State of Kansas, Respondent, v. Anthony R. Russo, Petitioner
No. 47,563
Supreme Court of Kansas
230 Kan. 5;
630 P.2d 711;
1981 Kan. LEXIS 249
June 29, 1981, Opinion Filed
PRIOR HISTORY:
[***1]
Original proceeding for reinstatement.
DISPOSITION: Petition for reinstatement denied.
SYLLABUS: SYLLABUS BY THE COURT
1. ATTORNEY AND CLIENT --
Board for Discipline of Attorneys -- Recommendations as to Discipline or
Reinstatement -- Advisory Only. In a disciplinary or reinstatement proceeding involving the practice of law in
Kansas, the reports and recommendations of the Board for Discipline of
Attorneys are advisory only and not binding upon the court. Rule 212(f), 227
Kan. xxvii.
2. ATTORNEY AND CLIENT --
Reinstatement of Attorney -- Previous Voluntary Disbarment Based on Criminal
Conviction -- Former Conviction Conclusive on Court Reviewing Disbarment. In an original action by a former attorney for reinstatement to the practice
of law, after a voluntary disbarment based upon a criminal conviction, such
former conviction is conclusive and this court will not look behind the
conviction or attempt to weigh the evidence leading to the conviction. Rule
202, 225 Kan. lxxxi.
3.
ATTORNEY AND CLIENT --
Reinstatement of Attorney -- Exclusive Jurisdiction of Supreme Court. The decision whether reinstatement of an attorney is justified and will be
granted rests exclusively
[***2] within the discretion of this court.
4. ATTORNEY AND CLIENT --
Reinstatement of Attorney -- Factors to Consider. Factors to be considered in determining whether a former attorney should be
readmitted to the practice of law include: (1) the present moral fitness of the
petitioner; (2) the demonstrated consciousness of the wrongful conduct and
disrepute which the conduct has brought the profession; (3) the extent of
petitioner's rehabilitation; (4) the seriousness of the original misconduct;
(5) conduct subsequent to discipline; (6) the time elapsed since the original
discipline; (7) the petitioner's character, maturity and experience at the time
of the original discipline; and (8) the petitioner's present competence in
legal skills.
5. ATTORNEY AND CLIENT --
Reinstatement of Attorney -- Seriousness of Underlying Offense Requiring Prior
Discipline Examined. The seriousness of the underlying offense which led to the
prior discipline may, as a threshold matter, preclude reinstatement such that
further inquiry as to rehabilitation of the petitioner is not warranted.
6. ATTORNEY AND CLIENT --
Reinstatement of Attorney -- Petition Denied. In an original action filed
[***3] by a former attorney seeking reinstatement to the practice of law, the record
is examined and it is
held: Due to the seriousness of the criminal conviction which led to the voluntary
disbarment of the petitioner, the petition for reinstatement is denied.
COUNSEL:
Roger N. Walter, disciplinary counsel, was on the brief for respondent.
Donald R. Hoffman, of Humpage, Berger and Hoffman, of Topeka, was on the brief for petitioner.
JUDGES: Prager, J., dissenting.
OPINIONBY: PER CURIAM
OPINION:
[*5]
[**712] In these original proceedings, Anthony R. Russo, a former attorney
disbarred by consent, petitions the Supreme
[*6] Court seeking
reinstatement as an attorney and readmission to the bar of Kansas.
The petitioner was first admitted to the
practice of law in Kansas in 1962 and thereafter practiced law in Wyandotte County until he
voluntarily
surrendered his
certificate and privilege to
practice law on June 17, 1976, following the institution of
disciplinary proceedings. On November 14, 1973, petitioner was charged in a grand jury
indictment in the United States District Court for the District of Kansas with
[**713]
conspiracy to violate the Kansas laws against
prostitution
[***4] and
bribery as precluded by the criminal laws of the United States,
18 U.S.C. § 1952 and
18 U.S.C. § 371. The charge grew out of the operation of certain houses of
prostitution in Wyandotte County by
a client of the petitioner and allegations that the client conspired with Mr.
Russo to
bribe certain police officials and thereby obtain protection from raids upon the
houses of
prostitution, and the enforcement of the criminal laws relating to
prostitution. Mr. Russo went to trial before a jury and was
convicted. His conviction was affirmed by the United States Circuit Court of Appeals,
Tenth Circuit, in
United States v. Russo, 527 F.2d 1051 (1975),
cert. denied
426 U.S. 906 (1976).
Following his conviction in federal district court, the
disciplinary
administrator filed a complaint against Mr. Russo on June 12, 1974. Proceedings on the
complaint were held in abeyance pending the outcome of an appeal. After
exhausting his appeals, Mr. Russo voluntarily
surrendered his
certificate to
practice law in Kansas and the same was accepted by the Supreme Court on June
24, 1976.
In re Russo, 220 Kan. 181, 551 P.2d 787 (1976). Petitioner served approximately seventeen months at
[***5] the United States Penitentiary in Leavenworth and was released November 22,
1977. Petitioner also paid a $ 10,000.00 fine.
On February 13, 1980, Mr. Russo filed a petition with this court seeking
reinstatement to
practice law pursuant to Rule 219 (225 Kan. lxxxix). The matter was then referred to the
disciplinary
administrator and assigned to a panel of the Kansas Board for Discipline of Attorneys for
investigation and
recommendation. On June 13, 1980, a hearing was held before the panel in the Municipal Office
Building at Kansas City, Kansas. No objections were made to the notice of
hearing, the composition of the
hearing panel or the proceedings before the panel. Numerous
[*7] reputable citizens appeared before the panel to urge the
reinstatement of the
petitioner and to vouch for his good character and reputation. No evidence or
testimony adverse to the petitioner was presented by the
disciplinary counsel. The transcript of the proceedings covers 251 pages of testimony
presented by twenty-five witnesses for the petitioner, including his testimony.
It would serve no useful purpose to detail the testimony and suffice it to say
it was all favorable to petitioner. Nine
[***6] exhibits were offered and admitted on behalf of the petitioner and the
disciplinary
administrator introduced four exhibits.
On September 12, 1980, the
hearing panel filed its report detailing the
evidence presented together with its findings and unanimously recommended that petitioner be
reinstated to the
practice of law in Kansas upon the successful passing of the Kansas bar examination. As the
report of the panel was favorable, the petitioner filed no exceptions to the
report and took no further action, all as contemplated by Rule 219(c).
On October 31, 1980, this court issued its order
denying the petition for
reinstatement. On November 10, 1980, the petitioner filed a motion for rehearing or
modification which was considered by the court and denied on December 10, 1980.
On December 24, 1980, petitioner filed a motion for an order allowing him to
file a brief presenting constitutional questions alleging that his
constitutional rights to due process and equal protection had been violated.
This motion was granted, petitioner and the office of the
disciplinary
administrator have filed briefs, the complete transcript of the proceedings before the panel
has been made a part of
[***7] the record and the court has now studied and considered the petition for a
third time, along with the complete record. A majority of the members of this
court remain of the opinion the petition of Mr. Russo for
reinstatement should be denied.
At the outset we note that the reports and
recommendations of the Board for Discipline of Attorneys and its hearing panels are advisory
only and not binding
upon the court. Rule 212(f), 227 Kan. xxvii;
State v. Phelps, 226 Kan. 371, 598 P.2d 180 (1979),
cert. denied
444 U.S. 1045 (1980);
In re Dunn, 223 Kan. 9, 569 P.2d 366 (1977).
Petitioner argues that the orders of this court entered October 31, 1980, and
[**714] December 10, 1980, were arbitrary and discriminatory
[*8] because the court did not have, and obviously had not considered, an actual
transcript of the proceedings held on June 13, 1980, before the panel. Thus,
it is contended petitioner's right to due process of law was violated.
Petitioner also contends his constitutional rights to equal protection of the
laws have been violated. We do not agree. The report of the
hearing panel reviewed in detail and itemized the thirteen documentary exhibits, identified
[***8] the twenty-five witnesses who testified and summarized at length the testimony
of the witnesses. An actual
detailed examination and consideration of the entire transcript and documentary
evidence merely confirms that the court was fully cognizant of the proceedings
before the panel and the nature and extent of the evidence considered by the
panel. Petitioner's claim that he has been denied due process of law is
without merit.
The fundamental question raised by petitioner is whether this court in a
disciplinary or
reinstatement proceeding may make a determination contrary to the
recommendations of the
hearing panel. While the evidence before the panel indicates that many respected members of
petitioner's community sincerely believe that he has been totally rehabilitated
and should be again admitted to the
practice of law, it is this court's
duty to determine whether the readmission of Mr. Russo to the
practice of law would be in the best interests of justice and the people of the State of
Kansas.
Petitioner, to avoid further
disciplinary proceedings, voluntarily relinquished the privilege to
practice law which had been granted to him in 1962. Such action was not taken lightly
[***9] by petitioner and did
not come about until over two years had
elapsed from the time of his conviction and the filing of the complaint by the
disciplinary
administrator. During such period petitioner was involved in appealing his conviction as he
had every right to do. However, once that conviction became final, it is
conclusive upon this court and this court will not look behind the conviction
or attempt to weigh the evidence leading to that conviction. Rule 202 (225
Kan. lxxxi);
In the
Matter of Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975). Although Mr. Russo contends to this day that he is innocent of the charges
against him, the conviction must stand as a conclusive determination on the
issue of his guilt to conspire with others to violate the laws against
prostitution and to
bribe police officers.
[*9] It is the
duty of the Supreme Court to preserve the high ethical and moral standards required
before a person is entitled to enjoy the privilege to
practice law. When
one first petitions for admission to the bar, he must meet the qualifications
required of a member of the
profession. When a former attorney seeks
reinstatement, he must meet an even greater burden than
[***10] when he was originally admitted and must overcome the prior adverse
conclusions of the court as to his
fitness to
practice law.
Matter of Keenan, 313 Mass. 186, 221, 47 N.E.2d 12 (1943);
State, ex rel. Sorensen v. Goldman, 182 Neb. 126, 153 N.W.2d 451 (1967). Although it may be said that Mr. Russo
"voluntarily"
surrendered his
certificate to
practice law, the same was only done when it became apparent that
disbarment was inevitable, and such
surrender constitutes a voluntary
disbarment. The decision whether
reinstatement of an attorney is justified and will be granted rests exclusively within the
discretion of the court (Application of Daniel, 315 P.2d 789 [Okla. 1957],
70 A.L.R.2d 265;
In re Bennethum, 278 A.2d 831 [Del. 1971]) and the public interest in maintaining the integrity of the
administration of justice is paramount in making such a determination.
A review of the cases concerning
reinstatement to the
practice of law discloses several factors which have been traditionally considered by the
courts. These factors include: (1) the present moral
fitness of the petitioner, (2) the demonstrated
consciousness of the wrongful conduct and disrepute which the
[***11] conduct has brought the
profession, (3) the extent of petitioner's
rehabilitation, (4)
seriousness of the original
misconduct, (5) conduct subsequent to discipline
[**715] and (6) the time which has
elapsed since the original discipline. See Annot.,
70 A.L.R.2d 268. Additional factors include (1) the petitioner's character, maturity, and
experience at the time of
disbarment and (2) the petitioner's present competence in legal skills.
In re Brown, W. Va. , 273 S.E.2d 567 (1980).
In
In re Brown, it was determined that
reinstatement should be denied based solely upon the serious nature of the criminal
conviction and its adverse effect upon the
legal profession and the administration of justice. Brown had been
convicted of a violation of
18 U.S.C. § 371, based upon charges involving
conspiracy to
bribe certain public officials, the same offense for which Mr.
[*10] Russo was
convicted. Brown was also
convicted of
bribery of a juror. In denying
reinstatement the West Virginia court stated:
"Woven throughout our
disciplinary cases involving attorneys is the thought that they occupy a special position
because they are actively involved in administering
[***12] the
legal system whose ultimate goal is the even-handed administration of justice. Integrity
and honor are critical components of a lawyer's character as are a sense of
duty and fairness. Because the
legal system embraces the whole of society, the
public has a vital expectation that it will be properly administered. From
this expectancy arises the concept of preserving public confidence in the
administration of justice by disciplining those lawyers who fail to conform to
professional standards.
. . . .
"Because of the extremely serious nature of applicant's original offense of
bribing a juror when coupled with the separate conviction of conspiring to
bribe public officials, we cannot help but conclude that his
reinstatement would have a justifiable and substantial adverse effect on the public
confidence in the administration of justice. The nature of these crimes
directed as they are to the core of the
legal system and the integrity of governmental institutions demonstrates a profound lack of
moral character on the part of the applicant.
"We have held in
Smith that the seriousness of the underlying offense leading to
disbarment may, as a threshold matter, preclude
reinstatement
[***13] such that further inquiry as to
rehabilitation is not warranted. The offenses involved in this case manifestly meet this
test and for this reason applicant's
petition for
reinstatement is denied."
W. Va. at
, 273 S.E.2d at 570 and 574.
In two recent cases the Supreme Court of Maryland denied
reinstatement over the
recommendations of the
hearing panel and the review board that the attorneys be
reinstated. The two cases were consolidated and involved Frances Dippel, who was
convicted of embezzling clients' funds, and Thomas Raimondi, who was
convicted of attempting to
bribe a member of the General Assembly of Maryland.
In re Raimondi and Dippel, 285 Md. 607, 403 A.2d 1234 (1979). Both were denied
reinstatement based upon the gravity of the original
misconduct. The circumstances surrounding Raimondi's petition are amazingly similar to the
instant case. Raimondi had been
convicted of attempted
bribery of a public official and was
disbarred by consent on December 29, 1972. Raimondi was imprisoned and released from
confinement in 1973. Unlike the present petitioner, he was granted a
full pardon on May 27, 1975. At the hearing on his petition he produced, as
did Mr.
[***14] Russo, a number of individuals who praised him highly and testified to what a
fine gentleman he was. He demonstrated substantial involvement in fraternal
and civic affairs. Four and one-half years had
elapsed since his resignation. During that time he had obtained a master's degree in
public
[*11] administration and served two and one-half years as a hearing officer in the
Insurance Division for the State of Maryland. The
hearing panel and review board both found present
fitness to resume practice and recommended
reinstatement. In disposing of these requests, the following language of the Court is
particularly pertinent:
[**716]
"Where there has been a
disbarment for crimes such as were committed by Dippel and Raimondi we regard the nature
of the crimes and the circumstances surrounding them as one of the most
important of the criteria to be considered on an application for
reinstatement. Therefore, we focus in these two
cases on the nature and circumstances of the original conduct.
. . . .
"It may not have been so labeled, but what courts do when faced with any
application for
reinstatement from a previously
disbarred lawyer is to engage in a balancing process. On
[***15] one side of the scale is placed the seriousness of the
misconduct which produced
disbarment and the court's
duty to society at large to see that only those persons who are worthy of the faith
and confidence of the general public are permitted to handle the affairs of
others. In this regard, it must be remembered as Chief Justice Vinson said in
In Re Isserman, 345 U.S. 286, 289, 73 S.Ct. 676, 97 L.Ed. 1013 (1953),
reversed on other grounds,
348 U.S. 1, 75 S.Ct. 6, 99 L.Ed. 3 (1954), 'There is no vested right in an individual to
practice law. Rather there is a right in the Court to protect itself, and hence
society, as an instrument of justice.' On the other side are placed the subsequent conduct and reformation of such
individual, his present character, his present qualifications and competence to
practice law, and the fact that the very nature of law practice places an attorney in a
position where an unprincipled individual may do tremendous harm to his client.
In this balancing process consideration must be given to the length of time
which has
elapsed since
disbarment. Also, it must not be forgotten that a
disbarred attorney was previously found to possess
good moral
[***16] character. Otherwise, he would not have been admitted to practice law. Thus, either
someone erred in the earlier evaluation of his character or the weakness of
character producing the earlier
misconduct previously failed to manifest itself. For this reason such an applicant must
undergo an even more exacting scrutiny than he did earlier. In evaluating the
statements from others as to the present
good moral character of an applicant for readmission it must not be forgotten that
a
disbarred lawyer - - like many people
convicted of so-called 'white-collar' crime - - had earlier occupied a position in
society where it is probable that testimonials as to his
good moral character, similar to that elicited in connection with his application for
reinstatement, could have been obtained at any point in time prior to knowledge of his
misconduct on the part of those attesting to his good character.
. . . .
"Raimondi was
convicted of an attempt to
bribe in connection with the highly unusual situation in which the General Assembly
of Maryland was obliged to elect a Governor to serve a little more than two
years of the remaining term of the Governor previously elected by the people.
Such conduct
[***17] strikes at the very fundamentals of our government, and the more so when it is
perpetrated by a
[*12] member of the Bar sworn to support the Constitution and laws of this State.
See Maryland Code (1957) Art. 10,
§ 10.
"Balancing all of the above mentioned factors and particularly taking into
consideration the
conduct for which Messrs. Dippel and Raimondi were
disbarred and the time which has
elapsed since then, we are unwilling to once again constitute them officers of this
Court, thereby placing them in a position where they may handle the affairs of
others. Thus, their petitions for
reinstatement will be denied."
285 Md. at 617-620. (Emphasis added.)
Conspiracy to
bribe a
police officer in order to protect and promote other illegal activities is an offense that is
totally repugnant to the administration of justice and the
duties of an attorney who has taken a solemn oath to uphold the constitutions and
laws of the United States and the State of Kansas. Such an offense strikes at
the very heart of our criminal justice system
[**717] and if tolerated could completely destroy our system of justice as it has
always existed in this country. It is obvious from the cases
[***18] that each petition for
reinstatement must be considered on its own merits and that such decisions must be made on a
case by case basis depending upon the facts
involved. The refusal to grant Mr. Russo
reinstatement to
practice law in spite of the
recommendations of the
hearing panel does not deprive him of equal protection of the law. Considering the gravity
of the offense for which petitioner was originally
convicted, a majority of this court is of the opinion that the petition of Anthony R.
Russo for
reinstatement at this time to the
practice of law in Kansas must be and is hereby denied.
DISSENTBY: PRAGER
DISSENT: Prager, J., dissenting:
I respectfully dissent. On the basis of the report of the
hearing panel and the evidentiary record, I would reinstate the petitioner, Anthony R.
Russo, to the
practice of law. The Supreme Court has consistently held that, although a report of a
disciplinary hearing panel is advisory only, it is to be given the same dignity as a
special verdict by a jury, or the findings of a trial court, and will be
adopted where amply sustained by the evidence.
State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975).
The petition of Russo for
reinstatement
[***19] was heard by a
hearing panel consisting of three outstanding and able members of the bar who, in the past,
have demonstrated a great interest in and dedication to the
legal profession and the administration of justice. At the hearing before the
hearing panel, twenty-five
[*13] witnesses appeared on behalf of
petitioner's application for
reinstatement. The
disciplinary
administrator did not call a single witness to the stand in opposition to the testimony of
these witnesses. The
reinstatement of Russo to the
practice of law was recommended by the Honorable Harry G. Miller, then administrative district
judge of Wyandotte County, Kansas, and his associate, the Honorable William M.
Cook. The Honorable O. Q. Claflin III, retired district judge and a member of
the Judicial Qualifications Commission, testified on behalf of
reinstatement. Other witnesses who testified for the petitioner were (1) representatives for
the Kansas Insurance Department and the Kansas Real Estate Commission; (2)
various members of the bar of Wyandotte County who have been acquainted with
the petitioner since he took up the law practice in that county in the 1960's;
and (3) respectable businessmen from Wyandotte
[***20] County. Also testifying for Russo's
reinstatement were the present mayor of Kansas City, Kansas, who has
known the petitioner for fifteen years, and a former mayor who has served as
state senator, judge of the city court of Kansas City, and city attorney. Two
of the present Wyandotte County Commissioners testified on behalf of the
petitioner along with a member of the Kansas City Civil Service Board. I also
note the testimony of Michael Lerner, attorney and chairman of the Wyandotte
County Grievance Committee, who was one of the petitioner's attorneys in the
proceeding which led to the suspension of petitioner's license. Petitioner and
his wife also testified on his behalf. In opposition to this testimony, not a
single live witness appeared to testify against petitioner's
reinstatement.
In recommending
reinstatement of Russo's license for the
practice of law, the
hearing panel listed six factors which it considered. These are essentially the same
factors which are discussed in the majority opinion and set forth in syllabus
para. 4. The report of the
hearing
panel stated in part as follows:
"The State's Trial Brief lists six factors generally considered by courts in
determining
[***21] an applicant's present
fitness to be
reinstated to the
practice of law. Each of these factors will be considered with reference to the
evidence presented at the hearing.
"1. Petitioner's present moral character and ethical
fitness
establishing him as a trustworthy member of the bar
"In the Panel's view, this is the paramount consideration in that it focuses
upon the protection which is due the
legal profession and the general public. As the
[*14] State's Trial Brief points out should be the case,
[**718] the public interest is the primary consideration guiding this Panel's
recommendation. The
evidence presented at the hearing was overwhelming that Petitioner's present moral character and
ethical
fitness establish him as a trustworthy member of the bar.
"The Panel finds, based upon the
evidence presented at the hearing, that the conduct of Petitioner subsequent to the time of his
release from incarceration for his prior
felony conviction displays those qualities of resolve and attitude of mind
required of an attorney as an officer of the court and by the oath he takes in
becoming an officer of the court. The Panel's reasoning, based upon the basic
facts established
[***22] by the evidence, is as follows:
"(a) Since his release, Petitioner has won the respect of business associates
and employers and the approval of government agencies of the State of Kansas,
and has displayed diligence, devotion to performing his contractual
obligations, and straightforward honesty in dealing with those with whom he has
had contact.
. . . .
"(b) Petitioner's attitude toward the
legal system, which he feels rendered him an injustice in his prior conviction, continues to
be one of loyalty, without bitterness, understanding that mistakes can be made,
and lacking in any indication of intention on his part to abuse it, clients,
adversaries or the courts in any way should he be
reinstated.
. . . .
"(c) Prior to his conviction, Petitioner possessed the integrity and the
technical skills of an honest, effective and unselfish attorney, and had the
respect of the courts
before whom he practiced, prominent attorneys who had occasion to observe his
work in law practice, and clients who engaged his services, as well as former
adversaries. . . .
"(d) Since his release, Petitioner's business activities and his life outside
his former
profession have been exemplary in every respect.
[***23] . . .
"2. Demonstrated
consciousness of the wrongful character of prior
misconduct and remorse for
the disrepute it has brought on the
profession
"This factor can be broken down into two parts:
"(a) Demonstrated
consciousness of the wrongful character of the prior
misconduct; and
"(b) Remorse for the disrespect it has brought on the
profession.
"There is no question in the Panel's mind, both from the testimony of Petitioner
and from the testimony of other witnesses who have known and been in close
contact with Petitioner since his incarceration that he has a deep and genuine
remorse for the disrepute which his conviction has brought, not only on the
legal profession, but also upon his family. However, because of Petitioner's continued
maintenance of his innocence of the conduct of which he was
convicted, it is
impossible for him to demonstrate a
consciousness of the wrongful character of his prior
misconduct. Put another way, if
rehabilitation, within the meaning of Rule 219, can occur only when a petitioner admits prior
misconduct, it is impossible for Petitioner, or anyone else who maintains that he is
innocent of the charge of which he has been
convicted, ever
[***24] to be
reinstated to
practice law in the State of Kansas.
"The Panel is troubled by such a construction, and, after a great deal of
consideration of the question is of the opinion that Petitioner's continued
maintenance
[*15] of his innocence should not, standing alone, prevent him from demonstrating
that he has rehabilitated himself so as to be entitled to
reinstatement. While the Panel concedes the wisdom of the Rule 202 provision making the
certificate of a conviction of an attorney for any crime conclusive evidence of the
commission of that crime in any
disciplinary proceeding instituted against that attorney based upon the conviction, so as
not to enable the attorney to retry the prior criminal case, the Panel
questions the wisdom or necessity in a
reinstatement proceeding, where a number of other factors are necessarily involved, of an
ironclad rule which absolutely rules out the possibility of
[**719] a miscarriage of justice in the prior criminal case.
"The Panel has given due consideration to the fact that normally a demonstrated
consciousness of the wrongful character of prior
misconduct is necessary before an individual can show genuine remorse and change his
[***25] conduct sufficiently so as not to again place himself in the same
circumstances. In light of all the
evidence presented at the hearing, the Panel is of the opinion that because of the facts and
circumstances in this case, Petitioner should be allowed to demonstrate his
rehabilitation and present moral
fitness to
practice law without renouncing his claim of innocence of the charge of which he was
convicted.
"Although Petitioner does not admit the conduct of which he was
convicted, there was a substantial amount of testimony to the effect that Petitioner has
recognized that certain aspects of his prior attitudes and conduct
led to his difficulties and that in these areas Petitioner's attitudes and
conduct have changed for the better. This will be discussed in the following
section of this opinion.
"3. Satisfactory showing of
rehabilitation and
reformation overcoming the former finding of moral deficiency
"Because of the fact of his prior conviction, and his loyalty to the
legal system of which he now wants again to become a part, Petitioner appears to have the
resolve to prove his integrity, honesty and technical skills to a greater
extent than what might be expected of
[***26] other practitioners or perhaps himself prior to his convictions of the crime.
This conclusion is supported by testimony from a number of witnesses. To the
extent that
rehabilitation is viewed as requiring a change from one's former state or conduct, the Panel
finds that testimony of the witnesses at the hearing satisfactorily establishes
that such a change has occurred in Petitioner.
. . . .
"(e) Petitioner's own testimony was that the people who were really hurt were
his family and other lawyers because his conviction reflected badly on other
lawyers. He testified that in his view the only thing he can do to
rehabilitate himself with other lawyers is to be
reinstated and to do the very best he can. He testified that he knows he has to avoid
the appearance of impropriety and that he has a commitment to do so, whether he
is ever
reinstated or not. He further testified that now, if there were ever a situation
presented where he would be precarious, he would avoid it. He further
testified that although it would have been easier for him not to apply for
reinstatement, he elected to do so in order to fulfill what he sees as a commitment to the
other lawyers. He testified that he
[***27] has had lots of time to reflect on his life and that he would not go back to
the
practice of law as he knew it. He testified that he could have handled himself better as a
lawyer and that he did make mistakes, that he should have been more careful
with his clients and his communications with them, that he hopes that he can do
it better in the future.
[*16]
"4. The nature and seriousness of the
misconduct
for which the applicant was disciplined
"Although Petitioner was not
convicted of having bribed or having attempted to
bribe a
police officer, he was
convicted of having conspired to do so. The conduct of which Petitioner was
convicted, and which led to the
surrender of his license to practice law, is unquestionably serious. A
conspiracy to
bribe a
police officer strikes at the heart of the
legal system in that it is intended to subvert the honest and impartial operation of the
system. The Panel is struck by the fact that Petitioner's conviction of this
particular crime is totally out of character when set against the overwhelming
evidence which in the Panel's view establishes Petitioner's
good moral character and respect for and devotion to the
legal system.
[***28]
"5. Petitioner's conduct subsequent
to the discipline imposed
"Petitioner's conduct subsequent to the
surrender of his license has been fully discussed above in connection with other factors
to be considered.
[**720]
"6. The time which has
elapsed between the
disciplinary
action and the application for
reinstatement
"Although Petitioner
surrendered his license to practice law on June 17, 1976, when his petition to the United
States Supreme Court for a writ of certiorari was denied, the conduct for which
Petitioner was
convicted and which led to the
surrender of his license occurred in 1972 or 1973. Regardless of which date is chosen
as a reference point, the Panel believes that sufficient time had
elapsed for Petitioner to be able to demonstrate his
rehabilitation."
I agree with the majority as to the factors to be considered in determining
whether a former attorney should be
reinstated to the
practice of law. I agree that the decision as to whether an attorney should be
reinstated rests exclusively with the Supreme Court under its constitutional powers. I
agree that the fact of the
criminal conviction is not a matter to be disputed collaterally
[***29] in a
disbarment proceeding or on a hearing for
reinstatement. Supreme Court Rule No. 202, 225 Kan. lxxxi, in the last paragraph provides:
"A
certificate of a conviction of an attorney for any crime shall be conclusive evidence of
the commission of that crime in any
disciplinary proceeding instituted against said attorney based upon the
conviction."
I disagree with the majority opinion that, in considering
reinstatement, a
disciplinary hearing panel and this court are totally precluded from examining the facts
and circumstances involved in a prior criminal conviction for the purpose of
determining whether or not there are aggravating or mitigating factors present.
The
hearing panel noted petitioner's testimony on the circumstances which brought about his
conviction. His testimony,
[*17] which was uncontradicted and which was the only evidence on the question, was
substantially as follows:
"[I]n 1973 a client of Petitioner's told the Federal Bureau of Investigation
that money which he had paid to Petitioner in 1972 or 1973 was not actually
legal fees, but was instead protection money which Petitioner had agreed to pay
to a police lieutenant of the vice squad
[***30] to protect the client's massage parlors from raids. Petitioner reported the
amounts paid as legal fees on his tax returns and paid income taxes on them.
Petitioner was charged with
conspiracy to
bribe the
police officer, but not with
bribery, attempted
bribery, or
prostitution. The
police officer was a codefendant in the trial and was acquitted on the basis that there was
no
bribery. Petitioner's client pleaded guilty to the charge of agreeing with Petitioner
to
bribe the
police officer, and the jury found Petitioner guilty of the
conspiracy."
It is important to note that the offense of which Russo was
convicted was
"conspiracy
to violate interstate travel in furtherance of
prostitution and
bribery offenses, in violation of
18 U.S.C. 371." (Emphasis supplied.) He was neither charged nor
convicted of
bribery or attempted
bribery or
prostitution. According to the undisputed evidence in the record before us, Russo was
convicted on the sole testimony of a former client who pled guilty to the same
conspiracy charge of which Russo was
convicted. I do not dispute that the charge brought against Russo and of which he was
convicted was a serious charge amounting to a felony under
[***31] federal law. I think it
important, however, to emphasize, as did the
hearing panel, that there was no
evidence presented to show that Russo was guilty of either an attempted or completed crime of
bribery or
prostitution.
I have no quarrel with the cases cited in the majority opinion from other
jurisdictions holding that the serious nature of a criminal conviction
may have such an adverse effect upon the
legal profession and the administration of justice as to justify the nonreinstatement of an
attorney. I do wish to point out, however, that the circumstances in the two
cases relied upon are not the same as the one presented in the case now before
us. The majority opinion cites
In re Brown, W. Va. , 273 S.E.2d 567 (1980). In
Brown, a full evidentiary hearing was
[**721] had before the ethics committee of the West Virginia State Bar, which filed a
written report
opposing the
reinstatement of Brown's petition to
practice law. Furthermore, in
Brown, the
applicant for
reinstatement had been adjudged guilty of
three separate counts of
conspiracy and the
actual
bribery of a juror. There is no testimony set forth in
Brown, comparable to the
[***32] extensive testimony presented in this case, supporting Brown's
reinstatement as an attorney. The
[*18] facts in the
Brown case are thus not comparable to the facts in the case now before us.
The majority opinion also cites and relies upon the Maryland case of
In re Raimondi and Dippel, 285 Md. 607, 403 A.2d 1234 (1979). In
Raimondi, the attorney seeking
reinstatement had been
convicted of an
actual attempt to
bribe a member of the Maryland General Assembly. I, likewise, do not find in the factual circumstances of
Raimondi, the overwhelming support for Raimondi's
reinstatement as was provided by the distinguished judges and lawyers of Wyandotte County in
the Russo case.
Anthony R. Russo, a
graduate of Washburn University Law School, was admitted to practice in the
courts of Kansas in 1961. The only blot in his entire career was the
conviction in federal court which caused him to
surrender his
certificate to
practice law in 1976. There is no evidence whatsoever that Russo ever misappropriated a
client's funds or represented a client in an inefficient or unprofessional
manner. There is no evidence that he ever deceived a client or made a knowing
misleading
[***33] or untruthful statement to a court. Russo has been out of the
practice of law since June of 1976, when he voluntarily
surrendered his
certificate. I consider this five-year period of suspension a sufficient
disciplinary penalty under all the circumstances. I believe that he deserves another
chance and I would afford him one by granting his petition for
reinstatement.
As noted in the majority opinion, in considering the
reinstatement of a
disbarred
attorney, the Supreme Court has the
duty to balance all of the various factors in determining whether or not
reinstatement would be granted. Each case must be decided on a case-by-case basis. Under
all of the factual circumstances here and in view of the unanimous
recommendation of the
hearing panel of the
disciplinary board, I would grant the petition of Anthony R. Russo for
reinstatement to the
practice of law in this state.
