the full effectiveness of
federal bankruptcy laws as applied to petitioner, by diminishing the effect of
the
"clean slate" or
"fresh start" that the
discharge of his debts was designed to afford him. Though the majority holding
assertedly serves a purpose (viz,
rehabilitation) other than frustration of the bankruptcy laws, it nevertheless impermissibly
[**1153] tends to nullify or thwart the objectives of federal law. (Perez v. Campbell, supra, 402 U.S. at pp. 651-654 [29 L.Ed.2d at pp. 243-245]
[***40] ["We can no longer adhere to the aberrational doctrine . . . that state law may
frustrate the operation of federal law as long as the state legislature in
passing the law had some purpose in mind other than one of frustration."].)
Second, the petitioner in
Brookman did not dispute the need for
rehabilitation in his case. (Brookman, supra, 46 Cal.3d at p. 1007.) The
Brookman court, consequently, did not need to consider whether the order in that case
amounted to reliance upon what is at most a tangential objective (rehabilitation) as
a pretextual means of compelling the petitioner to reaffirm a debt
discharged in bankruptcy. Such a reliance has been declared to be an impermissible
derogation of federal bankruptcy law. (Perez, supra, 402 U.S. at p. 652 [29 L.Ed.2d at p. 244].) The majority's action in this case invites such characterization in citing no
significant evidence of petitioner's lack of
rehabilitation apart from evidence relating to his failure to make
restitution. (See fn. 1,
ante, at p. 1100.)
2.
Compliance with Rule 955.
While acknowledging it would not alone support
[***41] denial of his
reinstatement, the majority contends that petitioner's
failure to comply with rule 955 at the time of his
resignation is a proper factor to consider in light of petitioner's asserted lack of
rehabilitation. I disagree. The primary purpose of rule 955 is to ensure that all concerned
parties, including clients, cocounsel, opposing
counsel and any tribunals in which litigation is pending, learn about the State
Bar's
discipline of an attorney. n6 (Lydon v. State Bar (1988) 45 Cal.3d 1181, 1187 [248 Cal.Rptr. 830, 756 P.2d 217].)
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Rule 955(a) reads in pertinent part:
"The Supreme Court may include in an order disbarring or suspending an attorney
or accepting his
resignation a direction that the attorney shall, within such time limit as the Court may
prescribe, (1) notify all clients being represented in pending matters and any
co-counsel of his
disbarment, suspension or
resignation and his consequent disqualification to act as an attorney after the effective
date of his
disbarment, suspension or
resignation, and, in the absence of co-counsel, also notify the clients to seek legal
advice elsewhere, calling attention to any urgency in seeking the substitution
of another
attorney or attorneys in his place . . . ."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***42]
At the time of petitioner's
resignation, he had no clients and no pending matters. In fact, he had effectively closed
down his law practice a year
[*1105] earlier and at the time of his
resignation was already working in the real estate business. Whether he did in fact
violate rule 955(a) by failing to mail out notices of his
resignation, where required recipients of such notices did not exist, is at best
problematic. Petitioner's alleged violation of the rule therefore stems solely
from his failure to file an address with the State
Bar. n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 In November 1987, while his petition for
reinstatement was pending, petitioner mailed notices of his prior
resignation to all of his former clients and a supporting affidavit along with a current
address to the State
Bar. As mentioned above, petitioner did not represent these clients at the time of
his
resignation, since he had closed down his
practice a year earlier.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
However, rule 955 also has a secondary purpose: to keep the State
Bar and the court apprised of the location
[***43] of attorneys who are subject to their
disciplinary authority. n8 (Lydon, supra, 45 Cal.3d at p. 1187.) In the past, we have held that failure to file an address may be grounds for
disbarment. (Lydon, supra, 45 Cal.3d 1181;
Powers v. State Bar (1988) 44 Cal.3d 337 [243 Cal.Rptr. 386, 748 P.2d 324].) Both
Lydon and
Powers are distinguishable from the present case, however. In those cases, the State
Bar had attempted on several occasions to communicate with the attorneys involved
only to have their letters returned by the postal service. In addition, both
Lydon and Powers
[**1154] had failed to appear at several State
Bar hearings, including the hearings regarding their alleged violation of
rule 955. (Lydon, supra, 45 Cal.3d at pp. 1184-1185;
Powers, supra, 44 Cal.3d at pp. 340-341; see also
Hamilton v. State Bar (1979) 23 Cal.3d 868, 873-874 [153 Cal.Rptr. 602, 591 P.2d 1254].) Thus, their failure to give the State
[***44]
Bar their addresses seriously hampered the
disciplinary process in their cases. In contrast, petitioner has diligently followed all
of the State
Bar's procedures. The majority concedes that petitioner's failure to file an
address at the time of his
resignation caused no injury to petitioner's clients and in no way affected its past or
present
disciplinary proceedings against him, or otherwise inconvenienced the State
Bar. n9 While not condoning petitioner's non-compliance with rule 955, we should,
under the circumstances, forego exercising our
disciplinary power under rule
955(e). (Cf.
Durbin v. State Bar (1979) 23 Cal.3d 461, 469 [152 Cal.Rptr. 749, 590 P.2d 876] [failure to file affidavit of compliance with State
Bar does not warrant one-year suspension
[*1106] even though
noncompliance willful; court ordered six months' suspension or actual compliance].)
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Rule 955(c) reads in pertinent part:
"[The] affidavit showing that he has fully complied with those provisions of the
order entered pursuant to this rule . . . shall also set forth an address where
communications may thereafter be directed to the disbarred,
suspended, or resigned attorney."
[***45]
n9 It should be noted that the
hearing panel did not mention petitioner's
noncompliance with rule 955 in their findings and conclusions and did not consider it a
basis for denial of his
reinstatement. The
review department, however, considered it evidence that petitioner had not demonstrated the
adequate level of
"exemplary conduct" for
reinstatement.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
