FLORIDA BOARD OF BAR EXAMINERS RE: P.T.R.
No. 85,527
SUPREME COURT OF FLORIDA
662 So. 2d 334;
1995 Fla. LEXIS 1753;
20 Fla. L. Weekly S 559
November 2, 1995, Decided
PRIOR HISTORY:
[**1] Original Proceeding - Florida Board of Bar Examiners.
COUNSEL: L. Kinder Cannon III, Chair; Kathryn E. Ressel, Executive Director and Thomas
A. Pobjecky, General Counsel, Florida Board of Bar Examiners, Tallahassee,
Florida, for Petitioner.
John A. Weiss of Weiss
& Etkin, Tallahassee, Florida, for Respondent.
JUDGES: OVERTON, SHAW, KOGAN, HARDING and ANSTEAD, JJ., concur. WELLS, J., dissents
with an opinion, in which GRIMES, C.J., concurs.
OPINION:
[*335] PER CURIAM.
P.T.R. asks this Court to review the Florida Board of Bar Examiners'
recommendation that he be
denied admission to The Florida Bar. We have jurisdiction based on article V, section 15 of the
Florida Constitution.
We disagree with the Board's
recommendation and order P.T.R.'s
readmission to the Bar. Since P.T.R.'s
disbarment, he has shown the
rehabilitation required to merit his
readmission. See Fla. Bar Admiss. R., art. III,
§ 4.e.
P.T.R. graduated from law school in 1975 and was admitted to the Bar later that
year. He voluntarily withdrew from the
practice of law in 1986, and was
disbarred in 1988 retroactive to the date of his withdrawal.
[**2]
P.T.R. applied for
readmission to the Bar in 1992 and has passed both the General and Multistate Professional
Responsibility examinations. Based on P.T.R.'s bar application and on
information discovered during the Board's background investigation, the Board
held an investigative hearing. The
Board then prepared
specifications and held a
formal hearing.
The Board found that two
specifications were
proven and
disqualifying for admission to the Bar. n1
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n1 There were six
specifications filed against P.T.R. The Board found that two were
proven and
disqualifying; one was
proven and not
disqualifying; and three were not
proven.
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The first
specification concerns P.T.R.'s actions after he was appointed as the successor
representative to an estate in which the decedent had no
heirs. An attorney at P.T.R.'s firm suggested using a fictitious
heir to prevent the estate from escheating to the state.
In 1980, P.T.R. filed papers identifying an
heir, knowing that the information was false. He later filed papers stating that
[**3] the proceeds from the estate had been distributed to the person identified as
the
heir. In fact, P.T.R. removed $ 7,082.71 from the estate account and split the money
with the attorney who had suggested using a fictitious
heir.
[*336] In 1985, P.T.R. was charged with third-degree
grand theft in connection with those events. He entered a plea of nolo contendere in 1986.
The court withheld adjudication and put P.T.R. on
probation for five years. P.T.R.'s
probation was terminated early by court order in 1990. P.T.R. admitted this
specification.
The second
specification concerns P.T.R.'s
disbarment based on the felony described in the first
specification. P.T.R. also admitted this
specification.
The Board found that both of these
specifications were
proven and
disqualifying for admission to the Bar.
At his
formal hearing, P.T.R. presented depositions of six witnesses, affidavits of four people, and
live testimony from three witnesses. The witnesses included his ex-wife, to
whom he was married when the
grand theft occurred. These witnesses and affiants all
recommended P.T.R. for
readmission.
The Board
recommended that P.T.R. be
denied admission based on the
proven
specifications and on P.T.R.'s
[**4] failure to show clear and convincing evidence of
rehabilitation. The
formal hearing transcript shows that P.T.R. offered as
evidence of rehabilitation his volunteer work for a homeowners' association in North Carolina, where he
and his current wife own a lot; donating blood (P.T.R. has a rare
blood type); participating as a treasurer, coach, or umpire for his son's Little League
team; traveling with his daughter to swim meets when she was younger; and
teaching martial arts to children for free.
The Board found this evidence insufficient in light of the seriousness of
P.T.R.'s
misconduct and the fact that P.T.R. did not reveal the
misconduct until he was caught in 1985. The Board
recommended that P.T.R. not be admitted to the Bar.
P.T.R. has petitioned this Court for review of the Board's
recommendation.
The
misconduct that resulted in P.T.R.'s
disbarment was extremely serious. P.T.R. did
not come forward about his
misconduct when it occurred in 1980. However, once state
investigators discovered the wrongdoing, he took full responsibility for his actions. P.T.R.
has been sanctioned criminally with
probation and administratively with
disbarment.
An applicant who has been
disbarred
[**5] bears a
heavy burden of establishing
rehabilitation.
Florida Bd. of Bar Examiners re J.C.B., 655 So. 2d 79, 82 (Fla. 1995);
Florida Bd. of Bar Examiners re W.H.V.D., 653 So. 2d 386, 388 (Fla. 1995). Article III, section 4.e. of the Rules Relating to Admissions to the Bar
requires an applicant such as P.T.R. to show
rehabilitation by criteria including:
(1) Strict compliance with the specific conditions of any
disciplinary, judicial, administrative or other order, where applicable;(2) Unimpeachable character and moral standing in the community;(3) Good reputation for professional ability, where applicable;(4) Lack of malice and
ill feeling toward those who by duty were compelled to bring about the
disciplinary, judicial, administrative or other proceeding;(5) Personal assurances, supported by corroborating evidence, of a desire and
intention to conduct one's self in an
exemplary fashion in the future;(6)
Restitution of funds or property, where applicable;(7) Positive action showing
rehabilitation by such things as a person's occupation, religion, community or civic service.
Merely showing that an individual
[**6] is now living as and doing those things he or she should have done throughout
life, although necessary to prove
rehabilitation, does not prove that the individual has undertaken a useful and constructive
place in society. The requirement of
positive action is appropriate for applicants for admission to the bar because service to
one's community is an implied obligation of members of the bar.
P.T.R. argues that he has fulfilled the requirements of article III, section
4.e.:
(1) He voluntarily
shut down his law practice before he was
disbarred, and there are no allegations of unlicensed
practice of law or
[*337] violations of the Bar's restrictions on clerking by
disbarred lawyers.
(2) He has
rehabilitated his good name in the community. He presented testimony, depositions, or
affidavits from lawyers and lay people who have confidence in his ability.
(3) His professional ability was not at issue. He has taken and passed the bar
exam since his
disbarment, thus assuring the Court of his competence to practice law.
(4) P.T.R. does not express any malice or
ill feeling toward the State Attorney's office or the Bar. In fact, he testified that he
thinks highly of the state attorney's
[**7]
investigator. He recognizes that
disciplinary proceedings against him were appropriate. Although he would rather have been
suspended for three years than
disbarred, he bears no animosity toward anyone over his
disbarment.
(5) P.T.R. and his supporting
witnesses testified to P.T.R.'s desire to conduct himself in an
exemplary fashion. He regrets his
misconduct and takes full responsibility for it. He has undergone counseling, developed a
friendly relationship with his ex-wife, remarried, and developed other
interests besides the law. There has been no
misconduct since the 1980 incident. P.T.R.'s
witnesses testified that they were familiar with the
specifications filed against him. They testified as to P.T.R.'s desire to lead an
exemplary life and as to the positive changes he has made in his life since his
disbarment.
(6) P.T.R. has made
restitution of the funds from the estate, including the share given to the other attorney
in his firm.
(7) He has served his community as a volunteer martial arts instructor;
volunteered by serving as treasurer, umpire, or coach for his son's Little
League team; and offered his services to a homeowners' association in North
Carolina, where he and
[**8] his wife own a lot. In addition, P.T.R. has a rare
blood type, and he
donates blood about every sixty days. During his
disbarment, he has worked for a law firm. He does research and drafts documents, but does
not have any client contact.
P.T.R. maintains that his case is analogous to
Florida Board of Bar Examiners re L.M.S., 647 So. 2d 838 (Fla. 1994), where this Court ordered the admission of an applicant once she passed the bar
exam. L.M.S. engaged in
misconduct by sitting for the bar
exam before she was eligible. The Court determined that L.M.S.'s
misconduct was an isolated event and, in light of her overall record, said,
"It is not clear what further
rehabilitation she could show."
Id. at 839. Based on his record, P.T.R. does not know what further
rehabilitation he could show.
The Board argues that P.T.R. has not met the
heavy burden of showing
rehabilitation. While the Board does not appear to dispute that P.T.R. has fulfilled the
requirements of article III, section
4.e.(1)-(6), it maintains that the record shows he has not met the
positive action requirement of section 4.e.(7).
Except for the regular donation of blood, the Board argues that P.T.R.'s acts
have benefited
[**9] himself, his family, and his property. It does not suggest that the activities
in which P.T.R. engaged were unsatisfactory. The Board suggests that P.T.R.
could best serve the community by assisting the homeless, sick, or abused, or
by working as a
guardian ad litem.
We recognize that it is difficult to determine whether or when a person guilty
of committing offenses as serious
as P.T.R.'s has been
rehabilitated. Certainly, without significant
rehabilitation being shown,
specifications one and two would be
disqualifying.
While not a perfect determinant,
§ 4.e.(1)-(7) establishes a fair method of determining
rehabilitation. P.T.R.'s compliance with paragraphs (1) through (6) is not an issue. Inasmuch
as the Board does
not contest the
"positive actions" suggested by P.T.R. except that they benefit him, it would appear that the
Court is called upon to determine whether otherwise acceptable
"positive actions" became unacceptable because there was a benefit to P.T.R. n2 We do not read
the rule to
[*338] preclude otherwise acceptable positive actions simply because there is a
benefit to the applicant. Like the Board, we would encourage positive actions
such as assisting the homeless,
[**10] sick, or abused, or working as a
guardian ad litem. Yet we find that the failure to perform those actions instead of the actions
P.T.R. undertook was not per se failure to meet the
heavy burden of
rehabilitation established in the rule.
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n2 We do not find merit in P.T.R.'s suggestion that travelling with his
daughter to swim meets constitutes a
"positive action" tending to show
rehabilitation. We consider only the other activities engaged in by P.T.R.
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The
fact that a particular type of service benefits both the community and the
applicant does not necessarily lessen the value of the service. The
rehabilitation requirement is broad in scope: we are directed to look to
"such things as a person's occupation, religion, [and] community or civic service" to make our determination. Fla. Bar Admiss. R., art. III,
§ 4.e(7). Here, we find that the activities P.T.R. selected positively impacted
these areas of his life.
In addition to the substantial showing of
rehabilitation P.T.R. has offered in proof of paragraphs
[**11] (1) through (6), we note that the record shows both that P.T.R.'s
misconduct was a single incident and that he has not engaged in any
misconduct since this incident occurred fifteen years ago. While this alone is not
dispositive of whether P.T.R. should be readmitted, it is a significant factor
for this Court to consider. See
Florida Bd. of Bar Examiners re J.A.S., 658 So.2d 515, 20 Fla. L. Weekly S 326 (Fla. July 6, 1995) (noting that none of applicant's
incidents of
misconduct were recent). In conclusion, together with other significant
evidence of rehabilitation, P.T.R. has demonstrated that he has achieved the kind of
rehabilitation called for in the rule. Accordingly, we order his
readmission to the Bar.
It is so ordered.
OVERTON, SHAW, KOGAN, HARDING and ANSTEAD, JJ., concur.
WELLS, J., dissents with an opinion, in which GRIMES, C.J., concurs.
DISSENTBY: WELLS
DISSENT: WELLS, J., dissenting.
I dissent because, as in
Florida Board of Bar Examiners re J.A.S., 658 So.2d 515, 20 Fla. L. Weekly S 326 (Fla. July 6, 1995), the majority erroneously
substitutes its judgment for that of the Board. I do not find in P.T.R.'s brief
or in the majority's opinion a sound basis for doing this.
I am also impressed by
[**12] and agree with what this Court said at the time P.T.R. was
disbarred:
The Bar argues that this conduct warrants
disbarment regardless of the
mitigating factors found by the referee. We agree. We recognized in
The Florida Bar v. Breed, 378 So. 2d 783 (Fla. 1979), that theft of client funds is one of the most serious offenses an attorney can
commit. We warned the legal profession that henceforth we would not be
reluctant to disbar an attorney for such
misconduct. This case involves not
only theft, but fraud on the court which strikes at the very heart of a
lawyer's ethical responsibility. Either offense is sufficiently grave to
justify
disbarment. The
mitigating factors in this case are insufficient to lessen the enormity of Roman's
misconduct.
Florida Bar v. Roman, 526 So. 2d 60, 62 (Fla. 1988).
To overcome what this Court expressly stated were the reasons for his
disbarment, it is my judgment that P.T.R. should have to demonstrate substantial, in-depth
community service. I cannot disagree with the Board that P.T.R. has failed in
his activities to make such a demonstration.
GRIMES, C.J., concurs.
